P L D 1976 S C 568 (PLP)

MUHAMMAD AFZAL CHEEMA, J.‑--This is a direct appeal as of right. Mohammad Afzal appellant herein was tried by the Sessions Judge, Bahawal pur, alongwith two other co‑accused Siraj Ahmad alias Saji and Abdul Azia for having committed the murder of one Mushtaq Ahmad at &15 p.m. on 2&7‑1971 in a Bazar in Ahmadpur Sharqia one furlong away from the Police Station. The deceased was given 6 injuries by the appellant with a double‑edged knife while his co‑accused Siraj Ahmad alias Saji held the deceased in his grip. The part attributed to the third accused Abdul Aziz was that he exhorted the appellant to finish the deceased who died at the spot. The matter was promptly reported at the Police Station within 15 minutes of the occurrence by Ata Hussain P. W. 8, an eye‑witness. The motive alleged was that a month prior to the occurrence the deceased had appeared as a prosecution witness in a case of attempted murder against Siraj Ahmad alias Saji, Abdul Khaliq brother of the appellant and some others and on that account the deceased (7) attacked the deceased while he had come to purchase ice from the shop of Mohammad Latif, P. W.

10. The appellant voluntarily appeared before Muhammad Hayat Sub -Inspector, P. W. 14, on the day following the occurrence and while in custody led to the recovery of a double edged knife Exh. P. 2 as the weapon of offence. It may also be mentioned in this context that during post‑mortem examination the doctor recovered another knife P. 6 from the inner pocket of the jacket of deceased which was closed and yet its blade was found to be blood‑stained. However no plea of self‑defence was raised by the appellant notwithstanding the fact that he was found to have sustained an incised wound on the right forearm. He, however, took the position that he accident ally suffered the injury one day prior to the occurrence. At the trial the prosecution case rested on the ocular testimony of Ata Hussain P. W. 8, the first informant, Mohammad Sadiq P. W. 9 and Mohammad Latif P. W. 10, the evidence of recoveries of blood‑stained knife Exh. p. 2 and blood‑stained shirt Exh. P. 1 of the appellant removed at the time, of his arrest the evidence of motive and the medical evidence. The injury of the appellant, on being medically examined, was described by the doctor as self‑inflicted. The case of the accused was one of denial simpliciter and they led no evidence in defence. Placing reliance on the prosecution evidence as referred to above the Sessions Judge found the appellant and his co‑accused Siraj Abmad alias Saji guilty of murder but awarded the lesser penalty of life imprisonment to the appellant on account of his tender age who was the principal accused and to his co‑accused Siraj Ahmad alias Saji for reasons of consistency and the lesser role attributed to him. The third co‑accused Abdul Aziz against whom allegations of exhortion were not found to be convincingly established was acquitted. The appellant and his co‑accused Siraj Ahmad appealed against their conviction and sentences while a private complaint was lodged by the com plainant for enhancement of sentence to death. The learned Judge disbelieved Ata Hussain P. W. 8, the first informant and the principal witness as also Mohammad Sadiq P. W. 9 as chance witnesses who had made improvements in their statements. Another ground taken in discrediting Ata Hussain was that be was a previous convict and a man of dubious character. However reliance was placed on the testimony of Mohammad Latif, P. W. 10 the ice- vendor from whom the deceased was purchasing ice when be was attacked. This witness too had a conviction to his credit but was considered to be a natural witness whose testimony was found to have received corroboration from the evidence of recoveries of the blood‑stained shirt of the appellant and the weapon of offence knife Exh. P. 2, on which the blood was found to be of human origin. Accordingly the conviction of the appellant was upheld while that of Siraj Ahmad was set aside for want of corroboration of the ocular testimony of Mohammad Latif P. W. 10 in respect of part alleged against him. The learned Judges did not, however, agree with the trial Court that the appellant was a boy of tender age justifying the award of life imprisonment and observed that according to the learned Sessions Judge himself he appeared to be 19 years of age and had himself given his age as 21 years before the committing Magistrate. Reliance was also placed in this regard on the school certificate of the appellant Exh. P. N. produced by Dost Mohammad P. W. 7, brother of the appellant, wherein his date of birth was recorded as 5‑9‑1950. In this view of the matter the learned Judges allowed the revision petition for enhancement of sentence and imposed the penalty of death. Having been taken through the evidence we have not been able to agree with the High Court's appraisal of the evidence of Ata Hussain P. W.

