P L D 1986 Lahore 102 (PLP)

MUHAMMAD MUNIR KHAN, J.‑‑This Criminal Appeal No. 354 of 1983 and the connected Murder Reference No. 117 of 1983 arise from the judg ment of learned Additional Sessions Judge, Gujranwala, whereby he, on 22‑5‑1985 convicted Liaqat Ali (20) appellant under section

302. P. P. C. for causing the death of Muhammad . Sharif and sentenced him to death and a fine of Rs 5,000 in default thereof 2 years' R. I. It was directed that the fine if realized be paid to the legal heirs of the deceased.

2. The occurrence took place on 1‑7‑1981 at about 6‑00 p. m. near pond of Kamoke. The F. I. R. is statement Exh. P. G. of Abdul Majeed P. W. 7, father of the deceased which was recorded by Muhammad Siddique A. S. I., P. W. 9 in Civil Hospital, Gujranwala on the same day at I0‑30 p. m. Formal F.

1. R. Exh. P. G. 1 was drawn up at Police Station Kamoke at 12/00 (mid night). 1‑2‑7‑1981 by Muhammad Hussain Shah A. S. I., P. W.

8. The case was registered under section 307/3'6, P P. C. Muhammad Sharif died in Mayo Hospital, Lahore on 4‑7‑1981. So the offence was converted into 302, P. P. C. The distance between the place of occurrence and the police station is 2 furlongs.

3. The motive alleged by the prosecution was that Liaqat Ali appellant while passing in front of the house of Muhammad Sharif deceased used to exhibit indecent gestures towards his grown up sister. The deceased used to prevent and admonish him. About 2/3 days before the occurrence, Liaqat Ali appellant had altercation with Muhammad Sharif deceased. At that time, the appellant had threatened him with dire consequences.

4. As far the main occurrence, it has been stated that at the eventful time. Muhammad Sharif deceased alongwith his father Abdul Majeed P. W. 7, after closing their shop, were going to their house when Muhammad Sharif sat near the pond to urinate. In the meantime, Liaqat Ali appellant came there. He was armed with a knife. He opened attack and started causing injuries to the deceased with it. On seeing this. Abdul Majeed P. W. 7 raised hue and cry which attracted Malik Bashir Ahmad P. W. 6 and Muhammad Rafiq (not produced) to the spot. The appellant then ran away taking his knife with him. Muhammad Sharif in his injured condition was removed to Civil Hospital, Gujranwala from where he was refereed to Mayo Hospital, Lahore where he succumbed to the injuries on 4‑7‑1981.

5. Dr. Ashfaq Ahmad P. W. 2 had examined Muhammad Sharif in his injured condition on 1‑7‑1981 at 7‑40 p. m. He found 10 incised wounds on his person. The pulse was very fast and could not be recorded Condition of Muhammad Sharif was serious. According to the doctor injury No. 4 which was in the abdomen was grievous.

6. Dr. Muhammad Siddique P. W. 10 had conducted post‑mortem examination on the dead body of Muhammad Sharif on 5‑7‑1981 at 11‑30 a. m. He found :‑ "(1) A stitched incised wound 1 cm. x muscle deep on lower lip left side. (2) A stitched incised wound cm. on right side front of chest 7 c. m. medial the nipple at 4 O 'Clock position almost at its level. (3) A stitched incised wound vertical in direction 4 cm. x 2 cm. skin deep on front of right shoulder. (4) A stitched incised wound 6 cm. long oblique in direction on right side of upper part of abdomen (junction of chest and abdomen). (5) A stitched incised wound 1 cm. x cm. on left side of front tipper pant of chest 6 cm., from the nipple at 2 O'Clock position (near axilla). (6) A stitched incised wound oblique in direction 8 cm. x 3 cm. on left lateral side of chest lower part. (?) A stitched incised wound skin deep transverse in direction on upper front inner of left arm. (8) A stitched incised wound 6 cm. transverse in direction on outer aspect of left shoulder. (9) A stitched incised wound 3 cm. on root palmar aspect of right index finger. (10) A stitched incised wound vertically in direction 4 cm. long on back upper‑right chest near the right shoulder. (11) A stitched right para‑medium operation wound 16 cm., long on right side front of abdomen. (12) An operation stab wound 3 cm. x 2 cm, with a draining tube in it, on right side front of abdomen 8 cm., from the umbilicus and at its level. In his opinion, the death was due to shock and haemorrhage as a result of injuries to liver, diaphragm with colapse of right lung, durdenum and pancrease under injuries Nos. 4 and 6, which were sufficient to cause death in the ordinary course of nature, individually as well. All the injuries were ante‑mortem and caused by sharp‑edged pointed weapon. The probable time between injuries and death was within about 72 hours and that between death and post‑mortem was 17 hours.

