Z. A. CHANNA, J.----Appellant Abdul Rauf, an aged Pathan, has been convicted by a learned Additional Sessions Judge, Karachi, by his judgment delivered on 25-5-1976, under section 302, of committing the murder of one Mohammad Hussain and has been sentenced for the said offence to imprison--ment for life. The learned Additional Sessions Judge did not award capital sentence to the appellant in view of his age, which he gave 1n the Sessions Court as 70 years. The appellant, by this appeal, has assailed his conviction and sentence.
2. The incident is said to have occurred on 1-11-1973, at 8-00 a.m., near the house of the deceased, in Lane No. 19-D, Mahmoodabad Colony No. 5, at a distance of about one mile from Mahmoodabad Police Station, Karachi. It is alleged that there was a dispute between the deceased and the appellant as the deceased had filed a direct complaint against the appellant under section 379/426, P. P. C., against the appellant. The complaint was referred to the police for investigation, who found the complaint to be false, and accordingly a case under section 182, P. P. C. Was registered against the deceased. Because of this complaint, the relations between the deceased and the appellant were strained. It is stated that on the day of the incident, at about 8-00 or 8-30 a.m., Mohammad Ramzan and his step-son, Intizar Ahmad, were working in their tailoring-cum- barber shop, situated across the road from the house of the deceased, when they heard cries coming from the lane which is on the back of their shop, at which Intizar Ahmed went outside, followed by his step-father. They are said to have seen the appellant giving knife blows to the deceased and thereafter running away. The deceased is alleged to have collapsed at the entrance to the shop of Ramzan and Intizar. He was taken to the Jinnah Hospital but it was found that he had succumbed to his injuries. A telephonic message was thereupon sent to the police about the death of the deceased by Dr. Mujib Akhtar, C. M. O., Jinnah Hospital. On receipt of this intimation, S. I. P.
Nisar Ahmed proceeded to the hospital, where he prepared inquest report. He then repaired to the wardat, where he received information that the appellant had gone to his house. The S. I. P. There upon arrested the appellant from his house and recovered his blood-stained clothes in the presence of mashirs. The appellant, at the time of his arrest, was found to be having an injury on his leg and accordingly was sent to the hospital. The S. H. O., thereafter, recorded the statements of Ramzan, Intizar Ahmed, Mohammad Yaqoob, Shad Mohammad and others. It was only thereafter, at about 5-10 p.m., that the S. H. O. Recorded the F. I. R., showing himself as the complainant. This was possibly due to the fact that no one else was volunteering to lodge the F. I. R.
3. On the following day, namely, 2-11-73, the S. H. O. Recovered a blood-stained knife from the roof of the house of the appellant at the latter's pointation, in the presence of mashirs. The blood- stained clothes and the knife were sent to the Chemical Analyser alongwith the blood-stained clothes of the deceased. The report of the Chemical Analyser is to the effect that human blood was detected on all these articles. The report further indicates that except the blood on the knife, which was not in sufficient quantity to determine its blood group, the blood on all the other articles was of `O' group.
4. The autopsy on the deceased was conducted by Dr. M. S. A. Farooqi, Police Surgeon, Karachi. He found the following surface injuries on the deceased :--- "(1) Incised wound left side chest 1 -- X outer to the left nipple in 4th-5th costal cartilage measuring 1' x --cavity deep.
(2) Incised wound right side epigastrium oblique 1" x -- " to cavity deep.
(3) Incised wound 1" x -- " into skin deep -- " above injury No. 2.
(4). Incised wound right side chest anterior axillary line on 6th rib front part --x skin deep.
(5) Incised wound one inch into half inch into muscle deep at the intcrier angle of right scapula back side chest.
(6) Incised wound one inch and half inch muscle deep right lumbar region.
(7) Incised wound posterior right axillary line on 5th rib 3/4" into 1/4' into skin deep.
(8) Two incised wounds, at the back on the 4th-5th lumbar vertebra close together, each 1/4 inch into half inch into muscle deep.
(9) Incised wound left lumbar region half inch into 1/4' into muscle deep.
(10) Incised wound in between two shoulder blades at the back measuring 1/2 inch into 1/4 inch into muscle deep."
5. The Police Surgeon found that under external injury No. 1, the weapon of assault had gone into the lobe of lungs and then into the heart. He further found that under external injury No. 2, the weapon of assault had gone into the upper surface of the left lung. In his opinion, all the injuries on the deceased had been inflicted by a sharp-edged and pointed weapon like a long knife and that external injuries Nos. 1 and 2, with the resulting internal injuries, were sufficient to cause death in the ordinary course of nature.
