1976 P Cr (PLP)

MUHAMMAD RAFIQ TARAR, J

‑Asghar Ali (34) son of Abdul Majid, labourer, resident of Shahpur city, was tried by the learned Sessions Judge, Sargodha, for committing the murder of Faqir Muhammad deceased. By judgment, dated l2th August 1974, he was convicted under section 302 of the Pakistan Penal Code and sentenced to death subject to confirmation by this Court and a fine of Rs. 5,000 or in default in payment thereof to R. I. for three years. He has appealed and the case is also before us on reference for confirmation of the death sentence awarded to him. The appeal and the reference shall be disposed of by this judgment.

2. The brief facts of the prosecution case are that three or four months before the occurrence Ali Sher complainant, maternal uncle of Faqir Muhammad deceased, purchased a house situate in Shahpur city from one Muhammad Siddiq for a consideration of Rs. 1,

400. At the time of this deal one Muhammad Rafiq was occupying the house as tenant who promised to vacate it after two months. He did not vacate the house as promised and the complainant again approached him for that purpose but he did not any heed. Later on he handed over the possession of the house to Asghar Ali appellant and he started living in it. The complainant and Faqir Muhammad accused requested the appellant to vacate the house but he refused to do so. The prosecution story goes that on 23rd August 1971 Ali Sher complainant, Bashir (not produced) and Faqir Muhammad deceased wean to the dera of Mustafa Shah P.W. and requested him to help them in getting the possession of the house from the appellant. Mustafa Shah P.W. called the appellant at his dera and asked him to vacate the house but he replied that he had paid Rs. 200 to Muhammad Rafiq as advance and had the right to retain the possession of the house. Upon this Faqir Muhammad deceased retorted that he (appellant) was liar and an altercation ensued between them. During the course of quarrel the appellant whipped out a churri from the dab and attacked Faqir Muhammad deceased with it. The first blow hit the deceased on his abdomen and the second an his thigh. On receiving these blows he fell down and the appellant gave him two more blows on the back side. The eyewitnesses intervened to rescue the deceased. The complainant snatched the chhuri from the appellant and while doing so sustained an injury on his arm. After the occurrence the appellant fled away from to the spot. Faqir Muhammad deceased was removed to Civil Hospital, Shahpur Saddar, where he was medically examined. Ali Sher complainant went to police Station Shahpur Saddar and reported the occurrence to Aziz Ahmad Moharrir Head Constable at 10‑45 p.m., vide F. I. R. Exh. P.A.

3. On 24th August 1971 Muhammad Bashir A. S. I., Police Station Shahpur, Saddar, visited the place of occurrence. He secured some blood‑stained earth from the spot made it into a sealed parcel vide memo Exh. P.F. Ali Sher complainant produced blood-stained chhuri (Exh. P1) before him and he made it into a sealed parcel vide memo Exh. PB. He prepared the injury‑statement (Exh. PT) of Ali Sher complainant and sent him for medical examination. Vide ruqqa (Exh. PL/l) he enquired from the doctor if Faqir Muhammad was in a fit condition to make a statement to which he replied in the negative vide Exh. PL. On the same day he again enquired from the doctor as to the fitness of the deceased to make a statement to which he replied in the affirmative vide Exh. PN. The A.S.I. then submitted application (Exh. PW5/A) to the Duty Magistrate for recording the dying‑declaration of the deceased and he forwarded it to the Tehsildar, Shahpur, for doing the needful. Makhdoom Muhammad Nawaz, Tehsildar and Magistrate First Class, Shahpur, gent to Civil Hospital, Shahpur, and recorded the dying Statement (Exh. PW5/D) of Faqir Muhammad deceased. On 28th August 1971 the A. S. I. recorded the statement (Exh. PW 12/A) of Faqir Muhammad under section 1611, Cr. P. C. which is also the dying declaration in this case. He arrested the appellant on 29th August 197l. Faqir Muhammad deceased was removed to D. H. Q. Hospital, Sargodha, under medical where he expired on 3rd September 1971. On 18th November 1971 Ali rhea complainant produced the P. T. 1:3. (Exh. PC) and agreement (Exh. PD) pertaining to the house in dispute before the A. S. I. vide memo Exh. PE. After the investigation, the appellant was challaned.

