1986 PLP 2525 (MLD)

MUHAMMAD MUNIR KHAN, J.‑‑This Criminal Appeal No.236 of 1983 and the connected Murder Reference No.73 of 1983 arise from the judgment of learned Sessions Judge, Faisalabad, whereby he on 25‑4‑1983 convicted Aftab Ahmad (24) under section 302, P.P.C. for causing the death of Muhammad Arshad (30) and sentenced him to death and a fine of Rs.1,000 or in default thereof further R.I. for 6 months. He was directed to pay Rs.10,000 as compensation to the legal heirs of the deceased or in default thereof further R.I. for one year.

2. The occurrence took place on 22‑4‑1981 at 4‑30 p.m. in a field within the area of Chak No.72/R.B., four miles away from P.S. Khurrianwala, District Faisalabad. The F.I.R. is statement Exh.P.D of Ghulam Ali F.C., P.W. 9 which was recorded on the same day at 5‑30 p.m. by Manzoorul Hassan, A.S.I., P.W.13 near bus stand, Khurrianwala. The case was originally registered under section 307, P.P.C. Muhammad Ashraf succumbed to the injuries on 23‑4‑1981 and the crime was converted from 307 to 302, P.P.C. Formal F.I.R. Exh.PD/1, was drawn up on the same day at 5‑35 p.m. by Ashiq Hussain P.W.3.

3. No motive of Aftab Ahmad appellant to kill Muhammad Arshad deceased was alleged by the prosecution. The prosecution case is that Aftab Ahmad appellant was deserter from the Army. The warrant for his arrest had been received in P.S. Khurrianwala. Ghulam All F.C., P.W.9 was posted at this police station. He with other officers had twice or thrice gone to the house of Aftab Ahmad to arrest him but the appellant could not be found. On the fateful day Ghulam Ali, F.C., P.W.9 and Muhammad Sharif, F.C. P.W.11 left for Chak No.72/R.B. to bind down the parties to a theft case F.I.R. No.62/81 to appear before the A.S.P. When they reached near the village of Chak No.72/R.B. at about 4‑00 p.m., they received information that Aftab Ahmad was present in his lands. So, they started towards his lands. When they reached near the lands of the appellant, he on seeing them took to his heels. Ghulam Ali P.W.9 and Muhammad Sharif P.W.11 gave him a chase. They saw Muhammad Arshad deceased cutting fodder in the land through which the appellant was running away. They shoutingly asked Muhammad Arshad to catch the appellant as he was a deserter from the Army. On this Muhammad Arshad deceased stood in front of the appellant to stop him from running and thereafter, took him in his 'Jappha'. On this, the appellant pulled a dagger from his 'Dab' and gave several stabs on different parts of the body of Muhammad Arshad. Meanwhile, the two F.Cs reached there. Muhammad Sharif F.C. P.W.11 gave blow with his cane to the appellant and after some struggle they were able to overpower and arrest him. Rashid Masih, P.W.10 and Abid P.W.(not produced) had also seen the occurrence. They removed Muhammad Arshad deceased upto Katcha Road. When the Tonga was available they put him on the back seat of the Tonga. The two constables sat on front seat with the appellant and the Tonga was driven to the police station. When the' Tonga reached near bus stand Khurrianwala, Manzoorul Hassan, A.S.I.; P.W.13 was present there who recorded statement Exh.P.D. of Ghulam Ali P.W.9. The dagger Exh.P.7 which was snatched from appellant by the complainant, was produced before the A . S. I . , who took the same into possession vide memo. Exh . P. K . attested by Ghulam Nabi, Rashid P.Ws and Abid (not produced). The two constables also produced Muhammad Arshad and Aftab Ahmad appellant, both in injured condition, before Manzoorul Hassan A.S.I., who effected formal arrest of the appellant. The appellant was wearing blood‑stained shirt Exh.P.5 and Shalwar Exh.P.6 which were removed from his person by Manzoorul Hassan A.S.I., P.W.13 and taken into possession vide memo. Exh.P.G. attested by Muhammad Asif P.W.7 and Ali Ahmad (not produced). Muhammad Arshad and the appellant were removed to the hospital for medical treatment and examination. Muhammad Arshad died in the hospital on 23‑4‑1981 at 5‑00 a.m.

