1985 P Cr (PLP)

Muhammad Azam (20) was tried for the murder of Mushtaq Ahmad. On 4‑1‑1981 learned Sessions Judge, Gujranwala, convicted him under section 302, P.P.C. and sentenced him to imprisonment for life, with a fine of Rs.5,000, in default to sufer two years' rigorous imprisonment further. Out of the fine Rs.4,000 were ordered to be paid as compensation to the heirs of the deceased. The convict's appeal and the connected revision for enhancement of sentence are before me.

2. One and a half years before the occurrence in this case, Mushtaq Ahmad deceased, and Muhammad Azam appellant fought over pigeons, and Muhammad Azam accused suffered injuries in that incident. A case was registered against Mushtaq Ahmad deceased and his mother, which was pending. This was the motive for the crime.

3. In the afternoon on 14‑1‑1977 Sher Muhammad (informant), P.W. Faiz Ahmad, P.W. inayat All and Lal Din (not produced) were talking to each other in front of the shop of Mahmud Ahmad, nearby Mushtaq Ahmad was playing marbles, just then Muhammad Azam accused came there with Chadar wrapped around him, he stood over Mushtaq Ahmed, ripping out a Chhuri he inflicted a Chhuri blow in Mushtaq Ahmad's right flank. The aforementioned witnesses rushed towards them. In the meanwhile the accused inflicted blows on deceased's right cheek, left shouidsr and on his left wrist. The witnesses tried to apprehend the accused, but he threatened them with death and made good his escape. Mushtaq Ahmad was taken to the Civil Hospital, Gujranwala in a rickshaw and after admitting him there, P.W. Sher Muhammad proceeded towards the police station. He met P.W.12 Hashmat Ali A.S.I. at the G.T. Bus Stand and made statement Exh. P. D. to him at 3‑00 p.m. on the basis of which formal F.I.R. Exh. P.Dll was registered. The A.S.I. went to the hospital and made query from the doctor whether Mushtaq Ahmed was fit to make a statement to which the doctor replied in the negative. Then he went to the place of occurrence, took into possession blood stained earth. On 15‑1‑1977 he arrested the accused and on 17‑1‑1977 the accused got recovered blood‑stained Chhuri, P.4. from his house, where it had been concealed under cow dung cakes in the kitchen, it was made into a sealed parcel vide Memo. Exh. P. O. Besides the A. S. I. it was attested by P.W.11 Inayat Ali and Muhammad Shafi (given up as having been won over). Since Mushtaq Ahmed was fit to make a statement on 18‑1‑1977, therefore, the A. S. I. recorded his statement Exh. P. R. On 22‑1‑1977 A.S.I. received information that Mushtaq Ahmad had died. He then went to the hospital and prepared the necessary documents and sent the dead body for its post‑mortem examination. The investigation concluded.

4. Denying guilt Muhammad Azam accused said at the trial that the case was foisted against him because the deceased, his mother, his brothers and other relatives including Faiz Ahmed pressurised him and his father to compromise with them the case which was then pending against the deceased and his mother. Since he did not agree to it, he was falsely roped in. In defence he produced twelve documents Exhs. D.E. to D.Q, in order to prove that Chhuri P.4 had been planted on him because he had been acquitted in the Arms Ordinance case on the basis of statement of recovery witness P.W. Inayat Ali who denied the recovery. Through other documents he tried to show that Inayat Ali had appeared as witness in a number of cases and was a stock witness of the police.

5. Trial Court did not rely on the evidence of the recovery of Chhuri P.4. It also did not rely on the dying declaration Exh. P.R. Taking into consideration the evidence of the three eye‑witnesses it came to the conclusion that the prosecution case was satisfactorily proved against the accused.

6. Criticising trial Court's finding learned counsel for the appellant contended that the eye‑witnesses were inimical towards the accused and were chance witnesses. Disinterested witnesses though available, were not produced. As such there was no independent corroboration of the statements of interested witnesses. It was next contended that being interested witnesses the eye‑witnesses had stage‑managed their presence. They had not seen the occurrence. It was further contended that P.W.11 Inayat Ali was liar and war, therefore, not relied upon in so far as his evidence relating to the recovery of Chhuri P.4 was concerned; as such his statement with regard to the occurrence should have been ruled out of consideration. True P.W. Inayat Ali under cross examination said that he appeared for the prosecution in two cases only; but the documents produced in defence reveal that he had appeared in a number of cases as a witness for the prosecution. He also said that in the Arms Ordinance case against the accused, out of fear he stated before the Magistrate that no recovery was effected from the accused because the accused had threatened him with harm. In this case he, however, supported the recovery. Admittedly he did not inform the authorities about the threat held out to him. It is noteworthy that the accused remained in custody since his arrest. It would be improbable that the accused had held out a threat to the witness. Under these circumstances there is force in the submission that Inayat Ali P. W. was not a reliable witness.