4. On 23rd August 1971 at I1‑15 p.m., Dr. Nawab Din, Medical Officer, Civil Hospital, Shahpur Sadder, examined Faqir Muhammad deceased, when alive, and found the following injuries on his person: ‑ (1) A stab wound with clean cut edges 1'' x '' x going deep into the left lower chest directed downward ‑and backward into, the upper left x abdomen. (2) A punctured wound with clean cut edges '' x '' x 2'' on the outer side of left lower thigh. (3) A punctured wound with clean cut edges '' x '' x '' tailing to the neck by a superficial linear cut 2'' in length, on the back of right shoulder.

4. A contusion mark 3 '' x '' on the back of left shoulder. Injury No. 1 was dangerous to life and No. 3 was kept under observation. Injuries Nos 2 and 4 were simple. Injuries Nos. 1, 2 and 3 were caused by sharp‑edged weapon and No. 4 with blunt weapon. Probable durst on of injuries was fresh within six hours . On 24th August 1971 at 8 a.m., the same doctor examined Ali Sher complainant and found an incised wound 1 " x '' x '' on the back of his left forearm. The injury was limp::‑ caused by a sharp‑edged weapon within 10 to 12 hours. On 4th September 1971 at 12‑15 p.m., Dr. Muhammad Azim Majoka, Medical Officer. D. H. Q. Hospital, Sargodha, conducted the autopsy on the dead body of Faqir Muhammad deceased and found tire injuries referred to above on it. In his opinion, death was due to infection as a result of injury No. 1 causing injury to left kidney and big collection of retroperitoncal pus at perinephric region. Injury No. 1 was sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was 10 to 11 days and that between death anti post‑mortem within 18 hours.

5. In support of its case the prosecution examined fourteen witnesses in all. Ali Sher complainant, Muhammad Rafiq (P.W. 12) and Ghulam Mustafa Shah (P. W. 13) furnished ocular account of the occurrence. The prosecution also relied on the dying declaration and the motive.

6. The appellant pleaded not guilty to the charge, denied the prosecution allegations against him and contended that he head been falsely implicated due to enmity over the disputed house. In his statement before the Committing Magistrate he admitted that he bad paid Rs. 200 to Muhammad Siddiq for the possession of the aforesaid house. No evidence was led in defence.

7. The learned trial Judge believed the prosecution evidence and found the appellant guilty under section 302 of the Pakistan Penal Code.

8. The learned counsel for the appellant could nut controvert the prosecution version of the occurrence. He, however, contended that according to the medical evidence the cause of death was infection and collection of retroperitoneal pus at perinephric region, therefore, the offence would fall either under section 320 or 307 of the Pakistan Penal Code and the conviction under section 302, P. P. .C. cannot be sustained. We have gone through the entire evidence with the help of the learned counsel for the parties. The dispute over the house between the complainant and the deceased is almost an admitted fact. The complainant stated that he purchased the house from Muhammad Siddiq for a consideration of Rs. 1400. In support of this transaction he produced agreement (Exh. PD) which shows that Rs. 1,400 were paid by him to Muhammad Siddiq, the owner of the house, as the sale price. The complainant stated that the house was occupied by one Muhammad Rafiq as a tenant and he promised to hand over the possession to him but later on he refused to do so and delivered its possession to the appellant. In the commitment Court the appellant stated that he had no knowledge about any transaction between Muhammad Siddiq and Ali Sher and that he "had paid Rs. 200 for the possession of the said house to Muhammad Siddiq . At the trial, when asked to explain as to why he was implicated he stated: Because of enmity of my house . The eye-witnesses are unanimous that on the night of occurrence the complainant, deceased and Bashir (not produced) approached Mustafa Shah P. W. at his dera where Muhammad Rafiq P.W. was also present and asked him to help them in getting possession of the house from the appellant. He called the appellant and asked him to vacate the house but tie replied that he would not vacate the house because he had occupied it on payment of Rs. 200 whereupon the deceased retorted that be was telling a lie and a quarrel ensued between them which ultimately resulted in this unfortunate occurrence. Ali Sher complainant is the nephew of the deceased while the other two eye‑witnesses, namely, Muhammad Rafiq and Ghulam Mustafa Shah, are not connected with him. Ghulam Mustafa Shah is a Zamindar and a respectable of the locality, therefore, there was nothing unusual if Ali Sher complainant who was a party to the dispute, sought his help in getting the possession of tile house from the appellant. He also sustained an injury during the occurrence, therefore, his presence at the spot cannot be doubted. Ghulam Mustafa and Muhammad Rafiq P. Ws had no axe of their own to grind against the appellant. They have supported the prosecution version in all material particular and their evidence is consistent on the main features of the case of course, there are discrepancies and contradictions in their evidence on minor points but those are immaterial and can be ignored.

