Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUNEER KHAN VS Respondent: THE STATE
1988 M L D 892
1988 M L D 892
[Karachi]
Before Muhammad Mazhar Ali, J
MUNEER KHAN‑‑Appellant
versus
THE STATE‑‑Respondent
Criminal Appeal No. 13 of 1987, decided on 11th January, 1988.
Penal Code (KLY of 1860)‑‑--
‑‑‑Ss. 302 & 307‑‑Evidence of solitary witness‑‑Appreciation of‑‑Complainant, mother of deceased injured during incident‑‑Place of occurrence near house of complainant‑‑Even hostile witnesses admitting presence of mother of deceased at spot and also of her being injured in occurrence‑‑Deposition of complainant regarding receiving injury and stabbing of deceased by accused, finding support from medical evidence‑‑Witness an illiterate housewife, examined after 4 years of occurrence, not expected to be accurate in giving number of injuries caused to deceased‑‑Trend of deposition found straightforward and confidence inspiring‑ Statement consistent regarding all other facts=‑Defence suggestion of enmity, denied by witness and also not getting support from facts on record‑‑ Defence evidence failing to prove enmity to be so serious or deep rooted as to falsely implicate accused‑‑Prosecution case was proved beyond any shadow of doubt and evidence of solitary related witness could not be termed as unreliable as mere relationship of witness with victim was not by itself sufficient ground to reject her testimony‑‑Conviction and sentence maintained in circumstances.
P L D 1978 S C 114; 1987 P Cr. L J 2101; 1987 P Cr. L J 17; 1975 P Cr. L J 617; 1975 Cr L J 1096; P L D 1978 S C 114; P L D 1980 S C 317; 1985 S C M R 1167; P L D 1978 Kar. 593; 1986 S C M P ' d82; P L D 1986 S C 477, 1987 M L D 2700 and P L D 1985 Lah. 409 ref.
S. Nisarally for Appellant.
Masood Shahryar for the State.
Dates of hearing. 23rd and 24th November, 1987
JUDGMENT
Munir Khan son of Imam Din was tried by the learned IVth Additional District and Sesslous Judge, Karachi (West) for offences under section 302/307, P.P.C. for the murder of Shamsul Haq, deceased, and causing simple injury to Mst. Khan." The lied trial Court convicted him to suffer imprisonment for life and to pay fine of Rs.1,000 under section 302, P.P.C. for causing the death of Shamsul Haq and also under section 324, P.P.C. to suffer R.I.for one year for causing injury to Mst. Khairunissa or in default to undergo father R.I. for six months. This appeal has been preferred by the convict abovenamed against his conviction and sentence.
2. Brief facts of the case are that one Mst. Khairunissa, mother of the deceased Shamsul Haq, lodged FIR at Police Station Aurangi Town on 20‑1‑1977 stating that she alongwith her children and husband resided for the last six years in Aurangi Town, Sector 9/E, House No. 20, Karachi. Shamsul Haq was his elder son and was bachelor. He used to do weaving work at home. For the last few days he was not feeling well and was lying at home. Munir Khan had taken a house on rent m front of her house since t;'.7.montbs back and started living there. Munir Khan and her son Shamsul Haq were on friendly terms with each other. A few days back there arose some minor dispute between them. On 20‑1‑1977 at 4.30 p.m., Munir Khan came near her house and got Shamsul Haq called out through one Ahmed Ali, nephew of Lala, a shopkeeper of the adjoining shop. Shamsul Haq went out of the house. He was taken away by Munir Khan to a little distance when she heard exchange of hot words between them. From the door of her house she saw Munir Khan giving a slap to Shamsul Haq. She thereupon raised alarm as to whir he was beating him and she ran towards him. But, in the meanwhile Munir Khan took out a knife from the fold of his shalwar and started stabbing Shamsul Haq. He inflicted knife blow on his neck and he fell down. ,When Shamsul Haq got up from the ground Munir Khan gave a knife blow on his right thigh. She tried to rescue but Munir Khan gave a knife blow on the wrist of her left hand. Shamsul Haq was bleeding profusely from his injuries and fell down on the ground. Shopkeeper Lala, his nephew Ahmed Ali, Lal Mohammad, Abdul Jabbar and other people of the Mohallah witnessed the incident. Munir Khan then ran into his house. The complainant through Hafizuddin brought Shamsul Haq to Civil Hospital where he died after some time.
3. The police arrested the accused, secured the blood‑stained clothes and knife from him and after due investigation challaned him to face trial as aforesaid. A formal charge under section 302/307, P.P.C. was framed against the accused to which he pleaded not guilty and claimed to be tried.
