P L D 1976 Lahore 788 (PLP)

Niaz Muhammad (22) son of Umar Din, caste Dogar, cultivator, resident of Qasimpura Colony, Multan City, was tried by the learned Additional Sessions Judge, Multan under section 302 of the Pakistan Penal Code for having committed the murder of Muhammad Siddiq deceased. By judgment, dated 30th April 1974, he was convicted under section 302, P. P. G and sentenced to imprisonment for life and a fine of Rs. 2,000 or in default in the payment thereof to further rigorous imprisonment for two years. The fine, if realised was ordered to be paid to the heirs of the deceased as compensation: He has appealed.

2. The brief facts of the prosecution case are that Muhammad Siddiq deceased and his brother Muhammad Sharif F. W. used to work as labourers in a Ghee Mills at Multan. After the duty hours they used to ply a tongs on hire. About three or four days prior to the occurrence which took place on 7th July 1972 at 8‑30 p.m., Niaz Muhammad appel lant abused the deceased. At that time he was drunk. The deceased gave him beating whereupon he advanced a threat that he would teach him a lesson. On 7th July 1973 at 8‑30 p.m. Muhammad Sharif, brother of the deceased, returned with the tonga, disengaged the horse and started for his house followed by the deceased who was carrying the 'saaz'. When Muhammad Siddiq deceased reached near the shop of Haji Nemat, the appellant appeared with a knife and gave a lalkaras to the deceased that he would not spare him that day. He inflicted knife blows on the back of the deceased who threw the 'saaz' and caught hold of the blade of the knife. The appellant snatched the knife, inflicted another blow on the abdomen of the deceased. Muhammad Sharif, brother of the deceased, and Shabbir P. Ws. rescued him from the appellant who fled away from there brandishing the knife. Muhammad Sharif took the deceased in a rickshaw to Civil Hospital, Multan, where he was medically examined. After the examination he was sent to Nishtar Hospital, Multan, for treat ment where he was admitted. On receipt of a telephonic message from Nishtar Hospital, Multan, that Muhammad Siddiq had been admitted there, Muhammad Bakbsh A. S. I. reached the hospital and enquired from the doctor vide ruqqa (Exh. PF) if Muhammad Siddiq was fit to make a statement to which the doctor replied: "Patient is fully conscious and orientated and is in good position to give any statement at this time." Thereafter, he recorded the statement (Exh. PE) on the dictation of Muhammad Siddiq deceased containing the above facts at 12‑15 a.m. on 8th July 1972 and sent it to the police station for the registration of the case where formal F. I. R. was drawn up at 1 a.m. the same night. He took blood‑stained chadar (Exh. P. 1) and blood‑stained Lukar (Exh. P. 2) of the deceased into his possession vide memo. Exh. PC. He reached the spot and took some blood‑stained earth from there and made it into a sealed parcel vide memo. Exh. PA. On 9th July 1972 he arrested the appellant who produced blood stain)4 knife (Exh. P. 3) which was made into a sealed parcel vide memo. Exh. PB. Muhamma3 Siddiq succumbed to his injuries in the Nishtar Hospital on 12th July 1972 at 10‑30 p.m. The A. S. I. reached the hospital on the next day and prepared the inquest report (Exh. PJ) of his dead body and sent it for post‑mortem examination. After the investigation, the appellant was cballaned.

3. On 7th July 1972 at 9‑50 p.m. Dr. Altaf Hussain Gardezi, Medical Officer, Civil Hospital, Multan, examined the deceased, when alive, and found the following injuries on his person:‑ "(1) A stab wound 1 " x 1/6" into abdominal cavity deep, peritoneum was cut and a part of the omentum was coming out of the wound with haemorrhage. (2) An incised wound 1 " x " depth not probed on the back of left chest. (3) An abrasion " x " on the back of left elbow. (4) An incised scratch " x 1/16" on the tip of left ring finger." Injuries Nos. 1 and 2 were kept under observation and the rest were simple. injuries Nos. 1, 2 and 4 were caused by a sharp‑edged weapon and No. 3 by a blunt weapon within the duration of few hours. On 13th July 1972 at 6‑30 p m. Dr. Muhammad Aftab Iqbal conducted the autopsy on the dead body of Muhammad Siddiq deceased and found the injuries referred to above, besides an operated wound. Pleaura and left lung were cut under injury No. 2 and large intestine was cut under injury No. I with omentum and peritoneum. In the opinion of the doctor, death was due to shock and rupture of lung caused by injuries Nos. 1 and 2 which were sufficient to cause death in the ordinary course of nature. All the injuries were ante‑mortem.

