1. This appeal is directed against judgment dated 7th November, 1994 o9 Syed Mehmoodul Hassan Naqvi, Vth Additional Sessions Judge (South) at Karachi whereby appellant has been convicted under section 302, P.P.C. And sentenced to imprisonment for life and order to pay Rs.25,000 to be paid to the legal heirs of deceased or in default to suffer R.I. Six months more, Briefly the facts of prosecution case are that on 6-12-1982, at about 2-00 p.m. Deceased Muhammad Nisar lodged the report with Civil Lines P.S. In which he alleged that he was working in K.E.S.C. As a labourer and one month prior the incident some quarrels took place with accused and others but matter was patched up. He has, further said that on 6-12-1982 at about 11-30 p.m. He was on duty and was going towards the KESC's Doctor to take his medicine when Anwar, Noora and Akhtar came and Noora gave .a Churi to Anwer and told him to kill the complainant, accused Anwer caused Churi injuries to the complainant, on which deceased ran away in the room of the doctor. First aid was given to him and then he was sent to Jinnah Hospital. His statement was recorded and after that deceased died, On the basis of statement of deceased case was registered and police examined witnesses. Police prepared Mashirnamas and after necessary investigation submitted the challan in the Court.
2. On commencement of trial charge was framed against accused to which he denied and claim to be tried.
3. Prosecution in support of its case examined Mst. Fatima Bibi, Muhammad Ramzan, Dr. Athar Hussain, Sujawal Khan Khattak, Wazir Ahmed, Muhammad Hanif, Abdul Hameed, Nabi Jan Khan, Akhtar Hussain Khan, Zaman Khan P.W.10 partly investigated the case, Dr. Abdul Ghafoor P.W. 11 who produced medical certificate and post-mortem notes and Dr. Abdur Rasheed Sanjrani who is examined injured issued certificate and conducted post-mortem, was not available. After close of prosecution side, statement of accused under section 342, Cr.P.C. Was recorded in which he denied the allegations. He did not examine himself under section 340(2), Cr.P.C., examined Abdur Rehman and Abdul Hameed in his defence.
4. I have heard Mr. Sardar Muhammad Ishaque and Miss Nasreen War, Advocates for the State the latter has supported the judgment of trial Court and has contended that the prosecution case is proved through dying declaration, ocular and medical evidence. The death is not denied.
5. Mr. Sardar Muhammad Ishaque, learned counsel for the appellant at the very start of his arguments contended that out of eleven P.Ws., examined, evidence of three witnesses i.e. P.W. 2 Ramzan, P.W.9 Akhtar Hussain and P.W.11 Dr. Abdul Ghafoor is material for the sake of convenience their evidence is reproduced hereinbelow: P.W.2 Ramzan stated in his deposition that he is selling Pakora near. Dispensary near Power House.
6. Know accused deceased Nisar. At about 2 years back at about 11.-30 a.m. I was standing at a place of incident with my Thella and was selling the Pakoras. There Anwar accused came prior to this Nisar deceased also came there and he was taking the Pan and was chewing the same. There accused Anwar and deceased Nisar exchanged hot words with each other. I then left for taking the water. I saw that accused Anwar was going running on motorcycle alongwith boy, I saw deceased Nisar was lying in the dispensary face towards ground and he was in injured condition. On my enquiry from one person who told me that accused Anwar had given Churri blows to Nisar and has run away. I then went to the house of injured Nisar and informed his mother that Anwar has given Churri injuries to Nisar. The said witness was declared hostile and was cross-examined.
