G. M. SHAH, J.--The appellant was tried along with two co-accused name. Ly Ahmad Mian son of Hussain Mian and Chikoo son of Saeed Muhammad in respect of offences under section 302/307/34, P. P. C. For the murder of Ahmad Khan, an employee of the Pakistan Navy, by means of the knife, by the learned 3rd Additional Sessions Judge, who was pleased to acquit the two above- named co-accused, whereas convicted the appellant under section 302 and sentenced him to death by the judgment dated 18-8-1976. He was also convicted under section 307, P. P. C. And sentenced to suffer R. I. For five years for murderous assault on Aziz Khan P. W. 5 and in the process inflicted an incised wound by means of knife. He has filed this appeal against the said judgment.
The matter is also before us by way of a reference under section 374, Cr. P. C. Both, the reference, as well as, the appeal will be disposed of by this judgment.
2. The prosecution case, in brief, was that at about 2 p.m. In the after--noon, the deceased Ahmad Khan had boarded a Bus No. R I A 5033 of Route No. 19-A. When the bus stopped at Wazir Mansion Bus-stop at about 2-30 p.m. The deceased Ahmad Khan got up to get down from the bus. He realised that his identity card had been stolen. He informed the bus passengers about it, and asked the bus driver to stop the bus, .As he wanted to have the search of the passengers in order to recover his identity card. One Asghar A.I, a petty officer of the P. N. S. Was also travelling in the same bus. After getting down from the bus Asghar A.I also stood out--side. In the meantime, one person whose name subsequently transpired to be Ahmad Mian, came down from the bus. The deceased asked one of the passen--gers by name Aziz Khan to stop him for the search. When Aziz Khan tried to catch Abmad Mian, he called out to the appellant for help. Two more -persons followed Ahmad Mian and alighted from the bus. They placed their hands on the shoulder of Aziz Khan, indicating to leave him: The appellant, who was referred to as a small size black coloured man, took out a 'Churl' from the fold of his 'Pajama' and gave a knife blow from the front on the left lower chest in the stomach of Aziz Khan, who fell down injured. The appellant stood there by the side of the bus and showed his 'Churl' to the other passengers. Thereafter he started running, followed by the deceased Ahmad Khan and the complainant Asghar A.I, Petty Officer P. N. S., as well as other bus passengers.
Suleman P. W. 2, who was posted at Wazir Mansion Railway Station, just across the road, was returning to his house. He heard the cries of 'thief', 'thief' and the people were following two persons running ahead of them. Suleman followed them, as he found one of them armed with a 'Churl'. He gave hunter blow to the appellant, who was carrying the 'Churl'. He fell down; but got up again and started running. Yaqoob P. W. 3 also reached there with a danda and gave one blow to the appellant, but the appellant and his companions ran into a house nearby. The deceased Ahmad Khan, who was running after them, caught hold of Ahmad Mian, who again called out to the appellant, by name, as 'Bhaiya' and acquitted accused Chikoo for help. The tall man amongst them caught hold of the deceased Ahmad Khan from behind and the appellant, who was described as short statured and a black 'Shidi', stabbed Ahmad Khan and slashed him on his chest, on the left side of epigastric region, just on the tenth rib and below it, in the vertical direction. Ahmad Khan fell down and died instantaneously. The appellant, and the tall man with him, fled away from the scene, whereas, the crowd caught hold of Ahmad Mian.. The deceased Ahmad Khan was put into a private jeep and was taken by Asgbar A.I to the Civil Hospital, but the doctor stated that he bad already died. The doctor informed the complainant Asghar A.I to stay there till the arrival of the poli,,e. After some time, the police reached the hospital and recorded the F.
1. R., Exb. 15, at the hospital on the plain paper from where the report was sent to Baghdadi Police Station for registration of the case, where it was incorporated at 4-20 p.m. In 154 book Exh.
