1998 PLP 1372 (MLD)

S. The complainant then left for reporting the matter to the police. He met S.I. Inayat Ali, since dead, at Jhuggi Watoan who recorded the statement Exh. P.D. of the complainant and sent the same to the Police Station for formal registration of the case where F.I.R. Exh. P.D./1 was prepared by Moharrar High Court Muhammad Iqbal P.W.5. The motive for the alleged occurrence was that Mohabbat and one Liaqat Ali were carrying on illicit liaison with two sisters of Ahmad Ali accused who was living in the same Ihata where Muhammad Mansha was putting up alongwith his family. The complainant and the deceased had objected to the visit of the accused which had estranged the relations of the parties, in consequence whereof Mohabbat and Ahmad Ali had fired at Muhammad Mansha deceased and a case of attempt to commit the murder was registered against them. Mohabbat was, however, allowed bail by the learned Additional Sessions Judge, but Muhammad Mansha deceased had moved for its cancellation. 6. S.I. Inayat Ali resumed the investigation at the spot. He prepared the injury statement Exh. P.H., inquest report Exh. P.H./1 of the dead body of Muhammad Mansha deceased and secured the blood-stained earth vide memo. Exh. P.E. The dead body was then sent for post-mortem examination under the escort of F.C. Muhammad Rafiq P.W.2. The investigation was then taken over by S.I. Mukhtar Ali P.W.11 who arrested Iqbal accused on 12-7-1988 and got recovered the blood-stained Toka Exh. P.5 at his instance from his Dhari on 17-7-1988 which was sealed into parcel and taken into possession vide memo. Exh. P.F. The Toka Exh. P.5 was then sent 'to the Chemical Examiner through F.C. Muhammad Latif P.W.3 for analysis wherefrom positive reports Exh. P1 and PJ of the Chemical Examiner and Exhs. PK and PL from Serologist were received. On 2-6-1988 I.O./S.I. Inayat Ali got prepared the site plan of the place of occurrence in duplicate Exh. PA/1 from Draftsman Aurangzeb P.W.1. and after the completion of the investigation all the three accused were challaned (sic) Court to face their trial. 7. On 14-6-1988 at 12.30 p.m. (noon) Dr. Muhammad Akram P.W.4 conducted post-mortem examination and found the following injury on the dead body of Muhammad Mansha deceased:-- An incised wound measuring 10 x 6 cm on left side of neck. The underneath bone way also cut. External and internal jugular veins and carotid artery of left side were cut. The first and second cervical vertebrae were cut. All the remaining organs were healthy. On opening the abdomen the stomach was found healthy and it was half filled with food. The small intestine was empty. Urinary bladder was full of urine. Death in his opinion was due to injury described above which caused haemorrhage and shock leading towards the death. The injury was ante-mortem and was sufficient to cause death in the ordinary course of nature. 41 The probable time that elapsed between injury and death was about 10 to 15 minutes and between death and post-mortem was about 6-1/2 hours. After the post-mortem examination Dr. Muhammad Akram P.W.4 handed over the Chaddar and Patka to the escorting constable. He also handed over the original papers and P.M.R. No. 26 of 1988 to the said constable. Exh. P.C. was the correct carbon copy of the post-mortem report which was in his hand and bear his signatures. Exh. P.C./1 was the sketch of the injury which was also in his hand and signed by him. 8. To substantiate its version at the trial the prosecution examined as many as 11 witnesses. Sakhawat P.W.8 and Baserey Khan P.W.9 furnished the ocular account and have also deposed about the recovery of the alleged weapon of offence from lqbal appellant. Dr. Muhammad Akram P.W.4 furnished the medical evidence as he had conducted the post-mortem examination on the dead body of the deceased. Aurangzeb Draftsman P. W.1 had prepared the site plan Ehx.P.A. and Exh. P.A./1 in duplicate while S.I. Mukhtar Ali appeared as P.W.11 who deposed about the arrest of Iqbal accused and recovery of weapon of offence at his instance. He also gave the secondary evidence and proved the documents prepared by S.I. Inayat Ali, since dead, by stating that he had been working with him and was fully conversant with his hand-writing and signatures. The rest of the evidence was of formal in nature. The prosecution also tendered in evidence the Reports of the Chemical Examiner Exhs. P.I. and P.J. and the Serologist Exhs. PK and PL. 9. In their statements under section 342, Cr.P.C. the appellant as well as his co-accused had denied the prosecution case and had attributed their involvement in the case due to enmity. The appellant as well as his co-accused neither appeared as witnesses of their own nor have produced any D.W. in their defence. Iqbal appellant, however, tendered in defence copy of Jamabandi of Chak No. 273/GB Tehsil Jaranwala Exh. D.A., copy of Khasra Gardawari of Chak No. 273/G.B. Exh. D.B., Copy of Zari Jamabandi of Chak No. 273/G.B. Exh. D.C., copy of Jamabandi Abadi of Chak No. 273/G.B. Exh. D.D. Copy of order cancelling the bail dated 23-7-1988 Exh. D.E. and had closed his defence evidence. 