1994 P Cr (PLP)

CH. GHULAM SARWAR, J.

Nazir Ahmad alias Jeera aged 25 years appellant and Muhammad Boota aged 23 years were tried by the learned Additional Sessions Judge, Multan for having committed the murder of one Habib Ullah, deceased in Street No. 8, Mohallah Sharif Pura, Multan on 19-11-1987 at Peshi Wela. Vide judgment dated 25-6-1990 the learned Additional Sessions Judge convicted Nazir Ahmad alias Jeera appellant under section 302, P.P.C. and awarded the death sentence with a fine of Rs.1,500 and in default to suffer R.I. for two years. He was also directed to pay Rs.15,000, as compensation, to the legal heirs of Habib Ullah, deceased under section 544-A, Cr.P.C. In default sentence of further six months was awarded. Muhammad Boota son of Khuda Bakhsh accused was acquitted vide the same judgment.

2. The appellant Nazir Ahmad alias Jeera has filed Criminal Appeal No.96 of 1990, whereas Abdul Ghafoor complainant has filed Criminal Revision No.135 of 1990 against the acquittal of Muhammad Boota, accused The learned Additional Sessions Judge has referred this case to this Court for the confirmation of death sentence under section 374, Cr.P.C. vide Murder Reference No.201 of 1990. As all the matters have arisen out of the same judgment, these are being disposed of together.

3. F.I.R. Exh.P.H. was recorded on 21-11-1987 at 1-30 p.m., two days after the occurrence at Police Station New Multan by Manzoor Hussain, Head Constable (not produced). The prosecution case, according to the F.I.R., is that Nazir Ahmad alias Jeera appellant had taken a loan of Rs.150 from Habib Ullah deceased son of Abdul Ghafoor complainant P.W.8. The deceased had demanded the return of loan money several times, as a result whereof the appellant promised to return the same on 19-11-1987. In consequence of the promise the deceased Habib Ullah alongwith his father Abdul Ghafoor P.W.8 went towards the house of the appellant for getting back the money, as promised. But when they reached in Street No.8, Mohallah Sharif Pura, Multan Nazir alias Jeera appellant alongwith Muhammad Boota acquitted accused met them there. Habib Ullah, deceased asked Nazir Ahmad appellant for the return of money, as promised by him. On this, the appellant and Muhammad Boota respondent told Habib Ullah that they would teach him a lesson for demanding back the money. Immediately thereafter Nazir appellant gave a dagger blow on the right side of the abdomen of Habib Ullah deceased, whereas Muhammad Boota respondent inflicted injury with his dagger on the left side of his chest. Muhammad Asghar P.W.10 and Miraj Din P.W. reached the spot on the alarm being raised by Abdul Ghafoor complainant and also witnessed the occurrence. Habib Ullah, deceased after receiving injuries at the hands of the appellant Muhammad Boota fell down. It was thereafter that the accused fled away from the scene of occurrence alongwith their weapons of offence. Habib Ullah deceased was removed to Nishtar Hospital, Multan in an injured condition and after having been medically examined was admitted to Ward No.9 of the Hospital. The appellant also brought some persons including Muhammad Shafi D.W.4 to the complainant and requested him to forgive them and not to get a case registered. Anyhow, the complainant after obtaining a medico-legal report got the case registered against both Muhammad Nazir and Boota vide F.I.R. marked as Exh.P.H.

4. Originally the F.I.R. was registered under section 307/34, read with section 34, P.P.C. but Habib Ullah injured subsequently succumbed to his injuries, due to which the offence was altered and the accused were challaned under section 302/34, P.P.C.

5. Faiz Rasool, Sub-Inspector P.W.12, while posted as S.H.O. Police Station New Multan was entrusted with the investigation of this case. He visited the spot and took into possession the blood-stained earth vide recovery memo. Exh.P.B. while making it into a sealed parcel. He reached the hospital and vide application Exh.PA. he wanted to record the statement of Habib Ullah injured but the doctor opined that he was not in a fit condition to make the statement. On 22-11-1987 this I.O. when received the information of death of Habib Ullah in the hospital he prepared his inquest report Exh.P.E. and injury statement Exh.P.F. He took into possession the last-worn clothes of the deceased vide memo. Exh.PA. He got prepared three copies of the site plan on 24-11-1987 which are Exhs.P.G./1 and P.G./2. On 11-12-1987 he arrested Nazir alias Jeera appellant and on his pointation he recovered Chhuri P.4 from the roof of his Bethak and took the same into possession vide memo. Exh.P.C. Chhuri was made into a sealed parcel. He found Muhammad Boota accused as innocent and let him off, whereas he challaned Nazir Ahmad alias Jecra appellant and submitted the challan in the Court under section 302, P.P.C.

