1970 P Cr (PLP)

It appears that the father of P. W. 7 Abdul Hamid was ailing. After sometime deceased Muhammad Sharif and P. W. 7 Abdul liamid left their house for paying visit to the ailing father of Abdul Hamid P. W. 7 at Lohari Gate. When they reached the back side of their house they saw the appellant and his brother Muhammad Latif armed with chhuris, who challenged them. Appellant attacked the deceased and caused him two injuries; one on the left thigh and the other ors the right upper arm. In the meantime, Bashir Ahmad P. W. 8, brother of the deceased and Muhammad Hanif P. W. 9, who lives in the same locality reached on the spot. Bashir Ahmad grappled the appellant from behind and Muhammad Hanif P. W. 9 snatched away chhuri from his hand. Niaz Muhammad also reached there and the appellant was apprehended by the above three persons. Muhammad Latif, brother of the appellant attacked Abdul Hamid P. W. 7, but he could not cause any injury to him with his chhuri because Abdul Hamid gripped his hands in such a way that he was unable to use his chhuri. Seeing this he got his hands released and ran away leaving his chhuri at the spot. This chhuri was also taken into possession by Muhammad Hanif P. W.

9. Thereafter Abdul Hamid and Bashir Ahmad P. Ws. took the injured Muhammad Sharif to Mayo Hospital Lahore. Muhammad Sharif died on the way to the Hospital. A telephonic messages sent to Muhammad lshaq P. W. 13 Sub‑Inspector, from Casualty Ward of Mayo Hospital at about 1‑45 p.m. On receiving the message he proceeded to the Hospital and reached there at about 2‑00 p. m. He saw the dead body of the deceased lying in the verandah of the Casualty Ward and Bashir Ahmad and Abdul Hamid P. Ws. present there. He recorded the statement of P. W. 7 Abdul Hamid (Exh. P. B.) at 2‑00 p.m. and forwarded the same to Mozang Police Station where the case was formally registered by A. S. I Anwar Ali Shah P. W. 4 at about 2‑30 p.m. In the meantime, S. H. O. Sultan Ali F. W. 14 who was investigating a case in the Samna‑Abad locality learnt about the occurrence. He immediately left for the scene of occurrence and reached there at about 2‑10 p.m. On reaching the spot Muhammad Siddique appellant was seen there under the custody of Muhammad Hanif and Niaz Muhammad P. Ws. Muhammad Hanif produced the appellant before him who was arrested. He also produced the blood‑stained chhuri Exh. P. 5 which was taken into possession and sealed into a parcel Exh. P. C. He also produced chhuri Exh. P. 6 alleged to have been left at the spot by Muhammad Latif which was also taken into possession vide Memo. Exh. P. D. The S. H. O. also collected blood‑stained earth from the scene of occurrence and sealed it into a parcel Exh. P. E. Muhammad Ishaq Sub‑Inspector, left the Hospital for the scene of occurrence and reached there at 3‑45 p. m. On finding Ch. Sultan Ali, S. H. O. at the scene of occurrence, he handed over the investigation to him. Later on, Muhammad Latif also appeared at the Police Station and surrendered himself. He was also arrested, Appellant Muhammad Siddique and Muhammad Latif were challaned and committed to the Sessions for their trial In support of the prosecution, reliance was placed on the eye‑witnesses' testimony of P. W. 7 Abdul Hamid, P. W. 8 Bashir Ahmad, P. W. 9 Muhammad Hanif and P. W. 10 Niaz Muhammad. Reliance was also placed on the medical evidence: It showed that the deceased received an incised stab wound "" X 1" x femoral vein deep over the outer side of left thigh upper half. He also received an incised wound skin deep over the inner side of right upper arm. According to the medical opinion, the death of the deceased occurred due to shock and haemorrhage following injury No. 1 which was sufficient in the ordinary course of nature to cause death. The medical evidence further showed that Abdul Hamid P. W. 7 had also received injuries on his person, namely, bleeding from the left nostril and blunt injury on the left side of the face near the eye‑brow. The plea of appellant Muhammad Siddique and Muhammad Latif before the committing Magistrate was of bare denial. Appellant took the plea of self‑defence at the trial before the Sessions Judge. In this connection he made the following statement in his examination under section 342, Cr. P. C. before the Additional Sessions Judge: ‑ "I was selling ganderis and sugarcane along the window of Khushi Muhammad, Yusuf, son of Abdul Hamid P. W. came. He picked up ganderis from my chhaba. I gave him a slap. He ran back shouting. Hamid P. W. came up. He gave me beating with sugarcane. I struck my head against his face four or five times. Then Sharif deceased came up. He was armed with chhuri Exh. P. 5 in his hand. He gave