10. On the basis bf the abovesaid evidence learned trial Judge convicted and sentenced the appellant as stated above, and acquitted the two co-accused by giving them the benefit of the doubt. 11. Learned counsel for the appellant has vehemently argued that there was a delay of three hours in lodging the F.I.R., which has not been reasonably explained by the prosecution; that the said inordinate delay had been caused due to the fact, that the occurrence had gone unwitnessed; and the matter was repeated after procuring the presence of Sakhawat P.W.8 and Basarey Khan P.W.9 from Chak No. 273/G.B.; that the said two eye-witnesses being brother and cousin of Mansha deceased were interested witnesses as they were closely related to the deceased and were inimical towards the accused; that Basarey Khan P.W.9 was a chance witness as well, as he was resident of Chak No. 273/G.B. situate at a distance of about 15/16 miles away from the place of occurrence and he had no specific purpose to visit the spot a day earlier to the occurrence; as such, his statement was to be scrutinised cautiously before placing reliance on it; that the version put forth by the abovesaid two witnesses stand belied by the learned trial Court as two co-accused of the appellant have been acquitted by the said Court by giving them the benefit of doubt; that the same tainted evidence was believed by the learned trial Court to convict the appellant without seeking any other corroboratory piece of evidence, which was against the interest of justice; that the ocular evidence furnished by the two eye-witnesses, being in conflict with the medical evidence, the same was not worth reliance; that the alleged recovery of Toka P.5, the weapon of offence, cannot be considered as a corroboratory piece of evidence to convict the appellant as the same was also effected in the presence of abovesaid two interested eye-witnesses. Reliance in this respect was placed on Irshad and others v. The State (1982 P Cr. L J. 1204); that the motive of the occurrence was also disbelieved by the learned trial Court, as the two co-accused of the appellant were acquitted from the charge alleged against them; that the appellant had no previous enmity with the deceased nor any motive was attributed to him by the prosecution. Learned counsel further contended that the appellant had allegedly given a single Toka blow on the person of the deceased and has not repeated it, although he had an opportunity to do the same, therefore, it would be at the most a case of culpable homicide not amounting to murder and the offence would fall in the purview of section 304, Part II, P.P.C. Reliance in this respect was placed on Ijaz Ali alias Jajji v. The State (1991 P Cr. L J. 2233). Lastly it was submitted that the appellant was not allowed the benefit of section 382-B, Cr.P.C. by the learned trial Court which was required by law to have been awarded to the appellant as a matter of right. 12. Learned counsel for the State on the other hand has strenuously defended the impugned judgment by submitting that the F.I.R. Exh. P.D. was prompted the given circumstances of the case; that the appellant was named in the said F.I.R. and was attributed the major role of infliction of a Toka blow on the person of the deceased, who was armed and was sleeping in his lhata; that the two eye-witnesses produced by the prosecution namely Sakhawat P.W.8 and Basarey Khan P.W.9 were also named in this promptly lodged F.I.R. and their testimony stand corroborated by the recovery of blood-stained Toka P.5, the weapon of offence, which has not been seriously challenged by the defence; that the said two eye witnesses were not interested witnesses as they had no enmity with lqbal appellant, although they were close relatives of Mansha deceased. According to the learned State counsel Basarey Khan P.W.9 was on a normal visit to see his relatives a day earlier to the occurrence and was sleeping in the Ihata alongwith Sakhawat P.W. and Mansha deceased when the occurrence had taken place, as such he cannot be dubbed as a chance witness. He further contended that the appellant had inflicted a fatal Toka blow on a sleeping person who was un-armed, therefore, the offence committed by the appellant would be culpable homicide amounting to murder, punishable under section 302, P.P.C. According to the learned counsel section 304, Part I or II, P.P.C. would have been attracted only if there would have been a fight or exchange of abuses and hot words between the accused appellant and the deceased prior to their infliction of Toka blow. Reliance in this respect was placed on Qurban Ali v. Sheru Mechhi (1991 SCMR 2339). 