1988 PLP 432 (MLD)

5. A.S.I. Muhammad Ashraf P.W. 9 after recording the statement Ex. PB of the complainant proceeded to the spot and on reaching there prepared injury statement Ex. PG and inquest report Ex. PH in respect of the deceased and despatched his dead body to the mortuary for post‑mortem examination. Further investigation in the case was conducted by S.I. Muhammad Awais Sadiq P.W.

10. He inspected the spot on 13th of April, 1983 and took into possession from there blood‑stained earth and made it into a sealed parcel vide memo Ex. PE. He arrested the appellant on 14th of April, 1983 from his house. On 17th of April, 1983, the appellant while in custody led to the recovery of blood‑stained chhuri P.W. 3 from inside his house where it was lying under a stack of wood. The S.I. took it into Possession and made it into a scaled parcel vide memo Ex. PF in the presence of Boota P.W. 8 and Sohail P.W. (given up at the trial as unnecessary). Muhammad Yaqoob, Draftsman P.W. 4 prepared site plan Ex. PC and its duplicate PC/1 of the place of occurrence. According to the reports Ex. PL of the Chemical Examiner and Ex. PM of the Serologist, the blood‑stained earth and blood‑stained chhuri recovered in this case were stained with human blood. On the conclusion of the investigation, the appellant was challaned under section 302, P.P.C.

6. Dr. Muhammad Anis P.W. 5, Medical Officer on 14th of April, 1983 at 11.30 a.m. conducted the autopsy on the dead body of the deceased and found the following injuries:‑ (1) Stab incised wound 4 cm into 2.5 cm front left chest 1.5 cm below the left nipple and was vertically oblique in direction. (2) Transversely oblique incised wound 2 cm into 1 cm left outer chest 3 cm outer to injury No. 1. (3) Vertically oblique incised wound 1.5 cm into 0.5 cm left front outer chest 1 cm below injury No. 2. (4) Vertically oblique stab incised wound 2.5 cm into 1.5 cm front lower chest 7 cm below injury No. 1. (5) Eliptical shaped contusion with definite marks of teeth bite measuring 4 cm into 3 cm on the front upper left chest 3 cm below the left clavicle.

7. In the opinion of the Medical Officer, the cause of death was shock as a result of excessive and rapid bleeding. All the injuries were ante‑mortem. Injuries Nos. 1 to 4 were caused by sharp‑edged weapon and injury No. 5 by teeth bite Injury No. 1 was sufficient to cause death in the ordinary course of nature. The probable interval between the injuries and the death was immediate, approximately within fifteen minutes and between the death and the post‑mortem examination within 12 to 24 hours. Ex. PD is the post‑mortem examination report and PD/1 is the diagram showing the locale of the injuries.

8. At the trial, the appellant pleaded not guilty to the charge framed against him under section 302 P.P.C. When examined under section 342 Cr.P.C. he denied. the prosecution case and the recovery of the blood‑stained chhuri attributed to him. According to him, he had been falsely implicated in the case because the complainant party was inimical to his father. He pleaded innocence. However, he did not adduce any evidence in his defence.

9. The learned trial Court after appraising the evidence on record did not accept the motive as alleged by the prosecution but relying on the ocular account furnished by Mehtab Masih P.W. 7 and Boota P.W. 8 as supported by the medical evidence and evidence of recovery of blood‑stained chhuri P. 3 at the instance of the appellant, found him guilty of the murder of the deceased and convicted and sentenced him as above.

10. Learned counsel for the appellant in his arguments has assailed the conviction on the grounds that it was an unwitnessed occurrence as the presence of the eye‑witnesses at the time of occurrence was dubious and that the recovery of blood‑stained chhuri P. 3 was fake. However, none of these grounds carries any substance. The presence of the eye‑witnesses at the spot at the time of occurrence is doubted for two reasons firstly; that during the days of occurrence, their duty hours, as admitted by them, were from 5.00 a.m. to 10.00 a.m. and from 2.00 p.m. to 4.00 p.m. and in view of this fact, they could not be present at the spot at 4.00 p.m. when the occurrence took place and secondly; that at the time of autopsy one injury by teeth bite was also observed but the same was not mentioned in the F.I.R. The fact shat during the days of occurrence the duty hours of the eye witnesses were from 2.00 p.m. to 4.00 p.m. did not per se exclude their presence at the spot at 4.00 p.m. They are sweepers by profession. It is common knowledge that sweepers do not remain present at their respective beats throughout their working hours but leave as soon as their work is finished. As regards the omission of the injury by teeth bite in the F.I.R., it may be mentioned that the eye‑witnesses were not present at the spot at the start of the occurrence but they reached there afterwards when they were informed about it by Sohail, younger brother of the deceased. We are, therefore, of the opinion that the grounds urged by learned counsel for the appellant do not at all recoil on the credibility of the eye‑witnesses. It was a day time occurrence. There was no previous enmity between the parties. Rather the appellant is related to the complainant party. Mehtab P.W. 7 deposed in his examination‑in‑chief that the appellant was the maternal‑cousin of his son‑in‑law namely Boota P.W.

8. No reason is inferable from the record nor suggested to the eye‑witnesses for falsely implicating the appellant. In these circumstances, we feel no hesitation in placing reliance on the ocular account furnished by the eye‑witnesses.

11. S.I. Muhammad Awais Sadiq P.W. 10 and Boota P.W. 8 testified to the recovery of blood‑stained chhuri P. 3 at the instance of the appellant from his house. This chhuri was stained with human blood. Learned counsel for the I appellant has challenged this recovery on the ground that no independent person was associated to witness the recovery. Boota P.W. 8 is by no means an interested witness. It is true that he is brother‑in‑law of the deceased, nevertheless he is also the cousin of the appellant. No animus or grudge was ascribed to him for falsely B deposing against the appellant. We, therefore, find no reason to disbelieve this recovery. Anyhow, even if this recover), is excluded from consideration, the occurrence is established beyond any doubt by the confidence inspiring ocular account.

12. So far as the motive for the attack is concerned, we feel persuaded to agree with learned counsel for the appellant that the same remains unsubstantiated. It is alleged that on the day of occurrence at about 12.00 noon, the deceased and the appellant had hurled abuses at each other when the deceased had failed to pay price for the biscuits he had purchased from the shop of the appellant and that the mohallahdars had separated them. No one who witnessed this altercation was produced to support thereof. We, therefore, agree with the learned trial Court that prosecution has failed to prove the motive as alleged by it.

13. In view of the above discussion, we maintain the conviction of the appellant under section 302, P.P.C. The appellant was only 16‑1/2 years of age at the time of occurrence. The immediate motive‑ which precipitated the occurrence is shrouded in mystery. In these circumstances, we refrain from confirming the sentence of death imposed on him and alter the same to imprisonment for life. However, we maintain the sentence of fine and the direction to pay compensation. With the alteration of sentence from death to imprisonment for life, this appeal is dismissed.

14. The sentence of death is not confirmed. M‑Y.H./W‑21/L????????? Appeal Partly allowed.