me chhuri blow in my abdomen. The shirt which I was wearing at that time is worn by me now as well. I produced it before the Court as Exh. D. I. I snatched chhuri Fxh. P. 5 from Sharif. The chhuri was in his right hand and I snatched it with my right hand. After, I snatched Exh. P. 5 from Muhammad Sharif, he picked up with his hand my chhuri which was in my chhaba. When he aimed a blow with that chhuri I gave him chhuri blow with chhuri Exh. P. 5 in order to save my life and I fled away. Then I contacted Muhammad Latif co‑accused ann he advised me to appear at the Police Station. When we went there Hanif and Niaz P. Ws. were already present at the Police Station. Ch. Ishaq S. I. was present there. I produced myself before the S. I. S. H. O. Sutlan Ali returned to the Police Station at about 8‑9 p .m. Police arrested me and also Muhammad Latif co‑accused." The learned Additional Sessions Judge came to the conclusion that there was no earlier incident in the 4th December 1966 and disbelieved P. W. 7 Abdul Hamid and P. W. 10 Niaz Muhammad on this point. He further disbelieved the story of F. W. 8 Bashir Ahmad and P. W. 9 Muhammad Hanif that they had witnessed the occurrence. He also expressed doubt on the arrest of the appellant from the scene of occurrence. He held that Muhammad Siddique was not arrested from the scene of occurrence. He also believed the story of the appellant that he was selling ganderis and in that connection a quarrel took place between the appellant and the deceased Muhammad Sharif. He, however, held the appel lant as an aggressor and came to the conclusion that he attacked the deceased with the intention of killing the deceased and therefore convicted him under section 302, P. P. C. On appeal the High Court upheld the conviction of the appellant and confirmed the death sentence but the learned Judges of the High Court disagreed with the trial Court and accepted the statements of the eye‑witnesses, namely, P. W. 7 Abdul Hamid, P. W. 8 Bashir Ahmad, P. W. 9 Muhammad Hanif and P. W. 10 Niaz Muhammad. They also came' to the conclusion that Muhammad Latif, the brother of the appellant, was also present on the scene of occurrence and the story of the prosecution against him was not without basis. The appellant was granted special leave to appeal on a jail petition. In this matter this Court is not concerned with the case of Muhammad Latif. He was acquitted by the trial Court and there is no appeal before us against his acquittal. The only question for consideration in this appeal is whether the prosecu tion version should be accepted or the plea of self‑defence raised by the appellant should prevail. Mian Ata‑ul‑Haq, the learned counsel for the appellant, has contended before us that the first part of the prosecution case that altercation had taken place between P. W. 7 Abdul Hamid, the deceased and Muhammad Latif earlier at about noon time on the day of occurrence should not be accepted as the prosecution failed to produce Muhammad Yousuf as a witness in the case. The learned counsel contended that the trial Court was fully justified in raising an adverse presumption against the prosecution by the non‑production of this witness because if he had appeared as a witness he would A have deposed against the prosecution case. The contention of the learned counsel has not impressed me. Admittedly Muhammad Yousuf is a boy of 5/6 years old. He is not an intelligent person and could not have rendered any assistance to the Court on this aspect of the case. Had the prosecution produced him an objection would have been raised that he was a tutored witness. In view of this the learned Judges of the High Court were perfectly justified in not agreeing with the observation of the learned trial Court in this behalf. In the circumstances of the present case no adverse presumption should have been raised on the ground that Muhammad Yousuf was not produced as an eye‑witness. The ‑statements of P. W. 7 Abdul Hamid and P. W. 10 Niaz Muhammad lend support to the prosecution case. that earlier at about 12‑00 a.m. quarrel took place between the deceased Muhammad Sharif, Abdul Hamid P. W. 7 and Muhammad Latif and on this occasion the deceased gave sugarcane blows to Muhammad Latif. The learned counsel for the appellant contended that as no injury was found on the person of Muhammad Latif of the sugarcane blow, the prosecution story in this respect should not have been believed. This contention was repelled by the High Court. It also appears to me that the absence of injury on the person of Muhammad Latif could be explained on the ground that he was wearing woollen clothes it being winter season. I would, therefore, hold that the High Court was perfectly