1. ' This appeal is directed against the judgment, dated 11-11-1992, passed by the 1st Additional Sessions Judge, Hyderabad, whereby the appellant has been convicted in Sessions Case No,96 of 1984 (State v. Baboodin) under section 302, P.P.C. Registered at Police Station Latifabad as Crime No,314/83 and sentenced to imprisonment for life and to pay fine of Rs,10,000 and in default to undergo R.I. For one year more. The half of the amount of fine, if recovered, shall be paid as compensation to the legal heirs of the deceased. The accused was also given benefit of section 382-B, Cr.P.C.
2. ' Briefly stated the facts which give rise to this appeal are that on 5-12-1983 complainant Muhammad Anwar lodged his above-referred F.I.R. As under:-- "I am a Tonga Driver. Ramzan son of Muhammad Bux Shaikh Qureshi is my Masat, who has a small Chhuri-making Karkhana in Unit No,12, where laborers, namely, Aslam son of Khushi Muhammad, Baboodin Rangraz and others work. Today in the evening at about 18-15, I was present in my house, when Aslam son of Khushi Muhammad came and informed me that Baboodin Rangraz had taken advance of Rs,870 from your Masat Ramzan for working in a Karkhana, but since about a week he was not coming, Ramzan told him that he was not coming for work, either come to work or return, my advance money, to me. He (Baboodin) said that 'I will not work with you; you come to my house tomorrow in the evening and get back the money'. Due to this, today in -the evening Ramzan took me and we went to street of his house, where Ramzan called Baboodin from the street, whereupon Baboodin came in the street, from whom Ramzan demanded money, on which Baboodin abused Ramzan, saying go away, I have no money, Ramzan told him that he was unnecessarily speaking, on this Baboodin took out knife from his pocket, opened it and caused knife blows on chest, stomach and left arm of Ramzan, whereupon I (Aslam), passerby Moeeinuddin and Khurshid Faquir ran and intervened and saved him. Thereafter Baboodin with a knife in his hand went away to Hill side, while. Ramzan was bleeding from injuries and went unconscious. I leaving Moeenuddin Khurshid Faquir with Ramzan have come to inform you. On receiving such information from Aslam, I along with Aslam came to Ramzan, who was lying on the ground having injuries on stomach, chest and arm, he was bleeding and was unconscious. Moeenuddin and Khushi Muhammad were present with him. I then took Ramzan to L.M.C.H. On a rickshaw for first aid. Doctor told me to arrange for blood, I then went to my house, took money, and went to the hospital to arrange. I now appear to file report that accused Baboodin Rangrez has injured my Masat Ramzan by causing injuries on delicate parts of his body with intention to kill him. Had P.Ws. Not reached, he (Baboodin) would have murdered him. Action be taken."
3. ' The S.H.O. Registered the case and went to L.M.C.H., Hyderabad and noted down the injuries on the person of injured Ramzan and in presence of Mashirs prepared such Mashirnama. He also secured blood-stained clothes of injured in presence of the same Mashirs, sealed them in a parcel and prepared Mashirnama. The police then went to Unit No,12 and recorded the statement of P.Ws.
4. Under section 161, Cr.P.C. On the next day i,e, 6-12-1983 statement of injured Ramzan was recorded in hospital under section 161, Cr.P.C. And visited the place of Ward at and prepared Mashirnama in presence of the Mashirs which was shown by the complainant. On 13-2-1984 injured Ramzan died and on receiving such information police visited the L.M.C.H., Hyderabad and inspected the dead body and prepared Mashirnama. The police also prepared inquest report in presence of the Mashirs and referred the dead body to Medical Officer for conducting the post-mortem. On 18-2- 1984 police arrested the accused in presence of the Mashies and prepared such Mashirnama. The appellant volunteered to produce the crime weapon viz. Knife and led the police and Mashirs to Hill of Unit No,12 and produced the blood-stained knife which was secured under a Mashirnama. The police also got recorded 164, Cr.P.C. Statement of P.Ws. And also 164, Cr.P.C. Statement of accused and challenged the accused under section 302, P.P.C.
5. ' In support of their case, the prosecution examined 13 witnesses.
6. ' P.W.1, Anwer, complainant (Exh.5), who produced the F.I.R. As Exh.6. P.W.2 Muhammad Tufail (Exh.8), who produced Mashirnama of Ward at as Exh.9, Mashirnama of dead body as Exh.10 and inquest report as Exh.11. P.W.3 Masher Fateh Muhammad (Exh.12), who produced Mashirnama of arrest of accused as Exh.13. Exh:14 is a statement made by the learned A.P.P. Giving up P.W. Naseem Ahmed.
7. P.W.4 Ghulam Muhammad (Exh.16), who produced Mashirnama of recovery of crime weapon as Exh.17. P.W.5 Muhammad Moinuddin (Exh.18), who produced 164, Cr.P.C. Statement as Exh.19. P.W.6 Qamardin (Exh.20), who produced Mashirnama of injuries of injured Ramzan as Exh.21 and Mashirnama of securing the blood-stained clothes of injured Ramzan as Exh.22. P.W.7 Muhammad Aslam (Exh.23). P.W.8 Khursheed (Exh.24), who produced 164, Cr.P.C. Statement as Exh.25. P.W.9, Sub-Inspector Khurshid Ahmed (Exh.26), who produced 161, Cr.P.C. Statement of injured Ramzan as Exh.27 and the report of Chemical Analyzer as Exh.28. P.W.10 Dr. Iqbal Hussain (Exh.30), who produced the post-mortem report as Exh.31. P.W.11 Qabool Ahmed Shaikh, A.C.M., Latifabad (Exh.32), who produced the confessional statement of accused Baoding as Exh.33. P.W.12 Tapedar, Shah Ali (Exh.34), who produced the sketch of the Ward at as Exh.35 and P.W.13 Dr. Anwer Husain (Exh.36) in place of Dr. Abdul Fateh, who was stated to be out of the country. As such he produced medical certificate issued by Dr. Abdul Fateh as Exh.37 and the prosecution closed its side by Exh.38.