6. To substantiate the charge the prosecution examined 14 P.Ws., in all. P.W.1, P.W.2, P.W.3 are the formal witnesses; P.W.4 joined the investigation when blood-stained earth was secured on 21-11-1987 by the police and also on 11-12-1987 when Nazir Ahmad alias Jeera appellant led to the recovery of blood-stained dagger Exh.P.4.

7. Dr. Muhammad Ashiq had medically examined Habib Ullah on 19-11-1987 and found the following injuries on his person:-- (1) An incised wound 4 c.m. x 1/2 c.m. x abdominal cavity deep with omentum protruding out on right side of abdomen just below ribs 7 c.m. from mid line. Bleeding profusely, with haematemesis. (2) An incised wound 4 c.m. x 1 c.m. x not probed on left side 7 c.m. below left nipple. Bleeding profusely advised ward report pulse's rapid and patient in state of shock.

8. Dr. Ayyaz Ali Farid, P.W.5 did the post-mortem examination on the dead body of Habib Ullah deceased and found the following injuries on his person: -- (1) A stitched wound of size 4 c.m. long bearing four stitches on right side of abdomen 7 c.m. from mid line towards right side and just below ribs. (2) A stitched wound of size 4 c.m. long bearing four stitches on the front of left lower chest. (3) A paramecium surgical stitched wound of size 11 c.m. long bearing 11 stitches 1 c.m. from mid line towards right side of abdomen and 1 c.m. from mid line towards right side of abdomen and l.c.m. from the umbilicus. (4) A stitched wound of size 3 c.m. bearing one stitch on left side of chest, 12 c.m. below left posterior fold of axilla 25 c.m. below top of left shoulder, in the lateral and outer aspect of chest. (5) A stitched wound of size 6 c.m. long bearing 6 stitches 15 c.m. below left shoulder on the medial aspect of left arm, 6 c.m. below interior axillary fold. In the opinion of the doctor, the cause of death was due to injuries Nos.l and 2, which could individually as well as collectively lead to death in ordinary course of nature. These injuries had led to haemorrhage and shock and finally death. All the injuries were ante-mortem and were caused by sharp edged object. Time between injuries and death was about 60 to 90 hours and between death and post-mortem was within twenty-four to thirty-six hours. Exh.P.D. is the post-mortem report and Exh.P.D./1 is the diagram showing the locale of the injuries.

9. P.W.6 is the draftsman and P.W.7 is a process-server who were entrusted with the summons of Dr. Muhammad Ashiq who had left for abroad. P.W.8 Abdul Ghafoor and P.W.10 Muhammad Asghar are the eye-witnesses. Dr. Muhammad Arshad Ansari P.W.11 proved the report of Dr. Ashiq Ali Exh.P.J. The remaining are the Investigating Officers. The learned Prosecutor tendered in evidence the report of the Chemical Examiner Exh.P.M. and that of the Serologist Exh.P.N. to prove the origin of blood on the earth and the weapons of offence.

10. When examined under section 342, Cr.P.C. on 10-1-1990 both Nazir Ahmad alias Jeera appellant and Muhammad Boota traversed the prosecution allegations in their entirety. While professing his innocence Muhammad Boota respondent had stated that P.Ws. had deposed against him falsely and he had proved his innocence during investigation. He stated that he was enrapped in this case, because of his brother Nazir Ahmad appellant. Nazir Ahmad, alias Jeera appellant, however, stated that actually Habib Ullah made an assault upon him with Chhuri and caused him injuries and he while acting in the right of his self-defence also caused the injuries upon the deceased by picking up a Chhuri from a nearby hotel. He also submitted a detailed written reply under section 265-F, Cr.P.C. which was also made a part of his statement. Nevertheless the appellant led defence evidence and produced D.W.1 Muhammad Iqbal Nasim, D.S.P. to prove the innocence of Boota. D.W.2 was also produced in connectiop with the innocence of Boota and D.W.3, D.W.4 and D.W.5 were produced to support the plea of the appellant to say that they being the Mohallahdars were attracted on the alarm being raised by the appellant and saw that he and Habib Ullah were quarrelling with each other, Habib Ullah deceased was having a Chhuri, caused two/three blows to Nazir appellant which landed at his arm and leg. Nazir appellant rushed to a nearby tea-shop belonging to Bashir and picked up a Chhuri from there. Soon after Habib Ullah deceased inflicted Chhuri blow on the neck of the appellant; who in reply inflicted a Chhuri blow which landed on his abdomen. The appellant came to his house from where he was taken to police station whereas Habib Ullah deceased was taken to the hospital. According to the defence witnesses they claimed to be the eye-witnesses of the occurrence. Besides the public witnesses Muhammad Khan Niazi, Inspector was also examined as D.W.8 regarding the innocence of Muhammad Boota respondent.