7. P.W.9 Akhtar Hussain. I.O. Has stated that on 6-11-1982 was posted as S.-I. At Police Station Civil Lines, Karachi. On that day I was on patrolling duty of the Illaqa. During patrolling I received an Entry No. 19 of Police Station Frere and by duty officer A.S.-I. Nawaz regarding the arrival of the injured Nisar in Jinnah Hospital, Karachi and message on telephone by the duty M.L.O. On receipt of the abovesaid entry I rushed to Jinnah Hospital and found the injured Muhammad Nisar in the hospital contacted the duty M.L.O. And obtained the permission from him for recording the statement of injured Nisar. I produced my letter and the endorsement of the duty Medical Officer thereon, as Exh.13-A and say that it is same, correct and bears my signatures. After obtaining the permission I recorded the 154, Cr.P.C. Statement of injured Muhammad Nisar. I produce 154, Cr.P.C. Statement of injured Muhammad Nisar as Exh.13-B and say that it is same correct and bears my signature. The statement Exh.13-B also bears the L.T.I. Of M. Nisar. Then I went back to Police Station Civil Lines and incorporated the statement of 154. Cr.P.C. Book of P.S. Civil Lines. 1 produced the F.I.R. As Exh.13-C and say that it is same correct and bears my signature. In his cross-examination he has stated that he had recorded 154; Cr.P.C. Statement of deceased Muhammad Nisar. It is correct that no evidence has come on record during investigation to the fact of the statement said by deceased in his 154, Cr.P.C. Statement that "on 6-11-1982 at about 11-30 a.m. I was on my duty and had gone to take medicine from KESC hospital when Anwar, Noora Jeepwala and Akhtar came Noora gave Chhuri blow. Anwar had asked him to kill him and on the instigation Anwar gave Chhuri blow on the chest on the right rib. Akhtar told him that he should not be spared. On this Anwar gave second Churri blows on the right buttock of mine". It is correct that deceased Nisar have stated in his 154, Cr.P.C.
8. Statement that at the time of incident only P.W. Ramzan was present. It is correct that P.W. Ramzan has not stated in his 161 statement that at the time of hot exchange I went for water and at when I came back the people informed me that accused Anwar has given blow to victim Nisar Ahmed. It is also correct that P.W. Ramzan did not state in his 161 statement that after incident he had gone to the house of deceased to inform his mother about the incident. It is correct that I had recorded the statement of Mst. Fatima Bibi on 8-11-1982 i.e. 2 days after the incident. It is correct that after perusing the statement 161, Cr.P.C. Of Mst. Fatima Bibi, it appears that she was not present at the time of incident. It is correct that P.W. Fatima Bibi had not stated in her 161 statement that accused Anwar has caused Churri blow to deceased Nisar A.I. I do not remember that whether any P.W.
9. Stated in statement before me about the time for which the deceased remained in KESC Officer. It is correct that I had recorded 161 statement of P.W. Nisar on 8-11-1982. It is incorrect to suggest that at the time of recording 154 statement of Nisar (deceased) P.W. Nisar was not present. It is incorrect to suggest that I had recorded the statement 161, P.W. Nisar Ahmed on 6-11-1982 but on investigation I had shown this date as 8-11-1982. It is correct to suggest that P.W. Nisar Ahmed had not stated 161 statement that accused Anwar gave first Churri blow at the right buttock of deceased Nisar. I do not remember as to whether I have recorded 161 statement of P.W. Nisar Ahmed as about 9 years have been passed of this incident. It is fact that P.W. Nisar Ahmed has stated in his under section 161 first statement that accused Nisar had intention to cause the death of deceased Nisar Ahmed. It is correct that I have recorded 161 statement of P,W. Muhammad Hanif.
10. On 8-11-1982 it is correct that P.W. Muhammad Hanif has stated in his statement that Noora Jeepwala was present on the spot, It is correct that P.W. Muhammad Hanif has not stated in 161 statement that at the time of incident I was coming from my house and I saw some people gathered near his house from where the place of incident was visible for me It is correct that P.W.
