1986 P Cr (PLP)

2. The prosecution story as per statement Exh. P.F. of Abdur Rehman (P.W.10) father of the deceased recorded by Ali Ahmad S.‑I. (P.W.11) in the hospital at 1‑45 p.m. on 6‑6‑1982 on the basis whereof formal F.I.R. Exh. P.F./1 was entered by Shah Muhammad H.C. (P.W.4) at 1‑55 p.m. on 6‑6‑1982 is that the complainant alongwith Subhan and Chhajjoo had brought milk from their houses in Chak No. 97/W.B. to Vehari city. They after having finished the job at about noon time went to the Government Islamia High School, Vehari, called Noor Hussain his son through Abdul Latif another student at the gate of the school. It is mentioned in the F.I.R. that as soon as Noor Hussain reached near them they saw Muhammad Hanif appellant, armed with a Chhuri and Muhammad Ishaq acquitted accused, empty‑handed, standing after Noor Hussain. Muhammad Ishaq caught hold of Noor Hussain and then Muhammad Hanif inflicted two injuries in the abdomen of Noor Hussain who raised an alarm. The complainant Alongwith his companions proceeded to separate them but Muhammad Ishaq and Muhammad Hanif fled away with the Chhuri. It is also in the F.I.R. that a short while Mukhtar Ahmad teacher also came there and, took, Noor Hussain in injured condition to the Civil Hospital, Vehari where Noor Hussain succumbed to his injuries.

3. The motive of the occurrence as stated in the F.I.R. is that Muhammad Hanif appellant entertained a suspicion that his niece Mst. Yasmin daughter of Abdul Karim had illicit intimacy with Noor Hussain and a day earlier Muhammad Hanif and Noor Hussain had also exchanged hot words and fist blows but were separated by Abbas son of Bashir Ahmad a resident of the Chak of the complainant party.

4. At the hospital Dr. Abdul Ghaffar Medical Officer (P.W.1) examined Noor Hussain deceased on 6‑6‑1982 at 1‑45 p.m. and as per medico‑legal report Exh. P.B. observed the following injuries on his person:‑- (1) A stab wound with sharp margins 4 c.m. x 3 c.m. x right lung deep on right side of chest 1 c.m. above and right to ziphisternum. Wound was not probed so that condition of the injured may not become more grave. (2) Incised wound 1 c.m. x 1 c.m. x skin deep on stomach pit. All the injuries were caused by sharp‑edged weapon Injury No.1 was dangerous to life. The doctor informed the police through Ruqqa Exh. P.A. regarding the arrival of one Amir in injured condition. The name was later corrected to read/as Noor Hussain. On the same day at 1‑00 p.m. All Ahmad S.‑I. (P.W.11), vide application Exh. P.C. enquired from the doctor as to whether Noor Hussain injured was in a position to make a statement and the reply endorsed on the said application was in the negative. The injured breathed his last at 1‑25 p.m. on 6‑6‑1982 and the post‑mortem examination was conducted by the same doctor on the same day at 4 p.m. The injures mentioned in the post‑mortem examination report Exh. P.D. are the same as noted above. In the opinion of the doctor death was due to shock, haemorrhage and injury to liver due to injury No.1 which was sufficient to cause death in the ordinary course of nature. Injury No.1 was declared dangerous to life whereas injury No.2 was simple. Ali Ahmad S.I. (P.W.11) secured the blood‑stained earth, vide memo. Exh. P.G. on the same day and blood stained Chhuri P.4 was recovered from the fold of Shalwar of Muhammad Hanif appellant by the police on the same day and was taken into possession, vide memo. Exh. P.I.