4. On 22‑4‑1981, Muhammad Arshad was medically examined by Dr. Akhtar Ali P.W.1. He found 8 stab wounds on his person, out of which two wounds were grievous as well as dangerous to life. Injuries were caused by sharp‑edged weapon. He also examined Aftab Ahmad appellant and found 13 simple injuries on different parts of his body, out of which two injuries one on left ring finger and the other on left thumb, were caused by sharp‑edged weapon and rest were caused by blunt weapon.

5. On 23‑4‑1981 at 11‑30 a. m., Dr. Bashir Hussain Kahlon, P.W.8 conducted post‑mortem examination on the dead body of Muhammad Arshad. He found following injuries:‑ (1) "A stab wound 3 c. m‑. x 1 c.m. x bone deep on the right cheek and right maxila. (2) A stab wound 2 c. m. x 1 c. m. x muscle deep on the right lower lip, 1 "c.m. from the middle line. (3) A stab wound 3 c. m. x 2 c.m. bone deep on the back of left elbow joint. (4) A stab wound 2 c. m. x 1 c. m. x bone deep on the back of right fore‑arm, at its upper part 3 c.m. below the right elbow. (5) A stab wound 2 c. m. x 1 c. m. x bone deep on the outer part of palmer surface of right hand opposite matacarpo phelengeal joint of right index finger. (6) A stab wound 1 c. m. x 1 c. m. x skin deep on the palmer surface of tip of right middle finger. (7) A stab wound 2 c.m. x 1 c.m. going deep into the abdomen on the right opigastium,, 1 c.m. right to the middle line 7 c.m. above the umblicus. (8) A stab wound 3 c.m. x 1 c. m. going deep into the abdomen on the left middle abdomen at 3 O'Clock position to the umblicus." On inter‑carnial examination, he found peritoneum, stomach and the small intestines were cut. The stomach contained 5 ounces of digested blood‑stained food. In his opinion, the death had occurred due to shock and haemorrhage as a result of injuries Nos.7 and 8 which were sufficient to cause death in the ordinary course of nature. The injuries were caused by sharp and pointed‑edged weapon. The time between the injuries and death was within 12 hours and between death and post‑mortem was within 48 hours. In cross‑examination he stated that it was possible that if the deceased had been operated upon well in time, he might have survived.

6. To prove its case, prosecution examined 13 witnesses. Ghulam Ali P.W.9, Rashid Masih P.W.10, Muhammad Sharif P.W.11 have given the ocular account of the occurrence. They supported the prosecution case as detailed above. They claim to have seen the appellant causing injuries to Muhammad Arshad with dagger Exh.P.7 and to have apprehended him on the spot. Muhammad Asif P.W.7 has stated that blood‑stained shirt Exh.P.5 and Shalwar Exh.P.6 were removed from the person of the appellant at the time of his arrest. Ghulam Ali P.W.9 and Rashid Masih P.W.10 have supported the recovery of blood‑stained dagger Exh.P.7 from the appellant and its subsequent production before Manzoorul Hassan A.S.I., P.W.13. Dr. Akhtar Ali P.W.1 has proved the medico‑legal reports of Muhammad Arshad and Aftab Ahmad appellant. Dr. Bashir Hussain Kahlon has proved the post‑mortem examination report of Muhammad Arshad deceased. Riaz Arshad P.W.11 stated that he had received warrant marked 'A' from the office of the S.P. and had sent it to P.S. Khurrianwala for execution. In cross‑examination, he stated that the warrant was entered at No.782 of the diary dated 2‑11‑1980. Manzoorul Hassan, A. S. I., P.W.13 had investigated the case and prepared the recovery memo.

7. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. He denied the recovery of dagger Exh P.7. In reply to the question, "Why this case against you?". He stated: "At about 4‑45 p. m. on 22‑4‑1981, I was going from my house to my land in Square No.106. On the way Arshad deceased alongwith Rafi and Ashiq attacked me with Sotas. They beat me and felled me down. Arshad kept on hitting me. I was lying down. I had a small knife with me which I kept with me for cutting Miswak, etc. With it I hit Muhammad Arshad deceased in self‑defence, when he was still in the act of hitting me. I had a dispute with Arshad etc. for they had taken forcible possession of my land. When I was in the Army, my mother had complained against them though the Army authorities. Thus, Arshad deceased had enmity with me and he alongwith Rafi and Ashiq had attacked me. Rashid Masih P.W. is a servant. of Muhammad Arshad deceased." In defence no witness was produced.

