ABDUL RASHID Versus THE STATE Hayat Junejo,Gulzaman Khan , Imam Bux Shaikh

1. SAJJAD ALI SHAH J.‑‑ This appeal is filed against impugned Judgment dated 4‑6‑1984 of III‑Additional Sessions Judge, whereby appellant has been convicted for offence under section 302, P.P.C. and is sentenced to death. He is further sentenced to a fine of Rs.5,000 or in default to undergo R.I. for four months. Appellant is further ordered to pay Rs.10,000 as compensation to the legal heirs of deceased Safeendad under section 544‑A, Cr.P.C. and in default sentenced to R.I. for six months. There is also before us reference for confirmation of death sentence.

2. On 4‑12‑1984 after hearing in detail learned Advocates for both the parties, for reasons to be recorded later, we altered conviction from section 302, P.P.C. to section 304(ii), P.P.C. and awarded sentence of 7 years' R.I. with further order to appellant to pay compensation of Rs.10,000 to the heirs of deceased, failing which he would suffer R.I. for two years. In the result appeal was dismissed with modification stated above. Reasons for short order follow now.

3. Briefly stated the relevant facts are that deceased Safeendad aged 30 years resided in Natha Khan Goth, Drigh Colony, Karachi. Appellant also resided in the same neighbourhood. On 22‑2‑1982 in the evening deceased came out from the house of his mother‑in‑law and accidentally trampled over partridge of appellant resulting in injury to the partridge and upon this there ensued quarrel between appellant and deceased and there was also exchange of hot words. Neighbours intervened and separated the two. It is stated that after 15 minutes deceased again came out from the house to fetch water in a tin and he was attacked by appellant who was armed with a Chhuri. Deceased received injury on the chest, fell down on the door of his house of his mother‑in‑law and died at the threshold of the door. Mst. Roobina aged 7/8 years, who is "Sali" of deceased, came and informed her brother Muhammad Zareen complainant who worked as Chowkidar in the office of Haider Ali Property Dealer. Muhammad Zareen came to the scene of offence and after verifying the facts went to the Police Station Shah Faisal Colony and lodged report at 5‑45 p.m. on the same day. Sub‑Inspector Bagh Hussain after registering F.I.R. accompanied complainant to the scene of offence. He saw the dead body prepared Mashirnama of scene of offence and inquest report. He sent the dead body to the hospital for post‑mortem examination and recorded statements of witnesses. He deputed A.S.I. Muhammad Bashir to arrest the appellant but appellant had run away and was not traceable. Blood‑stained earth was also secured from the spot. Further investigation was made by Adam Khan Sub‑Inspector of C.I.A., who recorded statements of two witnesses namely Waheed Azam and Sardar Ali Shah after which he was transferred from C.I.A. and he handed over investigation to Inspector Ch. Muhammad Aslam. This Inspector verified the progress of investigation and sent one Sub‑Inspector to Hazara District to arrest appellant. In the meantime appellant as admitted to bail before arrest. He was granted pre‑arrest protective bail for 15 days by Sessions Court Abbottabad. Subsequently he surrendered before Sessions Court, Karachi and was granted bail. After completion of investigation challan was presented.

4. Prosecution has produced 10 witnesses in support of its case. P.W.1. Muhammad Zareen is complainant who produced F.I.R. Exh.7. He is not an eye‑witness. P.W.2 is Robins Naheed. She is examined as eye‑witness and she is a child‑witness. P.W.3 Mst. Shaffat Bibi as mother‑in‑law of deceased and she is examined as an eye‑witness. P.W.5 Waheed Azam and P.W.6 Muhammad Aslam have also been examined as an eye‑witnesses. In all prosecution has examined four eye‑witnesses. P.W.4 Wahab Shah is Mashir of injuries on dead body and inquest report. He has produced both these documents as Exhs.11 and 12. P.W. 7 is Doctor Irfan Qureshi who conducted post‑mortem examination on the dead body Don 22‑2‑1982 he found one incised wound on the left side of the chest and one incised wound on the left hip and one contusion on the chest. According to doctor heart was cut and injury No.1 was sufficient to cause death. Doctor produced post‑mortem report Exh.17. P.W.8 Bagh Hussain, P.W.9 Adam Khan and P.W.10 Muhammad Aslam are Police Officers who have investigated the case.

5. Before the trial Court appellant in his statement under section 342, Cr.P.C. took up plea of denial simplicitor of all prosecution allegations. He proclaimed innocence and did not lead any evidence in defence.

