1989 P Cr (PLP)

RIAZ AHMAD, J: ‑ Appellant Mansoor son of Zahoor Ahmad, Pathan by caste, aged 18 years, resident of Mohallah Islamabad at Multan was tried by the learned Additional Sessions Judge, Multan on the charge under section 302 read with section 324 of the Pakistan Penal Code for having committed the murder of Aziz Ahmad deceased and for having caused injuries to Bashir Ahmad and Khadim Hussain P.Ws.

2. The learned trial Judge, vide his judgment, dated 1st of August, 1985 held the appellant guilty on the charge under section 302 of the Pakistan Penal Code only. Accordingly, the appellant was convicted and sentenced to death, and to pay a fine of Rs. five thousand only, or in default of the payment of fine, to suffer further rigorous imprisonment for four months. The appellant was also directed to pay an additional amount of Rs. five thousand as compensation under section 544‑A, Cr.P.C. to the legal heirs of the deceased, or in default whereof, to suffer four months rigorous imprisonment.

3. Aggrieved by his conviction and sentence, the appellant has preferred this appeal, while the case has also been referred to us under section 374, Cr.P.C. This judgment shall dispose of both the appeal as well as the Reference made by learned trial Judge.

4. The occurrence resulting into the death of the deceased Aziz Ahmad took place on 3rd of July, 1984 at 10‑00 p.m. in Mohallah Islamabad Multan situated at a distance of 8 furlongs from Police Station Kup. Occurrence was reported at the Police Post Daulat Gate on the same day at 11‑00 p.m. by Bashir Ahmad P.W.5, vide his statement Exh. P.H. which was recorded by Muhammad Ali A.S.I. P.W.7. Said statement Exh. P.H. was sent to the Police Station Kup, where on the basis thereof, formal F.I.R. Exh. P.H./I was drawn by Muhammad Ashraf A.S.I.

5. In brief, Bashir Ahmad complainant P.W.5 in his statement stated, that they were four brothers including deceased Aziz Ahmad who was younger to him. The deceased was running a shop of chaff. On the fateful night at about 8‑00 p.m. the appellant was standing near the shop of one Ajmal, and was committing mischiefs. The deceased passed from there, and restrained the appellant from committing mischiefs, and asked the appellant not to visit his shop, because the women‑folk of their house also passed from that street. The appellant remarked, that he would not leave the street, whereupon, scuffle took place, and the deceased gave a slap to the appellant. Complainant and Muhammad Shafi intervened, and separated them. While leaving, the appellant threatened the deceased with dire consequences, and remarked that he would take the revenge of the insult. After about two hours at 10‑00 p.m., deceased alongwith Khadim Hussain and Malik Muhammad Yar was sitting on a cot. Complainant after having taken tea from a hotel was coming towards his house, when the appellant armed with a knife while raising Lalkara appeared near the cot. Appellant asked the deceased to stand up, and said, that now he would teach him (deceased) a lesson for the insult. As soon as the deceased got up from the cot, the appellant one after the other inflicted two knife blows on the left side of the chest and in front of the chest of the deceased who fell down after receiving the said injuries. Complainant and Khadim Hussain tried to apprehend the appellant and snatch the knife from him. During this process, palm of the left hand of Khadim Hussain P.W.6, and the middle finger of the left hand of the complainant were injured, despite that, the appellant was apprehended alongwith the knife. In the meanwhile, the other residents of the Mohallah also reached the scene of occurrence: The appellant was given into the custody of Khadim Hussain and Muhammad Yar and residents of Mohallah. Complainant and Muhammad Shafi took the injured Aziz Ahmad to Nisthar Hospital, but the deceased succumbed to his injuries before reaching the hospital. Leaving the dead body into the custody of Muhammad Shaft, complainant reached Police Post Daulat Gate, where he made the above reproduced statement.

6. On 4th of July, 1984, Dr. Zia‑ud‑Din Zaidi, Senior Medical Officer, Civil Hospital, Multan conducted the post‑mortem examination on the dead body of Aziz Ahmad deceased and the following injuries were noticed:‑ (1) A stab wound on the right side of chest on front 1 c.m. from midline and 7 c.m. from right nipple measuring 4 c.m. x 2 c.m. x going downwards in chest cavity. (2) Stab wound on the left side of chest on interior axillary line 4 c.m. from left tipple measuring 2 c.m. x 1 c.m. going inwards to the chest cavity. In the opinion of the doctor death occurred due to injuries Nos. 1 and 2 individually and collectively, and were sufficient to cause death in the ordinary course of nature. Injuries were opined to have been caused with sharp‑edged weapon.

7. Khadim Hussain P.W.6 after the apprehension of the appellant had taken into possession the blood‑stained knife from the appellant. P.W.6 Khadim Hussain and others remained present at the spot till the arrival of the police. The appellant and the knife were produced before the police by Khadim Hussain P.W.6. Said knife was taken into possession vide memo. Exh. P.I. attested by Khadim Hussain P.W.6, P.W.5 Bashir Ahmad and Malik Muhammad Yar (not produced) besides the Investigating Officer Muhammad Ali A.S.I. P.W.7. The knife recovered from the appellant was sent to the Chemical Examiner and the Serologist, vide report of the Serologist Exh. P.O, the knife was found to be stained with human blood.