4. To support its case the prosecution examined seventeen witnesses in all, its main stay being the ocular testimony of Muhammad Sharif (P. W. 11), Muhammad Shabbir (P. W. 12) and Abdul Hameed (P. W. 13). It also relied on the dying declaration and the Waj Takkar evidence furnished by Ghulam Sarwar (P. W. 14), the recovery of blood‑stained knife at the instance of the appellant and the motive.

5. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. When asked to explain as to why he was implicated and why the P. Ws. had deposed against him he stated that he did not know. He produced a copy of Khasra Girdawari pertaining to the cultivation of Shabbir P. W. in village Rid. No other evidence was led in defence.

6. The learned trial Judge believed the prosecation evidence and found , the appellant guilty of murder.

7. The learned counsel for the appellant contended that the occurrence took place on a dark night and no body bad witnessed it. He assailed the ocular evidence on the ground that it was full of material discrepancies and the presence of the eye‑witnesses at the spot was extremely doubtful. He also assailed the evidence relating to the motive and the recovery of blood stained knife.

8. I have gone through the entire evidence and given my careful consideration to the arguments addressed by the learned counsel for the parties. In support of the motive, the prosecution examined Manzur (P. W. 6) who stated that about one and a half years back at about 5 p.m. he, Ali Muhammad and Siddiq deceased were taking tea' at the shop of Abdul Hamid P. W. when the appellant who was drunk, came there and started abusing to which the deceased objected and asked him to desist and behave whereupon an altercation ensued between them and they grappled with each other. He further stated that they were separated but the appellant threatened the deceased with dire consequences. In cross‑examina tion he admitted that he did not mention this incident to any one nor even to the police during the investigation of this case. There are also some contradictions in his statement. He deposed that he had stated before the committing Magistrate that the appellant abused and there was grappling between him and the deceased. He was confronted with his statement before the committing Magistrate where these facts are not mentioned. The complainant also deposed about the motive but his information about the earlier incident was based on hearsay. There is no other evidence about the motive and after considering the evidence I am of the view that it has not been substantiated.

