P L D 1986 Lahore 217 (PLP)

MAZHARUL HAQ, J.‑Muhammad Yaqoob alias Panju (17) by was tried for the murder of Shakeel by Mr. Akhtar Additional‑‑Sessions‑Judge, Sialkot.‑ He was convicted On 17-11-1982 under section 302, P.P.C. and sentenced to death with a fine of Rs. 10,000 in default to undergo three years' R. I. The fine if realised was .ordered to be paid as compensation to the heirs of the deceased. Appeal of the convict and the connected murder reference are before us.

2. Shakeel was running a grocer's shop in Babu Mohallah, Sialkot Cantt. His father Ramzan (informant) also lived in the same Mohallah. Muhammad Yaqoob accused a tonga driver who also hailed from Sialkot Cantt. often used to take articles on credit from the shop of the deceased. About 5/6 days before the occurrence in this case, there was an altercation between the deceased and the accused over the payment of money which was due from the deceased. They grappled with each other but the persons from the Mohallah intervened. This served as a motive for the crime. According to the prosecution in the evening at about 7‑30 p.m. on 5‑12‑1981 Ramzan along with Muhammad Akram was sitting in the shop of his son. Just then Muhammad Yaqoob accused appeared there with a knife and raised a LalKara saying that he would teach him a lesson for asking him to pay up the debt, he inflicted a knife blow in the abdomen of Shakeel. Muhammad Akram and Ramzan tried to apprehend him but received injuries on their hands. They raised an alarm which attracted Muhammad Basbir and Dildar P. Ws. who also saw the occurrence. The accused fled away with the knife. Shakeel was carried to the hospital where he was medically examined.

3. P, W. 5 Dr. Muhammad Nawaz Medical Officer, Allama Iqbal Memorial Hospital, Sialkot, at 8‑10 p.m. examined Shakeel and observed ‑ "Incised wound 2" x 1"x intestine herniating from the wound on the left side of abdomen close to mid line 1 below the costal margin" Same day. the doctor also examined the injured witnesses :- P. W. Akram "Incised wound of 1" x " x muscle deep on right index finger at proximal digit. The injury was simple in nature and caused with a sharp‑edged weapon. P. W. Ramzan "Incised wound 1" x 1/3' x muscle deep on the front side of proximal digit of little finger on its right side. The injury was simple in nature caused with a sharp‑edged weapon." Obtaining the medical certificates, Muhammad Ramzan proceeded towards the Cantt. Police Station and met with P. W. 9 Manzur Hussain. A. S. I. near Parvaz and Shama Cinemas. The S. I. was on patrol duty at 9 P.m. He recorded his statement Exh. P. A. at 9‑00 p.m. on the basis of which formal F. I. R. Exh. P. A/1 was registered at Police Station Cana the same evening. Police station was situate at a distance of two furlongs from the place of occurrence. The A. S.‑I. went to the hospital made a query from the doctor whether Shakeel was fit to make a statement but the doctor replied in the negative; thereafter, he went to the spot, took into possession blood‑stained earth. At about 1‑15 a.m. Shakeel died in the .hospital, The A. S. I. reached there, prepared the necessary documents and sent the dead body for its post‑mortem examination.

4. Same evening P. W. 5 Dr. Muhammad Nawaz, M. O. Allama lqbal Memorial Hospital, held the autopsy on the dead body of Shakeel and found the same injuries on it which he noted when he was alive. On dissection the doctor found peritoneum, abdominal muscles, left lobe of liver, stomach and large intestines along its mesentery were cut. In his opinion, death occurred due to shock and hemorrhage caused by the injury.

5. P. W. 10 Amjad Karim Butt S.‑I. who partly investigated the case arrested Muhammad Yaqoob on 17‑12‑1981 who in custody led him to his house and got recovered Chhuri P. 1 from a heap of cow dung lying there which was made into a sealed parcel through memo. Exh. P. E. attested by P. W. 4 Muhammad Akbar and P. W. 10 Amjad Karim Butt S.‑I. and Muhammad Sultan (given up as unnecessary). After completing the investigation, the accused was tried in due course.

6. At the trial Muhammad Yaqoob admitted that he used to obtain articles on credit from the shop of the deceased. Explaining the case against him, he made the following statement :‑ "Akram P. W. is an employee of Ramzan P. W. and the other witnesses are his close relatives. None of the P. Ws. saw the occurrence. As a matter of fact, I had to pay a sum of Rs. 350 to Muhammad Shakeel. On the night of occurrence at about 7 p.m. I had gone to his shop to purchase some articles and to make a part payment of the amount due from me. I paid a sum of Rs. 150 and then made a request for the purchase of the articles. I also requested the deceased to receive the remaining amount by way of instalment to the tune of Rs. 50 per month. The deceased was a short tempered and hotheaded person. He started giving me filthy abuses relating to my mother and sister and also said that in lieu of this money, he would take my sister. I desisted him from so doing. He picked up a suwa and pounced at me. Simultaneously I picked up soap cutting Chhuri from his shop and delivered a solitary injury in the exercise of right of self‑defence and under grave and sudden provocation. 1 did not have the intention to murder Muhammad Shakeel deceased. I had no previous animosity with him. Muhammad Hussain shopkeeper and Shah Muhammad saw this occurrence." In his defence, he produced D. W. 1 Shah Muhammad who claimed to be present at a distance of 60/70 yards away from the shop of the deceased when the occurrence took place. According to this witness, shop of one Muhammad Hussain was open who was also present. He added that P. W. Akram was an employee of Ramzan and plied his tonga and both were not present at that time, nor Basair and Dildar were there. Further according to him while he was talking to aforementioned Muhammad Hussain, he heard the alarm coming from the shop of the deceased and heard Shakeel (deceased) filthily abusing Yaqoob (accused). He went there and tried to stop them. Deceased picked up a Suwa and attempted to bit the accused who in turn picked up a Chhuri from the shop of the deceased and gave the solitary blow in his own defence. Five minutes later, Sultan P. W., uncle of Shakeel came there and the witness alongwith him took Shakeel to the hospital.

