1981 P Cr (PLP)

The convicts have filed separate appeals. Criminal Appeal No. 478 has been filed by Nasir Javaid whereas Criminal Appeal No. 524 of 1978 has been filed by Muhammad Javaid. Both these connected appeals are being taken up and disposed of together along with Murder Reference No. 165 of 1978 for the confirmation of death sentence awarded to Nasir Javaid, by this, judgment.

2. The occurrence took place on 22nd October, 1975, at Maghrib prayer time in the area of Walton Airport in front of residential quarters at a distance of 41 miles from Police Station Ichhra, Lahore. Statement Exh. P. A. was made by Soofi Ahmad Khan, P. W. 1, sister's husband of the deceased at 8-30 p.m. on the same day at the General Hospital, Lahore and it was recorded by Ch. Abdul Wahid S. I, P. W. 8 who arrived there in response to a message received from the hospital. On the basis of the aforesaid statement formal F. I. R. Exh. P. A./1 was registered at the police station at 9-15 p.m. on the same day by Muhammad Bashir M. A., S.

1. P. W. 5.

3. The motive for crime, as stated in the F. I. R. is that Nasir Javaid appellant used to visit Muhammad Javaid appellant of the residential locality of the deceased with bad intention. The deceased used to stop Nasir Javaid appellant from visiting his Mohallah whereupon the two appellants felt aggrieved. At 9-00 a.m. on the morning of the day of occurrence Nasir Javaid appellant and the deceased had a quarrel near Ganda Nala bridge in Gopal Nagar village of tire same area but the residents of that locality had separated them. Muhammad Aleem Akbar P. W. 3 has been produced in support of the earlier incident besides Soofi Ahmad Khan P. W. 1, to whom this incident had been narrated by the deceased himself. The present occurrence followed the same evening.

4. The prosecution has produced two eye-witnesses of the occurrence, namely Soofi Ahmad Khan P. W. 1, sister's husband of the deceased, and Muhammad Afzal Khan P. W. 2, a neighbour and colleague of Soofi Ahmad Khan P. W. since both of them were working in the same office.

5. Muhammad Javaid appellant was arrested on 23rd October, 1975 by Ch. Abdul Wahid S. I. P, W.

8. But Nasir Javaid appellant could only be arrested on 20th November 1975 by Muhammad Nawaz Cheema, Inspector Police P. W.

9. Blood-stained knife P. 1 was recovered at the instance of Nasir Javaid appellant and taken into possession vide memo. Exh. P. C. on 29th November, 1975. The attesting witnesses are Muhammad Aslam P. W. 4, an unconnected person, Muhammad Nawaz Cheema, I. P. P. W. 9 and Nazir Ahmad (given up as won over). According to the report of the Serologist Exh. P. M. at page 11 of the Paper Book the scrapings from knife P. 1 were found to be stained with human blood.