16. Simultaneously, a telephone message was also sent at 3-15 p.m. From the Civil Hospital to P. N. S. Dilawar which was received by Mahboob P. W. 1, who was then the duty officer, and was informed about the murder of the Naval Personnel Ahmad Khan, the deceased. On receipt of the telephone massage, Mehboob reached the Civil Hospital, Karachi, where the police was already present. The investigation of the case was taken up by Asghar A.I Shah S. H. O. Of the Baghdadi Police Station on the same day (9-12-1972). He proceeded to the Civil Hospital, Karachi and got the post-mortem examination of deceased Ahmad Khan conducted through the Police Surgeon. He also visited the place of occurrence at Maripur Road, which was pointed out by the complainant. He collected blood from the wardat and prepared the mashirnama Exh. 23.
He also recorded statements of witnesses Suleman, Yaqoob, Muhammad Shafi, Noor Muhammad and Dost Muhammad on the same duty. On the following day (10-12-1972) the S. H. O.
Accompanied by the complainant Asghar A.I, went out in search of the accused person. At about 5-30 p.m. They had entered Nazar Hotel, situated in geti-lines, where the complainant spotted the appellant and pointed him out to the S. H. O. Asghar A.I Shah (P. W. 8), who arrested him, and on his personal search recovered one churi (dagger) from the right side of the fold of his trousers. The knife was secured in presence of the mashirs Muhammad Umar and Noor Muhammad son of Haji A.I and was seized under the mashirnama Exh.
24. The Churi was blood-staffed and was accordingly sent to the Government Chemical Analyser, who reported, as per Exh. 25 that it was stained with human blood. The co-accused Chikoo was also subsequently arrested on 12-12-1972 from Hyderabad Bus-stand on Maripur Road. It is a big bus-stand from where the buses leave for Hyderabad. Whereas, co-accused Abroad Khan was already arrested at the spot, first by the deceased, then by the public. After completing the investigation the case was challaned in the enquiry Court,, where statements of complainant Asghar A.I son of Sher Muhammad, Petty Officer .
N. S., Dost Muhammad son of Shambay, driver of Bus No. R I'A/S033, Noor Muhammad son of Muhammad Rafiq, Conductor of the same bus, and Muhammad Khan, brother of the deceased Ahmad Khan were recorded. On completion of the enquiry the case was committed to the Court of Session, where the attendance of these witnesses could not be secured. Repeated summonses were issued for service on them, but they could not -be located, as their whereabouts were not known and there was no likelihood, in future, for service on them. At the trial in the Court of Session their statements were transferred under section 33 of the Evidence Act, on the file of this case, as Exhs. 27 to 30 respectively. The statement of Dr. Muhammad Umar, Police Surgeon recorded in the Committal Court was also transferred to the file of this case under section 509, Cr. P. C.
3. The case of the appellant on the other hand, was of denial. His contention was that the witnesses were set up by the police and he was shown to them at the police station. He further stated that one Haji Moro, who was his next door neighbour, was a notorious 'Charas' seller, whom be had prevented from conducting his business, had involved him in an earlier case under section 109, Cr.
P. C. And he had also got him arrested in this murder case, falsely. He had led no defence.
4. The question whether Ahmad Khan died as a result of injuries received by him at 2-30 p.m. On 9- 12-1972 is not disputed. Even otherwise, there is ample and satisfactory evidence on the record, whereby it is proved that he had died on account of the injuries received by him on that date. The evidence of Dr. Muhammad Umar, who performed the post-mortem examination on the dead body of Ahmad Khan, clearly shows that the injury on his person was ante-mortem. It was an incised wound on the left side of Epigastric region chest on the rib and below it, vertical in direction 1-- x 1t" x cavity deep. The injury was fresh and could have been caused by a sharp-edged weapon such as knife. ,
5. On internal examination, the doctor found the following
(i) Pleaural cavity both sides contained about 1000 ml blood. Diaphragm chest of left side of middle in front was punctured 1" x 1/4".
(ii) Pericardium was found punctured 1" x 1/4" and paricardial cavity contained 1000 ml blood.
(iii) Heart left vertical posterior side was punctured 3/4" to 1/8 "x verticular cavity deep.
