' The applicant Masroorul Hassan has been arrested and sent up for trial for offences punishable under section 156(8) and (89) of the Customs Act. He was refused bail by the Special Judge (Customs and Taxation), Karachi on 8-1-1975 on the ground that the burden of proof that there was no act to defraud the Government of any duty or taxes payable on the goods shall be on the person from whose possession the goods are seized and that in the present case "by no evidence whatever documentary or otherwise, the burden has been discharged even, prima facie for the purpose of disposal of this bail application." This application was rejected at the time when the applicant accused had not been finally challaned by the investigating authority and so the Special Judge K thought that the investigation being still in progress it was too premature to say that there are reasonable grounds to believe that the applicant is not guilty of the offence under section 156(8) of the Customs Act, which is punishable with a sentence of imprisonment for 10 years or that he could be reasonably held to be guilty of an offence under section 156(89) of the same Act which is punishable with six years imprisonment. Now that the case has been ultimately challaned, the applicant has filed the relevant documents including 161, Cr. P. C. Statements in Court and upon the basis of the same, the counsel for the applicant raised argument that, prima facie, the offence that could be made out would be under section 156(89) of the Customs Act and not one under section 156(8) of the Customs Act. This being punishable with imprisonment for six years he contended that bail should not be refused to him unless reasonable grounds are made out to hold him guilty.
So far as the section which would be applicable to the facts of the case., the learned Assistant A.-G.
Also agreed and very rightly that as the facts and circumstances stand at present, the applicant could he said to be liable only under that section. He, however, contended that bail should still be refused because the evidence so far collected disclose that goods i. e. Watches worth about 20 to 30 lakhs of rupees had been secured from a room in the house Kashana-e-Bano in Nazimabad which room was locked, but the key for which was supplied by the applicant. Thus according to him the possession of the goods was proved to be that of the applicant and that the burden of proving that these goods were not smuggled, which term has by now been defined under the Act, was heavily on the applicant himself. The counsel for the applicant argued that on the one hand import of watches was admittedly on the free list and therefore such goods were available in the country, and on the other hand, the body of Iqbal deceased and sent that statement to the police station for the registration of the case. He prepared the inquest-report (Exh. P. M.) and despatched the dead body to the mortuary for post-mortem examination. He also recorded the statement of Muhammad Akram P. W. Who was also present in the hospital and completed the proceedings at the hospital by 3 a.m. Then he started for the place of occurrence. On reaching the Cut Piece Bazar he came to know that the appellant had been apprehended and was at the house of Haji Muhammad Shafi. He went to the house of Haji Muhammad Shaft and found him in the custody of Baqir Husain P. W., Bahadur Shah and Umar Gul. He found some injuries on his person and prepared his injury-statement (Exh. P. S.). Then he arrested him and removed shirt (Exh. P. 1), saluka (Exh. P. 2) and shalwar (Exh. P. 3), all blood-stained from his person and made these clothes into a sealed parcel vide memo. Exh. P. 4) before the S. H. 0, who made it into a sealed parcel vide memo.
(Exh. P. B). Then he reached the spot. He did not find any blood in the street in which the occurrence had taken place. He collected some blood from near the shop of Rashid Attar and made it into a sealed parcel vide memo. Exh. P. G. After the investigation, a case was sent up against the appellant under section 302 of the Pakistan Penal Code.
4. On 24th October 1971, at 3-30 p.m. Dr. Burhan Ahmad Khan Medical Officer, Police Surgeon's Office, Lahore, conducted the autopsy on the dead body of Muhammad Deceased and found the following injuries on it :-
(1) A stab wound on left side of neck, upper part through and through, wound of entry 1' x r and wound of exit 4' x 1/8" passing under the skin.
(2) Multiple abrasions covering an area of l 4" x r on the left side of neck middle part.