8. Learned counsel for the appellant contended that the eye‑witnesses are not reliable; that the occurrence, did not take place in the manner as alleged by the eye‑witnesses but in fact took place in the manner as stated by the appellant; that since Aftab Ahmad had not committed any offence within the view of Muhammad Arshad deceased, therefore, the latter was not legally authorized to catch hold of or apprehended him and as such, the fight of self‑defence of person had accrued to the appellant, which, in the circumstances of the case, extended to the causing of the death. The learned counsel for the State has supported the judgment of the Trial Court. He maintained that since Aftab Ahmad appellant was a deserter from Army, therefore, Muhammad Arshad although a private person was well within his authority to apprehended him, more particularly when he was asked to do so by the two Foot Constables.

9. We have attended the arguments advanced by the learned counsel for the parties carefully. We find that it is a case of single accused. The occurrence took place in the broad day‑light at 4‑30 p. m. on 22‑4‑1981. The F.I.R. Exh.P.D. was recorded after an hour of the occurrence. The name of the appellant, the weapon used by him, the names of the eye‑witnesses, the manner in which the occurrence took place and the fact that the appellant was apprehended on the spot are mentioned therein. There is nothing on record to show that the F.I.R. was not recorded at the time and place as it purports to be. It seems to us that the F.I.R. is a genuine document which can be used to corroborate the statement of its maker i.e. Ghulam Ali, F.C. P.W.9. The three eye‑witnesses namely Ghulam Ali P.W.9, Rashid Masih P.W.10 and Muhammad Sharif P.W.11 are quite independent witnesses. They had no previous .enmity with the appellant. They have successfully faced the test of cross‑examination. Their statements do not suffer from infirmities such as material contradiction major discrepancies or dishonest improvements. Their statements are in consonance with probabilities and materially fit in with the rest of the evidence. The three eye‑witnesses have explained the injuries found on the person of the appellant. The medical evidence shows that there were 12 injuries in all on. his person out of which two sharp‑edged injuries 1 c.m. x 1 c.m. and 2 c.m. x 1 c.m. were on left ring finger and on the left thumb respectively. It seems to us that the appellant suffered these injuries when he was giving 8 blows with dagger on the person of the deceased. As far the rest i:e. 8 blunt injuries. Rashid Masih, P.W.10 has explained that when 'Ghulam Ali' and Muhammad Sharif F.Cs tried to apprehend the appellant, he tried to‑run away whereupon Muhammad Sharif F.C. gave him cane blows. Out of 8 injuries found on the. person of the appellant there were 7 reddish contusions which were most probably caused by the cane sticks usually carried by the police officials. Muhammad Sharif F.C. has also stated that when the appellant tried to resist and run away, he hit him with cane stick on his hands. The witnesses explained that as a result of the cane blows, the appellant was injured during the occurrence. The eye‑witnesses have given evidence in a straight‑forward manner and they have not suppressed the injuries of the appellant. We do not see any inherent infirmity in the statements of the eye‑witnesses. Furthermore, the appellant was arrested red‑handed and immediately thereafter was produced before the police. The dagger which was snatched away from him at the time of occurrence was produced before the police. The appellant was wearing blood‑stained clothes at the time of his arrest which were removed and taken into possession. The Forensic Science Laboratory report shows that the clothes and the dagger were stained with human blood. For all these reasons we do not see any reason to disbelieve the eye‑witnesses or to discard their statements.