6. The eye-witness account is furnished by the complainant Asghar A.I, Petty Officer, P. N. S., Aziz Khan Pathan, who wa.i in private service and had himself received injuries at the hands of the appellant, Dost Muhammad driver and Noor Muhammad son of Muhammad Rafiq, conductor of the Bus No. R I A 5033 of Route No. 10-A, by which the deceased had travelled. The eye-witnesses are further corroborated by Saleman and Yaqoob who are independent witnesses and had joined them in the pursuit of the accused persons. Though the appellant had succeeded in escaping from being caught at the spot, he was on the following day only spotted by the complainant in a restaurant and was pointed cut to the S. H. O. Who arrested him. On his personal search the S. H. O. Recovered the 'Churi' which was later on, found to be stained with human blood, as per the report Exh. 25 of the Government Chemical Analyser.
7. We have heard at great length, the arguments advanced by Mr. Manzoor Hussain, the learned counsel for the appellant, and Syed Nasiruddin for Advocate-General for the State.
8. The main contention of Mr. Manzoor Hussain is that the appellant was not previously known to any of the witnesses, therefore in absence of identification test, it cannot, with certainty, be said that it was the appellant, who was responsible for committing the murder of the deceased. He has further argued that the appellant was not named in the F.
1. R. And the word "Bhaiya" could also mean brother. It is not the name of the appellant. He argued that the description, which is given in the F. I. R., does not fit in, with the colour and size of the appellant. He had further contended that the witnesses had only a glimpse of him, therefore, it could not be possible to safely say, that the appellant was correctly pointed out by the complainant as the murderer of the deceased.
9. On the basis of the evidence on the record, we find that there is no force in these arguments. On perusal of the F.
1. R., it is clear that the complainant had, at three places, named the appellant as "Bhaiya". First when the deceased Ahmad Khan had asked Aziz Khan (P. W. 5) to catch hold of Ahmed Khan, when in the beginning he alighted from the bus, and, on being caught, Ahmad Khan shouted for help of the appellant, by calling him by the name 'Bhaiya'. The appellant had taken out the 'Churi' from the fold of his `Pajama' and while rescuing Ahmad Khan, had stabbed Aziz Khan.
Second time, when the deceased was pursuing them, he (deceased), had caught hold of the acquitted accused Ahmad Mian, who again called the appellant by the name Bhaiya, for help and asked him to finish the deceased by saying ('Nibtalo'), settle with this. Third time, the camplainant had mentioned him as Bhaiya when after causing the fatal injury, the appellant had run away. The appellant is a Makrani Baloch, resident of Baghdadi. His father's name as given by him is Shambay.
In his statements in the committal Court, as well as, in the Court of Session, he had given his name as Usman alias Bhaiya. In Balochi language and also in Karachi, people do not call brother as 'Bhaiya' or address people by the name of 'bhaiya'. They say 'Bhai', when they address a person meaning, thereby, brother.
10. In the F.
1. R., the complainant had described the appellant as a Shedi (Negro) of small size and black colour. Since the deceased was an employee of the Pakistan Navy, the complainant, who was himself a Petty Officer in the P. N. S., was anxious to trace out the killers of the deceased. He had therefore, accompanied the S. H. O. Police, in search of them in the locality, predominantly inhabited by the Makranies. When they entered Nazar Hotel, in Baghdadi, the complainant himself spotted th: appellant and pointed him out to the S. H. O., who arrested the appellant and conducted his personal search and from right side of the fold of his txousers recovered a blood- stained 'Churi' with a blade of 6 1/4" in presence of the mashirs. Under these circumstances, when the complainant had himself pointed him out and got him arrested, it would not have served any useful purpose to hold identification test, at least through him. Due to the injuries sustained by him, at the hands of the appellant, Aziz Khan was admitted in the Civil Hospital, where he remained as an indoor patient up to 3-2-1973. Wefurther find that after completing the investigation, an interim charge-sheet, which in law, is the only charge-sheet, as provided under section 173 of the Cr. P. C., was submitted in the Court on 23-12-1972, mentioning therein the names of the accused and the witnesses with detailed facts and particulars of this case, Aziz Khan (P. W. 5), who was in the Hospital and was not m a position to make a statement, till the time the charge-sheet was filed in the Court, could not possibly be put to the identification test. In any case, the occurrence had taken place during the day time at about 2-30 p.m. In the early afternoon. There could, therefore, be no mistake, on the part of the complainant to point the appellant out to the S. H. O. As he had sufficient time to observe, re-collect and retain in memory the features of the appellant, which is the main purpose of the identification parade, as was held in the case of Hamida Bano v. Ashig Hussain and others (PLD 1963 SC 109The complainant had given the requisite features of the appellant in the F.