(3) Stab wound 3/4' x 1/6" on left side of chest 2' below the anterior axillary fold, it had passed through the pectoral muscles, cut the 3rd rib for 1', intercostal muscles, pleura, lower lobe of lung where there was through and through cut, pericardium and left ventricle.
(4) Stab wound 3/4" x 1/4' on the left side of chest 6' below the anterior axillary fold on anterior axillary line. It had entered the left chest through the 9th intercostal space, cutting the pleura, peritoneum and stomach.
(5) Stab wound 3/4' x1/4' on front of left lower chest 7' below the left nipple, it had passed through the muscles and cut the cartilage of 12th rib."
' In the opinion of the doctor, death was due to shock and haemorrhage as a result of injuries Nos. 3 and 4 which were individually sufficient to cause death in the ordinary course of nature. Injuries Nos. 1, 3, 4 and 5 were caused by a sharp-edged and pointed weapon while injury No, 2 was by a blunt object. Injuries Nos. 1 and 2 were simple. All the injuries were ante-mortem. Probable duration between injuries and death was instantaneous and that between death and post-mortem about 12 to 24 hours.
' On the same day at 9-50 a.m., the same doctor examined Shaukat Ali appellant and found the following injuries on his person :-
(1) Three abrasions about 4' x I/32* on the right side of the neck.
(2) A contused wound 1' x x scalp deep on right side of the top of head.
(3) Abrasion 2' x 1/4' on right side of front of chest 4i' below the anterior axillary fold.
' MI the injuries were simple, caused by a blunt weapon within the duration of 6 to 12 hours.
' In cross-examination the doctor stated that the left side of the heart and the left lung of the deceased were punctured.
5. To support its case the prosecution examined fifteen witnesses in all. Muhammad Akram (P. W.
10), lrshad Hussain (P. W. 11), Barkat Hasan complainant (P. W. 12) and Mst. Balqis Begum (P. W.
1.3) furnished an ocular account of the occurrence. Baqir Hussain P. W. 8) deposed that on reaching near the shop of Sheeda Attar he saw the appellant running followed by the deceased who was stumbling and raising alarm that "Shaukat accused may be caught because he has injured him".
He further stated that the deceased fell down near the shop of Sheeda Attar and he along-with Umar Gul and Bahadur chased the appellant and overpowered him in the bath-room of the house of SaM Muhammad and snatched the bloodstained chhuri from him. Then they brought him to the Baithak of Haji Muhammad Shafi where he was handed over to the police. Shaukat All (P. W. 9) who was cross-examined by the Public Prosecutor with the permission of the Court and whose statement before the Committing Magistrate was transferred to the Sessions' file, deposed at the trial that at 10-30 p.m. Be got up on bearing the noise of the deceased and from the window of his house he saw the deceased shouting "bachao bachao as Shaukat had injured him". The prosecution also relied on the motive and the recovery of the blood-stained chhuri from the appellant.
6. The appellant pleaded not guilty to the charge. He admitted that he used to live in the fourth storey of House No, 840-D as a tenant with his father and the other members of his family and the deceased and his family resided In the third storey of the same building. He admitted that the police had removed blood-stained clothes from his person and claimed the clothes as his own.
When asked to explain the injuries on his person he made the following statement :- "I was medically examined. As a matter of fact I was returning after offering my taravee prayer when the deceased who was armed with a rota attacked me. I ran in the Bazar screaming to be saved and at the shop of Rashid Attar upon the intervention of the persons who had gathered at my alarm, I was saved. The deceased was thereupon caught by the persons present there."
' He further stated :- "The deceased committed a murderous assault on me, injured me as he suspected my behaviour and objected to my conduct towards his daughter Mst. Zarina. I had no motive whatsoever to kill him. At the shop of Rashid Attar some body in the melee injured him and I was falsely implicated in this case thereafter."
' The appellant contended that the deceased was not injured in the' blind lane of his house and nobody had seen the occurrence. He produced an excerpt from the electoral role of Ward No, 48, Chuna Mandi, Lahore (Copy Exh. D. B.) in his defence.