4, In all 18 witnesses were examined by the prosecution at the trial in support 1 Abdur Rahman (Ex.4) deposed that the deceased resided in hiss he was known to him by the name of Buddhoo. On the day of incident he left his shop and came to his house for offering Aser prayer. When he to his shop he saw a crowed. The mother of deceased Buddhoo was crying that his son had been killed. From his shop he noticed that Buddhoo was bleeding. His mother got him removed to hospital through Mohallah people. Later on, he learnt that Buddhoo had died. PW 2 Ahmed Ali (Ex.5) deposed that he knew. both the appellant as well as the deceased, who was residue in front of his house. PW Abdur Rahim is his maternal‑uncle. On the day of incident he had gone to Sadar for getting the watch of his uncle repaired. On his return to his house at spout, 2.00 p.m., he learnt‑about the murder of Shamsul Haq. He was declared hostile by the prosecution and was allowed to be cross‑examined A.P.P. During cross‑examination by A.P.P. he refuted the suggestion that on the day of incident accused had met him at about 4.15 p.m., and asked him to call Shamsul Haq deceased from his house or that he called the said deceased from his house. He also denied the suggestion made to him that the appellant had requested him to save him by suppressing the facts of his meeting the accused and had called deceased Shamsul Haq. In answer to a question by the appellant's counsel he stated that the police did not read over the statement to him. PW 3 Mst. Khairunissa (Ex.6) deposed that deceased Shamsul Haq was her son and the appellant was living in a rented house near her house since last two years before the incident. On the day of incident, just before the incident, the appellant called her son through one small boy named Ahmed Ali. His son went out of the house's and after some time upon hearing the appellant talking with her son in harsh tone she went out and in her presence the appellant took out knife and inflicted in all 7 injuries on her son at his head, back and abdomen. She rushed to rescue her son and was given knife injury on her left arm by the appellant. The mother ‑of the appellant took him to their house. Her son had fallen down and had become unconscious. About 2‑4 persons had witnessed the incident but she did not know their names. One eye‑‑witness named Lalu accompanied her and her son on taxi to Civil Hospital where her son was exmined by the doctor. She was also given treatment by the doctor. Later, on, her son died in the hospital. The police came at the hospital and recorded her statement (Ex.6/A). During her cross -examination by the appellant's Advocate she admitted that Bano aged about 20 years was her daughter and that the deceased Shamsul Haq wanted to have Bano married with the appellant. She denied the suggestion that one Ali, a Punjabi, who used to visit her house and maintained her family wanted to marry her said daughter Bano. She also denied the suggestion that any quarrel had taken place between the deceased and the said Ali on the day of incident and that she and her son were given injuries by the said Ali. She also denied that on the day of incident her son was not called by appellant through Ahmed Ali. Ste further denied that she had opposed alleged marriage between her daughter Bano and the appellant and that on that account she had falsely implicated the appellant in this case. P.W. 4 Lai Mohammad alias Lalan (Ex.7) deposed that deceased Shamsul Haq was known to him since his childhood as he was his neighbour. The, appellant was not known to him prior to the day of incident. At the time of incident he was in his house which was about 100 feet away from the place of vardat and was attracted to vardat on the cries of "Bachao"., 'Bachao'‑ tin coming out of his house he saw deceased lying in the lap of his mother, the complainant, and the appellant was running away towards his house with knife in his hand. There was lot of blood around the deceased and he was on the verge of death. The complainant had also an injury on her arm. He alongwith other neighbours took the deceased and complainant to Civil Hospital. Deceased died in the hospital about half an hour of arrival ‑there. He produced Mashirnama of dead body (Ex.7‑A), inquest report (Ex.7‑B). In his cross‑examination he denied the suggestion that he had seen the appellant prior to the day of the incident or that he had come to fill water from public water tap and that he had ever fight with him. He also denk4 that he was falsely deposing against the accused. PW 5 Abdul Jabbar (Ex.8) acted as Mashir of the dead body and the inquest report (Exs. 7‑A and 7‑B respectively). During his examination‑in‑chief he deposed that the names of the accused and deceased were not given to him. During cross‑examination he deposed that about 2 months prior to the incident a fight had taken place over filling of water between PW Lai Mohammad alias Lalan. the appellant and one Sattar. During that fight PW Lai Mohammed and the said attar had threatened the appellant that they would see him. PW 6 Abdul Sattar (Ex.9) was declared hostile. During his cross‑examination by A.P.P. he denied to have seen the appellant causing knife blows to deceased or that he had seen the accused