6. Muhammad Javaid appellant, in his statement before the trial Court, denied having participated in the occurrence. He stated that Soofi Ahmad Khan P. W. wanted him to make false statement to the effect that the deceased was held by Arif Javaid, father of Nasir Javaid appellant and Nasir Javaid appellant had stabbed him. But since be refused to accede to this request, he was falsely involved in this case. He further stated that he was working in the house of Soofi Ahmad Khan P. W. as a domestic servant. Nasir Javaid appellant also denied participation in the occurrence and disowned recovery. He stated that he was not present at the time of occurrence and had not absconded. But be surrendered voluntarily before the S. H. O. Police Station, Ichhra on 19th November, 1975. He raised the plea of alibi and stated that his father a. the time of occurrence was posted at Naval Headquarters Islamabad. However, he was living in the same locality as the deceased with his other relatives. Soofi Ahmad Khan P. W. and his friends were influential people in the locality and they wanted them to act according to their demand. A quarrel took place between Nasir Javaid appellant and Soofi Ahmad Khan P. W. about three weeks before the present occurrence. As a result he visited the house of Nasir Javaid appellant and complained against him to his mother. Thus, Soofi Ahmad Khan P. W. became angry with him on account of this quarrel. Earlier also a friend of Soofi Ahmad Khan P. W. namely, Muhammad Aleem Akbar P. W. 3 was a witness against him and his father in a case under section 307, P. P. C. registered at Police Station Ichhra. He was at Rawalpindi on the day and time of occurrence and was arrested by the Railway Police, Golra Sharif in a customs case. Later on, he was released on bail by the local police on his furnishing personal bond. A case under the. Customs Act was registered against him on the day of occurrence by Railway Police, Golra Sharif and his goods were confiscated by the Customs Authorities. However, later on he came to know, while at Rawalpindi, that a case under section 302, P. P. C. had been registered against him at Lahore. His father advised him to sur?render before the police which was done on 19th November, 1975, at Police Station Ichhra, Lahore. Before he came to Lahore he sent a tele?gram from Rawalpindi to the Chief Justice of the Lahore High Court mentioning these facts. (A copy of this telegram is at page 57 of the Paper Book). On 20th November 1975, an application was made on his behalf by Abdul Hammad, a friend of his father before the local Magis?trate giving the details of his arrest and seeking a direction for his medical examination. The Magistrate passed an order on that application. The original application with the order was given to the S. H. O. and photostat copy of the same was being tendered in evidence. His father also applied to the General Hospital, Lahore, where the deceased was taken to obtain information about those who had taken the deceased to the hospital. The hospital authorities returned the application with the remarks that their record did not show any entry with regard to the deceased. He produced Muhammad Zaman H. C. of Railway Police, Rawalpindi as D. W. 1 in support of his alibi. This witness stated tat he was present on 22nd October 1975 at Police Post Golara Sharif. It is a railway police post. He found Nasir Javaid appellant at 8-25 p.m. on the platform of Golra Sharif Railway Station. He had Guthli with him which on inspection revealed that he was carrying betelnuts amounting about ten seers. He had no authority or receipt for the same. The betelnuts was a prohibited item and it could not be moved without a permit. The offence fell under section 556 Item No. 8/9, Customs Act. He arrested Nasir Javaid appellant and then released him at 8-50 p.m. on his furnishing personal bond.

7. Dr. Mubarak Shahid P. W. 10 conducted post-mortem exami?nation on the dead body of the deceased on 23rd October, 1975, and found on his person an incised wound on the right side of chest. The injury had been caused by a sharp-edged weapon and was sufficient to cause death in the ordinary course of nature. The death resulted due to haemorrhage and shock and the probable time that elapsed between injury and death was about half an hour.

8. In the F. I. R. the occurrence is reported to have taken place in the following manner. On the fateful day Soofi Ahmad Khan P. W. 1 was having a stroll with Muhammad Afzal Khan P. W. 2 on the street in front of his quarter. In the meantime, Muhammad Javaid appellant came there and called the deceased from his quarter. The deceased joined him and they both proceeded to the quarter of Muhammad Javaid appel?lant. Soofi Ahmad Khan P. W. asked the deceased as to where he was going. The deceased told him that he had been called by the father of Muhammad Javaid appellant and he was going to his house. While the deceased and Muhammad Javaid appellant arrived in front of the quarter of Muhammad Javaid appellant, Nasir Javaid appellant, who was hiding in the Gulbasi plants near the road came out raising a lalkara to the deceased to the effect as to who was he to stop them from visiting his Mohallah and that he would deal with him. Nasir Javaid appellant then held him from his collar. In the meantime Muhammad Javaid appellant held the deceased in a Japha. The deceased raise d alarm. On hearing his alarm Soofi Ahmad Khan and Muhammad Afzal Khan P. Ws. rushed to the spot in order to rescue him. But right under their eyes Nasir Javaid appellant gave a knife blow to the deceased, which fell on his chest. The deceased fell on the spot in an injured condition and the two appellants decamped- The deceased was taken to the General Hospital, Lahore, in a Taxi in an injured condition but before he could be given medical aid, he died.

9. We have heard learned counsel for both the sides and carefully perused the record. The record reveals that the accused-party as well as the complainant-party were residents of the same locality. The father of the deceased had died and since 14/15 years the deceased was residing with his sister and brother-in-law, namely, Soofi Ahmad Khan P. W. Nasir Javaid appellant used to visit Muhammad Javaid appellant with bad intention to tease the girls of the Mohalla and the deceased used to stop Nasir Javaid appellant from visiting their Mohalla. For this reason the boys, who were all of young age did not have good relations. In the morning of the day of occurrence the deceased and Nasir Javaid appellant had a quarrel but they were separated by the people, and the deceased had narrated this incident to Soofi Ahmad Khan P. W. The earlier incident had also been witnessed by Muhammad Aleem Akbar P. W.

