P L D 1984 Lahore 450 (PLP)

MAZHAR‑UL‑HAQ, J.‑Abdul Majeed (19) was tried for the murder of Abdul Aziz. On 6‑4‑1981 learned Sessions Judge, Rawalpindi, convicted him under section

302. P. P. C. and sentenced him to death with a fine of Rs. 10,000 which if realized was ordered to be paid as compensation to the heirs of the deceased. Appeal of the convict and the connected murder reference are before us.

2. About a fortnight before the occurrence in this case, Abdul Majeed (accused) grazed his goats in the maize field of P. W. Muhammad Akbar uncle of Abdul Aziz (deceased). A dispute arose but the matter was hushed up by the village respectables. Nevertheless, Abdul Majeed held out a threat that he would avenge the insult. According to the prosecution, Abdul Aziz (deceased) who was a suzuki van driver on 22‑10‑1978 at about 8‑30 a.m. came out of his house and proceeded towards the fields in order to make water. As he passed near the house of one Mukhtiar, Abdul Majeed (accused) resident of village Brothi appeared there with a knife in his hand. Raising a lalkara, he gave two knife blows to him, hitting him in the abdomen and in the left back chest. Abdul Aziz fell down. The occurrence was witnessed by P. Ws. Muhammad Zahoor and Muhammad Nasir. They also intervened but the accused fled away with the weapon. Abdul Aziz was rushed to Civil Hospital, Kahota, where P. W. Dr. Dalel Khan, Medical Officer, examined him and found "an incised wound 1 " x 1/3" into abdominal cavity deep in oblique direction on the left side of umblicus with portion of abdominal structures outside the wound." The second injury noted by him was "an incised wound 1 " x 1/3" going deep into the chest cavity in its medial part. It was muscle deep in the lateral part and in oblique direction on the back of lateral side of left chest below and lateral to the lower part of left scapula." Since Abdul Aziz's condition was serious, therefore, the doctor rang up P. W. 11 Bahadur Shah, S. H. O., Police Station Kahota who soon reached the hospital. The S. 1. made a query from the doctor through Esh. P. E. whether Abdul Aziz was fit to make a statement. Through Exh. P. E./1, the doctor opined in the affirmative. The S. 1. recorded Abdul Azix's statement Exh. P; A./L at l0 a.m. and it was signed by Abdul Aziz. It may be mentioned here that deceased's second injury was observed by the doctor for the first time when the injured was about to be sent for treatment to the D. H. Q: Hospital, Rawalpindi. He, therefore, made a note of it later in the medico‑legal report Exh. P. D. Strangely enough, even Abdul Aziz (deceased) omitted to mention this injury in his statement Exh. P. E. The S. 1. however, recorded his supplementary statement at 10‑15 a.m. the same day in which he made a mention of the injury in the back left chest. However, on the basis of deceased's statement, formal F. I. R. Exh. P. A. was registered at Police Station Kahota the same day at 10‑15 a.m. The S. I. went to the place of occurrence, inspected the spot, took into possession blood‑stained earth and recorded the statements of the witnesses. On the following day, he received information that Abdul Aziz had died in the D. H. Q. Hospital, Rawalpindi. The dead body was brought back to Civil Hospital, Kahota. The S. I., prepared the necessary documents and sent it for post‑mortem examination. There is no evidence forthcoming from the D. H. Q. Hospital, Rawalpindi.

4. P. W. 6 Dr. Dalel Khan, Medical Officer, Civil Hospital, Kahota, held the autopsy on 23‑10‑1978 at 2‑t5 p.m. He observed the same injuries which he had noted earlier. On internal examination, he observed both lower and the upper part of the stomach punctured. The diaphragm was pierced, left lung was punctured through and through in its lower part. Death in his opinion was due to shock and haemorrhage caused by the two injuries which were individually sufficient to cause death in the ordinary course of nature.

5. On 24‑10‑1978, P. W. 11 Bahadur Shah, S. I., arrested Abdul Majeed, who led to the recovery of blood‑stained knife P. 3 from his house on 29‑10‑1978. It was made into a sealed parcel through memo. Exh. P. G. attested by P. W. 7 Jehandad and the Investigating Officer. P. W. Farzand Ali was given up as unnecessary. After completing the investigation, the accused was sent up for trial.