11. Hanif has given motorcycle number in 161 statement. It is correct that P.W. Muhammad Hanif has not stated in 161 statement that he has seen accused Anwar taking out Churri from his motorcycle and causing blow on buttock of the deceased. It is correct that P.W. Hanif has given the name of accused Muhammad Anwar in his 161, CI.P.C, statement as culprit of this case. It is incorrect to suggest that P.W. Nabi Jan Khan is not eye-witness of this case. P.W. Nabi Jan was examined by me on 6-11-1982 under section 161, Cr.P.C. It is incorrect to suggest that I had recorded statement after one week of incident but has wrongly shown its date as 6,11-1984. It is correct that I have recorded 154 statement of deceased Nisar Ahmed on the spot. Voluntarily says that I do not remember the place of recording 154 statement. 154, Cr.P.C. Statement was recorded earlier than visiting the site and preparation of sketch of Wardat. I do not remember whether I had inspected the place of incident at about 1-35 p.m. And had whether at that time injured Nisar Ahmed was not present. I might have visited the place of incident at 1-35 p.m. Prepared the sketch of Wardat thereafter 154 recorded statement of deceased Nisar Ahmed. It is correct that when I reached Civil Hospital deceased Nisar Ahmed was in unconscious condition. I have not arrested Noora Jeepwala although they were nominated in the F.I.R. I have also not recorded the statement under section 161, CrP.C. It is incorrect that the step-brother of deceased Nisar had murdered Nisar Ahmed and this position was known to you during investigation. It is correct that present accused Anwar has voluntarily produced before the police by Mansoob A.I Qureshi, Advocate."
12. P.W.11 Dr. Abdul Ghafoor, Following injuries were found on deceased by Dr. Abdul Rashid Surjani:
(1) Incised wound chest lower right side on lateral aspect 1 x 1 cavity deep.
(2) Incised wound right buttock 2 x 4 inch x 1/2 into muscle deep.
13. The above injuries were caused by some sharp-edged weapon and were fresh. In his cross- examination he stated that it is correct to suggest that I had not worked with Dr. Abdul Rasheed Surjani. It is correct to suggest that Exh.16-B at page No.4 where the cause of death is written the words "due to excessive loss of blood" has been written from different ink. In my opinion the handwriting is the same but the pen and ink is different". Medical evidence is not to be considered in absence of Medical Officer. Evidence of another doctor examined as secondary evidence. There is no report of process-server that concerned Medical Officer has left country or his attendance cannot be secured.
14. Learned counsel argued that there is no certificate from doctor to establish about fitness of injured to make statement, same cannot to be used as dying declaration and the same has no evidenciary value. No question was put to accused about 154 statement of deceased.
15. I have also perused statement of P.W.I Mst. Fatima Bibi mother of the deceased claiming her to be an eye-witness. She is belied by P.W. Ramzan by stating in his deposition: "I then went to the house of injured Nisar and informed his mother that Anwer has given Churri injury to Nisar."
16. During pendency of appeal Miscellaneous Application No.239 of 1995 was moved under section 345(5), Cr.P.C. For compromise supported with affidavit of P.W.1 Mst. Fatima Bibi (mother of deceased). Heirship certificate issued by Magistrate First Class (C.I.A.), Karachi Division was filed alongwith pro forma showing her only surviving heir of the deceased. Application alongwith pro forma was sent to the trial Court for holding enquiry into the matter and report. An enquiry was conducted by Vth Additional Sessions Judge, Karachi (South). During the course of enquiry it was disclosed that Mst. Fatima Bibi was not sole surviving heir but there were other heirs of the deceased such report was submitted to this Court. On basis of report application for compromise was dismissed. This shows that she is not a truthful witness.
17. There are material contradictions in` the evidence of other P.Ws. Examined by the prosecution.
18. Learned counsel further contended that no notice was issued to the appellant prior to recording of 164 statements of prosecution witnesses. There is no certificate as required under section 364, Cr.P.C. At the bottom of section 342, Cr.P.C. Statement of accused learned counsel submitted that the D.Ws. Examined by the accused have not cross-examined which shows that their evidence is accepted by the prosecution.