7. Trial Court did not accept the defence version. Relying on the evidence of the eye‑witnesses and that of the recovery, it found the prosecution case satisfactorily proved against him. ' It further came to the conclusion that the eye‑witnesses suffered injuries on their hands in their effort to snatch the knife, therefore, it cannot be said that the appellant had intentionally caused these injuries to them. He was, therefore, acquitted of the charge.

8. Criticizing the finding, learned counsel for the appellant contended that the injuries of the eye-witnesses were trivial and self‑inflicted which were introduced later to make believe their presence at the spot ; whereas they were in fact not present at the place of occurrence. It was further argued that D. W. 1 Shah Muhammad who is a disinterested witness has supported the defence version. According to him P. Ws. Akram, Ramzan, Dildar and Bashir were not present at the place of occurrence. We have considered the matter. The sole question for determination would be whether the appellant's version is reliable. D. W. 1 Shah Muhammad the solitary defence witness did not appear to make a statement before the investigating officer. Under cross‑examination, he submitted that he did not appear before any other authority in defence of the accused. He offered no explanation fur this omission on his part. He appears to be a got up witness. Had he been present at the place of occurrence, then he would have made a statement during investigation. He could have also got his statement recorded under section 164, Cr. P. C. before a Magistrate. A It is also noteworthy that neither the three eye‑witnesses nor the investigat ing officer was suggested about the presence of the defence witness at the place of occurrence. On the contrary, under cross‑examination P. W. 3 Dildar Bakhsh was suggested whether he had heard P. Ws. Akram and Ramzan hurling abuses to which the witness replied in the negative. It is obvious from this suggestion in the cross‑examination that the presence of Akram and Ramzan was not denied by the defence at one stage. It is thus noteworthy that this contradictory opposition taken up by the defence makes the defence version doubtful. In same context it may also be added here that the defence witness claimed to have taken Muhammad Yaqoob to the hospital but neither the doctor nor the medico‑legal reports mention his name. On the other hand, the evidence of the three eye‑witnesses is consistent. They have fully corroborated each other. We find no reason to disbelieve them. Their presence at the spot is fully established. They have no enmity with the accused to falsely, rope him in a murder charge. It may also be added here that there was nothing to indicate that the in juries of P, Ws. Ramzan and Akram were self‑inflicted.

9. Criticising the motive story, it was contended that except for the solitary statement of the informant there was no other evidence. It was further argued that the earlier incident which was said to have taken place, 5/6 days before the occurrence, though, mentioned in the F. I. R. but the informant bad not stated therein that the deceased had apprised him of it. In our opinion, this cannot be called an omission as such because F. I. R. is never a detailed document nor it is written on cross‑examination of the informant At the trial when the informant made a detailed statement in the examination‑in‑chief in support of the F. I. R., he mentioned that hi son had apprised him of the earlier incident. Under the circumstances, we are satisfied with the motive story as given out by Ramzan in the F. I. R. and in his statement at the trial.

10. Reconstructing the scene of crime as put up by the defence and comparing it with the prosecution version, we are of the view that the defence version does not fit in with the natural course of events which emerged out from the circumstances of this case. It fell short of reality and was thus not reliable. Suffice it to say that had the deceased picked up the Suwa first and opened the attack on the accused then under the circumstance it would have been highly improbable for the accused to have picked up the weapon from the shop of the deceased. It is noteworthy that the accused suffered no injury at all. The defence version as such did not appeal to reason that the accused was quick enough to have picked up the weapon from the shop of his so‑called aggressor i. e. (deceased) who was already up against him with a Suwa in his band and was going to attack him. It is not the defence case that the accused ha brought his own weapon which he used in his defence. On the contrary, It is the prosecution case that the accused appeared there with a Chhuri in his hand with which he inflicted the solitary fatal injury. Not only that the prosecution story is supported by overwhelming evidence. it also fits in with the circumstances of the case and appeals to reason.

11. For sentence, it was argued that the appellant was a youthful offender to whom solitary injury was attributed, We have also considered this aspect of the case. In se far as the plea of youth is concerned appellant claimed to be 17 years of age at the trial but by appearance trial Court considered him to be 24 years of age. In the absence of documentary proof of age, we have no reason to upset the observation made by the trial Court before whom the offender appeared. There is, therefore, no mitigating on this score. With regard to solitary injury, the conduct of the appellant was callous. He attacked an unarmed shopkeeper whom be owed money, Under these circumstances, it was a cold and a calculated murder, therefore. while dismissing his appeal we confirm his death sentence. H. A. K. Appeal dismissed.