at the vardat being armed with knife and running away to his house after committing the incident. He admitted that police had inspected the vardat on the day of incident in his presence and had secured the blood‑stained earth under Mashirnama (Ex.9/A) which bears his signature. He alto admitted that police had secured the blood‑stained shirt of the complainant in his presence under Mashirnama (Ex. 9/B) which bear his signature. He admitted his signatures on (Ex.9/C) the Mashirnama of seizure of knife on the pointation of the appellant but denied its contents as he had not gone inside the house of the appellant. He admitted his signatures on Ex. 9/D, the memo of recovery of blood‑stained shirt and blood‑stained Shalwar of the appellant. He also produced blood‑stained earth in a tin (Article A), shirt of the complainant (Article B), the knife (Article C), and the blood‑stained clothes of the appellant (Articles D‑1 and D‑2). During cross‑examination by the advocate for the appellant he stated that he is an illiterate and that all the above Mashirnamas were prepared at the police station where his left thumb‑impressions were also obtained. PW 7 Hafizuddin (Ex.10) deposed that the incident had taken place between 4.00 and 5.00 p.m., when he was in his house. After coining out of his house on the commotion he found the deceased lying injured on the ground. At that time he did not see any injury on the person of the complainant. He admitted to have taken the deceased with the complainant an a rickshaw to Civil Hospital. P.W.8 Qamaruddin (Ex.11) had acted as mashir of the scene of offence (Ex.9/A) of seizure of blood‑stained shirt of the complainant (EX. 9/B), memo of seizure of knife (Ex. 9/C) and memo of seizure of blood‑stained clothes of the appellant (Ex. 9/D). He denied to have seen the witness. He stated that police had obtained his signatures on some papers without reading their contents to him. He thus admitted his signatures on the Exs.9/A, 9/B, 9/C and P/D but denied the correctness of their contents. With regard to the articles A,B,C,D‑1 and D‑2 he stated that they were the same which were shown to him at police station. He was declared a hostile witness and allowed to be cross‑examined by A.P.P. PW 9, Head Constable Mohammed Aslam, (Ex‑12) had stood guard over the dead body of Shamsul Haq in the mortuary of Civil Hospital. He handed over the dead body to the doctor for post mortem anal upon receipt of the dead body after the post‑mortem had handed it over to the heirs of the deceased. PW 10 Mohammad Akram A S I (Ex.13), received the statement of complainant Mst. Khairunissa recorded under section 164, Cr.P.C. by Israr Ahmed (Ex. 6/A) for lodging the regular F I R. He Produced the regular F I R as Ex.13/A. PW 11 Mohamed Umar (Ex.14) deposed that on the day of incident at about 3.00 p.m., he had gone to the house of the deceased, who was related to him, to inquire about his health. While he was in the house of the deceased a boy came and asked the deceased that he was required by Munir Khan, the appellant. The deceased went out and after some having heard the commotion the complainant went out and soon thereafter called him saying that the deceased was being stabbed by the appellant. He went out and saw the appellant armed with knife who gave a blow on the back of the deceased who fell down. The complainant then went forward to rescue her son but the appellant gave knife blow on her right hand. Then the appellant again gave third blow on the right hand of the deceased. Upon arrival of the several persons of Mohallah at the scene of offence the accused ran away into his house. The complainant and the deceased were then taken to hospital while he remained outside the house of the appellant so that he could not run away. The police then came at the vardat and arrested the appellant. His statement was also recorded by the police. PW 12 Mohammad Yaqoob Farooqui had deposed nothing about the incident. PW 13 Israr Ahmed (EX. 16) was S.I. at Police Station Aurangi Town, Karachi, on the day of incident. He received a telephonic message from the Medical Officer, Civil Hospital about the arrival of the injured and the complainant and also about the deceased Shamsul Haq. He went to Civil Hospital and recorded the statement of the complainant under section 164, Cr.P.C (Ex. 6/A) and sent it to police station for registration as regular F.I.R. He also issued formal letter to C.M.O. for performing post‑mortem examination on the dead body of deceased Shamsul Haq and prepared the Mashirnama of dead body (Ex. 7/A) and also the inquest report (Ex.7/B). He admitted his signatures , on the said exhibits. He then handed over the case for further investigation to PW 17 Maqbool Hussain Shah. S H O PW 14 Mohammad Tufail (Ex. 17) is the writer Head Constable who had received six sealed parcels as case property of this case from S.H.0. for keeping them in Malkhana of police station. These parcels were later on sent to chemical analyser for report. PW 15, Dr. Hasan Jawaid (Ex.20) was Medico‑Legal Officer at Civil Hospital. Karachi, who had first received the dead body of the decease! Shamsul Haq on 20‑1‑1977 at 6.00 p.m., and examined him. He found the following external injuries on the person of the deceased.