11. The learned counsel for the appellant argued that the conclusion arrived at by the learned trial Court is the result of non-reading of relevant evidence and also misreading of material evidence on record. He contended that the learned trial Court had failed to evaluate the evidence on record keeping in view the defence plea. In order to prove the same the appellant had produced eight D.Ws. When both the eye-witnesses are the chance witnesses having not belonged to the place where the occurrence took place. It was also urged that there is an unexplained delay of two days in the lodgement of the F.I.R. which goes to prove that it was after due deliberation and consultation so in this case the possibility of false involvement cannot be ruled out. Lastly it was argued that in this case the origin of the fight is shrouded in mystery as the occurrence took place in a street and the possibility cannot be ruled out that this murder might be the result of sudden flare up so this being mitigating circumstance the capital punishment should be altered into life imprisonment.

12. Conversely Mr. Fazal-ur-Rehman, the learned counsel appearing on behalf of the complainant Abdul Ghafoor assisted by the learned Assistant Advocate-General contended that the learned trial Court had formed a conjectural opinion regarding the unplausibility of infliction of two injuries closer to each other by two different persons on the body of the deceased Habib Ullah. It was contended that the prosecution version is natural and more probable than that of the defence version. The eye-witnesses have deposed in unequivocal terms that Nazir Ahmad appellant inflicted injury with dagger on the right side of the abdomen of the deceased while Boota respondent gave him a dagger blow on the left-side of his chest. It was also asserted that the prosecution version is based on independent ocular evidence corroborated by medical evidence and with a strong motive so the death sentence of the appellant should be maintained and Muhammad Boota respondent should also be convicted and sentenced accordingly.

13. After having heard the various arguments advanced by the learned counsel, we have carefully gone through the entire evidence. Id order to prove motive the prosecution has relied upon the testimony of P.W.8 Abdul Ghafoor and P.W.10. Muhammad Asghar. We do not agree that the amount of loan alleged by the prosecution was not such, on which this murder could be committed. We also do not agree that as the motive taken up by the prosecution is weak and feeble and has remained shrouded in mystery so it being insufficient should not be considered as supporting evidence. We find that Abdul Ghafoor P.W.8 has categorically stated that the appellant had taken a loan of Rs.150 from the deceased and the deceased had put the demand of the same for the payment of which particular date was fixed. On the day of occurrence this witness accompanied the deceased to get the loan but the appellant and his brother met them in the street. Muhammad Asghar P.W.10 fully corroborates the statement of P.W.8 on this point. It is pertinent to mention here that P.W.10 is absolutely an independent witness and is not related to the deceased in any manner and nor the statement of P.W.8 Abdul Ghafoor can be brushed aside on the score that he is the father of deceased, when he had no enmity with the appellant. It is a matter of common experience that atrocious crimes are committed for a very small pecuniar gains. If murder could not be committed on Rs.150 it cannot be believed that the same could be caused for Rs.7 only. We are, therefore, of the view that so far as the motive is I concerned that stands fully proved on record.