3. At any rate, while Soofi Ahmad Khan and Muhammad Afzal Khan P. Ws. were having a stroll in the street, they heard the alarm of the deceased and while they rushed to the scene of crime to rescue him, chef saw that the deceased was being held in a Japha by Muhammad Javaid appellant and before they could rescue him, Nasir Javaid appellant gave a knife blow which fell on the chest of the deceased and thereafter both of them ran away. The ocular testimony of the two eye-witnesses is consistent. There is nothing on the record to show that these two eye-witnesses had a motive to falsely implicate the appellants. The prosecution case further is that Muhammad Javaid appellant was arrested on the following day. However, Nasir Javaid appellant could not be arrested as he became an absconder. It is evident from the record that the father of Nasir Javaid appellant was posted in the Naval Headquarters at Islamabad. There?fore, it is reasonably probable that after the occurrence Nasir Javaid appellant left Lahore and rushed to his father. He has himself stated in the statement before the trial Court that on the advice of his father he subsequently surrendered to the police on 10thNovember, 1975. In any case, the prosecution version is that he was arrested on 20thNovember, 1975. The telegram which he had sent to the Chief Justice of the Lahore High Court is, dated 19th November, 1975. The important question is as to whether Nasir Javaid appellant had succeeded in establishing his plea of alibi. It must be pointed out at the outset that the version of alibi is for the first time being raised on 19th November 1975, almost one month after the occurrence. No suggestion as to the alibi version was put to any of the eye-witnesses. Even otherwise, the evidence, which was pro?duced in support of the alibi, has been rejected by the trial Judge for the reasons given in para. 10 of the judgment. He did not take up this plea during the investigation of this case, nor was this plea suggested to any of the eye-witnesses or the Investigating Officer at the trial. It is observed by the trial Judge that according to the prosecution he was arrested on 20th November, 1975, i.e. almost after a month of the occurrence and had there been any truth in the said plea, it has not been explained as to why he kept on waiting for a month to surrender before the police and as to why the plea of alibi was not agitated before the police at the investigation stage. Thereafter, heled to the recovery of human blood-stained knife P. 1 which provided a strong corroboration of the ocular testimony as against him. The falsehood of his plea was also evident from the fact that it was not suggested to the Investigating Officer that such a plea was taken up by him, but the Investigating Officer due to malice did not examine the same. Both the Investigating Officers have not been cross-examined in this respect at the trial. The D. W. Muhammad Zaman H. C. produced in support of this plea was H. C. in Railway Police, Rawalpindi. He attempted to prove a daily diary recorded by him in register Roznamcha of Railway Police Post Golra Sharif according to which on the said date he had apprehended Nasir Javaid appellant. This register Roznamcha was not page marked, bounded or attested by any senior officer. This witness stated that the Roznamcha was started by him at 8 p.m. on the same day i.e. 22nd October, 1975 and he allegedly apprehended Nasir Javaid appellant a 8.25 p.m. The register Roznamcha starts from 22nd October, 1975, at 8 p.m. and the previous two pages of the register were blank. The witness could not give a satisfactory explanation as to why he did not deposit the Roznamcha in the Malkhana of the police station concerned. He is stated to have arrested Nasir Javaid appellant on 22nd October, 1975, but did not report the matter to the police station till 25th October, 1975 and he could not give any satisfactory explanation for the same. Further?more, he had no authority under the law to act under the Customs Act as a Customs Officer. No officer of police below the rank of A. S. I. could apprehend or prosecute a person under the Customs Act. Then this witness claims that he had released Nasir Javaid appellant by obtaining his personal bond and had sent the challan to Customs Authority. Had it been true, then the defence would have produced F. I. R. the challan and personal bond said to have been signed by Nasir? Javaid appellant on 22nd October, 1975 at 8-25 p.m. at Railway Police Post Golra Sharif. The trial Judge drew the inference that these documents were not in existence, otherwise Nasir Javaid appellant, who was being defended by a competent counsel, would have produced them or summoned them to support of his plea. But the plea of alibi being supported by Muhammad Zaman H. C. D. W. who was easily accessable by producing a document of questionable authenticity was of no value as opposed to the prosecution evidence which is on the record in the form of reliable ocular testimony, motive recovery of crime weapon and absconsion of Nasir Javaid appellant. It may be pointed out at this stage that on behalf of Nasir Javaid appellant an application was moved under section 375 read with section 428, Cr. P. C. for the grant of permission to him to produce additional documentary evidence. The additional documentary evidence consists of order passed by Superintendent, Lard Customs (Preventive) Rawalpindi in January, 1977 respecting confiscation of goods as against Nasir Javaid appellant, show-cause notice to Nasir Javaid appellant dated 6th February, 1975 