13. I have heard the learned counsel for the appellant as well as the State and have gone through the record carefully with their assistance. 14. The prosecution in this case has mainly placed reliance on the testimony of Sakhawat P.W.8, the brother, and Basarey Khan P.W.9, the cousin of Mansha deceased, coupled with the evidence of recovery of blood-stained Toka P.5 at the instance of the appellant from his Dhari, which was also witnessed and attested by these P.Ws. Besides, the medical evidence furnished by Dr. Muhammad Akram P.W.4 and the positive reports of the Chemical Examiner and Serologist tendered in evidence were also made basis for warranting the conviction of the appellant. 15. Sakhawat P.W.8, the complainant, has reiterated the version given by him in the F.I.R., and had further deposed that he had joined the investigation of this case after about one month of the occurrence. Iqbal appellant while in custody led the police party to his residential Dhari from where he got recovered blood-stained Toka P.5 which was made into a sealed parcel and was taken into possession vide memo. Exh. PF, signed by him. 16. Basarey Khan P.W.9 stated that on the fateful night he was sleeping in the Ihata of Mansha deceased alongwith Sakhawat P.W.8 and Muhammad s/o Khan, given up P.W. At about 3 a.m. Iqbal, Ahmad Ali and Muhabbat accused were seen standing in the said Ihata. Iqbal accused was having a Toka, while remaining two co-accused were empty handed. It was within his sight that two co-accused caught hold of Mansha deceased, while lqbal accused inflicted Toka blow on the left side of neck of Mansha deceased, who succumbed to his injury at Jagatan bridge, when he was being shifted to the hospital. He further stated that the accused were identified in the light of the bulb which was on at the time of occurrence. He also staled that he was present when Iqbal accused had produced Toka P.5 before the police which was taken in possession vide memo. Exh. PF. The said Toka was got recovered from the accused from his house at the Dhari. Both these witnesses were cross-examined at length, but nothing favourable to the appellant could be elicited from the said statements. It would not be out of place to mention here, that the learned defence counsel, before the learned Trial Court had totally omitted to cross-examine the abovesaid two eye witnesses on the point of recovery of the blood-stained Toka at the instance of the accused appellant, meaning thereby that their testimony to that effect was A accepted as truthful. This assertion of mine gets support from the observations made in case of Muhammad Iqbal v. The State (1987 P Cr. L J 247) wherein it was held that "Evidence not challenged in cross-examination on a certain point raised in examination-in-chief, the same was to be accepted as true". 17. Strangely enough that factum of recovery of the bloodstained Toka P.5 was not seriously challenged by the defence, when the investigating officer SI Mukhtar Ali P.W.11 was under cross-examination, who was put the only question regarding this recovery and his reply was, that "all the members of the family of Iqbal accused were living in that house where from the recovery was effected". This admission of the P.W., does not absolve the appellant from the incriminating effects of the recovery of the weapon of offence as he had led the police party to his house and got the same recovered from the place which was exclusively in his own knowledge. It could hardly be assumed that the presence of the members of the finally of the accused would also include the presence of the parents who would have been burdened with the knowledge of the concealment of the said weapon of offence. I, therefore, feel convinced that the recovery of the blood-stained Toka P.5 was proved to the hilt and the same shall be considered as corroboratory piece of evidence for the ocular testimony furnished by the abovesaid two eye-witnesses namely Sakhawat P.W.8 and Basarey Khan P.W.9 whose statements are being scrutinised cautiously so as to evaluate the intrinsic worth of the same. Admittedly both the P. Ws., were the close relatives of the deceased, one being real brother and the other as first cousin respectively. The question which arisen at the moment, was, whether they were the interested and chance witnesses of the occurrence, or they had not seen the occurrence at all and were subsequently procured from Chak No. 203/GB, so as to be the eye-witnesses of the crime, or they were the natural witnesses of the occurrence. I have considered this aspect of the matter by going through the statements of the said P. Ws. , for a number of times but nothing unusual, inconsistent or against the interest of the prosecution was found therein. Sakhawat Ali P.W.8 has made a consistent and coherent statement by giving the details of the occurrence. He explained the alleged delay of 3 hours in lodging the F.I.R. by stating that Mansha