7. The learned trial Judge accepted the motive and the recovery of blood-stained chhuri and blood-stained clothes from the appellant. He believed the ocular account as also the testimony of Baqir Hussain P. W.
' He rejected the defence version and on the basis of the above prosecution evidence found the appellant guilty of murder.
8. The learned counsel for the appellant assailed the motive alleged by the prosecution and contended that the F. I. R. Was recorded after the preliminary investigation. He further contended that the occurrence was not witnessed by any person and Irshad Husain, Muhammad Akram, Mst.
Balqis Begum and Barkat Hasan P. Ws. Were false witnesses. He further argued that the first- mentioned three witnesses were closely related to the deceased and Barkat Hasan P. W. Was his partner in business, therefore, no reliance could be placed upon them. He contended that the absence of blood at the alleged place of occurrence indicated that the occurrence had not taken place in the lane as alleged by the prosecution. He contended that prosecution version was belied by the medical evidence and defence version was more plausible than the prosecution case.
9. We have gone through the record with the help of the learned counsel for the appellant and the State and have given our careful consideration to the arguments addressed by them. Barkat Hasan complainant (P. W. 12), lrshad Husain (P. W. 11) and Abdur Rashid (P. W. 14) supported the motive alleged by the prosecution. Barkat Hasan and Irshad Husain stated that the appellant used to reside in different storeys of the same house and the appellant developed illicit relations with Mst. Zarina, daughter of the deceased. They further stated that the deceased had got him ejected from the house on that account. In cross-examination they stated that the deceased had told them about the illicit relations of the appellant with his daughter Mst. Zarina. Barkat Hasan further stated that he had no personal knowledge about the said illicit relations. Lrshad Husain stated that the deceased never sought his assistance for the ejectment of the appellant from the house. It was contended that these P. Ws. Had no personal knowledge about the alleged illicit relations of the appellant with Mst. Zarina and his eviction from the house on that account, therefore, the the motive alleged by the prosecution was not established. It was further urged that Mst. Zarina who was the best witness of the motive was examined in the committing Court but was given up at the trial, therefore, an adverse inference should be drawn against the prosecution. It is true that Irshad Husain and Barkat Hasan had no personal knowledge about the illicit relations of Mst. Zarina with the appellant and the deceased had not sought the help of Irshad Husain P. W. For his ejectment nor Mst. Zarina was produced at the trial, but we have the direct evidence of Sh. Abdur Rashid (P. W.
14) in support of the motive which coupled with the statement of the appellant leaves no room for doubt that the appellant was ejected from the house on the complaint of the deceased. Sh, Abdur Rashid P. W. Who was neither related to the deceased nor inimical to the appellant, had stated that the deceased was his tenant in the third storey of his building while the appellant and his father were his tenants in the fourth storey of the same building, and this fact was also admitted by the appellant. He further stated that the deceased had asked him that the house occupied by the appellant should be got vacated as he was teasing his daughter and if this was not done then he (the deceased) would vacate the same. The appellant also admitted that the deceased suspected his behaviour and had objected to his conduct towards Mst. Zarina. Abdur Rashid P. W. Further stated that five or six months prior to the occurrence he asked the father of the appellant to vacate the house and the appellant and his family left his house but locked it from outside. He further stated that two or three months after the occurrence they took out their luggage and delivered the possession of the house to him. From the above evidence it is amply established that the deceased had complained to the landlord about the objectionable behaviour of the appellant towards his daughter and it was on his complaint that the landlord had ejected the appellant and his father from the portion occupied by them.
10. It was contended that in this case the F. I. R. Was recorded at the spot after the preliminary investigation and to support this contention reliance was placed on the statement of Hasan Ali (P.