(1) "Incised wound 1" x 1/2" muscle deep, middle of medial aspect of right thigh bleeding profusely.
(2) Incised wound 1" x 1/2" suspected cavity deep back of right side chest, at the level of 10th rib.
(3) Incised wound 1 "x 3/4" skin deep on the dorsum of left hand."
And issued a certificate as Ex.20,/A, who also on the same day and at the same time examined complainant Mst. Khairunissa injured and found the following injuries on her person:
"(1) Incised wound 2" x 1/4" skin deep on left forearm on upper 1/3 portion aspect."
He issued the medical report as Ex. 20/11. PW 16, Maqbool Hussain Shah (Ex. 22) who was S.H.O. Aurangi Town Police Station on 20‑1‑77 investigated the case. He produced the sketch of Vardat prepared by him (Ex.23) and Mashirnama of arrest of accused (Ex.24). He also produced the chemical analysers report Ex.27. He also admitted to have prepared the above referred Mashirnamas Exs 9/A, 9/B, 9/C and 9/D. He also identified the above noted Articles A, B, C, D/1 and D/2. In his cross- examination he denied the suggestion that no Mashir had accompanied rd him to the place of recovery of knife and blood‑stained clothes of accused and that Mashirnamas had been prepared at police station where the signatures of the Mashirs had been obtained. He also repelled the defence suggestion that the knife was foisted upon the appellant by him. PW 17 Dr. Iqbal Ahmed Ex.25 had performed autopsy on the dead body of the deceased Shamsul Haq. He found the following external injuries on his person.
"(1) 1/W Right side of chest back 2" from mid‑line measuring 1." x 1/2" x cavity deep, horizontal in direction.
(2) 1" left hand dorsum measuring 4" x 1/2" x skin deep oblique in direction.
(3) I/W right thigh middle interior aspect measuring 2" x 1/2" x muscle deep.
(4) I/W left shoulder tip x 3" x 1/4" skin deep, oblique in direction".
On internal examination of the dead body he found that under external injury No. 3 the weapon had passed through the skin soft issue of muscle and of the right thigh going upwards and cutting the femoral artery through and through. There was collection of blood around the vessel. Under external injury No.1 the weapon of assault had entered into the right side of the cavity and caused inside wound of right lung lower part measuring 1" x 1/4" tissue deep x right side chest cavity was full of blood. He opined that external injury No.3 with its internal findings collectively and individually was sufficient to cause death in normal course of nature. According to the doctor the cause of death was haemorrhage and shock as a result of multiple homicidal stab wounds inflicted by a sharp and pointed weapon like long sharp‑pointed knife, chhuri or any similar weapon of assault. He produced post‑mortem report as Ex.26. PW 18 Dr. Ali Hassan Ex. 32 was C.M.O. of Abbasi Shaheed Hospital. On 2‑11‑1977 at about 9.30 am. he had examined Munir Khan, the accused‑appellant, and found the following injuries on his person.
(1) Incised wound about 1/2" x 1/2" with linear search about 1" on Rt lateral side of wrist extending upto palm. .
(2) Incised wound about 3/4" x 1/4" skin deep on the root of left thumb medically.
(3) Incised wound about 3/4" x 1/4" skin deep on the tip of left middle finger.
(4) Incised wound about 1/2" x 1/4" skin deep on the tip of the left ring' finger.
(5) 2 abraded contusions, of different sizes on right knee joint.
(6) Abraded contusion, 1/4" in diameter on bridge of nose."
In his opinion Injuries No.1 to 4 were caused by sharp weapon and Nos.5 and 6 by hard and blunt substance. All the injuries were simple in nature and were fresh in duration. He produced medical certificate in respect of the above as Ex.33.
5. The appellant in his statement before the trial Court under section 342, C.P.C. denied the prosecution version as incorrect. His case is that he is innocent. Deceased Shamsul Haq was his friend and he wanted to give hand of his sister, Mst. Bano, to him in marriage; whereas his mother Mst. Khairunissa, the complainant was annoyed with him. Therefore, they had dispute with him. Mst. Khairunissa wanted to give hand of her said daughter to one Ali, Punjabi, who used to visit their house but the deceased always insisted that she should be married to him (accused). Other three persons also used to visit her house. He did not know who had killed Shamsul Haq. He had been involved by the complainant in this case due to that enmity. He also stated that he had a dispute with PW Lai Khan on the water tap a few days prior to the incident and he had threatened him that he would see him. He examined in defence two witnesses, namely, PW 1 Mohammed Suleman and P.W.2 Muhammad Najib.