I. R. And further got the appellant arrested by pointing him out, inside the Nazar Hotel, where so many other customers were sitting. We find that the appellant was pointed out by the complainant to the S. H. O. Who had arrested him, and under such a situation, identification test was unnecessary, when the recovery of the 'Churi' provided ample corroboration of the testimony of independent and disinterested witnesses. In the instant case, the complainant Asghar A.I, as well as, the injured Aziz Khan and Dost Muhammad bus driver and Noor Muhammad bus conductor, were indepen--dent and disinterested witnesses, who had no hostility towards the appellant. In fact, there is no provision of law which requires the identification test to be necessarily held, failing which the evidence of the witnesses would be discarded. The identification test merely provides a corroboration to the statements of witnesses and is not by itself a substantive piece of evidence.
Identifications are held as a rule of prudence. We do agree that in cases, A where identification of the culprit is doubtful for reasons of darkness, of such other like situations, it facilitates to hold identification test to ensure that no innocent person is dragged in for reasons of previous enmity, hostility or ill-will between the parties. We find that in the instant case there is no such allegation or even a suggestion. The appellant himself in his statement does not impute any thing, either against the deceased or any of the witnesses or the police. On the point of identification of the appellant, therefore, we have no hesitation in accepting . The statement of the complainant as well as injured Aziz Khan and other eye-witnesses Dost Muhammad and Noor Muhammad and the S. H.
O. Asghar A.I Shah. The appellant himself was present in this Court, as he had prayed for a personal hearing and we had observed that the description given by the complainant in the F. I. R. Did appropriately fit-in with his height, colour and description of being a `Sheedi' of small size and black colour.
11. The next point argued by Mr. Manzoor Hussain was that the learned trial Judge had seriously erred in law by transferring the statements under section 33 of the Evidence Act of the complainant Asghar A.I and eye--witnesses Dost Muhammad and Noor Muhammad, driver and conductor of the bus respectively, and considering them as evidence in the case. His contention was that it was not satisfactorily proved that the witnesses were untraceable and their presence could not be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable. He had also referred to the case of Fazal Muhammad and another v. The State (1970 SCMR 405which we find is on altogether different points and it would be proper to reproduce the relevant portion :- "The autopsy of the deceased persons was done by Dr. Muhammad Azhar, who was at the relevant time posted in the District Head--quarters Hospital, Rawalpindi. In the trial of the appellants Fazal Muhammad, Muhammad Yousuf and the three acquitted accused, the statement of this doctor which had been recorded by the committing Magistrate, was transferred to the Sessions record under section 509 of the Criminal Procedure Code. In the second trial of Lal appellant, as this witness was not available, the post-mortem reports of the deceased persons prepared by him, were proved by the evidence of one-Muhammad Habib, who bad worked as a dispenser with him and who stated that he could identify his handwriting. Mr. A. K. Brohi contended that no sufficient evidence was led to prove the non--availability of the doctor or that his attendance could not be procured without an amount of unreasonable delay or expense. On this point, all that the prosecution managed to establish from the evidence of Muhammad Habib was that Dr. Azhar had left the country since the year 1966, but on cross-examination, he said that he had left Rawalpindi for Zafar Wal on transfer and he did not know where he went afterwards. The post-mortem reports prepared by Dr. Muhammad Azbar could be admitted into evidence under section 32(2) of the Evidence Act, being statements which he had prepared in the discharge of his professional duties, provided, it was shown that the witness could not be found or his attendance could not be procured without unreasonable delay or expense. This requirement of law was not adequately satisfied in this case. However, in the earlier trial to which Lal was a party in absentia having been declared an absconder, the evidence of this witness which had been recorded by the committing Magistrate was regularly brought on the record. This evidence given in the earlier judicial proceedings, could also be utilized in the subsequent trial against Lal under section 33 of the Evidence Act, which permits the use of such evidence in the subsequent judicial proceeding, provided it is shown that the presence of this witness concerned cannot be obtained without an unreasonable amount of delay or expense. According to the explanation added to this section, a criminal trial or enquiry is to be deemed to be a proceeding between the prosecutor and the accused, within the meaning of this section. The evidence of Dr. Azhar in the first trial could also be made use of against Lal under section 512 of the Criminal Procedure Code. The prosecution itself has relied on the post-mortem reports of this witness at the trial of Lal, by proving those reports by secondary evidence. This evidence therefore can be validly examined in both the appeals to test the result which it yields in favour of the prosecution or the defence."