9. Muhammad Sharif and Muhammad Shabbir furnished ocular account of the recurrence and their statements were consistent on the main features of the case. At the trial, Abdul Hamid P. W. stated that he was returning to his shop after serving tea to his customers at a nearby petrol‑pump when he saw the appellant giving knife blows to the deceased and by the time he reached his shop the appellant had fled away. Before the committing Magistrate his statement was that when he was returning to his shop he saw the appellant going away after injuring the deceased. At the trial, he admitted that before the committing Magistrate he stated that he had not seen the accused giving blows to the deceased. Muhammad Sharif P. W. is, no doubt, a real brother of the deceased but this fact is not sufficient by itself to discard his evidence. Hell stated that on the fateful night he returned to the spot with his tonga, disengaged the horse and his brother Muhammad Siddiq deceased picked up the `saaz' when the appellant suddenly appeared with a knife, raised a lalkara and inflicted knife blows on the deceased. The learned counsel for the appellant contended that the statement of the complainant that he returned with the tonga at 8‑30 p.m., disengaged the horse and the deceased followed him with the `saaz', was falsified by the evidence of Abdul Hamid (P. W. 13) who stated that Siddiq deceased and Sharif P. W. were sitting at his shop since 7‑30 p.m. I have compared this statement with Urdu record where it is recorded: " Sadiq aur sharif (illegible) 6-30 /7 baja sobho ka ay " This statement shows that the witness was referring to the visit of Sharif and Siddiq to is place (may be his shop as mentioned in English record) at 6‑30/7 a.m. and not at 6‑30/7 p.m. In his statement before the committing Magistrate he had stated that Siddiq and Shabbir (not Sharif) were sitting at his shop when he went to the petrol‑pump. Muhammad Shabbir (P. W. 12) who is an independent and disinterested witness, had clearly stated that at the fateful moment lie and the deceased were taking tea at the shop of Abdul Hamid P. W. when Sharif P. W. brought his tonga and disengaged the horse. He further stated that Siddiq carried the 'saaz' of the tonga and proceeded towards his house when the appellant appeared at the scene, raised a lalkara and attacked the deceased with knife. In view of the evidence on the record and for the reasons stated above, I do not find any force in the above argument. Sharif P. W. further stated that he took the deceased to the hospital in a rickshaw. Dr. Altaf Hussain Gardezi who examined the deceased, when alive, however stated that the injured was brought to the hospital by Manzur Ahmed (P. W. 6) son of Farzand Ali and the presence of any body else was not mentioned in the medico‑legal report. On the other band. Manzur P. W. stated that he did not accompany the deceased to the hospital on the day of occurrence. Relying on these statements it was contended that the complainant was not present at the spot because if he had been there he would have accompanied the deceased to the hospital. The mere fact that Sharif P. W. was not mentioned in the column of "Relative or Friend" in the medico‑legal report, is no ground for holding that Sharif was not present at the spot or had not gone to the hospital. Sharif P. W. admitted having stated before the committing Magistrate that while on way to the hospital he had informed the police at Police Station Mumtazabad that his brother was stabbed. He admitted that the Thanedar was present at the police station but he had not told the name of the accused and witnesses to him while on way to the hospital. On the basis of this statement it was urged that probably Sharif P. W. had come to know about the occurrence later on and if at all he had gone to the Police Station then he was not aware as to who had injured his brother. In his statement before the committing Magistrate Abdul. Hamid P. W. had stated that on his way to the hospital he had not narrated the details of the occurrence before the Thanedar but had only told him that his brother had been stabbed by Niaz accused. His statement at the trial that on his way to the hospital he had not told the name of the accused to the Thanedar, was an erroneous admission. In the trial Court he appeared about one year and nine months after the occurrence and by that time he might have forgotten whether he had told the name of the accused to the Thanedar or not. The above admission of Muhammad Sharif P. W. is not sufficient to hold that he had not seen the occurrence, particularly when his presence at the spot is supported by three independent and disinterested witnesses, namely, Muhammad Shabbir, Abdul Hamid and Ghulam Sarwar. Lastly, the learned counsel for the appellant contended that Abdul Hamid P. W. had severe enmity with the appellant and‑ a question to substantiate this fact was put to him but the trial Judge disallowed the question, therefore, the accused was prejudiced and the trial was vitiated. At the end of the statement of Muhammad Sharif there is, an ambiguous and unintelligible note by the trial Court which reads as under:‑ "(Learned defence counsel wants also to suggest and admit enmity between him and the accused and because the suggestion regarding enmity between accused and the witness enmity not made, suggestion is disallowed proved)." It was contended that the defence counsel in the trial Court wanted to put specific incidents relating to enmity between the appellant and Abdul Hamid P. W. but the trial Judge disallowed the question, therefore, the appellant was prejudiced. In the impugned judgment the trial Judge observed that it was suggested to Muhammad Sharif P. W. that he was not present at the spot and the appellant was involved in this case due to enmity and since the defence counsel did not specifically elaborate as to what kind of enmity was there, therefore, the question was disallowed. The argument that the defence counsel in the trial Court wanted to put specific incident relating to enmity between the witness and the appellant, is wholly unfounded (because the appellant in his statement under section 342, Cr. P. C. did not narrate any such incident. He was specifically asked as to why he was implicated and why the P. Ws. had deposed against him, to which ate replied that he did not know. If there had been any enmity between him and Muhammad Sharif P. W. he would not have omitted to mention it in his statement.