10. This brings us to the plea of self‑defence raised by the appellant in his statement recorded under section 342, Cr.P.C. We have examined the two rival cases placing them in juxta‑position and have reviewed the entire evidence and the circumstance at the close before arriving at a conclusion regarding the truth or falsity of the defence plea and have also esteemed its total effects. We find that the plea raised by the appellant has not satisfactorily been established by the evidence and circumstance. appearing in the case. The plea raised by the appellant is also not spelt out from the prosecution case, evidence and attending circumstances. The appellant has not produced any evidence in defence to prove the plea raised by him. In his statement, the appellant has stated that he was going from his house to his land when Muhammad Arshad deceased alangwith Rafiq and Ashiq attacked him with Sotas. They beat him and fell him on the ground. Muhammad Arshad kept on hitting him. He (appellant) had a small knife with him which he was keeping for cutting Miswak, etc. In order to save himself, he hit Muhammad Arshad deceased when the latter was beating him. This version of the occurrence given by the appellant is also not reasonable. We have already held that the reddish contusions found on the person of the appellant were caused by cane stick used by the two F.Cs. during the occurrence as stated by the eye‑witnesses. It is also possible that the F.Cs might have given beating to the appellant after catching hold of him. Had the appellant had his two companions attacked the appellant with Sotas and fell him down, he would not have been able to inflict 8 stabs wounds on the person of the deceased. Since there is no reasonable possibility of the defence version given by the appellant being true, therefore, the question of any reaction on the prosecution case does not arise.

11. Adverting to the submissions made by the learned counsel for the appellant with regard to the authority or legal justification of Muhammad Arshad deceased to apprehend the appellant. We feel that since the appellant was a deserter from Army as proved by warrant marked 'A' and the statements of the two F. Cs, therefore, Muhammad Arshad, a private person when asked by the F. Cs to arrest the appellant, was well within his legal right to actually touch him or confine him unless he submitted to his custody by word or action and in case of resistence, the deceased and the police officials could use all means necessary to effect his arrest and short of causing his death. The relevant provisions of law may be reproduced advantageously:‑ (1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. (2) If such person forcibly resists the endeavour to arrest him or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest. (3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life". "(1)Any police officer may, without an order from a Magistrate and without a warrant, arrest:‑ Firstly, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned; Secondly, any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house‑breaking; Thirdly, any person who has been proclaimed as an offender either under this code or by order of the Provincial Governments; Fourthly, any person in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such things; Fifthly, any person who obstructs a police officer while in the execution of his duty or who has escaped, or attempts to escape from lawful custody; Sixthly, any person reasonably suspected of being a deserter from the armed forces of Pakistan. Seventhly, any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in, any act committed at any place out of Pakistan which, if committed in Pakistan, would have been punishable as an offence and, for which he is, under any law relating to extradition or otherwise, liable to be apprehended or detained in custody in Pakistan. Eighthly, any released convicted committing a breach of any rule made under section 565, subsection (3); Ninthly, any person for whose arrest a requisition has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by ' the Officer who issued the requisition." Section 59, Cr.P.C.‑‑ (1) Any private person may arrest any person who in his view commits a non‑bailable and cognizable offence, or any proclaimed offender, and without unnecessary delay, shall make over any person so arrested to a police officer, or in the absence of a police officer take such person or cause him to be taken in custody to the nearest police station. (2) If there is reason to believe that such person comes under the provisions of section 54, a police officer shall re‑arrest him. (3) If there is reason to believe that he has committed a non cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section

57. If there is no sufficient reason to believe that he has committed any offence, he shall be at once released." From the examination of the provisions of law reproduced above, it is very much obvious that the two F.Cs who fully knew that the appellant was a deserter from Army could direct/ask the deceased to arrest the appellant and while touching, apprehending and confining the appellant and for that using all means, the deceased had committed no offence and as such, no right of self‑defence of person was available to the appellant. For all these reasons, we are convinced that the appellant has rightly been convicted by the Trial Court.

12. This brings us to the question of sentence. We find that there is a mitigating/extanuating circumstances in favour of the appellant for lesser penalty in that, the murder of the deceased was not pre‑planned. The appellant was, rather, forced to stab the deceased to death. He had not straight‑away launched attack on the deceased. Had the deceased not followed and attempt to catch hold of him, the appellant might not have caused his death.

13. The upshot of the above discussion is that there being satisfactory basis to uphold the conviction of the appellant under section 302, P.P. C. , his sentence of death, is altered to imprisonment for life and a fine of Rs.1,000 or in default thereof further R.I. for six months. He shall pay Rs.10,000 as compensation to the legal heirs of the deceased or in default thereof further S.I. for 6 months. The appellant shall get the benefit of provisions of section 382‑B, Cr.P.C. The sentence of death is not confirmed. S. A Appeal dismissed