12. We find that the case was committed on 4-7-1974 and it was received by the Court of Session on 7-9-1974 and was placed for trial before the Court of the learned III Additional Sessions Judge on 25-2-1975. Thereafter the summons were issued to these witnesses, who could not be served on their addresses at Karachi by 26-8-1975. Summons were repeated ; but they were returned unserved on all the hearings and the last being on 5-6-1976. Thereafter, on 14-8-1976, when there were no chances of service on them, an application under section 33 of the Evidence Act was moved in the Court by the learned prosecutor for transferring their committal Court statements on the file of this case.
13. Abdul Aziz P. W. 4, who was the Head Constable, then posted at Baghdadi Police Station, was given the summons for service, in respect of complainant Asghar A.I, Dost Muhammad and Noor Muhammad. He had personally gone to serve them on their respective given addresses and was informed that complainant Asghar A.I had retired from the service of P. N. S. And had left for his native place and his present whereabouts were not known. Likewise the whereabouts of Dost Muhammad and Noor Muhammad were also not known, as they had left their service and their whereabouts were not known. He had submitted such a report and returned the summons unserved. The trial Court was therefore satisfied that the presence of these witnesses could not be obtained without an amount of inordinate delay, and therefore, by the order dated 24-7-1976, the learned Judge directed the statements of the witnesses to be transferred under section 33 of the Evidence Act on the file of this case. The learned Judge had received direct evidence from Abdul Aziz (P. W. 4) who had himself searched for the witnesses and made enquiries. From his personal knowledge he had deposed in the Court that the whereabouts of the witnesses were not known.
The learned Judge was therefore himself satisfied that reasonable and diligent search was made to make the witnesses available in B the Court. If any authority is required, the case of Ibrahim Bhak (PLD 1955 FC 113can safely be cited, though the facts of that case were different. We are satisfied that section 33 of the Evidence Act was applicable to the case o these witnesses and their statements recorded in the committal Court were therefore rightly transferred. It was also argued that no mashir was produced and examined in Court in respect of the recovery of the Churi.
Prosecution had examined the S. H. O. Asghar A.I Shah, whose evidence is clear on the point. The Police Officer who was not hostile to the appellant is as c good a witness as any other person and his evidence is not to be suspected merely because he is a police officer.
Finally it was argued that since only one injury was caused, this was. a fit case for reduction of the sentence from death to transportation for life. After going through the statements of the eye- witnesses, we find that the appellant was a sort of tough guy who was every time asked for help to kill or make a murderous assault on his victims. He was armed with a `Churi' having the blade Q".
Before attacking the deceased, he had stabbed Aziz Khan (P. W. 5) in the left lower chest and caused incised wound 2" x -- " with suspected cavity deep and he had remained as an D indoor patient in the hospital nearly about two month. The manner, in which the appellant bad brutally attacked the deceased, who was a young man of 30 years, deserves the normal penalty of death, for what we have found, to be a wanton and heartless murder. of the learned Judge. We would accordingly dismiss the appeal and confirm the sentence of death.
Z. A. CHANNA , J.-I agree. 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.