8. At the time of the arrest of the appellant, his clothes were also stained with blood, and the shirt P.4 and Shalwar P.3 were got removed and were taken into possession, vide memo. Exh. P.J. attested by Khadim Hussain P.W.6 and Bashir Ahmad, P.W.5 besides Muhammad Ali A.S.I. P.W.7. The aforesaid clothes were sent to the Chemical Examiner and the Serologist, according to the report of the Serologist, they were found to be stained with human blood.

9. At the trial, to prove its case, the prosecution placed reliance upon the ocular testimony furnished by Bashir Ahmad P.W.5, while Muhammad Yar was given up. In addition to the ocular testimony, the prosecution also placed reliance upon the corroborative evidence in the form of the recovery of blood‑stained knife and blood‑stained clothes of the appellant.

10. When examined under section 342, Cr.P.C. the appellant stated, that at about 9‑45 p.m. on the fateful night, he was coming from the house of his uncle on a motor‑cylce. He was stopped by the deceased and one Abid Ali, while two more persons were also sitting on a cot near the house of Rahim Bux. According to the appellant, Abid Ali caught hold of him, and pulled him away from the motor‑cycle. The deceased felled him on the ground, and kissed him on his lips. The appellant further stated that the deceased felled himself on his body when his face was upward. The appellant had a pen knife with him, and he caused injuries to the deceased to save himself from the deceased, who was trying to commit the unnatural offence with him. All the residents of the locality intervened, and separated them, and they had snatched the knife from the appellant. Appellant further stated, that the eye‑witnesses were not present during this occurrence. The appellant denied that knife P.2 belonged to him.

11. With the assistance of the learned counsel for the appellant and the State, we have carefully gone through the record of this case, and we have also heard both the learned counsel at length. It was urged before us that the defence version, if juxtaposed with the prosecution case, it reflected upon the prosecution version and, therefore, it was more probable and nearer the truth and thus, the appellant having acted in exercise of the right of self‑defence and to save himself had committed the murder which did not fall within the mischief of section 302 of the Pakistan Penal Code and the appellant deserved acquittal because he had acted in the exercise of right of self‑defence.

12. We have carefully examined the plea raised by the appellant and we regret to observe that the same does not hold good in the circumstances of this case. The defence plea is so unnatural and improbable that it is difficult to accept the same. According to the appellant, the deceased was lying on his body when he caused him injuries with a pen knife which he was keeping with him. We are not prepared to believe that in such posture, the appellant could have caused the fatal injuries. Furthermore, the dimension of the injuries on the chest of the deceased negates the possibility of the use of pen knife. On the other hand, it corroborates the prosecution case that these injuries were caused with the knife, which was snatched from the appellant by the eye‑witnesses at the spot. Thus, holding the defence plea as devoid of proof, we repel the same.

13. Adverting to the prosecution case, we are of the view that the prosecution has established its case beyond any shadow of doubt. The ocular testimony consists of the natural witnesses who are the residents of the same area i and had no axe of their own to grind. The ocular account is most natural anti probable and even though, it does not need corroboration yet the same is coming-forth in this case in the form of the apprehension of the appellant at the spot alongwith the blood‑stained weapon of offence i.e. knife which was opined to have stains of human blood. The prosecution case further stands established by the recovery of the blood‑stained clothes of the appellant, which were got removed and the same were also found to have stains of human blood. Thus, we have no doubt in our mind that the prosecution has brought home guilt to the appellant.

14. The next question falling for determination is the quantum of sentence. It was strongly argued that both the appellant and the complainant sides are the residents of the same Mohallah. In the F.I.R. it was stated that the appellant was committing mischiefs but no material particulars about the same were divulged so as to ascertain, what exactly was being done by the appellant. It was also urged before us that there was nothing on the record to show that the appellant had' teased any female in the Mohallah and, therefore, the motive as disclosed by the prosecution has not been proved. It is further contended by the learned counsel or the appellant that since the prosecution had failed to prove the motive as sought to be set up by it, therefore, it must suffer. We are inclined to agree with the learned counsel for the appellant because evidence as to the motive in this case is feeble and unworthy of belief. There is nothing on the record to show as to how the trouble started because the prosecution has not taken the Court into confidence. We are, thus, of the view that the origin of the fight is shrouded in. mystery.

15. In this view of the matter, we are of the view, that it will not be safe for the administration of justice to impose extreme penalty of death in this case and. therefore, following the principles laid down to govern the quantum of sentence, we are of the view that the ends of justice would be met, if the sentence of death of the appellant is altered into life imprisonment. Accordingly we hereby dismiss the appeal preferred by the appellant with the modification that the appellant shall now suffer fife imprisonment. The sentence of fine is maintained. The appellant shall also pay compensation as ordered by the trial Court. In the circumstances of the case, we find it a fit case in which the benefit under section 382(b), Cr.P.C. should also be allowed to the appellant. With these observations, the appeal preferred by the appellant is hereby dismissed and the reference is answered accordingly. M.Y.H./M‑1509/L Appeal dismissed.