W. 2) who admitted in cross-examination that he reached the place of occurrence in the company of the S. H.
0. At 10-30 p m. According to the prosecution, the statement of Barkat Hasan complainant was recorded in the hospital at 12-15 a.m. On 24th October 1971. Hasan Ali F. C. Was a formal witness who escorted the dead body to the mortuary for post-mortem examination and much importance cannot be attached to his statement that he reached the spot at 10-30 p.m Muhammad Subtain Shah (P. W. 5) who, at the relevant time, was working as a Duty Officer, Police Station Lohari Gate, stated that he received a telephonic message from the Inquiry Clerk, Casualty Ward, Mayo Hospital, Lahore, at 11-15 p.m. And recorded report Exh. P. R. Which was handed over to the S. H.
0. Zahur-ud-Din. S. H.
0. Stated that after receiving the report (Exh. P. R.) he reached the hospital at 12 mid-night and recorded the statement of Barkat Hasan who was present in the hospital. Thereafter, he remained busy in completing the other proceedings in the hospital till 3 a.m. And then started for the place of occurrence. It is quite understandable that on receiving information about the death of the deceased from the hospital the S. H.
0. Must have gone to the hospital and taken quite some time ,to complete the proceedings. Baqir Husain (P. W. 8) who is an independent witness had stated that after apprehending the appellant they kept him at the house of Haji Muhammad Shafi and the police arrived there after three of four hours. In view of this evidence, the admission made by Hasan Ali (P. W. 2) in cross-examination that he went to the place of occurrence in the company of the S. H.
0. At 10-30 p.m. Does not carry any weight. We, therefore, do not see any force in the contention that the F. I. R. Was recorded at the spot after the preliminary investigation.
11. The learned counsel for the appellant further contended that Irshad Hussain, Muhammad Akram and Mst. Balqis Begum P. Ws. Were closely related to the deceased, Barkat Hasan complainant was his partner in business and Baqir Husain P. W. Was a chance witness, therefore, no reliance could be placed on their testimony. He further contended that the presence of Irshad Husain, Barkat Hassan and Muhammad Akram P. Ws. In the house of the deceased at the time of occurrence was highly doubtful and in any case these P. Ws. And Mst. Balqis Begum P. W. We're not in a position to witness the occurrence. To support his contention he pointed out a number of discrepancies in the statements of these P. Ws. Muhammad Hussain (P. W. 6), a real brother of the deceased, admitted in cross-examination that Irshad Hussain P. W. Was the son of his paternal uncle and Akram P. W.
Was his distant relative. Muhammad Akram (P. W. 10), however, denied his relationship with the deceased and stated that the deceased was not from his brotherhood but was only known to him.
In examination-in-chief he stated that he went to the house of the deceased in the company of Irshad P. W. And Barkat Hassan also came later on while Irshad Hussain (P. W. 11) stated that when he reached the house of the deceased Muhammad Akram and Barkat Hassan P. Ws. Were already present there and were talking about their business, Relying on this discrepancy in the statement of Muhammad Akram and Irshad Husain P. Ws. It was argued that their testimony was not entitled to credence. This discrepancy in the statements of these P. Ws. Is not sufficient to discredit their testimony as they had no motive to falsely implicate the appellant. Muhammad Akram P. W. Stated that he was living in House No, F/2134 since after 1960 and was registered as a voter in the last General Elections as a resident of that house. The appellant produced an excerpt from the Electoral Role of Ward No, 48, Chuna Mandi, Lahore (Exh. D. E.) showing the names of the persons residing in House No, F/2143 who were registered as votes. The name of Muhammad Akram does not find any mention in this document. It was contended that since this witness had suppressed his relationship with the deceased and was not registered as a voter in the aforesaid house, therefore, he was unworthy of any credit and his presence at the house of Or deceased was doubtful. About the excerpt (Exh. D. E.) from the Electoral Role it can hardly be said that it contains the names of all the residents of House No, F/2134 who were registered as voters. It is true that this witness had denied his relationship with the deceased whereas Muhammad Husain (P. W. 6), brother of the deceased, had stated that Muhammad Akram P. W. Was distantly related to him, but this would not be sufficient to discredit him because his presence at the spot is supported by the eye-witnesses, including Barkat Hassan who had no relationship with the deceased. Muhammad Akram, Irshad Hussain, Barkat Hassan and Mst. Balqis Begum P. Ws. Are unanimous that at about 10-30 p.m. The deceased went down-stairs for fetching cigaretters and soon after they heard the alarm of the deceased that he was being injured by the appellant with chhuri whereupon they rushed to the window and in the streetlight saw the appellant giving chhuri blows to the deceased. The statements or these P. Ws. As to the location of the electric pole were, however, discrepant.