10. Shabbir P. W. admitted that he owned land in village Rid but stated that he cultivated it through his servants. He also admitted that he had two wives and both of them resided in village Rid. On the basis .of these admissions it was contended that he was not a resident of Multan and, therefore, his presence at the spot was doubtful. The mere fact that his land was at village Rid and his two wives resided there, is no ground to hold that he was not residing in Multan. It is in the statement of the investigating officer that the house of Siddiq deceased was at a distance of 15 karams from the place of occurrence. Shabbir P. W. stated that his house was adjacent to the house of Sharif P. W., brother of the deceased. ,Abdul Majid (P. W. 9) stated that Sharif, Siddiq deceased and Shabbir P W. resided in the same house in different rooms. This evidence amply shows that during the days of occurrence Shabbir P. W. was residing in Multan. He is an independent and disinterested witness having absolutely no motive to falsely implicate the appellant in this case and I see no reason to .disbelieve him.

11. As already stated earlier, Abdul Hamid P. W. stated at the trial that he had seen the appellant giving knife blows to the deceased :but in his statement before the committing Magistrate he had stated that when he was returning from the petrol‑pump he saw the appellant going away towards R. C. Chowk after injuring Siddiq with a knife. The learned counsel for the appellant contended that Abdul Hamid was not named as an eye‑witness in the F. I. R. and since he had made a material improvement at the trial saying that he had seen the appellant giving blows to the .deceased, therefore, his evidence was unworthy of credence. The occurrence took place near the shop of this witness. In the circumstance of the case, the omission to mention him as an eye‑witness of the occurrence in the F. I. R. is not material and cannot form the basis for holding that he was not present at the spot because the occurrence having taken place near his shop, he was the most natural witness of the occurrence. He had also no axe to grind against the appellant. He was consistent throughout that he had seen the appellant running away with knife. It was rightly observed by the trial Judge that his statement at the trial that he had seen the accused ..giving blows to the deceased might be based on his assumption that since the appellant was running from the spot with a knife, therefore, it was he who had inflicted injuries on the deceased. Sarwar P. W. who was running a cycle‑shop near the place of occurrence, stated that he also ‑saw the appellant running after the occurrence. He too had no enmity with the appellant.

12. Sharif P. W. stated that he saw the occurrence from two or three paces whereas according to the site plan he saw the occurrence from a distance of 54 feet. Muhammad Shabbir P. W. stated that he saw the occurrence from 5‑6 karams and the back of the appellant was toward him. Abdul Hamid P. W. stated that he saw the appellant from a distance of 15‑20 karams. Relying on these statements, it was contended that Muhammad Sharif P. W. was a liar because according to the site plan he saw the occurrence from a distance of 54 feet but at the trial he reduce& it to 2‑3 paces in order to show that he was in a position to identify the assailant. It was further argued that the other eye‑witnesses were at sufficient distance, therefore, it was not possible for them to identify the assailant as the occurrence took place on a pitch dark night. This contention is also without any substance. On seeing the deceased being attacked Muhammad Sharif who was his real brother, was not suppose& to remain at the same place at which he was when the first blow was inflicted. He must have run towards the deceased after the infliction of then first blow. The appellant was fully known to Muhammad Sharif and the other eye‑withesses. He had also raised a lalkars. The occurrence tool place near the shop of Abdul Hamid. The shop of Ghulam Sarwar was also at a short distance. Moreover, a petrol‑pump was also near the place of occurrence. It is a matter of common observation that at night the petrol‑pumps are profusely illuminated. There must be some light at the shop of Abdul Hamid and Sarwar P. Ws. as well. I, therefore, do not find any force in the contention that the P. Ws. were not in a position to identify the assailant. They had absolutely no motive to falsely implicate the appellant in a heinous crime like murder. Moreover, in the case of single accused substitution is extremely rare. Therefore, it is unbelievable that they had substituted the appellant for the real culprit.