5. The prosecution at the trial examined 11 P.Ws. Abdur Rehman (P.W.10) father of the deceased and Abdul Latif (P.W.9) aged 12 years a student of VIth Class are the eye‑witnesses. The other eye‑witnesses, namely, Subhan and Chhajjoo uncles of the deceased and Behram Khan and Asghar Ali Lecturers were, however, given up as unnecessary. The recovery of blood‑stained Chhuri P.4 was sought to be proved through the testimony of Zabar Khan (P.W.6) and Ali Ahmad S.‑I. (P.W.11). Malik Muhammad Ali Headmaster, Government Islamia High School (P.W.7) And Haq Nawaz (P.W.8) a teacher of the school were produced to prove the dying declaration allegedly made by Noor Hussain deceased soon after the occurrence while in injured condition. Muhammad Arif P.T.I. and Mukhtar Ahmad Randhawa who were statedly present at the time of the making of the dying declaration were given up as unnecessary. Muhammad Ali Headmaster (P.W.7) also deposed as to the extra‑judicial confession of Muhammad Hanif appellant.

6. As against this Muhammad Hanif appellant in his statement under section 342, Cr.P.C. pleaded that the P.Ws. had falsely involved him due to enmity and that the real facts were that on the day of occurrence after the closure of the college while he was going to the house and was still within the boundary of the college he saw Noor Hussain deceased roaming and loitering within the area of the college. On this he asked Noor Hussain deceased as to why he had absented himself from his class as the school was still going on and that he also admonished the deceased. On this Noor Hussain deceased started abusing him as he had felt annoyed of being asked as to why he was not attending the class. Muhammad Hanif further told the deceased that he will report the matter to the school authorities and to his parents as well on which Noor Hussain flared up. He whipped out a knife which he was carrying with him and made an assault on him. It is also in the statement of the appellant that he stopped him but the deceased resisted and caused injuries on his person and then feeling apprehension of danger to life he in the exercise of right of self‑defence caused him (Noor Hussain) injury. He further stated that had he not done so he would have been killed. It is also in the statement of the appellant that he showed his injuries to the Headmaster as well as to the police but he was not got medically examined. He denied that he had led to the recovery of any weapon of offence and added that the complainant party had cooked up the story after consultation at the instance of sultan son of Kabir. This is also in the statement of the appellant that he did not have any niece of the name of Yasmin and that when the complainant party came to know of this fact that he did not have any niece of the name of Yasmin they changed the story to suit their convenience. He further stated that he had passed his F.A. examination in jail and was proceeding for B.A. examination. It may be added that the learned counsel for the appellant informed us that the appellant had also obtained B.A. degree.

7. The learned trial Court relied on the testimony of the eye‑witnesses and Malik Muhammad Ali (P.W.7) and Haq Nawaz (P.W.8). It was also of the view that the prosecution version stood further corroborated by the recovery of Chhuri P.4 from the fold of Shalwar of Muhammad Hanif appellant on the day of occurrence and the medical evidence on record. It also made a reference to the statement of the appellant observing that occurrence stood admitted therein and that the plea of self‑defence was not borne out from the record. It accordingly convicted and sentenced the appellant as mentioned above, Muhammad Ishaq co‑accused was, however, acquitted as there was no material available on record to connect him with the crime.

8. We have heard the learned counsel for the appellant and the learned Assistant Advocate‑General for the State. Learned counsel for the appellant argued that Abdur Rehman (P.W.10) father of the deceased was not present at the spot as was apparent from the fact that Dr. Abdul Ghaffar (P.W.1) mentioned the name of the injured firstly, as Amir and that the F.I.R. registered at 1‑55 p.m. at the police station on the basis of the statement of Abdur Rehman (P.W.10) made allegedly at 1‑45 p.m. is of no value as Abdur Rehman P,W. in his statement admitted that he had made it to Ali Ahmad S.‑I. (P.W.11) at 4‑00 p.m. He further argued that the statement of Abdur Rehman P.W. does not inspire confidence as he had also admitted that he had wrongly involved Muhammad Ishaq co‑accused. As regards Abdul Latif (P.W.9) the criticism levelled was that he was a child witness but the learned trial Court failed to ask some question with a view to find out that he was a competent witness and was able to make rational answers to the questions of the Court. He submitted that the statement of Abdul Latif (P.W.9) merited to be discarded on this ground alone. The recovery of blood‑stained Chhuri P.4 was also challenged on the plea that the manner in which the recovery was stated to have been made, casts doubt on this recovery and though the Chhuri was blood‑stained yet the fold of the Shalwar admittedly had no stain of blood. The dying declaration sought to be proved through the testimony of Malik Muhammad Ali (P.W.7) and Haq Nawaz (P.W.8) was also criticised by raising the contention that precise words uttered by the deceased were not proved any in any case both these witnesses could not be relied upon as they were favourably inclined to support the prosecution case in order to win favour of the police. It was argued that Masoodul Hassan son of Malik Muhammad Ali (P.W.7) was involved in a murder case and a criminal case of impersonation has been registered against Haq Nawaz P.W. with the allegation that he had appeared in examination in place of one Gul Sher. In reply learned Assistant Advocate‑General argued that the eye‑witnesses had no enmity with the appellant and as such there was no reason for them to falsely involve the appellant in the murder case. As regards Malik Muhammad Ali and Haq Nawaz P.Ws. it was argued that nothing regarding the time of registration of the murder case against the son of Malik Muhammad Ali (P.W.7) and against Haq Nawaz was brought on record and in these circumstances it cannot be argued that these witnesses were deposing falsely in order to win favour of the police.