7. The appellant was arrested on 5‑7‑1981, by Muhammad Siddique ,1 A. S. I., P. W.

9. On the same day, he led to the recovery of blood stained Churri Exh. P. 4 from parchatti of his house which was taken into possession, vide memo. Exh. P. E. attested by Malik Bashir Ahmad P. W‑ 6 and Muhammad Rafique (not produced). He also got recovered blood‑stained shirt Exh. P.5, blood stained Shalwar Exh. P. 6 and blood‑stained Bunyan Exh. P. 7 from an iron box lying in the ;room of his house which was taken into possession, vide metro. Exh. P. F. attested by same witnesses. Serologist Report Exh. P. V. reveals that the clothes Exhs. P. 5 to P. 7 and Churri Exh. P. 4 were stained with human blood.

8. To prove its case, prosecution examined 11 witnesses. Dr. Ashfaq Ahmad has proved the medico‑legal report of Muhammad Sharif deceased, Dr. Muhammad Azeem P. W. 11 has proved report Exh. P. H.,12 to the effect that Muhammad Sharif was not fit to make statement on 2‑7‑1981 when enquiry was made, from him. Dr. Muhammad Siddique has proved the post‑moment examination report of the deceased. Malik Bashir Ahmad P. W. 6 and Abdul Majeed P. W. 7 have given the ocular account of the occurrence. They claim to have seen Liaqat Ali appellant caused injuries with knife to the deceased which resulted in his death. Malik Bashir Ahmad P. W. 6 and Muhammad Siddique A. S. I., P. W. 9 have supported the recoveries of blood‑stained Churri Exh. P. 4 and blood stained clothes Exh. P. 5 to P. 7 of the appellant. Abdul Majeed P. W. 7 also supported the motive as alleged by the prosecution. The rest of the evidence is more or less of formal nature.

9. When examined under section 342, Cr. P. C., Liaqat Ali appellant denied all the incriminating circumstances. In reply to Question No, 8, `'As to why the case against him? He stated :‑ "Muhammad Sharif deceased was a man of bad character. I used supply information against him to the police. Muhammad Sharif was also challaned in many cases on my reports. For these reasons Abdul Majid father of the deceased has falsely implicated me in this case." In defence he produced Ghulam Rasool; Moharrir Constable D. W.

1. He stated that according to Roznamcha of Police Post Kamoke, Muhammad Siddique A. S. I. had left the police post, vide report No.

14. He was accompanied by Manzoor Hussain and Siddique Shah constables. The Roznamcha did not show the return of Muhammad Siddique A. S. 1. to the Police Post on 1‑7‑1981. The witness further stated that according to Roznamcha no information about the occurrence of the murder of Muhammad Sharif was received at the Police Post till 1‑00 p. m. on 2‑7‑1981. The appellant also tendered Exh. D. B., certified copy of F. I. R. No. 156 of P. S. Kamoke, Exh. D. C. a certified copy of F.

1. R. No.

113. Exh. D. C. 1 search slip of Police Station Railway Wazirahad, Exh. D. D., certified copy of F:

1. R. No. 251 of P. S. Pattoki and Exh. D. E., challan report of case F. I. R. No. 251 to show that the deceased was involved in Criminal cases and could have been killed by someone else.

10. Learned counsel for the appellant contended that the prosecution has failed t,) prove its case beyond readoable doubt, inasmuch as. there are reasons to doubt that Malik Bashir Ahmad P. W. 6 and Abdul Majeed P. W. 7, in :act, saw the occurrence ; that the "two eye‑witnesses are not reliable ; that their statements suffer from, contradictions/discre pancies ; that since no back door has been shown in the site plan as well as in the first inspection note, therefore, Malik Bashir Ahmad could not have seen the occurrence ; that the investigation was conducted dishonestly inasmuch as some interpolations relatable to the place where the F. I. R. Exh. P. G. was written were made in the F. I. R. , that the deceased was a man of bad character and was involved in several criminal cases ; that he had other enemies and the possibility that he might have been killed by someone else cannot be ruled out. In the alternative the learned counsel requested for lesser penalty. Conversely the learned counsel for the State has supported the judgment of the trial Court.