13. Muhammad Khan, Foot Constable (P. W. 1) who escorted the dead body of the deceased to the mortuary admitted in cross‑examination that some person came to the police station and informed the A. S. I. that Yasin had injured the deceased with knife whereupon he, the A. S. I. Nek Muhammad F. C. and Muhammad Sharif, brother of the deceased, reached Nishtar Hospital at 11‑12 midnight. On the basis of above statement, the learned counsel for the appellant contended that the murder was committed by Yasin and the appellant was falsely implicated. Muhammad Khan F. C. was a formal witness who escorted the dead body of the deceased to the mortuary and I do not attach any importance p to the obliging concession made by him in cross‑examination. In Regu v. The State (PLD 1972SC77) their Lordships observed: `'We cannot help observing that the frequency with which cases are coming up before us wherein formal witnesses, particularly foot constables, are found to be obliging the defence in cross‑examination with regard to matters wholly unconnected with the part the witness took in the investigation, is causing us some concern. The obliging concessions made by such witnesses in cross‑examination cannot be considered to be of any value."

14. Another important piece of evidence against the appellant is the dying declaration (Exh. PE/FIR) recorded by Muhammad Bakhsh,. A. S. I. in Nishtar Hospital, Multan, on the dictation of the deceased. Before that at 11‑50 p.m. the doctor had issued certificate (Exh. P. F. ) to, the effect the`, Muhammad Siddiq deceased was fully conscious and in good position to give any statement at that time. In the dying declaration the deceased clearly, implicated the appellant. He stated that he was fallowing his brother after he had disengaged the tongs when the appellant appeared at the scene with knife, raised a lalkara that he would not let him go alive and gave knife blows on his back whereupon he threw the him on the ground and held the blade of the knife with his left hand but the appellant snatched the knife and plunged it in his abdomen. The knife is a weapon which can be effectively wielded only when the assailant is in close proximity of the victim. Injury No. 1 was on the abdomen and No. 4 on the left ring‑finger which shows that the deceased tried to snatch the knife. The location of injury No. 1 further shows that the assailant and the deceased were facing each other, therefore, there could be no possibility of any mistake on the part of the deceased in identifying the assailant. If some person other than the appellant had inflicted the injuries on the deceased he would not have substituted the appellant for the real culprit.

15. Another circumstance which corroborates the ocular account is the recovery of blood‑stained knife from the appellant. This recovery is supported by Abdul Majid and Zulfiqar P. Ws. who stated that at the time of his arrest the appellant produced blood‑stained knife (Exh. P3) before the investigating officer. The learned counsel for the appellant pointed out that their statements are discrepant. Abdul Majid P. W. stated that the knife was produced by the appellant on the day following the day of recovery of blood‑stained earth. The recovery memos. (Exhs. PA and PB) also show that the blood‑stained earth was taken a day earlier than the recovery of knife. Zulfiqar P. W., however, stated that the knife and the blood‑stained earth were secured on the same day. The statement of Abdul Majid and the investigating officer are consistent that the earth was secured on 8th July 1972 and the knife on 9th July 1972. I, therefore, do not attach any importance to the discrepancy pointed out by the learned counsel for the appellant. According to the report of the Serologist, the origin of the blood could not be determined as it had disintegrated. However, this does not mean that the knife recovered from the appellant was not the weapon of offence and this recovery also supports the other evidence on the record.

16. For all the foregoing reasons. I am of the view that the appellant was rightly convicted. He was awarded lesser penalty for the reason that "he is a young man of about 25 years." I feel no hesitation to say that the reason given by the learned trial Judge for awarding the lesser penalty is absurd. Young age by itself is no ground for awarding the lesser penalty, and in this case the age of the appellant according to the learned Sessions Judge, was 25 years which by no stretch of imagination can be termed as 'young' for the purpose of awarding the lesser penalty. However, the lenient view was possible for the reason that the circumstances preceding the murder were shrouded in obscurity and the prosecution could not prove the motive attributed to the appellant. The conviction and the sentence) of the appellant is, therefore, maintained and his appeal is dismissed. s. Q. Appeal dismissed.