9. We have gone through the entire record and have also considered the respective pleas of the learned counsel for the parties. As regards Abdur Rehman (P.W.10) the criticism of the learned counsel for the appellant appears to be well‑founded. Had he been present at the spot he would have naturally taken Noor Hussain, his son, to the hospital. In the medico‑legal report Mukhtar Ahmad has been noted as the person who had brought the injured to the hospital. The name of the injured was written as Amir but it was scored out and the words 'Noon Hassan' were inserted and in the column of "father of the injured" 'unknown' was written. Words 'Abdur Rehman were later written above the entry 'unknown'. In order to cover these things Abdur Rehman P.W. in his examination‑in‑chief took up the plea that he lost his consciousness. This fact was admittedly not mentioned in the statement Exh. P.F. Again the time at which the statement on the basis of which F.I.R. Exh. P.F./1 was recorded was stated at 1‑45 p.m. but Abdur Rehman in his cross‑examination stated that he made this statement at the gate of the hospital at 4‑00 p.m. He also admitted as correct that he did not go to the police station to lodge the F.I.R. and remained in the hospital and the police recorded his statement outside the hospital. He admitted that he had wrongly stated in the examination‑in‑chief that he had proceeded to the police station. He added that he remained unconscious between 12 o'clock and 4/5 p.m. outside the gate of the hospital and that he named Ishaq in Exh. P.F. because he was swayed away by revengeful feelings. He further admitted that it was for the first time that he had gone to call his son from the school. 'Moreover the statement of Abdur Rehman read as a whole does not inspire confidence. We are, therefore, of the considered view that Abdur Rehman was not present at the time of occurrence and that he had also not made the statement at the time mentioned therein. It appears that Abdur Rehman on receiving information of the murder of his son reached the hospital later and then his statement was recorded and he was made an eye‑witness of the occurrence. We are, therefore, not inclined to rely on the statement of Abdur Rehman (P.W.10).

10. As regards Abdul Latif (P.W.9) the criticism of the learned counsel for the defence that he was a child witness and as in order to know whether he was capable of making rational answers, questions were not asked, has no merit. Abdul Latif (P.W.9) was a student of VIth Class and was aged 12 years and the statement made by him itself shows that he understood the questions which were asked from him and he made rational answers. His version to the extent that he was asked by Abdur Rehman P.W. and his companions to call Noor Hussain, however, cannot be accepted as we have already held that Abdur Rehman was not present at the time of occurrence. He is a student of the same school and his deposition to the effect that Haq Nawaz teacher had asked Noor Hussain as to who had injured him upon which he replied that hi‑ yeas injured by Hanif and that Muhammad Ali and P.T.I. Arif had also come at the spot and had asked Noor Hussain the same question and the reply made by Noor Hussain deceased that Hanif had injured him can be relied upon. His testimony to this effect corroborates the testimony of Malik Muhammad Ali Headmaster (P.W.7) and Haq Nawaz school‑teacher (P.W.3). Haq Nawaz (P.W.8) was teacher of the VIIIth Class. He was teaching this class under a Sheesham tree in the school premises at the time of occurrence. Noor Hussain had come there in injured condition and fell down near the place where the Class was being taken. He asked the said boy as to who had injured him and the reply given was that Hanif had inflicted a Chhuri blow upon him. He further deposed that in the meanwhile Malik Muhammad Ali Headmaster (P.W.7) and Mukhtar Ahmed teacher also came there and asked the same question and got the same reply. He further deposed that some other school boys and other persons had also come there. The statement of Malik Muhammad Ali (P.W.7) Headmaster is to the similar effect. He also added that some student brought Hanif appellant to him and on inquiry as to why he had done all this the reply given by the appellant was that he had committed a blunder. He added that Hanif had also stated that he had injured Noor Hussain because the latter had belaboured him and that Hanif also showed him an abrasion upon his belly which appeared to be a minor nail scratch.