deceased in an injured condition was being shifted to hospital on a tractor trolly but he succumbed to his injury at Jagatan Bridge wherefrom the dead body was brought back to his house. It was then that he left for police station to lodge the report, which was recorded at Jhughy Watton at 6 a.m by Sl Inayat Ali, since dead. He has also clarified in his statement that he was permanently residing in the Kotha of his own which was adjacent to the Kotha of the deceased in Chak No. 857/GB, shown by the draftsman Aurangzeb, P.W.1 in the site plan Exhs. PA and PA.1. Besides this, his presence and residence in Chak No. 857/GB, was also proved from the fact that on a previous occasion, when Mansha deceased was fired at by Mohabbat and Liaqat Ali, he was also injured in the said incident and was a prosecution witness. These facts joined together, would eliminate the apprehension that the presence of this witnesses was procured from Chak No. 273/GB after the occurrence. Moreover he has given the details of the occurrence in such a straight forward manner, that all the doubts regarding his presence at the scene of occurrence stand washed away. He being the inhabitant of the place of occurrence was a natural witness of the crime, and thus, his testimony was worth reliance. 18. So far the testimony of Basarey Khan P.W.9 was concerned, the same has been considered with great care and caution. Admittedly he was a close relative of Mansha deceased, being first cousin, and was resident of Chak No. 273/GB situate at a distance of 12/15 miles from the place of occurrence. His visit to the Chak of the deceased was not for any specific purpose but the same was a routine visit so as to see his relatives a day prior to the occurrence. The presence of this witness at the spot and his witnessing the occurrence on the fateful night, therefore, was a sheer chance and it can conveniently be said that he was a chance witness but his statement cannot be brushed aside simply on this point alone. If a chance witness reasonably explains his presence at the spot and render narration of the occurrence in such a way that the same inspires confidence and it was further supported by the evidence which materially corroborates such version, then the same can be considered alongwith other incriminating evidence. While giving the details of occurrence Basarey Khan P.W.9, has categorically stated that Iqbal appellant was armed with Toka P.5 and had inflicted Toka blow on the side of neck of Mansha deceased while his two co-accused Mohabbat and Ahmad Ali had cought hold of him. He has also given the details of the presence of inhabitants of the Ehata of the deceased and their mode of witnessing the occurrence, without creating any major discrepancy with the statement of Sakhawat P.W. despite the lengthy cross-examination, he was subjected to. His statement, therefore, intrinsically rings true and can be considered alongwith the abovesaid testimony of the complainant P.W.8 whose statement had already been relied upon as a natural witness of the crime. It may also be pointed out at this juncture that the statement of this witness regarding the recovery of blood-stained Toka P5 has also gone unchallenged by the defence as he was not cross-examined at all on the said point, presuming thereby that his statement to that effect was found to be correct and truthful. Moreover, there is nothing on record to suggest as to why this witness who has absolutely no animus with Iqbal appellant would assign a major role to him for inflicting a fatal blow on the person of the deceased without having witnessed the same. In this view of the matter I feel constrained to put reliance on the testimony of this witness as well. 19. The statement of both the abovesaid eye-witnesses got further corroboration from the medical evidence furnished by Dr. Muhammad Akram P. W.4, who has given the details of injury attributed to the appellant and has stated that the said injury was sufficient to cause death in ordinary course of nature. The said statements get further corroboration from the positive reports of the Chemical Examiner and that of the Serologist which reveal that Toka P.5, the weapon of offence was stained with human blood. The assertion of the learned counsel for the appellant that the ocular testimony was in conflict with the medical evidence has also been considered with anxiety but the same was found to be without any substance. Learned counsel had also pointed out the material in-consistency between the time of death given by Dr. Muhammad Akram P.W.4 as 6 a.m. in his post-mortem report and the contents of the stomach which was found to be half filled with food, revealing thereby that the deceased had taken his last meals about 2 hours before his death which will take the time of occurrence to 9.30 or 10 p.m. and the time of death would be about 11 p.m. Learned counsel in this context has referred to