6. We have beard at some length Mr. Iftikhar Ahmed, the learned counsel for the appellant, and Mr. R. A. Qureshi, who appeared for the State: The first contention of the learned counsel for the appellant was that the identity of the person on whom the post-mortem examination was conducted by the Police Surgeon has not been established, and that the record i0dicates that the post-mortem was conducted on the body of an unknown person. His submission, therefore, was that there is no tangible or reliable evidence to show that the alleged deceased, Mohammad Hussain, had received fatal knife injuries or that the autopsy was performed on his body. In support of his contention, the learned counsel relied upon the testimony of the Police Surgeon and the post-mortem notes prepared by him. The Police Surgeon has testified that he had performed the post-mortem on the body of an unknown person and this fact was also stated in the post-mortem notes. The Police Surgeon has further testified that since the body was not identified and no one was coming forward to claim the same, he had, at the request of the S. H. O., sent the dead body, on 3-11-1973, to the incharge Anatomy Department of Dow Medical College. The Police Surgeon, however, has stated that some of the relatives of the deceased had later come and identified the dead body as that of Mistri Mohammad Hussain and consequently he had entered this fact in the post--mortem notes. There is, however, more tangible evidence as to the identity of the dead body.
A. S. I. Ajaib Khan has stated that he accompanied S. I. P. Nisar Ahmed to the Jinnah Hospital where he identified the dead body as being that of Mohammad Hussain, whom he already knew as he had investigated the direct complaint filed by the deceased against the appellant and which had been referred to him by the High Court. The fact that the dead body was identified by A. S. I. Ajaib Khan and by Yunus son of Noor Mohammad, resident of Mahmoodabad No. 5, Lane No. 30, Quarter No. 887, is also stated in the inquest report, which was prepared by S. I. P. Nisar Ahmed at the Jinnah Hospital, immediately upon his reaching there, on receiving the telephonic message regarding the receipt of the dead body. Another piece of evidence which establishes the identity of the dead body is the testimony of Mohammad Yunus who was examined by us while hearing the appeal.
The name of this witness appears in the inquest report, F. I. R. And also in the telephonic message sent by Dr. Mujib Akhtar and the certificate issued by Dr. Hassan A. Hasni of the Jinnah Hospital.
According both to the telephonic message and the medical certificate of Dr. Hasni, the deceased was brought to the Jinnah Hospital by Mohammad Yunus and was found to be dead. It was in these circumstances that we considered it necessary to record the statement of Mohammad Yunus. According to this witness, on the day of the incident, he was going in a bus from his house, which was near Bus Stop No. 6, to his office, and when the bus stopped at Bus Stop No. 5, they found that a large crowd of people had gathered, whereupon he and other passengers got down from the bus and they found one man, who was smuggling for life and was profusely bleeding, lying on the road in front of a shop and hence he, with the assistance of other persons, placed him in a bus which was driven to the Police Station, while he followed the bus on a cycle. The witness has further testified that at the Police Station the bus people put down the injured on the road and disappeared and consequently on the advice of a policeman he placed the injured in a taxi and took him to the Jinnah Hospital, from where he left sometime thereafter. The witness has also testified that the injured man whom he took from the scene of offence to Jinnah Hospital and whom he did not know previously was a fairly young man with black hair and a small black beard.
This description given by the witness fits in with the description of the deceased given in the inquest report, the post-mortem notes and to a material extent also with the record of the Jinnah Hospital relating to the deceased produced by Dr. Mujib Akhtar.
7. It next falls to be considered whether the fatal injuries to the deceased were caused by the appellant, and if so, he had the requisite intention contemplated by section 300, P. P. C. The main evidence on these two points is of P. Ws. Intizar and Mohammad Ramzan. As already stated, the two witnesses are running a tailoring-cum barber shop which is across the street from the place of occurrence and the house of the deceased. P. W. Intizar Ahmed has testified that on the day of the occurrence he was working in his shop when he heard cries coming from the lane which is at the back of his shop, whereupon he went outside and saw the deceased running, being chased by the appellant, who was armed with a knife. The witness has further testified that within his sight the appellant gave knife blows to the deceased who collapsed in front of his shop. The evidence of P.
W. Ramzan, who is the step-father of P. W. Intizar Ahmed, is to the effect that on the day of the incident, he had gone to his shop at about 8-00 a. m., while his son Intizar Ahmed arrived a little later. He has further deposed that at about 8-30 a.m., while they were in their shop, they heard cries of "Bachao!" "Bachao!" from the street, whereupon both he and Intizar Ahmed went out and saw the appellant chasing the deceased, who was holding his abdomen and who ultimately collapsed in his shop. The witness does not state to have seen the appellant actually causing any injuries to the deceased nor has he stated that the appellant was armed with a knife or any other weapon. Both these witnesses are independent and disinterested witnesses having neither hostility towards the appellant nor any interest in the deceased. They are natural witnesses as their shop is in the immediate vicinity of the scene of offence. Though, P. W. Ramzan does not speak off having seen the appellant causing any injuries to the deceased, his evidence that he saw the appellant chasing the deceased, who was bleeding and holding his abdomen, lends strong support to the testimony of P. W. Intizar Ahmed. We are of the opinion that P. W. Intizar Ahmed, who was a younger and more active person, had come out of the shop earlier and therefore seen the actual blows being given to the deceased by the appellant.
