MUHAMMAD IQBAL Versus STATE

1. The appellant who was charged with the offence of 302, P. P. C. for having caused the death of one Mumraiz on the 25th day of July 1971 was ultimately convicted under section 304, P. P. C. and was sentenced to 10 years' R. I. The case of the prosecution was that on the day of incident the deceased who was the first driver of truck No. KAX 8893 alongwith the second driver Syed Lal Badshah and cleaner Ghulam Kadir were sitting at the Adda of the Karachi‑Hazara Goods Transport opposite Iranian Hall. The deceased sent for meals for three persons from a hotel called Zaman Hotel situated near dirty Nala, The meals were brought by one Pervaiz, an employee of the hotel, but at the time of payment there was a dispute over the amount. After sometime i e. at about 11‑30 p.m. instead of Pervaiz the appellant came to take the plates and the bill which according to him was Rs.

11. The deceas ed discussed with him that they would pay Rs. 10 only as they were regular customers of the hotel. The appellant, who was the son of the proprietor, insisted on taking Rs. 11 whereupon a heated discussion, resulting in exchange of abuses took place, and the appellant getting infuriated suddenly took out a knife from the folds of his Shalwar and attacked the deceased with the same and hit him in the left side of the belly, where after he ran away from the spot alongwith the knife. This incident was witnessed by Syed Lal Badshah who became the first informant, Ghulam Kadir, the cleaner and one Muhammad Anwar, who was present there. Thereafter the deceased was taken to the Civil Hospital in the truck where he subsequently died. The time of his admission in the hospital was 12‑25 a.m. on 26‑7‑71 and he died in the morning of the same date at 7‑15 a .m. On his first examination by P. W. Dr. Abdul Sattar Laghari, he found one incised wound 2" x 1" x cavity deep with omentum visible with the clean cut margin which injury according to him was dangerous to life, and this injury was found on post‑mortem to be sufficient to cause death in the ordinary course of nature. In the opinion of the doctor, this injury had been caused by a pointed and sharp‑edged weapon like a knife. The F. I. R, in this case was lodged at Mithadar P. S. at 5‑20 a.m. on 26‑7‑71, which in fact was incorporation of the already recorded statement of Syed Lal Badshah in the 154, Cr. P. C. book.

2. At the trial the prosecution examined the eye‑Witnesses complainant Lal Badshah and Anwar who both related. The incident as stated already. They also stated that one Pervaiz Baharwala had a dispute with the deceased in the beginning and he had sent the appellant for the purpose of settling the amount. This Pervaiz had however left the place and was not traceable from the day of the incident. Both the deceased and the appellant had. abused each other to the names of their fathers and. mothers and both were enraged.

3. Besides the above ocular evidence, the prosecution examined Abbas Hussain as mashir of discovery of the knife which the appellant showed and produced before the police. The knife was concealed in a dust‑bin and had a blade about 3 long. It was found to be blood stained, which in opinion of the chemical analyser was human blood. Another witness Inayat Ali was examined as mashir, in whose presence the S. H. O. Ali Akbar had secured the clothes i. e. Shalwar and shirt which also the appellant had pointed out in his own house and then produced. This witness was declared hostile, but Ali Akbar the S. H. O. however deposed about securing of these clothes. These were also found to be stained with human blood by the chemical analyser. The case of the prosecution thus was based on the evidence of the above two eye‑witnesses as corroborated by the medical evidence and the securing of the blood‑stained knife and the clothes which were pointed out by the appellant. The defence was that of a denial and false implication on account of enmity which in the words of the appellant was:‑

4. "Due to enmity with my father and the Addawalas as both Addawalas and my father come from the same place of District Hazara where my father had political and other differences with them. They are the men of Addawala and that is why they are deposing against me. I am innocent and falsely implicated."

5. The appellant also suggested that the real offender was Pervaiz, the Baharwala, and in his statement he said, "Pervaiz was produced by my father before the Police and he was with Police for several days." This aspect is also apparent in the cross‑examination of witness Ismail who was examined by the prosecution as a mashir of the wardat. Ismail claimed to be the owner of a tea stall on a foot‑path about 10‑15 yards from the place of occurrence. As this tea stall remained open till 12 o'clock in the night, he was able to see the occurrence just as the others sitting in his tea stall. According to him there was commotion because of the quarrel and he also went there as so many others. The appellant was known to him before. He deposed that he did not see the appellant there in the commotion but saw one Baharwala who was a young man of 15‑16 years with whom the deceased was quarrelling and it was he who after causing the knife blows 'to the deceased ran away from the spot. He was followed by a Chowkidar. According to him, he and some others awakened the persons who were sleeping in the track, who then took away the deceased to the hospital. However, in his examination to Court this witness destroyed the effect of all this evidence by saying "I did not see with my own eyes any person causing knife blows to the deceased. I had seen that Jacketwala (Baharwala) running away from the back". The only thing about which he was definite was that the appellant was not present at any stage of the quarrel. This line of defence seem to be followed even in the cross‑examination of the Police Officer at the Mithadar P. S. who had incorporated the statement of complainant Lal Badshah in the 154, Cr. P. C. Book. A question was put to him in cross‑examination suggesting that some persons had come to the Police Station who wanted to lodge a report against Pervaiz for the murder of Mumraiz. but he bad, refused to record that report. The Police Officer, however, denied this allegation.