14. On the point of ocular testimony we find that although both the eye witnesses P.W.8 and P.W.10 have been cross-examined at length, but the defence failed to elicit anything favouring the appellant. We also find that both the witnesses had no direct enmity with the appellant and thus there was no occasion to falsely involve him in the case. On the day of occurrence Habib Ullah deceased had received (a blade injury) on the upper portion of his left arm while working on a loom and P.W.8 had taken him for dressing to Dr. Farooq in Mohallah Sharif Pura and while coming back they went to the house of the appellant for taking back the amount of loan of Rs. 150 which the appellant had promised to return the same day i.e. on 19-11-1987. When they reached in Street No.8 and made a demand for the return of money the appellant gave dagger blow on the right side of the abdomen of Habib Ullah deceased and similarly Boota also gave him injury on the left side of his chest. The blade injury on the person of the deceased find mention in the post-mortem examination report Exh.P.B. as injury No.5. As discussed above there is nothing on record to show that P.W.8 was inimical towards the appellant so his testimony alone is sufficient to support the implication of the appellant in the case. P.W.10 Muhammad Asghar is resident of Basti Sharif Pura and similarly all the D.Ws. are also of the same Basti. Muhammad Asghar P.W.10 is an independent witness and mere fact that he resides at some distance from the place of occurrence does not persuade us to disbelieve his presence. It is B laid down b the Supreme Court of Pakistan that if and now a settled law as occurrence takes place on the roadside or in a street then the passers by in the street are the natural witnesses of the occurrence. We, therefore, hold that both the eye-witnesses are the natural witnesses of the occurrence.

15. Eye-witness account is supported by the medical evidence. Injury No.1 on the person of deceased was found dangerous to life, as a result of which the injured died in hospital on 22-11-1987. Injury No.2 had been kept under observation. Both these injuries were ante-mortem and caused by sharp-edged weapons. The result, therefore, is that the medical evidence is full confirmatory with the ocular evidence. The medical evidence and the ocular account furnished by P.W.8 and P.W.10 is further supported by the evidence o recoveries. Dagger P.4 was recovered at the instance of the appellant from his house at his pointation and was witnessed by Muhammad Akram P.W.4. Although this recovery was effected after twenty-two days after occurrence but in the peculiar circumstances of this case we do not find any infirmity in believing this recovery by the learned trial Court. Muhammad Akram P.W.4 is a resident of the place of occurrence, therefore, the testimony of this witness could not be doubted in any manner.

16. We have considered the defence plea taken up by the appellant, in detail. The appellant, D.W.3 Taj Din and D.W.4 Suleman had stated that after receiving two successive injuries at the hands of Habib Ullah deceased the appellant picked up a Chhuri from the shop of one Bashir, came to the deceased who gave him third blow on his neck and thereafter the appellant caused him injury from his Chhuri in his abdomen in the exercise of his right of self-defence. The case of the defence is that the appellant had gone to the shop of Bashir at a distance of 12 feet from the place of occurrence to pick up the Chhuri. Had the appellant gone to that shop after receiving two injuries at the hands of the deceased then certainly he had gone out of the reach of the deceased and had entered the safe zone so if he had apprehended any danger of death he could very easily leave the place instead of reverting to the place of occurrence after picking up the Chhuri from the shop of Bashir. We are of the view that after leaving the place the appellant had lost his right of self-defence if he had any. We, therefore, treat the plea of the appellant as an afterthought which was concocted subsequently. We endorse the findings of the learned trial Court whereby--Boota accused was acquitted. His implication was not even attested by the Investigating Officers when the case was investigated by as many as three Police Officers and after a thorough investigation of the case only Nazir appellant was sent up for facing the trial. In G this view of the matter we hold that the prosecution has brought guilt home to the appellant.

17. While canvassing the alternation from death sentence to life imprisonment in this case the learned counsel had submitted that there are mitigating circumstances to alter the sentence from death to life imprisonment because the origin of the fight is in obscurity in this case. We find that the prosecution has proved to this extent only that the appellant had promised to pay back the loan to the deceased on 19-11-1989 but it was not known as to where the payment was to be made and at what time. The appellant was not aware that the deceased and his father were coming, to his house via the Street No.8. We are, therefore, of the view that the deceased and his father met the appellant in the street. There was an altercation on the point of payment of loan which resulted into this occurrence on the spur of the moment where the appellant gave injuries on Habib Ullah deceased, The immediate cause of occurrence being shrouded in mystery we, therefore, alter the sentence of death into life imprisonment. The sentence regarding fine and compensation as recorded by the learned trial Court is, however, maintained.

18. Resultantly the reference made by the learned Additional Sessions Judge is answered in the negative as the death sentence of Nazir Ahmad alias Jeera appellant is not confirmed. Criminal appeal filed by the appellant is rejected with alteration in sentence and the criminal revision filed by Abdul Ghafoor complainant is also dismissed. N.H.Q./N-205/L Order accordingly.