8. Mr. Iftikhar Ahmed has assailed the evidence of the two eye--witnesses on several grounds. His first ground of attack was that though admittedly there are other houses and shops nearby and even according to these witnesses many persons had gathered at the site, none of these witnesses have been examined or even cited in the challan. His submission was that these witnesses have been deliberately not examined by the prosecution and been kept away. We find no substance in this submission. The evidence on record shows that none of the neighbours or the adjoining shopkeepers took any interest in the matter. So much so, that it was left to a passing traveller, Mohammad Yunus, to take the deceased to the Jinnah Hospital. Even Mohammad Yunus took no further interest in the matter than first taking the deceased to the Mahmoodabad Police Station and from there, under the advice of the police, to the Jinnah Hospital. At the Hospital, he merely handed over the deceased to the nursing sister and then left after giving her his name and address. Because of the fact that he was generally known in his locality as Raju and not Mohammad Yunus the police found it difficult to locate and it was not till some 3 months later that his statement was recorded. It was in these circumstances that he was not examined by the trial Court, but since we considered that his evidence was material, we have ourselves examined him.
The conduct of the neighbours and the neighbouring shopkeepers clearly was one of apathy. They clearly lacked the civic sense which was expected of them. In the circumstances, it is not surprising that they did not come forward either to render any aid or assistance to the deceased, by rescuing him from the attack or taking him to the Hospital, or coming forward) to testify against his assailant. In Yaqoob v. State (PLD 1976 SC5), Muhammad Gul, J. Has made the following observations on the tragedy of general apathy and absence of civic duty on the part of witnesses, particularly in murder cases .---- "It is a frequent experience of criminal Courts that many a gruesome tragedy is enacted, with scores of on-lookers around, yet the assassin is allowed to operate without any let or hindrance and is allowed to escape from the scene, with impunity. Not only that These `independent' on- lookers are not even prepared to say in Court what they have seen and thereby risk animosity of the assassin or his partisans."
9. It was next contended by the learned counsel for the appellant, that no reliance should be placed on the testimony of the two alleged eye--witnesses as there are material contradictions in their testimony. We have already pointed out that whereas P. W. Intizar Ahmed has testified that he saw the appellant giving knife blows to the deceased, whom he was chasing, P. W. Mohammad Ramzan has only stated that he saw the deceased being chased by the appellant. This variation in their testimony, according to us, appears to have been due to the fact that intizar Ahmad was able to come out of the shop earlier and Mohammad Ramzan came a little latter. If they had been false witnesses and tried to falsely implicate the appellant they would have seen to it that their evidence coincided. The very fact that there are some variations in their evidence, which as already stated could be accounted for by reason of the time which elapsed when each one of them witnessed the incident, shows that they are truthful witnesses who have no desire to exaggerate or to falsely implicate the appellant.
10. Mr. Iftikhar Ahmad also contended that inasmuch as the 164, Cr. P. C. Statements of the two alleged eye-witnesses were recorded, their evidence should be carefully scrutinized and treated with suspicion. He sought support for this contention of his from two decisions, reported as Mian Khan v. Crown (P L, D 1954 Lah. 646) and Mohammad Yasin v. State (1973 P Cr. L J 448). The first mentioned decision is of no assistance to the learned counsel. In that case the contention was raised by the learned counsel for the appellant that the statement of a particular witness should not be accepted as true, because he had been pinned down by having his statement recorded under section 164, Cr. P. C. During the course of the investigation. Repelling this plea it was observed as follows :- "It is true that when a witness has made a statement under section 164 of the Code of Criminal Procedure, he is more or less wedded to that statement though cases are not uncommon in which witnesses have resiled from those statements. But the law as it stands allows statements under section 164 of the Code of Criminal Procedure to be recorded during the course of investigation and the deposition in Court of a witness whose statement was recorded under section 164 of the Code of Criminal Procedure cannot be doubted simply because section 164 of the Code of Criminal Procedure was resorted to. In such cases, the Court should scrutinize the evidence of the witness carefully but where it appears to the Court that there were good grounds for having the statement of the witness recorded under section 164, of the Code of Criminal Procedure, I do not see why any presumption should arise against the prosecution simply because a thing which is allowed by law was done."