justified in accepting this part of the prosecution case. Similarly the contention of the learned counsel for the appellant that P. W. 8 Bashir Ahmad and P. W. 9 Muhammad Hanif had not seen the commission of the crime is also not well founded. The learned Judges of the High Court have dealt with this aspect of the case in detail. Their appreciation of evidence on this point appears to be quite. satisfactory. The evidence of these witnesses clearly show they had seen a part of the occurrence. P. W. 9 Muhammad Hanif is a B. D. Member and has no enmity with the appellant.. He is a resident of the locality and his reaching on the spot is quite natural. The evidence of P. W. 8 Bashir Ahmad, who is a brother of the deceased and lived with him, is also convincing. He grappled the appellant from behind and P. W. 9 Muhammad Hanif snatched the chhuri from his hand. They must have seen the occurrence. Their evidence, therefore, was rightly believed by the High Court. P. W. 10 Niaz Muhammad also reached at the spot immediately after the occur rence. He also saw the appellant Muhammad Siddique in the custody of P. W. 8 Bashir Ahmad and P. W. 9 Muhammad Hamt. Churri Exh. P. 5 was also recovered in his presence. The discre pancy in the statement of P. W. 10 Niaz Muhammad and P. W. 9 Muhammad Hanif about the place from where the appellant was arrested is of a minor nature. His arrest from the house of Muhammad Siddiq or from the spot will not make much difference. In the presence of such evidence the learned Judges of the High Court were perfectly justified in holding that the second part of the occurrence was witnessed by P. W. 7 Abdul Hamid, P. W. 8 Bashir Ahmad and P. W. 9 Muhammad Hanif and their evidence was corroborated by the apprehension of the appellant at the spot along with blood‑stained chhuri Exh. P. 5 which was, later on, found to be stained with human blood by the Serologist. The plea of self‑defence raised by the appellant does not find support from any independent or circumstantial evidence on the record. The S. H. O. P. W. 14 has stated that there is no place in Jagan Street where anybody can sell ganderis as a hawker. The observation of the learned Judges of the High Court that "if the app.‑llant had been selling ganderis at the time and place of occurrence, the eye‑witnesses and the investigating police might have found at the spot some sugarcanes or ganderis or baskets etc., or the necessary instruments for making the ganderis", very pertinent. It is difficult to accept the plea of self‑defence of the appellant because if the deceased Muhammad Sharif had come armed with chhuri and attacked the appellant he would have received some injury on his person. The absence of any injury on the person of the appellant clearly shows that he was not attacked by the deceased or by P. W. 7 Abdul Hamid. After carefully considering the evidence on record I am satisfied that the High Court was perfectly justified in not attaching any importance to this plea. The conviction of the appellant is rightly based on the testimony of the eye‑witnesses, namely, P. W. 7 Abdul Hamid, P. W. 8 Bashir Ahmad and P. W. 9 Muhammad Hanif. Their statements are corroborated by the arrest of the appellant from the custody of P. W. 9 Muhammad Hanif and P. W. 10 Niaz Muhammad at the spot and the production of blood‑stained chhuri Exh. P. 5 by Muhammad Hanif P. W.

9. The motive of the crime is also proved by the testimony of Abdul Hamid P. W. 7 and Niaz Muhammad P. W. 10 about the earlier incident of altercation and quarrel between the deceased and Muhammad Latif. There is no doubt, therefore, that the appellant was responsible for the murder of deceased Muhammad Sharif. It was next contended by the learned counsel for the appellant that as the injury was caused on the left thigh of the deceased which is not a vital part of the body, the appellant should be given a lesser penalty of transportation for life. The contention of the learned counsel has not impressed ma because the attack by the appellant was premeditated. He was armed with a chhuri of 9" blade and attacked the deceased with considerable; force which resulted in cutting the femoral vein which is a e large blood vessel on the thigh. It is, therefore, quite clear that he intented to cause the injury which was found on the deceased person and that injury was sufficient to cause the death in the ordinary course of nature. This case is clearly covered by the third clause of section 300, P. P. C. In the circumstances of this case the appellant does not deserve any lenient view. I would, therefore, uphold his conviction and dismiss the appeal. MUHAMMAD YAQUB ALI, J.‑I agree. M. R. KHAN, J. ‑I agree. Appeal dismissed.