11. This fact that Muhammad Hanif appellant had appeared before the Headmaster stands admitted by Hanif appellant in his statement under section 342, Cr.P.C. The causing of the injury has also been admitted in the said statement. Learned counsel for the defence argued that neither the extra‑judicial confession nor the dying‑declaration were of any legal value as the precise words used had not been proved. We do not find any merit in this admission. It also does not make any difference that the statement made by the deceased was not recorded in writing. In the facts and circumstances of this case the statement made by Noor Hussain deceased stands established through the statements of Abdul Latif (P.W.9), Malik Muhammad Ali, Headmaster (P.W.7) and Haq Nawaz P.T.I. (P.W.8). The statement made by Muhammad Hanif appellant before Malik Muhammad Ali Headmaster (P.W.7) also stands admitted. The plea that Noor Hussain could not have made the statement as it was stated by the doctor in his cross‑examination that the probable time between the injuries and death was immediate cannot be accepted. The statement of the doctor read as a whole alongwith the medico‑legal report Exh. P.B. makes it clear that Noor Hussain was taken to the hospital in injured condition at about 12‑45 p.m. The Investigating Officer arrived at the hospital at 1‑00 p.m. and the death took place at 1‑25 p.m. The doctor further stated that the possibility of the injured being in a position to speak after having received injury No.1 could not be ruled out. He also added that similarly there was a possibility of the said injured being unable to utter a word after the receipt of injury No.

1. We are of the view that immediately after receiving the injury the possibility that Noor Hussain injured was in a position to speak cannot be ruled out.

12. Malik Muhammad Ali Headmaster (P.W.7), Haq Nawaz P.T.I. (P.W.8) and Abdul Latif, a student of VIth Class (P.W.9) had no enmity with the appellant. They have deposed that Noor Hussain deceased had on being asked told them that it was Muhammad Hanif appellant who had caused injury to him. We do not find any justification for disbelieving these witnesses. The causing of the fatal injury to Noor Hussain in any case stands' admitted but the plea taken was that the said injury was caused in exercise of right of self‑defence. This plea does not find any support from the record. We are, therefore, of the view that the plea of self‑defence is not available to the appellant. For the reasons recorded above the appellant is, therefore, held guilty of the murder of Noor Hussain deceased. He was thus rightly convicted of the offence under section 302, P.P.C.

13. The, question of sentence has also received our serious consideration. It is pertinent to note that the motive attributed in the F.I.R. is that the appellant entertained a suspicion that his niece Mst. Yasmin had illicit intimacy with Noor Hussain deceased. It was also mentioned in the F.I.R. that Noor Hussain and Muhammad Hanif had exchanged hot words and fist blows a day prior to the day of occurrence and were separated by one Abbas who was not produced. This motive was then not repeated at the trial and was not established. Malik Muhammad Ali (P.W.7) also stated that Muhammad Hanif appellant had told him that he had injured Noor Hussain because the latter had belaboured him and that he had also shown him an abrasion upon his belly. It appears that there was some scuffle between the appellant and the deceased. It is also in the F.I.R. as noted above that a day earlier there was a quarrel between the two ..In these circumstances the exaction of extreme penalty, is not justified. We therefore, convert the sentence of death awarded to the appellant to life imprisonment. The sentence of death? is, therefore, not confirmed. The sentence of fine as well as compensation awarded calls for no interference and the same is, therefore, maintained. The appeal is accepted to the extent indicated above. M.Y.H. Appeal partly accepted.