1985 PLP 813 (MLD)

Date of hearing: 22nd April, 1985 . This Criminal Appeal Nos. 201 of 1983 and connected Criminal Revision No. 272 of 1983 for enhancement arises from the judgment of the learned Sessions Judge, Okara whereby lie on 16-3-1983 convicted Abdul Ghaffur appellant under section 302, P.P.C. for causing the death of - Abdullah and sentenced him to imprisonment for life and a fine of Rs.2,000 in default thereof to further R.I. for six months. The appellant was also directed to pay Rs.10,000 as compensation under section 544-A, Cr.P.C. in default to further R.1. for six months.

2. The occurrence took place on 5-5-1980 at 4.30 p.m. in Foodgrain Mandi, Okara. The F.I.R. Exh.P.F. was lodged by Ashiq P.W.5 on the same day at 5 p.m. recorded by Dildar M.H.C. P.W. 3.

3. The prosecution case is that the accused came to the shop of Saleem a Co. situated in Food grain Mandi, Okara and wanted to realize Jagga tax from Abdullah deceased who was serving as Munshi at that shop. The deceased refused to submit to the demand of the accused with the result that the accused stabbed him twice with his Churri. The deceased received fatal injuries and eventually succumbed to his injuries after a short time. The occurrence was seen by Ashiq P.W.5, Ghulam Muhammad P.W.6 and Safdar Ali (not produced).

4. On 6-5-1980 at 8.30 a.m. Dr: Safdar Ali P.W.2 conducted` post-mortem examination on the dead body of Muhammad Abdullah and found following injuries: "(1) A stab wound 1.3/4" x liver and stomach deep on the front of abdomen upper part, middle line, below the xiphizternum, muscles, peritoneum left lobe of the liver and stomach were cut through and through. Peritoneal cavity was full of blood. Shirt was cut corresponding to the injury .and was blood-stained. (2) A stab wound 11 "x i" x chest and lung deep on the outer side at upper part of left chest middle line of axilla. Direction was cransverse. Fifth and sixth ribs were cut. Left lung was cut. Left chest cavity was full of blood Saluka and shirt were cut and blood-stained corresponding to the chest injury. Other vital organs were healthy. The heart was empty. The stomach was full of blood. The urinary bladder was empty." In his opinion, the death was due to injuries No. 1 and 2 which caused shock and haemorrhage. The injuries were sufficient to cause death in the ordinary course of nature. The .time between the death and the injuries was. about half an hour and between the death and the post-mortem was 15 hours and 45 minutes. The injuries were caused by. the sharp pointed weapon.

5. The appellant was arrested on 5-5-1980 at evening time on the same day from near the Ladies Club, Okara. He was carrying blood-stained Chhuri P.1 at that time which was taken into possession vide memo P.H. attested by Muhammad Siddique P.W. 7, Safdar (not produced) and by Elahi Bukhsh P.W.

9. The Serologist report Exh. P.O. reveals that Churri was stained with human blood.

6. To prove its case prosecution examined 10 witnesses. Dr. Safdar All P.W. 2 had conducted the post-mortem examination on the dead body of the deceased. Dr. M.B. Khawaja P.W. 1 was one of the members of Board of Doctors which was set up to give opinion as to whether the accused was in a position to defend himself or not. Ashiq P.W. 5, Ghulam Muhammad P.W. 6 have given the ocular account of the occurrence. They claim to have seen the appellant giving Churri blows to Muhammad Abdullah resulting in his death. Muhammad Siddique P.W.7 has supported the .recovery of blood-stained Churri P. 1 from the appellant. The Serologist report Exh. P:O. indicates that the Churri was stained with human blood. The rest of the evidence is of formal nature:

7. When examined under section 342, Cr.P.C. the appellant denied all incriminating circumstances. In defence he produced six D.Ws. Doctor Ayyaz Ahmad Chaudhry D.W.1 stated that the appellant was examined by him as well as by the Board of five Doctors and that the appellant was declared fit to stand his trial. Dr. Haji Muhammad Mumtaz Ali D.W. 2 stated that he was on deputation as Senior Medical Officer in Central Jail, Sahiwal. The appellant was kept under observation in a cell in the Jail for observation as a mental case. The appellant broke their Charpais and damaged the fan etc., He then made report about his behaviour and mental condition. The photostat copy of the report is Exh. D.W.2/A. The appellant was thereafter sent to Mental Hospital. The witness further stated that the appellant used to raise hue and cry in the night. He was constantly kept in the cell. Bashir Ahmad D.W.3 stated that Municipal Office, Okara is situated in the Ladies Park, Okara. There is a primary school also in the same park. The ladies club is situated in the gents park. There is no ladies club in the ladies park and the same is situate in gents park. Dr. Haji Shah Muhammad stated that the appellant was an insane person. In winter generally he. is a normal person but during the summer months he suffers from fits of insanity. Hakeem Muhammad Rafique Qadri D.W. 5 stated that in the year 1976, the appellant climbed on the ropf of his Dawakhana twice and jumped from there. He reported to his father twice and said to him that he should take care of his son. The witness further stated that during the summer months, the appellant suffers from fits of insanity. He remained naked without shoes and behaves like an insane person and that since 1974 he hart been observing this condition of the appellant. Khaaim Hussain D.W.6 stated that once he had visited the shop of Chaudhry Brothers. He heard an alarm. At that time people were saying that an insane person had stabbed one man. He went to the spot and saw a man lying on the ground in injured condition. Many people had assembled there. He saw the insane person running away when he was naked but was having a loin cloth worn. The witness further stated that during the summer months, the appellant suffers from fits of insanity and runs after the people, abuses people and beats them.

8. The learned counsel for the appellant submits that prosecution has failed to prove its case beyond reasonable doubt inasmuch as the two eye-witnesses namely Ashiq P.W. 5 and Ghulam Muhammad P.W. 6 had not witnessed the occurrence, that the recovery of Churri from the appellant is fake; that the motive has not been proved; that there is sufficient reliable evidence to prove that the appellant was insane at the time of occurrence. Conversely the learned counsel for the State has supported the judgment of the trial Court .

9. I have considered the arguments advanced by the learned counsel for the parties with care. I have not been able to persuade myself to agree with the learned counsel for the appellant. I find that it is a case of prompt F.I.R. The occurrence took place on 5-5-1980 at 4.30 p.m. and the F.I.R. was lodged within 1, hour on the same day. The name of the appellant, the name of the deceased, the names of the A witnesses, the weapon used by the appellant, the motive for the crime and the manner in which the occurrence took place all are given therein. There is nothing to show that the document was not prepared at the time and place as it indicates. The two eye-witnesses namely Ashiq P.W. 5 and Ghulam Muhammad P.W. 6 had no enmity against the appellant. They have given plausible cause of their presence at the place of) occurrence. Except for minor and immaterial contradictions and, discrepancies, I do no see any inherent infirmity in the statements of the eye-witnesses. They have successfully stood the test of cross-examination. The appellant was arrested on the same day alongwith blood-stained Churri P.1. Muhammad Siddiq P.W.7 and Ilahi Bakhshi P.W. 9 have supported the recovery of blood-stained Churri from the appellant. They had no enmity with him. Learned counsel has failed to point out any material-contradictions in the statements of these witnesses. C The Serologist report shows that the Churri P.1 was stained with human blood. It is a case of single accused. The appellant has failed to lay down foundation for the substitution of the appellant in the place of real culprits. As far the plea of insanity of the appellant raised by his learned counsel. I Find that the plea was not specifically taken by the appellant in his statement under section 342, Cr.P.C. The statement of Dr. Ayyaz Ahmad D.W. 1, Dr. Haji Mumtaz Ali D.W. 2, Dr. Haji Shah Muhammad D.W. 4 and Hakeem Muhammad Rafiq Kadri P.W. 5 do not show that the appellant was insane at the time of occurrence. The onus to prove insanity is always on the accused. I find D that in the instant case the insanity of the appellant at -the time of occurrence is not spelt out from the prosecution evidence nor the same has satisfactorily been established by the appellant. Statement of D.W. 6 that at the time of occurrence he had heard people saying that an insane had stabbed one man is of no evidential value. The facts, that after the occurrence, the appellant was kept under observation in a cell in the jail for observation as mental case and that he broke the Charpais and damaged the fans etc. in the jail; that thereafter he was sent to the mental hospital; that he remained in the mental hospital for some time and ultimately was declared fit to defend himself, would not. show that at the time of occurrence the appellant was under the influence of insanity. No doubt Dr. Haji Shah Muhammad and Hakim Muhammad. Rafiq D.W. 5 and Khadim Hussain D.W. 6 have stated that the appellant did suffer from fits of insanity in summer and he had climbed on the roof of Dawakhana twice and jumped from there and that in summer months he used to run after the people, abuse and beat them. To my mind these instances are not sufficient to prove' insanity of the appellant at the time of occurrence. For all these reasons, there is no force in the submissions made by the learned counsel for the appellant. I am convinced that the trial Court has rightly convicted and sentenced him. In the peculiar circumstances, I do riot desire to interfere with the sentence awarded by the trial Court.

10. For what has been stated above, there being no merit, the appeal as well as the revision are dismissed. S.A. Appeal dismissed.