6. I have heard Mr. Nisar Ally, the learned counsel for the appellant and Mr. Masood Shaharyar, learned counsel for the State and have gone through the evidence on record.
7. Mr. Nisar Ally submitted with vehemence that on the solitary evidence of the complainant, who is an interested witness, the conviction could not be sustained unless it is corroborated by substantial reliable evidence and the witness is very reliable. He sought to support his contention by the following authorities .
1. PLD1978SC114.
2. 1987 P Cr.L J 2101 (Peshawar).
3. 1987 P Cr.L J 17 (Karachi).
He then contended that the recovery of knife, the weapon of offence and blood‑stained clothes at the pointation of appellant has not been proved through independent evidence. Only the 1.0. has deposed about it and his evidence cannot be accepted. For this proposition he placed reliance on 1975 P Cr L J 617 (Lahore); 1975 P Cr L J 1096 and P L D 1978 S C 114.
8. The next contention pressed by the learned counsel was that PW 4 Lal Mohomed alias Lala is an interested witness being friend of the deceased. Moreover, he was having enmity with the appellant and had threatened him that he would see him at the time of altercation between him and the appellant about two months before the incident. This fact has been admitted by PW 5, Abdul Jabbar in his cross‑examination. The evidence of PW. 4 Lal Mohomed, according to the counsel, is false and improbable, and prompted by enmity. That the learned trial Court having rightly observed that the evidence of hostile witness loses all its evidentiary value and it could not be used in favour of the prosecution or against it yet the trial Court relied upon the evidence of P.W.6, Abdul Sattar and P.W.8. In doing so the trial Court has fallen into an error and acted against the settled principles of law. The learned counsel then drew my attention to the contradictions between the contents of the F.I.R and the deposition of PW 3, Mst. Khairunissa, the complainant in Court. Alternatively, the learned counsel for the appellant submitted that even if the evidence of PW.3 Mst. Khairunissa is held to be reliable then too it was a case of sudden fight and the blade of the knife was only 3 1/2 inches. The injury was also not caused on any vital part of the body and hence it was not a case falling under section 302, P.P.C, but under section 304, Part I, P.P.C. which is punishable with 10 years. In his submission, the appellant has remained in detention for a period of about 3 years during the trial and about a year after conviction and hence it is a case for reduction of sentence. Lastly, the counsel contended that even otherwise the learned trial Court failed to take into consideration the period of three years detention during trial while passing the sentence of imprisonment. In this connection he drew my attention to the judgments of the Supreme Court reported in P L D 1980 S.C. 317 and 1985 4 S C M R 1167.
9. The learned counsel for the State, on the other hand, supported the impugned order. He emphasised that it was not a case of sudden fight but of a premeditated attack wherein the complainant is also injured as is borne out from medical certificate Ex. 20/B. He submitted that within a period of four years from the commission of offence and the examination of the prosecution witnesses, some of them who were named as eye‑witnesses by the complainant in he F.I.R were won over and hence the prosecution had to declare them hostile. He, however, urged that the memo of recovery of knife (Ex. 9/C) the weapon of murder at the pointation of the accused‑appellant, stands proved by the deposition of S.H.O. Maqbool Hussain Shah. Relying upon the decisions reported it P L D 1978 Kar. 593 and 1986 S C M R 1482 he urged that the statement of a police officer cannon be discarded if enmity is not alleged against him. He further contended that the evidence of PW Mst. Khairunissa fully establishes the commission of offence by the accused‑appellant. Her version gets support from the medical reports. She herself received an injury at the scene of offence and she cannot, according to him, be said to be an interested person. He urged with vehemence that the Supreme Court in the case of Zulfiquar Ahmed v. The State (P L D 1986 S C 477) has held that in such circumstances, as exist in. the instant case, the testimony of a single witness can be relied upon for conviction of an accused. In this connection he also placed reliance on 1987 M L D 2700. The counsel further submitted that contradiction about the number of injuries in the F.I.R. and the statement of the complainant in Court in the instant case was of no material consequence as she was interested to intervene rather than to witness the incident. In this connection he cited an authority of Lahore High Court reported in P L D 1985 Lahore 409. The counsel urged with vehemence that P.W. Mst. Khairunissa is a natural witness and her solitary evidence supported by medical evidence and recovery of knife were sufficient to prove the guilt of the accused‑appellant. Additionally, he urged that the report of the chemical analyser in respect of all the items…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.