11. In the subsequent reported case, though it was observed that statements of P. Ws. Recorded under section 164, Cr. P. C. Raise suspicion that the statements are not voluntarily made, reliance for this view was placed on the earlier decision in Mian Khan's case. It is our experience that in this part of the country the police invariably get the statements of important witnesses recorded under section 164, Cr. P. C. In serious cases, particularly in murder cases. We are thus of the view that at least so far as this part of the country is concerned the recording of statements of P. Ws. Under section 164, Cr. P. C. Is more due to the practice and zeal of the police than the desire to see that the witnesses in their evidence in Court stick to their statements made under section 164, Cr. P. C. It is not uncommon, even when the statements of witnesses are recorded under section 164, Cr. P. C., for them to resile from those statements, since the 164, Cr. P. C. Statements cannot be treated as substantive pieces of evidence nor can a witness be successfully prosecuted for perjury merely by reason of his going back on such a statement. It was possibly keeping in view these circumstances that an amendment was made in section 164, Cr . P. C. By the Law Reforms Ordinance, 1972, permitting cross-examination by the accused of the witness whose statement is to be recorded under that section.
12. The evidence of the two eye-witnesses was strongly relied upon by the learned trial Court and we agree with it that they are witnesses of truth. Their evidence that the deceased had collapsed in the front of their shop finds support from the mashirnaina of the scene of offence which shows that not only there was sufficient blood in front of the shop of P. Ws. Mohammad Ramzan and Intizar Ahmed, but blood was also visible on the floor of the shop and on one of the chairs inside the shop.
13. The testimony of the two eye-witnesses, Mohammad Ramzan and Intizar Ahmed, finds strong support and corroboration from the evidence of recoveries made from and at the instance of the appellant. S. I. P. Nisar Ahmed has testified that he had arrested the appellant from his house shortly after arriving at the wardat and had recovered the clothes of the appellant, as they were blood-stained. The witness has further testified that on the following day, at 9-30 a.m., he had recovered a knife from the roof of the house of the appellant at the pointation of the appellant. On the point of recovery of the knife, the S. I. P. Is supported by Mashir Nawab Khan, who has further testified that the knife was blood stained. In regard to the recovery of the clothes, the prosecution have examined Shad Mohammad, who has testified that on the day of the incident he was returning from Sabzi Mandi to his shop, which is near the house of the appellant, when he saw the appellant going to his house and noticed that his clothes were blood-stained. The witness, in his examination in-chief, has further stated that the police had secured the appellant's blood-stained clothes but in his cross-examination he has given obliging answers and stated that the clothes were shown to him at the police station and they were not recovered in his presence. His evidence, however, to the effect that be had seen the appellant going inside his house and had noticed that his clothes were blood--stained has not remained shaken.
14. The clothes of the deceased as well of the appellant and the knife secured from the latter's possession were sent to the Chemical Examiner whose report is to the effect that all these articles were stained with human blood. The report further is to the effect that the blood on the clothes of the deceased and of the appellant is of 'O' group. The identity of the blood group on the two sets of clothing suggests that the blood of the deceased had got on the clothes of the appellant, and in the absence of any explanation from the appellant as to how this blood came to be on his clothes, lends very strong support to the testimony of the eye-witnesses that he had caused the fatal injuries to the deceased. The recovery of the knife at the pointation of the appellant lends further support to the ocular testimony. It was contended by the learned counsel for the appellant that we should not accept the evidence as to the recovery of the, knife because though the appellant was arrested on 1-11-1973, the knife was recovered on the following day. It is by no means an uncommon experience for the accused to produce the crime weapons sometime after their arrest and their interrogation. Few people are willing to make a clean breast of their crime at the very moment of arrest and produce the crime weapons or other incriminating articles. The very fact that the appellant had thrown the knife on the roof of his house, which could only be reached by the police by placing a ladder against a wall, as stated in the memo. Of recovery, indicates that the appellant expected that the knife would not be discovered but later on appears to have changed his mind and produced the same, possibly when he was confronted with the other evidence in the case.
15. The medical evidence shows that as many as 10 knife injuries were caused to the deceased on various parts of his body, of which two injuries were individually sufficient in the ordinary course of nature to cause death In causing these injuries the appellant must be presumed to have intended to cause the death of the deceased. His offence thus clearly falls under section 302, P. P. C.
16. The medical evidence shows that the appellant had an incised wound -- " x -- " x muscle deep on his right leg. It is, however, not known how this injury was sustained by him. It is quite possible that while chasing the deceased the appellant might accidentally have caused this injury to himself. The appellant, however, has denied that any injury was found on his body or was sustained by him. In any case, howsoever the injury was sustained by the appellant, it could not have been caused to him by the deceased p as according to both P. Ws., Intizar Ahmed and Ramzan, the deceased had no weapon. No question thus of the appellant acting in the exercise of right of self- defence arises.
17. For the reasons stated by us- above, we are in agreement with the finding of the learned trial Court that the guilt of the appellant has been established beyond any reasonable doubt. We, accordingly, find no merit in the appeal and dismiss the same. 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.