1. This is an appeal filed by appellant Muhammad Khalid alias Goga son of Muhammad Bashir, against the judgment dated 26-3-1995, passed by learned Sessions Judge, Karachi-West in Sessions Case No.256 of 1991 whereby the appellant was convicted under section 302, P.P.C. And sentenced to imprisonment for life and to pay of Rs.1,50,000 as Diyat to the heirs of deceased Liaquat Khan. In case of non-payment of Diyat imprisonment for two years. Benefit of section 382- B, Cr.P.C. Was given/extended to the appellant: Brief facts of the prosecution case as per F.I.R. Are that Mir Afzal Khan son of Azim Khan resident of House No.8/3, Block-B, Akber Road, Gali No. 18, Shershah Colony, Karachi got recorded his statement under section 154, Cr.P.C. Stating therein that he resides at the above given address and is running bicycle shop. He was closing his shop which his younger brother Rafeeq was closing his shop his younger brother Rafaqat came to him and informed that Goga had abused him. In the meantime at about 9-30 p.m. Goga alongwith his elder brother Iqbal alias Pehelwan came and at that time Liaquat Khan was also standing with him. Goga told him as well as to Liaquat that today he will not leave them alive. Goga took out dagger from the fold of his Shalwar and ran towards Liaquat Khan and caused dagger blow. He went towards him to save him but Iqbal alias Pehlwan caused 2/3 successive blows upon him, he tried to save himself then Iqbal alias Pehlwan caused dagger blows which hit on the right side of his finger. Goga also caused 2/3 successive blows upon Liaquat Khan which hit on his chest as well as at the back and he on becoming. Injured fell down and both the accused fled away from the shop. Liaquat Khan became unconscious. This incident was witnessed by Munir Ahmed, Rafaquat Khan and Muzafar Iqbal. In the meantime, Muhammad Afsar Khan arrived and who removed his injured brother to Abbasi Shaheed Hospital where Liaquat Khan died due to the injuries. Above F.I.R. Was registered vide Crime No.63 of 1991 by S.-I. Azizur Rehman on the basis of statement of complainant recorded in hospital. Since the finger of Muhammad Iqbal co-accused was cut, a counter case vide Crime No.65 of 1991 was also registered against Mir Afzal (complainant) under section 337-D, Qisas and Diyat Ordinance.
2. Police after investigation challaned both cases. Learned Sessions Judge conducted the trial of both counter cases. Whereby Mir Afzal (accused in counter case complainant in present case) was acquitted on 22-3-1994, about a year prior to passing of judgment in this case, and the appellant/accused has been convicted and sentenced as above.
3. At the trial of prosecution examined complainant Mir Afzal, P.W.1, he has produced statement under section 154, Cr.P.C. As Exh.7, Mashirnamas and inquest report as Exhs.8 to 10. Muneer Ahmed an eye-witness, P.W.2, Khan Afsar P.W.3 Muzafar Iqbal eye-witness P.W.4, Azim Khan, P.W.5, and S.-I.
4. Fazal Haq C.W.1 produced copy of F.I.R. No. 181 of 1993 as Fxh.16 confirmed by his statement, that co- accused Iqbal has been murdered and is dead. Hence proceedings against him were abated.
5. Banaras Khan P.W.6, Zaffar Iqbal P.W.7 Mashir of arrest of accused, he has produced Mashirnama of arrest of Exh.20 Dr. Zubair Ahmed, P.W.8,'MLO, Abbasi Shaheed Hospital, Karachi he had conducted post-mortem on the dead body of deceased. M.L. Certificate of Exh.23 and S.-I. Azizur Rehman P.W.9, he had carried on the investigation and challenged the case before the Court, and produced Mashirnama of recovery of crime weapon (attested copy) as Exh.25, and attested copy of F.I.R. As Exh.26.
6. After close of the prosecution case the statement of appellant/accused was recorded under section 342, Cr.P.C. In which he denied the allegations. He further stated that the incident did not take place in between him and the complainant and deceased. There was a marriage just 3 lanes of the Hotel where the deceased Liaquat and Mir Afzal quarrelled with each other and due to which, the deceased received injuries and this fact was known to him when his brother Muhammad Iqbal (now dead) came in house in injured condition in his palm. Appellant/accused did not examine himself under section 340(2), Cr.P.C. And witness in his defence.
7. After taking into consideration evidence produced by the prosecution and version/plea accused, the learned trial Judge has been pleased to convict the appellant as described above and present appeal is directed against the above judgment of conviction.