the statement of Sakhawat P.W. who had clearly admitted that the deceased had taken his meals at Maghrab prayer time and had gone to sleep. According to the learned counsel this fact alone was sufficient to discard the testimony of the eye-witnesses who had categorically stated that the occurrence had taken place at 3 a.m. in the morning. This in-consistency/controversy although very material yet it could conveniently be resolved by saying that the contents of the stomach cannot be made the basis for coming to any conclusion regarding the time of death, as the digestive system varies from person to person by the quality and quantity of food which was taken by the deceased, but all these factors were dormant in this case as the same was not enquired from the P. Ws. Moreover, digestive system of a sleeping person would work slow as compared to an awakened and active person. Therefore, it cannot be said that the statement of Sakhawat P.W. was in conflict with the medical evidence as he had clearly stated in his statement that after taking his evening meals the deceased had gone to sleep. It may be for this reason that the stomach of the deceased was found to have been half filled with food at the time of occurrence. 20. Learned counsel for the appellant in the alternate had laid a great emphasis on the point that the appellant who had no motive, ill-will or any previous enmity with the deceased had been attributed a solitary blow on the person of the deceased and the same was not repeated although he had an opportunity to do the same, as such his case would fall within the purview of section 304, Part II, P.P.C., as per observation made in case of Ijaz Ali alias Jajji v. The State (supra) which was on all fours with the facts and circumstances of this case. It was, therefore, prayed that the offence be converted to section 304, Part II, P.P.C. and the appellant be sentenced to undergo R.I. for the period already undergone by him. I have given my anxious consideration to the submission made by the learned counsel and have also gone through the case-law cited at the Bar. I do not feel any hesitation to observe that the case-law cited by the defence was not applicable to the facts of the case in hand as the appellant had been attributed a solitary Toka blow on the neck of the deceased who was unarmed and was sleeping. There is nothing on record to suggest that there was any fight or exchange of hot-words between the appellant and the deceased prior to the infliction of the said injury which is sine qua non for attracting the provision of section 304, P.P.C. It would be relevant to quote at this stage the observation of the Supreme Court in case of Qurban Ali v. Sheroo Machhi and another (1991 SCMR 2339) in which the judgment of the High Court converting the offence from sections 302 to 304, Part II, P.P.C. was reversed by observing, "We are unable to appreciate as to how without recording any finding that the case of the respondent fell under one of the exceptions prescribed by section 300, P.P.C., it could be held that the offence committed fell within Part II of section 304, P.P.C. We cannot agree that merely because the culprit choose to inflict just one injury to the deceased which proved fatal and did not inflict further injury, for the reasons best known to him or may be in order to escape from the scene which was on a public road, it can be held that he had no intention to cause death of the deceased or to cause such bodily injury with the knowledge that it was likely to cause death or sufficient in the ordinary course of nature to cause death of the deceased." Having been fortified by the said observation, I am of the view that the appellant who was armed with Toka P.5 had given a fatal blow on the neck of the deceased, which was sufficient in the ordinary course of nature to cause death, had the intention to commit the murder of the deceased as he has chosen such a vulnerable part of the body, as such his case would squarely fall within the ambit of clauses thirdly and fourthly of section 300, P.P.C. and he would be liable to be convicted and sentenced under section 302, P.P.C. The absence of the motive and previous enmity of the appellant with the deceased has already been considered as an extenuating circumstances by the learned Trial Court for awarding lesser punishment of life imprisonment to the appellant. Hence, no case for interference by this Court is made out. 21. The upshot of the above discussion is that the prosecution has proved its case against the appellant beyond any shadow of doubt. Therefore, the appeal merits dismiss, which is accordingly dismissed. The fine imposed by the learned Trial Court and sentence in default thereof and direction of payment of fine to the legal heirs of the deceased, are maintained. The appellant shall, however, be entitled to the benefit of section 382-B, Cr.P.C. H.B.T./I-46/K Appeal dismissed.