8. The considerations which weighed with the learned Judges discarding his evidence were: that he was an ordinary labourer who lived half a mile from the scene of the crime and justified his presence on the pretext of having gone to take aerated water and was, therefore, on his own showing a chance witness. He had also admitted having appeared as a prosecution witness in a case under section 377, P. P. C. brought by the deceased against some persons. Reference was also made to a so‑called improvement made by him about the precise stage of his arrival at the place of occurrence, inasmuch as in the F.I.R. the position taken by him was that he reached the spot when the attack on the deceased had already started whereas at the trial the position taken by him was that he was already present. It may be observed with respect that the learned Judges' assessment completely disregarded the most significant circumstances namely that the witness was not related to the deceased, that he lodged the report within 15 minutes of the occurrence giving a natural account which received full support from the medical evidence. He was the person who procured a cot, put the deceased on it and brought his dead body to the police station with the help of other witnesses. It was the month of July and it is in evidence that there were several snack bars around the place of occurrence. There was hardly anything unusual or unnatural in the appel lant's urge for a snack which was a bottle of aerated water in this case. Con sistently, therefore, with the well established principles it was neither proper to dub him as a chance witness nor fair to make his status as a labourer as a ground for the rejection of his testimony. On a proper analysis of the reason detailed in the High Court's judgment his testimony could at best have called corroboration before reliance could be placed on it which was found to be available in the evidence of recoveries attributed to the appellant. However this is merely an academic aspect of the case inasmuch as the learned Judges nevertheless upheld the conviction of the appellant on the basis of the testimony of Mohammad Latif P. W. 10, the ice‑vendor. In his comments on and criticism of the testimony of Ata Hussain and Mohammad Latif P. Ws. learned counsel for the appellant could not raise any serious doubts as to their presence or veracity. However on the High Court's analysis of Mohammad Latif"s testimony with which we agree corroboration was called for which was available in the form of evidence of recoveries which remained C unshaken. In fact even before us learned counsel for the appellant could not seriously challenge the genuineness of these recoveries or the credibility of Bashir Ahmad P. W. 12 and Ghulam Mohammad P. W. 13, the two recovery witnesses who were wholly disinterested. Learned counsel pointed out only a minor discrepancy in the statement of Bashir Ahmad as to the date of the recovery which was 30th of July, 1971 but was described by him as the day following the occurrence which had taken place on 28‑7‑

71. The witnesses had appeared at the trial after more than 10 months and the slip could be due to an unprecise and loose expression or lapse of memory. Learned counsel however tried to capitalise the recovery of the blood stained knife from the inner pocket of the jacket of the deceased which was discovered by the doctor at the time of post‑mortem examination. Although the knife was closed the blade was found to be stained with blood. Since the duration of the incised wound on the arm of the appellant more or less coincided with the time of occurrence an unpleaded theory of self‑defence was sought to be raised on this basis. It was argued that in view of the principles laid down by the Federal Court of Pakistan in Safdar Ali's case a plea of self‑defence even though not specifically raised, but otherwise found to be reasonably inferable from the attendant circumstances of the case could still be available and conceded to the accused. We are afraid there is hardly any analogy between the circumstances of the two cases justifying the invocation .of the dectrine laid down in Safdar Ali's case. On the own showing of the appellant his injury was accidentally suffered by him a day prior to the occurrence. On the other hand according to the doctor it was self‑inflicted. Again the recovery of knife from the inner pocket of the deceased in a closed position completely belies the theory of its having been used by him. If in fact the deceased bad actually wielded and used the knife at the time of occurrence and causing an injury to the appellant either in offence or defence the knife should have been found at the spot in an open condition. At any rate there was no earthly reason for him to close the knife and put it back in the pocket in the predicament in which he was placed receiving successive knife injuries at the hands of the appellant. In fact while so circumstanced such an extraordinary conduct of throwing the gauntlet would be simply inconceivable. No plea of self‑defence, can therefore, be spelt out in his favour in view of its inherent improbability, the argument being merely con jectural and fanciful. In view of the above position and except for the observation made by us in regard to the unjustified rejection of the testimony of Ata Hussain P. W. 8, the first informant on which of course nothing would hinge, no fault can be found with the conviction of the appellant against whom charge of murder stood fully established. This brings us to the question of sentence. According to the statement of the appellant at the trial recorded on 24‑5‑72 about 10 months after the occurrence he was 16 years of age whereas on the assessment of the learned Sessions Judge he was 19 by appearance. It is in evidence that he was a student and that on conviction he was sent to Borstal Jail. This would clearly show that at the time of occurrence he was between 16 and 18 years of age. Knowing the cursory and perfunctory man ner in which particulars of the accused and witnesses are recorded during enquiry we are not inclined to accept that the appellant had himself given his age as 21 years before the Enquiry Magistrate. As regards the school certificate Exh. PN. produced by Dost Mohammad P. W. 7, a brother of the decea sed, showing the appellant's date of birth as 5‑9‑50, suffice it to say that it was not duly proved and in view of this Court's doctrine in Yusuf Khotak's case (P L D 1973 S C 160) was inadmissible in evidence. The learned Judges had obviously fallen into an error in taking it into consideration. The prosecution did not lead any convincing evidence to show that the appellant ‑was not a youngster of tender age, deserving the ordinary penalty of death. Lastly from the trend of cross‑examination it appears that immorality was rampant in the locality and there is a reference to at least three registered cases of sodomy. A suggestion was made in cross‑examination to Ata, Hussain P. W. a that a few days before the occurrence some members of the complainant party wanted to abduct the appellant for purposes of carnal intercourse and that a report was lodged by him with the local police in this regard. Considered in this background the age of the appellant would, in our opinion, justify the restoration of the original sentence of life imprisonment. It is ordered accordingly. The appeal partly succeeds to this extent. S. A. H. Appeal partly accepted.