6. Abdul Majeed, accused, denied guilt. He ascribed the case to enmity and‑suspicion. In his defence, he produced D. W. 1 Syed Shaukat Kaza Zaidi, Advocate, a local Oath Commissioner who was said to have attested the affidavit Exh. D. A. allegedly made by P. W. Muhammad Zahoor an eye‑witness in this case exonerating the accused of the liability. For good reasons, trial Court did not place reliance on affidavit Exh. D. A. It observed that there was no proper verification of the affidavit because the Oath Commissioner ‑had not signed each page particularly the certificate on to second page. P. W. Muhammad Zahoor denied having made the affidavit before the Oath Commissioner. Under these circumstances, it was rightly, ruled out of consideration. Relying on the evidence of the two eye‑witnesses namely P. W. Muhammad Zaboor and P. W. 5 Muhammad Nasir, the evidence of the recovery of the blood‑stained knife P. 3 from the accused and the dying declaration Exh. P. A./1, trial Court considered the prosecution case satisfactorily proved against the accused.

7. Criticizing the finding, learned counsel for the appellant contended that the nature of the injuries suffered by the deceased indicated that he could not have been conscious as his stomach at two places and one of his lungs had been ruptured. This is also supported by the other circumstance i.e. had Abdul Aziz been conscious, he would not have omitted to mention the second injury suffered by him in the back, both to the S. I. and the doctor. The fact that the second injury was overlooked first by the doctor and then omitted in the dying declaration makes the dying declaration a highly suspicious document. There is yet another circumstance which indicates that the deceased was not in a fit state to make a statement i.e. in the medico legal report Exh. P. D. a verification was entered to the effect that the injured had not obtained a medical certificate from another doctor. Strangely enough, this verification was not signed by Abdul Aziz (deceased). Moreover, the doctor was also not present when the statement of Abdul Aziz was recorded. It was highly doubtful whether he was fit to make a statement, The dying declaration will, therefore, have to be ruled out of consideration.

8. In so far as the recovery of knife P. 3 was concerned, it is in the prosecution evidence that after giving the first blow in the abdomen, the deceased held the accused by his hand and thereafter, the accused inflicted the second injury to the deceased. Under these circumstances, appellant's clothes would have been stained with blood but there is no recovery of his clothes. As to the knife, the prosecution case is that the appellant took it away and concealed it in his house with blood stains on it. Had the accused taken care to conceal the weapon in his house, he would have then not let the blood remain on it. Further, we find that the only member from the general public who was produced at the trial to prove the recovery of the knife namely P. W. 7 Jehanded was deceased's uncle. Besides, contradiction between his statement and that of the Investi gating Officer with regard to the place from where the witness has joined the investigation, we find that Jehandad was a resident of village Nara, situate at a distance of 1 miles away from village B roti where the accused lived. As contemplated by section

103. Cr. P. C. the witnesses of the locality had not been joined to attest the recovery. We are, therefore, not satisfied with the evidence of recovery in this case.