8. I have heard Mr. Jawaid Haider Kazmi, learned counsel for the appellant that the learned trial Judge has erred in convicting the appellant on interested contradictory and in-corroborated ocular testimony. That complainant Mir Afzal and all P.Ws. Are related inter se, P.W. Banaras Khan is tenant of Younus Khan father of the deceased.
9. It was further contended that number of independent persons were available at the place of Wardat but the prosecution has failed to examine any one of them, and therefore, prosecution case is doubtful. Learned counsel submitted that last worn clothes' of deceased and weapon of offence were not produced by prosecution during the course of trial. No Chemical Examiner's report has been produced. Mashir of recovery have not been examined and photostat copies of Mashirnama has been brought on record through 1.0. Of the case, reliance cannot be based on his evidence in absence of Mashirs.
10. Mr. Habib Ahmed learned counsel for the State supporting the judgment of trial Court contended that, Court has already taken in lenient view in awarding sentence. Further contended that the motive is missing in the case.
11. Mr. Mehmood A. Qureshi, learned counsel for the complainant contended that by lodging of counter F.I.R. Presence of accused is admitted, incident is admitted. Further contended that P.Ws.
12. Examined are independent and not blood related and are natural witnesses. Ocular evidence is supported by medical and circumstances of evidence. Nothing has been brought in cross- examination through P.Ws. Their evidence is shattered.
13. I have considered the contentions and have gone through the record and proceedings of the case.
14. The evidence of Dr. Zubair Ahmed Hashmi, P.W.8, shows that he had conducted post-mortem on the dead body of deceased Liaquat Khan and had found following extract injuries:
(1) Stab wound about 1" x 1.5" x cavity deep on the left side of chest at fifth inter-coastal step left nipple at the mid axillary line with fracture of rib directing obliquely inward.
(2) Stab wound about 1/2" x 1/4" x muscle deep on the back of abdomen left side directing obliquely inward.
15. Internal examination of dead body he found the following damage:--- Head:"No external injury seen on the vault of skull hence further skull was not opened.
16. Thorax: Thoraxic cavity normal in shape and six an opening the thorxic cavity the wound seen at the left chamber of the heart through and through and then penetrated the lower lob of the left lung. Both the lungs are pale in colour, 4th and 5th rib of the left side of the chest fractured.
17. Abdomen: All the abdomenial vicras found healthy and normal and no pathology seen. Stomach containing semi-digested food material mucosa pale small intestine also contained semi-- digested food material. Liver, spleen and kidneys normal.
18. Cause of death: The cause of death of Liaquat is due to cardiorespiratory failure as a result of acute chest injury sustained on his person due to impact of some sharp cutting edged weapon. The duration of injuries and death is 2 to 3 hours. He has produced my M.L. Certificate as Exh.23 which is in my handwriting and bears my signature (Photo copy)
19. He was not cross-examined.
20. As far as ocular evidence is concerned it consists of complainant Mir Afzal, Muneer Ahmed P.W.2, Khan Afsar P.W.3, Muzafar Iqbal P.W.4, Azim Khan P,W,5 Bana.As Khan P.W.6, complainant Mir Afzal is cousin of deceased (son of maternal uncle) Muneer Ahmed (Mashir) next day of the incident at the place of Wardat where police came. An employee of Mir Afzal (denied suggestion) in cross- examination. Khan Afsar brother of deceased. Muzafar Iqbal friend of Razzak and facing trial in a case under section 307, P.P.C. Azim Khan father of complainant, Banaras Khan (tenant of deceased father). In evident is said to have taken place in Chowk where there are hotels and shops which were opened at the time of incident and number of persons were sitting in Hotel, but the prosecution had failed to produce a single disinterested witness. Although relationship with the deceased is not a sufficient ground to discredit a witness, the prosecution should make effort to see that independent people/available residing around the place of occurrence are examined. In the present case no independent witness has been examined. There are material contradictious in evidence of witnesses. Complainant and P. Ws. Have given/deposed a quite different version given by them in F.I.R. And 161, Cr.P.C. Statements and have made exaggerations while assigning part of causing injuries to deceased. They have tried to implicate both the accused distributing one injury to each accused.
21. Admittedly counter-case against complainant has been decided a year before this case which ought to have been decided alongwith this case and point of aggression involved in the cases has not been considered.
22. Learned counsel for the appellant pointed out that there is no certificate/memorandum at the bottom of statement under section 342, Cr.P.C. As required under section 364, Cr.P.C. And no reason is mentioned for non---compliance. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.