6. We have gone through the record and have heard the arguments of learned Advocates appearing for the parties.

7. Occular evidence is criticised on many grounds. Out of four eye‑witnesses one namely P.W.5 Waheed Azam is not named in F.I.R. F.I.R. was lodged by Muhammad Zareen, who is not an eye‑witness but was informed by his kid‑sister and then he went to the spot verified facts and lodged the report. Name of Waheed Azam is conspicuously absent as an eye‑witness in F.I.R. The police statement of this witness was recorded for the first time on 11‑4‑1982 after delay of about one month and 20 days. His statement was recorded by P.W.9 Adam Khan S.I. of C.I.A., who commenced investigation on 10‑4‑1982. We, therefore, exclude from consideration evidence of this eye‑witness P.W.5 Waheed Azam.

8. We now take up for consideration evidence of three eye‑witnesses namely Robins, Mst. Shaffat Bibi and Muhammad Aslam. P.W.2 Robins Waheed is aged 10 years according to observation of the trial Court and her statement was recorded in the Court on 3‑8‑1983 when the incident took place on 22‑2‑1982. According to challan age of this witness is shown as 6/7 years. It, therefore, can be easily said that at the time of incident this witness was hardly 7 or 8 years old. Trial Court put questions this witness to be satisfied that she could understand nature of proceedings and as to what she was saying. She answered the questions correctly and then he deposition was recorded. She is a very natural witness as the incident took place right on the door of her house. At the relevant time, which was 5‑00 p.m., she was outside the house playing. She has fully supported the prosecution case on the quarrel before the incident as well as attack by appellant with Chhuri on the deceased in the result of which Safeendad became injured and died at the door of her house. House of appellant and deceased are in the same street in which is house of this witness at a very short distance of 8 or 9 paces. She identified appellant as he was living very near to her house. She has stated that she and her brother Yasin aged about 8/9 years saw the incident and her brother Yasin went and informed her mother. When the mother opened the door Safeendad fell down on the door and died. She was asked by the mother to inform Muhammad Zareen. She went and informed complainant. According to the learned counsel for the appellant evidence of this witness showed that Mst. Shaffat Bibi was not an eye‑witness and she opened the door after the incident was over. Evidence of the child‑witness is criticised on the ground that she has admitted inter‑deposition that her statement was recorded by police after two days. Record` shows that police statement of this witness was record on the same day when incident took place. This witness has beer; cross‑examined at length but it appears from her evidence that she is truthful eye‑witness and had really, seen the incident. She has no enmity against the appellant to implicate him falsely. If the point raised on behalf of the appellant is conceded that Mat. Shaffat Bibi opened the door after the incident was over and with the opening of the door injured Safeendad fell down and died with half portion of the body inside the house and other half outside the door, then it still remains for Mst. Shaffat Bibi to explain whether she saw the appellant with Chhuri in his hand or not. Evidence of Shaffat Bibi shows that she has deposed as an eye‑witness and she has also deposed about preclude to the incident. She has spoken about P.Ws. Aslam and Khushal who were sitting in the house at the time of incident. She was admitted that she had sent Robins Naheed to inform Zareen. She claimed to have seen appellant inflicting three injuries to the deceased with Chhuri. It cannot be said that Mst. Shaffat Bibi is not a natural witness because she lived in the house at the door of which incident had taken place. At a relevant time her presence at the spot in the house is natural. She has made some exaggerations in the statement which can be ignored for the reason that she is an uneducated restic Pathan household lady who was giving evidence in the case in which her own son‑in‑law was murdered. If it is accepted that according to Rubina, Mst. Shaffat Bibi did not see the infliction of injuries and if we assume in favour of appellant that he ran away immediately after infliction of injuries and when Mat. Shaffat Bibi opened the door, appellant was not present, then this witness is the first witness to see injured falling down on the door and dying and she was given the name of assailant by child‑witness Robins. It was not possible for Robins not to name the real culprit but give falsely name of the appellant with whom she could not possibly have any enmity. Furthermore, it is not possible even for Mat. Shaffat to falsely implicate the appellant or tutor her daughter to give name of appellant. Both these witnesses have no motive against the appellant. Appellant has not claimed any enmity with them. We, therefore, hold that Mst. Robins is the real eye‑witness and Mst. Shaffat Bibi saw injured Safeendad felling on the door of her house and Mst. Robins gave Mst. Shaffat Bibi name of appellant as assailant.