According to Muhammad Akram, the pole was on the corner of the street in the Cut Piece Bazar and not in the blind lane while Irshad Hussain (P. W. 11) stated that the electric bulb was hanging in the street. He denied the suggestion that the light was being provided by an electric pole installed at the corner of the street in the Cut Piece Bazar. Barkat Hassan (P. W. 12) stated in examination-in- chief that the "electric bulb in the street was on and was providing light". In cross-examination he stated that the light was provided from a pole at the corner of the street in the Cut Piece Bazar and there was no light-point in the street. Mst. Balqis Begum stated that "The light was on in the street".
According to the Sub-Inspector (P. W. 15), electric bulb fixed to the southern wall in front of the house of the deceased was providing light. The discrepancy about the location of the electric pole is not very material, particularly when we find that the evidence of the above-mentioned P. Ws. As to the presence of streetlight is supported by Shaukat Ali (P. W. 9) who is an independent witness.
He stated that the back side of his house was at a distance of about ten feet from the house of the deceased and the windows of his house on that side opened towards the deceased's house. He further stated that on the sight of occurrence at 10- .0 p.m. He was sleeping in his house and had woke lip on the noise of the deceased. He further deposed: "I got up from my bed and saw through the window. Iqbal was saying 'bachao bacbao' as Shaukat had injured him." On the request of the Public Prosecutor this witness was declared hostile only for the reason that before the committing Court he had stated that the deceased was saying that Shaukat accused had inflicted him chhuri blows while at the trial he omitted to mention the weapon (chhuri), and his statement before the Committing Magistrate was transferred to the Sessions' file under section 288 of the Code of Criminal Procedure. We are of the view that the mere omission to mention the weapon at the trial was not sufficient to declare him hostile or to bring his statement before the committing Magistrate on the Sessions record. In his statement before the committing Magistrate and at the trial this witness was consistent that the street-light was on when he heard the noise of the deceased. It is, therefore, amply established that there was light in the street, and it being so P. Ws. Muhammad Akram, Irshad Husain, Barkat Hassan and Mst. Balqis Begum were in a position to see the occurrence from the window of the house of the deceased.
12. It was next contended that no blood was found in the street, therefore, prosecution version that the appellant had injured the deceased in the street, was false. There is no evidence that after receiving the injuries the deceased had fallen down on the ground. On the other hand, all the eye- witnesses stated that after inflicting the injuries to the deceased, the appellant started running and the deceased chased him. Out of the five injuries found on the dead body, injury No, 2 was described as multiple abrasions and the remaining were stab wounds. Injury No, 1 located on the left side of neck was simple in nature. The remaining three stab wounds were on the left side of chest. In such a situation the blood was likely to flow internally, and this view finds support from the statement of the doctor who found clotted blood in the stomach of the deceased. The statement of Shaukat Ali (P. W. 9) that he saw the deceased through the window of his house saying "bachao bachao as Shauka accused was inflicting injuries to him", also lends support to the view that the deceased was injured in the lane. Baqir Husain (P. W. 8) who is also a disinterested witness, stated that he had seen the deceased chasing the appellant and he (the deceased) was raising noise that the appellant had injured him. In view of all this evidence, the mere fact that no blood was found in the lane is not sufficient to hold that the deceased was not injured in the lane.