report dated 22nd October, 1975 Mochalka dated 2nd October, 1975 School Leaving Certificate of Nasir Javaid appellant indicating his date of birth being 31st December, 1960 in order to show that at the time of occurrence be was about 15 years old, affidavit dated 15th January, 1980 of Soofi Ahmad Khan P. W. complainant to the effect that he had now come to know that there was some serious misunderstanding about the actual occurrence and that he has reconciled with the convicts and furthermore that he had been sufficiently compensated, and also affidavit of the father of Nasir Javaid appellant to the effect that none of his sons or relatives or friends was serving in the Customs Department anywhere it Pakistan. We examined this evidence and were of the considered opinion that for the adjudication of this case it was not necessary to grant the permission to place the additional documentary evidence on record. So far as the documentary evidence pertaining to alibi is concerned, this could have beer produced at the trial stage. In any case, in our considered view the trial Court was correct in arriving at the conclusion that the plea of alibi was false concocted and an afterthought. In that view of the mater, the evidence, which is now being placed on record in connection with this plea, is of no avail to Nasir Javaid appellant. As for the documentary evidence to the effect that Nasir Javaid appellant was about 15 years old at the time of occurrence this is also borne out from the present record. At the time of the trial which was held in 1978 his age is stated to be as 19 years. The occurrence took place in 1975 i.e. three years earlier when be could have been 16 years old As for the affidavit of Soofi Ahmad Khan P. W., we are of the opinion that we have no jurisdiction to consider it. The affidavit only indicates that the complainant has been sufficiently compensated and he has reconciled with the convicts. Similarly, the affidavit of father of Nasir Javaid appellant to the effect that he did not exert his influence for creating the defence of alibi for his son is of no value to Nasir Javaid appellant, because our own conclusion is that the plea of alibi raised by Nasir Javaid appellant merited rejection on numerous grounds and not only for the reason that father of Nasir Javaid appellant might have got the defence of alibi made as some relatives of his or one of his sons had been working in the Customs Department. We have to consider the case as it is on merits by the perusal of the record which is before us. Learned counsel for the appellants attempted to argue that the eye-witnesses were interested and they had a motive to falsely implicate the appellants, because earlier there had been a quarrel among the boys. It was contended that the eye-witnesses were not present at the time of the occurrence and they had not witnessed the same. For this purpose reliance was placed on the cross-examination of Muhammad Aleem Akbar P. W. 3, who appears to have given some concessions in favour of the defence. Muhammad Aleem Akbar P. W. was not an eye-witness of the occurrence. He was produced only to depose in respect of the earlier incident which he did in his examination-in-chief. But in cross-examination he gave some concessions in favour of the defence by stating that at the tune of the occurrence two eye-witnesses along with some others were present with him and that they all learnt that someone had murdered the deceased. So they all came out in the Bazar. They were further informed that the injured was removed to the hospital. They all come out together from his house but after reaching the Bazar they scattered and independently reached the hospital and that he rushed to the hospital since he was a friend of Soofi Ahmad Khan P. W. This version does not appeal to reason at all. If Muhammad Aleem Akbar P. W. was friend of the complainant-party and they received the information of the attack on the deceased at the same time and they came out in the Bazar, then there was no reason why they should scatter and proceed to the hospital separately. It was then argued by learned counsel that Muhammad Afzal Khan P. W. was a friend of Soofi Ahmad Khan P. W. They both had claimed that they carried the deceased in an injured condition and that their clothes got blood?stained. But these blood-stained clothes of theirs had not been produced before the Police. So learned counsel wants us to draw the inference that both the eye-witnesses being interested had a motive to falsely implicate the appellants. They were not present at the time of the occurrence and had not seen it and, therefore, they should not be relied upon. It was then submitted that the occurrence took place in the evening time and it would have become dark. The ocular testimony is to the effect that there was light on the spot but the witness, who had made the site-plan, had stated that there was no light on the spot. Thus, according to learned counsel the occurrence took place when darkness had fallen and by the side of the street there were tall plants from which Nasir Javaid appellant is stated to have emerged. Thus, the reasoning is that the eye-witnesses could have not identified the assailants of the deceased but since the relations between the complainant and the accused-party were strained, they falsely implicated the appellants as the assailants of the deceased. It was next argued that according to the ocular testimony, both the eye-witnesses were attracted to the scene of crime on hearing the noise and alarm of the deceased and consequently