7. In so far as the dying declaration Exh. P.R. was concerned, I am of the view that it has been rightly ruled out by the trial Court for good reasons. There is no explanation as to why Mushtaq Ahmed's statement could not be recorded by a Magistrate, and why it was not recorded in the presence of the doctor particularly when the doctor had endorsed on the query of the A.S.I. that the deceased was fit to make a statement. Moreover, according to the A. S. I. Sher Muhammad informant was present when he recorded the statement of Mushtaq Ahmad, though according to the informant, he was outside .in the Verandah when the statement was being recorded. This was not all, bare reading of the F.I.R. and the dying declaration would show that the dying declaration is almost a verbatim copy of the F. I. R. It certainly does not inspire confidence.

8. The sole question for determination would be whether reliance could be placed on the statement of P.W. 9 Sher Muhammad, informant and P.W.10 Faiz Muhammad, the two eye‑witnesses. No doubt Sher Muhammad is the real brother of the deceased, but this alone is not enough to call him an interested witness. It is noteworthy that in the earlier case Sher Muhammad informant was not an accused. That case was against deceased's brother and his mother. As such there was no direct enmity with this witness. On the other hand, keeping in view the circumstances of this case, grievance would be to the accused who had been injured by the deceased in the earlier case. The relations of the two families on account of the earlier incident may be strained. The fact that Sher Muhammad was not directly concerned with the earlier incident, it would, therefore, be improbable that he would substitute the appellant for the real culprit, even otherwise substitution is a rare phenomenon. The mere fact that the report was not made at the police station, it would not go to show that the F.I.R. was made after due deliberation and that the informant had not seen the occurrence. It is noteworthy that the G. T. S. Bus Stand is on the way to the police station from the hospital and was not far away from the police station. Moreover, information had also been received by the Investigating Officer from the doctor while he was at the Bus Stand, but soon thereafter the informant also met the A.S.I. there and made the report to him.

9. It was further contended that the deceased was playing marbles with two other boys in the lane, who were not produced. It is common knowledge that people often avoid to appear as witnesses. It is also noteworthy that Sher Muhammad was not a chance witness, as according to him, his house was at a distance of two furlongs, from the place of occurrence and on that day he was on his way home coming from Gujranwala when he stopped at the shop of Mahmud. Faiz Muhammad P.W. was with him at that time. It was argued that since Sher Muhammad was talking to Mahmud, he, therefore, could not have seen the attack on Mushtaq Ahmed. There is no force in the submission, because he was only at a distance of 100 yards from the place of occurrence. Much stress was laid on the admission made by P.W. 9 Sher Muhammad that P.W. Faiz resided in Kacha Eminabad Road at a distance of 10/12 Karams from Kangniwala and as such P.W. Faiz had no business to come to P.W. Sher Muhammad in village Kangniwala where the occurrence took place. There is no force in the submission because P.W. Sher Muhammad did not mention that P.W. Faiz lived at Kacha Eminabad Road during the days of occurrence. On the contrary, he said that during the days of occurrence., P.W. Faiz used to live in village Kangniwala and during the days when evidence in the case was being recorded, Faiz lived at Kacha Eminabad Road. This was further confirmed by P.W. Faiz himself who admitted that he had a house in Kacha Eminabad Road which he had constructed a year before his deposition in this case. He further said that he owned a house in Kangniwala. He was, however, unable to give its number. It may be mentioned here that normally in villages, houses would not have numbers. Even if they did, it was not expected that an illiterate person like Faiz would remember the number. P.W. Faiz had no motive to falsely rope in the appellant in a case of this nature. He is a distant collateral of the deceased and was not a close relation. The fact that he did not mention in his police statement that he came from Gujranwala with Sher Muhammad and stood at .the shop of Mahmood would not mean that he was not present near the place of occurrence. He is a resident of the same village and has no axe to grind against the accused. I find no good reason to believe his testimony. He has corroborated the testimony of P.W. Sher Muhammad in detail. There is nothing in the evidence of these two witnesses to show that they had not seen the occurrence.

10. The next question for consideration would be whether the deceased died due to peritonitis which may have been caused by negligent treatment. Would under the circumstances the offence be under section 302, P.P.C. Since in this case, the injury per se is sufficient to cause death in the ordinary course of nature, therefore, in this view of the matter, there can be no controversy. Relying on the evidence of the two eye‑witnesses, I am of the view that the prosecution has satisfactorily proved its case. The appeal is, therefore, dismissed. The appellant shall, however, be given the benefit of section 382‑B, Cr.P.C. S. G. D. Appeal dismissed.