13. Relying on the statement of the doctor that the left side of heart and left lung of the deceased were punctured, the learned counsel for the appellant contended that it was physically impossible for the deceased to have chased the assailant from the lane to the shop of Sheeda Attar.
According to Muhammad Akram P. W., the distance between the house of the deceased and the shop of Sheeda Attar was 100 yards and according to Barkat Hassan (P. W. 12) it was 100 or 125 paces. According to the site plan, the distance between these two places was about 250 feet. (At this stage, it may be mentioned that there is a note on the site plan to the effect that it was prepared on the scale of 8' to an inch and Ghulam Murtaza draftsman (P. W. 7) also stated likewise at the trial, but this is factually wrong. In the committing Court the draftsman stated that the site plan on the right side of Exh. P. 4 was prepared on the scale of 40" to an inch and that on the left on the scale of 80' to an inch). According to Lyon's Medical Jurisprudence, 1935 Edition, p. 207, "A person stabbed to the heart or shot through the heart may still be capable of considerable muscular effort, such for instance as running a hundred yards or more. A person might be quite capable, not perhaps of giving any detailed account of the occurrence, but of calling out that he had been stabbed by a particular individual". It is also pertinent to note that in cross-examination the doctor was not asked if the deceased could run with a punctured heart and lung. We, therefore, do not find any force in the above contention.
14. There is no evidence to support the defence plea that the deceased injured the appellant with a sour and the latter ran in the bazar and was saved at the shop of Sheeda Attar by other persons who had gathered on his alarm and some body injured the deceased in the melee. All the eye- witnesses stated that the appellant injured the deceased in the lane. Baqir Husain (P. W. 8) stated that he had seen the appellant being chased by the deceased who was raising alarm that the appellant had injured him. He further stated that the deceased fell near the shop of Sheeda Attar.
He also gave out that other persons including Barkat and Naeem were coming after the appellant and the deceased. This evidence clearly shows that the deceased had suffered injuries before reaching the shop of Sheeda Attar. Baqir Hussain and Barkat Hassan P. Ws. Are independent and disinterested witnesses. Mst. Balqis Begum P. W. Admitted that Barkat was a partner of the deceased in the hosiery business, but this fact is not sufficient to discard his evidence. About Baqir Husain P. W. It was contended that he was a chance witness. Baqir Husain (P. W. 8) stated that his house was at a distance of about 200 to 250 feet from the house of the deceased and that of the appellant and he was going to his house from Lohari Gate when he saw the occurrence. In cross- examination he stated that he had gone to Lohari Gate to see off his friend, Saeed by name, who was a shopkeeper, but he could not give the location of his shop or the nature of his business. It was contended that since this witness could not tell the location of the shop and the nature of the business of aforesaid Saved, therefore, his version that he had gone to see him off was false and had been introduced by him to make himself available as a witness. Baqir Hussain P. W. Stated that Saeed had become his friend some time before just in routine and he (the witness) had never visited his house. The mere fact that this witness could not tell the location of the shop of his friend or the nature of his business is not sufficient to dub him as a chance witness because he is a resident of the locality and had no connection with the deceased nor any enmity with the appellant. He was amongst those who apprehended the appellant with blood-stained chhuri in his band. It was further argued that Umar Gulavho allegedly injured the appellant in order to appellant him, was not produced by the prosecution at the trial, therefore, an adverse inference should be drawn against the prosecution. The prosecution was not bound to examine all the witnesses cited in the calendar, therefore, no adverse inference can be drawn against it. Umar Gul was given up by the prosecution as unnecessary and the counsel for the appellant made a statement on 8th November 1973, that he was not required as a defence witness. It is worth mentioning that the appellant did not offer any explanation about his apprehension at the spot.
15. After giving our careful consideration to the entire evidence on the record, we are of the view that the prosecution had successfully brought home the charge to the appellant and he was rightly convicted. There are no extenuating circumstances on the file to withhold the normal penalty provided for the offence of murder. We, therefore, dismiss his appeal and confirm the death sentence.