9. The eye‑witnesses are consistent that when Mustafa Shah P. W. asked the appellant to vacate the house be replied that he had given Rs. 200 as advance and was entitled to retain the possession upon which the deceased retorted that he was telling a lie and an altercation ensued between them during which the appellant whipped out a chhuri from his 'dub' and attacked the deceased. Muhammad Rafiq and Ghulam Mustafa Shah P. Ws stated that the appellant inflicted one blow on the abdomen of the deceased and another on his thigh and when the deceased was falling down he gave two more blows on the back of his right and left shoulders. The complainant stated that the first blow hit the deceased on the left flank and the second landed on his leg and on receiving these injuries he tell down on the ground and the appellant gave third blow on his back side. According to the medical evidence, the deceased had four injuries out of which three were incised wounds and the fourth was a contusion mark. In the dying declaration (Exh. PVV5/D) recorded by Makhdoom Muhammad Nawaz, Magistrate First Class, the deceased stated that solve body had also given him stick blows. The deceased might have been tutored to make this statement in order to explain the contusion mark found on his person (injury No. 4). Any way, this circumstance need not detain us long because even after excluding the dying declaration there remains sufficient evidence of a reliable character to show that the deceased sustained the injuries at the hands of the appellant. 1t is true that Ghulam Mustafa Shah and Muhammad Rafiq P. Ws. stated that the appellant gave four chhuri blows to the deceased whereas according to the medical evidence there were only three incised wounds on his person but this discrepancy is not sufficient to discard their testimony altogether because they had absolutely no motive to falsely implicate the appellant in a heinous crime like murder. Probably .t was on the basis of this discrepancy that it was suggested to Ghulam Mustafa Shah P. W. that the deceased was injured with chhuri and sots two unknown persons in the dark night at some different place and after that he was brought to his dera in injured condition so as to make him available as an eye witness. After the occurrence the deceased remained alive for ton days. He had no direct enmity with the appellant. If some body else had injured him he would not have spared the real culprit and substituted the appellant for him merely because his nephew had a dispute with him. There is nothing on the record to show that the deceased had enmity with any other person. We are, therefore, fully convinced that the deceased sustained injuries at the hands of the appellant.

10. Relying on the statement of the doctor that the death was due to infection and collection of retroperitoneal pus at perinephric region the learned counsel for the appellant contended that the death was not a direct result to the injuries, therefore, the offence would fall under section 326 or 307 of the Pakistan Penal Code. We do not find any substance in this contention. The doctor deposed that death "had occurred due to infection as, a result of injury No. 1 causing in jury to left kidney and big collection of retroperitoneal pus at perinephric region." From the above statement it is clear that the infection anti collection of pus were the direct result of injury No. 1 caused to the deceased by the appellant. Moreover, this injury was found by the doctor to be sufficient to cause death in the ordinary course of nature. The mere fact that infection and collection of pus had intervened is, therefore, not sufficient to alter the offence from section 302, P. P. C. to one under section 326 or 307, P. P. C. because the infection and collection of pus was clearly a direct result of injury No. 1.

11. After going through the evidence and hearing the learned counsel for the parties, we are of the view that the appellant was rightly convicted under section 302, P. P. C. The question of sentence however, requires consideration. It is in evidence that when the appellant told Ghulam Mustafa Shah P. W. that he had paid Rs. 200 as advancet and was entitled to retain the possession of the house, the deceased retorted that he was a liar whereupon a quarrel ensued between them and the appellant took out a chhuri from his 'dab' and caused injuries to the deceased. There was some element of provocation and the incident happened all of a sudden without any premeditation on the part of the appel lant. We are, therefore, of the view that the lesser penalty provided for the offence of murder will be sufficient to meet the ends of justice in this case. Accordingly the sentence of death awarded to the appellant by the trial Court is altered to imprisonment for life. He is a labourer by profession and his financial position seems to be weak, therefore, the din is also remitted. With this modification in the sentence, the appeal is dismissed. The death sentence is not confirmed. Order accordingly.