they could have not known as to what immediately preceded the occurrence. Thus, the real cause or immediate cause was shrouded in mystery and the eye-witnesses had not deposed anything in respect of the same. In our considered opinion, the arguments of learned counsel are without any substance. There is nothing on the record to show that the eyewitnesses had a motive to falsely implicate the appellants. Their testimony is consistent and they cannot be considered as interested witnesses in any sense of the term. Soofi Ahmed Khan P. W. has no motive to falsely implicate the appellants and Muhammad Afzal Khan P. W. is his neighbour and there is nothing on the record to show that he had any hostility towards the appellants. In fact, in our view, they are natural witnesses of the occurrence. It was next argued by learned counsel that the recovery evidence was of no corroborative value. Nasir Javaid appellant was arrested, according to the prosecution, on 20thNovember, 1975 whereas the occurrence had taken place on 22nd October, 1975. After his formal arrest recovery of the weapon of offence was stated to have been made at the instance of Nasir Javaid appellant after nine days on 29th November, 1975. The record indicated that from 29th November, 1975 to 12th December, 1975 the said knife remained in the custody of the police and during. this period it could have been tampered with. In any case, it was sent for chemical examination on 2ndDecember, 1975 and remained in the office of the Chemical Examiner till 30th December, 1975. It was received in the office of the Serologist on 14th January, 1976 and the Serologist gave his opinion to the effect that the scrapings from the same were found to be stained with human blood on 7th February, 1976. It was submitted that in any case the knife in question was recovered from a place which was accessible to anyone and the only public witness of this recovery, namely, Muhammad Aslam P. W. 4 was a chance witness. According to learned counsel if Nasir Javaid appellant had become an absconder, he could have washed the knife and it would have borne no stains of blood. We have carefully examined this aspect of the case. The knife in question was recovered from a particular spot under the bridge which was only known to Nasir Javaid appellant, who led to the recovery of the same. Therefore, it cannot be said that the weapon of offence was lying at a place which was accessible to every one. Some times an accused person can place the weapon of offence or throw the same in a place which is accessible to all. Nevertheless, it can be made to lie on such a spot which is only known to the accused-person and he only could lead to its recovery. It is reasonably probable that when Nasir Javaid appellant escaped, he placed or threw the knife on a spot under the bridge where he only knew that it was lying. Then he was arrested on 20th November, 1975 and led to its recovery on 29th November, 1975. It may be true that the knife remained in the custody of the police from 29th November, 1975 to 12th December, 1975 when it was sent to the office of the Chemical Examiner where it remained till 30th December, 1975 and then it was received at the office of the Serologist by 14thJanuary, 1976 and he gave his opinion thereon on 7th February, 1976 and found that it was stained with human blood. One could say that the Police could have tampered with it, but then there :oust be something on the record to indicate that the Investigating Officer had conducted the investigation dishonestly in this case. However, there is no evidence to that effect. The recovery was attested by Muhammad Aslam P. W. again who had no motive to falsely implicate the appellants, besides the Investigating Officer. In our considered view, the recovery corroborates the ocular testimony, in the instant case, which is being supported by the motive as well as the medical evidence. But even if we do not pay any attention to the recovery evidence, the ocular testimony, in the instant case is quite reliable and needs no corroboration when it is being supported by the motive as well as the medical evidence. We are, therefore, convinced in our mind that in the light of the above discussion, the prosecution has succeeded in establishing its case as against the appellants. However there is one aspect of this case which is important for consideration. Muhammad Javaid appellant is stated to have held the deceased in a Japha while Nasir Javaid appellant gave him a single knife blow which led to his death. Nasir Javaid appellant did not repeat the blow. There is evidence on the record to indicate that Nasir Javaid appellant who had been awarded death sentence was 16 years old at the time of occurrence. He may have even been younger i.e. about 15 years old if his School Leaving Certificate be taken into consideration Consequently, a case is made out for the awarding of lesser penalty to Nasir Javaid appellant. Thus, in our view, Muhammad Javaid appellant was rightly convicted under section 302/34, P. P. C. and sentenced to imprisonment for life plus fine. His conviction and sentence are maintained. His appeal is dismissed. Nasir Javaid appellant was also rightly convicted under section 302/34, P. P. C. His conviction is also accordingly maintained but due to his young age his sentence is reduced from death to that of imprisonment for life. The sentence of fine awarded to him in this case is maintained. With this modification his appeal is dismissed. The death sentence awarded to Nasir Javaid appellant is not confirmed. Order accordingly