8. ' Appellant/accused Baboodin was examined under section 342, Cr.P.C. In which he denied the allegations and also retracted from the confessional statement and stated that he has been falsely implicated due to enmity and examined Mst. Guddo as a defense witness as Exh.41. The appellant/accused did not examine himself on oath.
9. ' The learned Sessions Judge after determining the following points ' convicted the appellant Baboodin and sentenced him to suffer imprisonment for life and to pay a fine of Rs,10,000 and in default to undergo R.I. For one year more as stated above:--
(1) Whether the deceased died as a result of injuries inflicted upon him?
(2) Whether the above said injuries were inflicted by accused with intention to kill the deceased Ramzan?
(3) What offence if any committed by the accused?"
10. ' The main contentions of the learned counsel for the appellant/accused are that the confessional statement of the accused is under duress; that there was no intention or motive to murder and this all happened under grave provocation, as such the case falls under section 304(2), P.P.C.; that the accused is in jail since 18-2-1984; that the recovery of crime weapon is doubtful and the same was sent to the Chemical Analyser at a very late stage as such it cannot be relied upon; that the incident had taken place in front of the house of the appellant/accused and that admittedly the scene of offence is a thickly populated area, but none of the eye-witnesses is cited from the area.
11. Learned counsel for the appellant/accused has also pointed out that the recovery of the weapon is dated 19-2-1984 while it was sent to the Chemical Analyser on 18-7-1985, as such the recovery is doubtful and the report of the Chemical Analyser is not reliable; that from the sketch of the Tapedar the whole case becomes doubtful as point "A" which is the place of Wardat cannot be seen from point "C", where P.Ws. Moinuddin and Khursheed Faquir were stated to be standing and saw the incident. In support of his contentions he has placed reliance on 1994 SCM R 80, 1978 PCr.LJ 420 and 1992 SCM R 196.
12. ' Miss Nasrin Zafar, learned counsel appearing for the State, has argued that the incident took place at 6-45 p.m. And within half an hour the injured was removed to the hospital and then within two hours the F.I.R. Was lodged, giving the name of the appellant/accused and all the witnesses.
13. According to her, there are three eye-witnesses which are independent and the people of the locality and in no way connected with the deceased. There is a volunteered confession recorded by Mr. Qabool Ahmed Shaikh, A.C.M. On the next day of the arrest which is corroborated by the three independent witnesses though the same is retracted now. She has also argued that there is a statement, which was recorded in the hospital on the next day of the incident under section 161, Cr.P.C. And the same was treated as dying declaration after the death of Ramzan. Lastly, she has contended that there is recovery of the blood-stained knife in presence of the private Mashirs of the locality; that there is a motive as intentionally the deceased was called by the accused to his house for returning the amount of Rs,870 which was with the accused as an advance; that there is an intention to murder as the accused/appellant caused five sharp-side injuries on the vital parts of the deceased and that the witnesses were examined in Court after 5 years and in spite of that there is no material contradiction or discrepancy in their evidence. In support of her contentions she has placed reliance on 1995 PCr.LJ 120, 1995 PCr.LJ 313 and 1982 PCr.LI 350.
14. ' I have heard the arguments of both the counsel and with their assistance have also perused the record.
15. The complainant who is related to deceased was informed by P.W. Muhammad Aslam, who was at the time of the incident had gone to the house of accused, who immediately within half an hour took the injured to the hospital and within two hours with full details reported the matter to the police. Apart from eye-witness Muhammad Aslam there are two independent witnesses, namely, Moinuddin and Khurshid Faquir who are the residents of same locality as such they are independent and natural witnesses. In spite of the lengthy cross-examination none of the three witnesses could be shattered. There is a confession of the accused, recorded by the First Class Magistrate though retracted by the appellant/accused. Here reference can be made to 1980 SCM R
937. There is also dying declaration which was recorded by the police officials on 6-12-1983, immediately after the injured gained senses. Here also reference is made to Article 46 of Qanun-e- Shandat and 1980 PCr.LJ 1190. As far as the recovery is concerned, though the recovery was made next day in presence of the independent Mashirs as the accused led the Mashirs and police to a Hill and produced the blood-stained knife hidden under stones, but the same due to the negligence on the part of the S.H.O. Concerned was sent to Chemical Analyser on 18-7-1985 after the lapse of almost one year and five months. For that the Department can take action against such official who has deliberately and intentionally tried to spoil the case and a good piece of evidence. There are as many as five injuries on the vital part caused by the accused which show that the accused had an intention to kill the deceased. There is a motive though the amount involved is a petty one, of Rs,870.
16. ' After going through the evidence and the arguments of the learned counsel I am f)f the view that the evidence of even one witness is sufficient for the conviction of the accused if found consistent, reliable and acceptable. Here reference is made to PLD 1980 SC 225.
17. ' Under these circumstances, I am of the view that the learned trial Judge has already taken a very lenient view in convicting the appellant/accused. The appellant/accused has deliberately and intentionally murdered a young boy and has spoiled the family of the deceased. However, he is in jail since 18-2-1984. I do not find any strong reason to interfere with the order of the learned 1st Additional Sessions Judge, Hyderabad. This appeal is accordingly dismissed.