6. With this background of the state of evidence, the first attack of tire learned counsel for the appellant was on the ground of delay in recording of the F. I. R. which apparently was of about six hours, although the distance of the place of occurrence was mentioned only as two furlongs. The F. I. R. shows that the statement of the complainant Syed Lal Badshah was recorded not by H. C. Muhammad Shafi, he only received the recorded statement and incorporated it in the 154, Cr. P. C. Book The learned counsel referred to the certificate issued by the Casualty Medical Officer, Civil Hospital, which give the time of the arrival of injured as 12‑25 a.m. The name of the person who brought the injured was given as Muhammad Shafi H. C. No. 1205. According to the learned counsel, the H. C. was not on duty at the Police Station from 8 p.m. to 8 a.m. as he deposed in Court but had taken the injured himself to the Civil Hospital which obviously indicated that this H. C. had received information about the occurrence prior to the recording of the report. The learned counsel suggested that this information was relating to the murder committed by Pervaiz and the Police had suppressed that fact. However, as no such question has been put to the H. C. himself, nor to the doctor who issued the certificate, this entry alone cannot be considered to be sufficient to create a doubt of the nature as the learned counsel suggests. It is obvious from the statement of H, C. that he received information from the Civil Hospital as 0250 hours at which a note was made in the station diary while 0250 hours was the time he incorporated the statement in the 154, Cr. C. P. book. Thus not only the delay appears to be explained, but it is also clear that there was contact between the medical officer Incharge in the Civil Hospital and the H. C. Incharge at the P. S. before recording of the F. I. R., and this may be the reason why the name of Muhammad Shafi H. C. appears in the certificate.

7. The second attack of the learned counsel was on the basis of the statement of P. W. Ismail, the owner of the tea stall which has been referred to above. According to this witness there was a Chowkidar of the area who had followed the Baharwala after the occurrence, but this Chowkidar was not examined. Again no such question has been put to the Investigating Officer. The Investigating Officer had admittedly made enquiries from the owner and servants of the tea stall and made Ismail, a witness in the case, but no reference to the presence of the Chowkidar was made in cross‑examining this witness. The learned counsel then critised the evidence of the production of the blood‑stained knife and the clothes by the appellant as being not worthy of credit because the mashir had not fully supported the prosecution, but on this score the evidence of the concerned Police Officer could be considered reliable as no motive is assigned to hire for creating false evidence against the appellant. The learned counsel also argued that these incriminating articles i. e. the blood‑stained knife and the blood‑stained clothes were not shown to the appellant when he was being examined under section 342 of the Cr. P. C. According to him, a general question with regard to the evidence relating to these recoveries was not sufficient and unless the articles were actually shown to him, this part of evidence could not be used against him. This argument is misconceived as the articles were all along in Court and had been shown to every witness who was concerned with the same. Under section 342, Cr. P. C. the accused is given an opportunity to explain the pieces of evidence that appear against him in the case and this has been duly done. Even otherwise there is nothing to show in the record of his statement under section 342, Cr. P. C, that the appellant had not seen these articles. The overall substance of the argument of the learned counsel for the appellant was that the offence was committed not by the appellant, but by Pervaiz, the Baharwala, who had immediately absconded after committing the offence. The conclusion of guilt cannot be drawn from the mere fact of abscontion of Pervaiz. What the learned counsel is suggesting is in fact a case of substitution, but for which no foundation has been laid down by the appellant.

8. The learned Assistant A. G. supports the conviction and argues that the defence had failed to prove any motive for falsely implicating the appellant and no enmity is shown to exist between the prosecution witnesses and the appellant or his father. The two eye‑witnesses are obviously believe-able and their evidence alone is sufficient to support the conviction. The existence of minor contradictions do not damage the case of the prosecution in any manner. However, in this case there is the corroborative evidence of the production of the clothes and also of the knife the discovery of which is the result of the appellant himself leading the Investigating Officer to the place where he had deposited the same. There is nothing to suggest why the Police should implicate the appellant falsely or why no reliance be placed on the witnesses.

9. The appellant had been given the benefit of the situation that emerged out of the quarrel suddenly taking place between him and the deceased. The conviction under section 304 (2), P. P. C. is thus proper but on the plea that the sentence was severe and may be reduced, the learned Assistant Advocate‑General agreed that in the circumstances of the case the sentence imposed was severe and if it is reduced to five years it would serve the ends of justice.

10. In the result, the conviction is maintained, but the sentence is reduced to 5 years' R. I. and with this modification this appeal is dismissed.

11. Order accordingly.