11. We have considered the arguments advanced by the learned counsel for the parties with care. After having appreciated the evidence and the circumstances of the case in accordance with the guide lines given by the superior Courts for the appreciation of evidence in such like cases, we do not feel persuaded to agree with the learned counsel for the appellant. We find that the occurrence took place on 1‑7‑1981 at about 6.00 p. m. near the shops not of Malik Bashir Ahmad complainant P. W. h and Abdul Majid P. W. 7 the two eye‑witnesses. Since the two eye witnesses were owning shops nearby, therefore they were the natural witnesses of the occurrence. Although Abdul Majeed P. W. 7 is the father of the deceased, yet be cannot be termed as an interested witness for the reason that he had no animosity with the appellant. Malik Bashir Ahmad P. W.6 is quite independent witness. The eye‑witnesses have successfully faced the test of cross‑examination. We no not see any inherent infirmity in their testimony which does not suffer from any material contradiction or discrepancy. The statements given by them are in consonance with the probabilities and materially fits in with the other evidence more particularly with the medical evidence. It seems to us that they ate confidence inspiring witnesses. The omission on the part of the Patwari and the S. H. O. to indicate the back‑door of the shop of Abdul Majeed P. W. 7 wherefrom he had gone out to see the occurrence does not mean that these was no back‑door of the shop. The investigation officer and the Patwari were not obliged under the law to show the back door in the site plan. The eye‑witnesses have . named a single accused in the case. The appellant has failed to lay down foundation for his substitution in place of the real culprit. No doubt, there are interpolations in the end of the F. I. R. to the effect that the place of the recording of r1 the F. I. R. which originally was written as "Uz Civil Hospital Gujranwala was changed to "Gujranwala Ward, Mayo Hospital. Lahore". but this alone is not sufficient to discard the testimony of the two eye‑witnesses who otherwise have been found worthy of credence. The possibility of an honest error while writing at the end of the statement Exit. P‑.G. i.e. the F.

1. R. "Azz Civil Hospital. Gujranwala" in the circumstances of the case cannot also be excluded because Muhammad Sidd:q A. S. 1. went to Civil Hospital, Gujranwata and moved application Exh. P H. whereon the Doctor made a report Exh. P. H.J1 to the effect that the injured bad been referred to Mayo Hospital. Lahore. It was after this report that Muhammad Siddiq A. S. 1. had proceeded towarded Mayo Hospital, Lahore. Had the patient been in the Civil Hospital, Guiranw:da. then the Dr. would not. have made report Exh. P. H. 1 . In the circumst ances, it seems to us that the word "Azz Civil Hospital. Gujranwala" was inadvertently written in the F. I. R., and when the mistake was detected the A. S. I. made changes which he should not have done. Be that as it may, the facts remain there that this infirmity alone is not sufficient for discarding the F. I R. Exh. P. J. as a whole. We further find that the statements of the eye‑witnesses finds support from the recovery of blood‑stained shirt P. 5 blood‑stained Shalwar P. 6 and blood‑stained Bunvan P. 7 and blood‑stained Churri P. 4 at the instance of the appellant The recoveries are proved by Malik Muhammad Bashir P. W. 6 and Muhammad Siddiq A. S. I. P. W.

9. We have already believed Malik Bashir Ahmad P. W. 6 and we do not see any reason to reject the testimony of Muhammad Siddiq A. S. I. P. W. 9 to this behalf Serologist report Exh. P. V. reveals that the clothes P. 5 to P. 7 and Chhurri P. s were stained with human blood. . For all these reasons, we are convinced that Liaquat Ali appellant and none else had done Muhammad Sharif to death and that the arguments of the learned counsel J for the appellant do not hold water.

12. This brings us to the question of sentence. We find that there are mitigating circumstances in favour of Liaquat Ali appellant for lesser penalty inasmuch as the eve‑witnesses were attracted to the spot on hearing the alarm raised by the deceased and they only saw the appellant causing injuries to the deceased. So, it cannot be said with certainty as to what actuary bad preceded the attack by the appellant on the deceased. The origin of the occurrence is thus somewhat shrouded in mystery. The possibility that the. deceased might have said something provoking to the appellant before causing of the injuries cannot be excluded.

13. The upshot of the above discussion is that while maintaining the conviction' of Liaquat Ali appellant under section 302, P. P. C. for the murder of Muhammad Sharif, the sentence of death is altered to imprisonment for life. The fine of Rs. 5,000 imposed by the trial Court 'o imprisonment in default thereof and the direction for the payment of the fine to the legal heirs of the deceased are, however, maintained, M. Y. H. Appeal partly accepted.