9. Prosecution is left with the statements of two eye‑witnesses namely P. W. 4 Muhammad Zahoor and P. W. 5 Nasir. P. W Muhammad Zaboor deposed that after having a shave, he came out of the shop of Sodagar, barber. P W. Nasir met him near Khan Hotel and, as they were talking to each other, he heard abuses and saw Abdul Majeed, appellant, running after Abdul Aziz (deceased) saying that he would teach him a leason for having abused him a few days ago. Thereafter, they grappled with each other. The accused who had a knife in his hand inflicted a blow in the abdomen and another in the back of the deceased. As Abdul Aziz fell, the accused fled away. Corroborating P. W. Zahoor's testimony, P. W. 5 Nasir said that he came out of Khan Hotel after having tea when he met P. W. Zahoor who had a shave at the barbar's shop and as they were talking to each other, they heard a noise and the witness saw Abdul Majeed coming from the fields with a knife. At that time Abdul Aziz was urinating in the street. Abdul Majeed declared that the deceased would not be spared, upon which Abdul Aziz got up and the accused inflicted a blow in his abdomen near the navel. The deceased tried to catch the accused by his arm. Getting himself released, the accused inflicted the second blow in deceased's back. According to P. W. Nasir, they rushed towards the deceased and held him before he could fall on the ground. The accused thereafter ran away. The discrepancies appearing in the statements of the two eye‑witnesses have a reasonable explanation i.e. according to P. W. Nasir, the deceased was urinating when the accused appeared with a knife whereas according to P. W. Zahoor, the deceased was standing in front of the house of Mukhtar when the accused appeared on the scene There does not appear to be any material contradic tion because in all probability when P. W. Zahoor was attracted towards the place of occurrence, the deceased may have just stood up after urinating. According to P. W. Zahoor, the two grappled with each other but P. W. Nasir has not mentioned anything about the grappling. According to both the witnesses, after the first knife blow in the abdomen, the deceased tried to grip appellant's hand which he got released and inflicted the second blow. In all probability, this may have been considered grappling by the witness. Further according to P. W. Zahoor, the deceased fell whereas according to P. W. Nasir, they held the de, eased before he could fall. This again is no a material discrepancy. After having been injured, Abdul Aziz must have staggered. Whether he was given a support by the witnesses before he actually fell down or in fact he did fall would not make any difference because often in describing a situation, witness has a manner of his own in describing it. If there is a contradiction with regard to an important and material fact that cannot however, be overlooked which there is none in this o case. As such the discrepancy so occasioned should not adversely reflect on the main evidence of the two witnesses in this case because they have fully corroborated each other about the attack on the deceased. Their presence at the spot was natural. They have no axe to grind against the accused no have any relationship with the deceased. True, P. W. Muhammad Nasir was a morn of Abdul Aziz'(deceased) but that alone would not make him an interested witness. Both P. Ws. Muhammad Zahoor and Muhammad Nasir had no motive to falsely rope in the accused on a capital charge There is no reason to disbelieve them. As to the affidavit, Exh. D. A., alleged to have been made by Zaboor P. W., we have observed earlier that for good reasons, it has been ruled out by the trial Court. We may, however, add that procedure has been laid down under section 164, Cr. P. C. for recording the statements of witnesses during the course of an investigation. There is n provision in the Criminal Procedure Code which authorises an Oath Commis sioner to record such affidavits, the subject‑matter of which is evidence in a E pending criminal case. There are only three sections in the Code of Criminal Procedure i.e. sections 74, 526 and 539‑A, according to which a fact may be got proved by an affidavit. It, therefore, follows that an affidavit not covered by these sections is not a legal evidence. A departure from the normal procedure would make the affidavit a highly suspicious document. In this case, even the witness has denied the contents of the affidavit.

10. In the end, it was contended that there could be no motive with the appellant to attack the deceased because it was the prosecution case that maize crop of deceased's uncle P. W. Muhammad Akbar was damaged by appellant's goats. P W. 8 Muhammad Akbar admonished him and the two grappled with each other. It was thereafter, that the deceased alongwith others appeared on the scene and the matter was compromised. Under these circumstances, the appellant need not to have held out a threat to the deceased as alleged by the prosecution. Learned counsel further argued that what transpired between the deceased and the accused immediately before the occurrence is also not known. On the contrary, there was evidence that abuses were hurled and the two grappled with each other. It would thus a the most be a case of a sudden fight. True, the earlier incident was between P. W. 8 Muhammad Akbar and the appellant but it is noteworthy that the deceased appeared on the scene to help his uncle. The appellant and the deceased were of about the same age and in all probability may have exchang ed hot words before the matter was patched up by the co‑villagers. Be that as it may, what transpired on the day of occurrence between the appellant and the deceased may not have been within the hearing of the two eye witnesses but even otherwise we find that the appellant inflicated two knife injuries which were individually fatal. The deceased was unarmed. The appellant thus acted in a cruel and unusal manner. For this reason too, he could not be extended the benefit of Exception IV to section 300, P. P. C. Since in the earlier dispute, the deceased was not directly concerned and the immediate cause of the attack was not known, therefore, while maintaining his conviction, we do not propose to confirm the death sentence which is substituted for imprisonment for life. Sentence of fine is, however, maintained but he shall be entitled to the benefit of section 382 (b). Cr. P. C. M. Z. M. Order accordingly.