9. Fourth eye‑witness produced by prosecution is P.W.6 Muhammad Aslam he is not related to the deceased but is rather independent witness. His name appears in F.I.R. At the relevant time he lived in Drigh Colony near Shame Cinema. On the day of incident he and Khushal Khan went to the house of Mistry Abdul Rehman father‑in‑law of deceased in Gohati Mohalla. They enquired about Mistry Abdul Rehman and deceased Safeendad asked them to wait as he was likely to come home. They waited in the house and deceased Safeendad went out of the house and had a quarrel with appellant on account of his trampling over partridge of appellant. They separated them and again this witness claimed to be waiting in the house when the incident took place in which deceased was given injuries by the appellant. This witness states further that he came out on commotion and saw appellant giving Chhuri blows to deceased. We hesitate to rely upon evidence of this witness for several reasons. Firstly he is a chance witness and his explanation to be present in the house at the time of incident is not convincing. Secondly if he was inside the house he could come out with Mst. Shaffat Bibi and could see only what she could see. Thirdly child eye‑witness Mat. Robins has not named him as eye‑witness. We, therefore, exclude evidence of this witness from consideration. There is no recovery of weapon for reason that appellant ran away after the incident and surrendered before the Court after a long time. In the evidence of prosecution we rely upon P.W.2 Robins Naheed as eye‑witness who is further supported by Mat. Shaffat Bibi and complainant Muhammad Zareen. She had informed both these witnesses that appellant was the assailant who had given injuries to the deceased. Another corroborative circumstance in the case of prosecution is that appellant absconded from the scene of offence and fled away to Hazara. P.W.8 Bagh Hussain Sub‑Inspector has deposed before the trial Court that after reaching the spot and examining prosecution witnesses, he deputed A.S.I. Muhammad Bashir to arrest the appellant, who could not be arrested as he had ran away. Appellant was not available at his place of service and other places despite best efforts to arrest him. P.W.10 Muhammad Aslam Inspector C.I.A. at the relevant time deposed before the trial Court that he searched for the appellant who was not available in Karachi. He deputed Sub‑Inspector to go to Hazara to arrest the appellant but in the meantime appellant was admitted to bail before arrest by the Court at Hazara. It appears from the record that appellant surrendered before Sessions Court at Abbottabad and got pre‑arrest protective bail for 15 days. Appellant surrendered before Sessions Court at Karachi and got interim bail before arrest on 19‑5‑1982 which was confirmed on 6‑7‑1982. In the statement under section 342, Cr.P.C. appellant has denied committing the murder and stated that he was already in his home town. By saying so he means to say that he was not physically present at the scene of offence but was in his home town in District Hazara. This shows that appellant has pleaded alibi. He has not said anything further about this plea and has not given any evidence in support of it. If at the time of incident appellant was in Hazara District, he could easily give some evidence to show his presence in his home town on the day of incident but no step was taken by him in this regard and no evidence has been produced by him. Secondly if the appellant was not present at the scene of offence at the time of incident and was in his home town as claimed by him, then there was no necessity for him to apply for bail before arrest. This shows guilty conscience and resultant conduct after incident. We, therefore, are satisfied that prosecution case stands proved by sufficient evidence as stated above.

10. So far question of conviction is concerned, we altered the same from 302, P.P.C. to 304(ii), P.P.C. for the reason that we placed main reliance upon the evidence of child‑witness Robins Naheed. No doubt she has deposed about preclude to the incident and the fact that both appellant and deceased were separated by people who had collected there. But then about the actual incident she has said that when deceased came out again appellant came armed with a Chhuri and attacked the deceased and further appellant was concealing himself behind the door. What we really feel is that after the quarrel was over with intervention of people of Mohalla and 10 or 15 minutes afterwards when the deceased again came out from the house, the child‑witness was no doubt present there but perhaps busy in her play and did not notice what transpired before appellant opened attack with Chhuri on the deceased. Secondly from the post‑mortem report it appears that there were only two stab wounds, one on the chest and the other on the hip. If the appellant had the intention of killing deceased, he could have caused many more injuries, which he did not. Third injury which is contusion on the chest is not accounted for and cannot be attributed to the appellant because this appears to have been caused with fall of deceased on the threshold of the door of the house of Mst. Shaffat Bibi. In this context it was argued by Mr. Muhammad Hayat Junejo that only one blow was given on the chest if prosecution evidence is to be believed and the other blow on the hip. It just happened that blow fell on the left side of the chest and internal damage was caused to the heart. In such circumstances knowledge could be imputed to the assailant but not the intention. Reliance is placed by the learned counsel on the case of Emmanuel Bahadur Joseph v. Paul Jackson and another 1981 S C M R 663.

11. In the result we dismiss the appeal with modification as stated above in second pare of the judgment.

12. S. G. D. Order accordingly.