1985 P Cr (PLP)

MUHAMMAD MUNIR KHAN, J.‑‑ This Criminal Appeal No. 502 of 1983 connected Murder Reference No.143 of 1983 and Criminal Revision No.59 of 1984 filed by Muhammad Younis complainant against the acquittal of Abdul Qayyum co‑accused arise from the judgment of learned Additional Sessions Judge, Sialkot whereby he on 9‑7‑1983 while acquitting Abdul Qayyum co‑accused convicted Muhammad Afzal (22) for causing the death of Muhammad Ashraf alias Pervaiz (24/25) and sentenced him to death and a fine of Rs.10,000 in default thereof one year's R: I. with the direction that the fine when recovered be paid to the legal heirs of the deceased.

2. The occurrence took place on 27‑12‑1982 at 3‑30 p.m. in front of the shop of the deceased at Aik Bridge at a distance of five furlongs from Police Station Sialkot. F.I.R. is statement P.C. of Muhammad Younis P.W.6 the brother of the deceased. It was recorded by Iftikhar Ahmad A.S.I. P.W.10 at Civil Hospital, Sialkot at 3‑50 p.m. on the same day. Formal F.I.R. P.C/I was drawn up at 4‑20 p.m. on the same day by Muhammad Majid Khan A.S.I. (given up as unnecessary). The formal F.I.R. was proved by Iftikhar Ahmad A.S.I. P.W.10 who identified the writing and the signatures of Majid Khan A.S.I. on formal F.I.R. Exh.P.C/I.

3. The motive alleged by the prosecution was that about 6/7 months before the occurrence, Muhammad Afzal alias Ajoo appellant borrowed some money from Muhammad Ashraf deceased who asked nor the return of money many times but the appellant put him off on :one pretext or the other. On the morning of the day of occurrence the deceased again went to the shop of the appellant to get money back but the appellant abused him and threatened him that he would settle the account on the same day at Aik Bridge.

4. As for the main occurrence it has been stated that on the eventful day at about 3 p.m. Muhammad Afzal appellant and Qayyum acquitted co‑accused came to the shop of the deceased. The appellant abused the deceased who returned the abuses. On this the appellant asked Qayyum co‑accused to drag Ashraf, out of the shop so that account be settled. Qayyum acquitted co‑accused dragged the deceased out of the shop and held him in Jappha while Muhammad Afzal appellant took out knife from his 'Neifa' and gave blow on the back of the chest of deceased. Muhammad Ashraf tried to run towards the Police Post but fell down after covering 7/8 paces. When Muhammad Youn's complainant stepped forward to apprehend them, the appellant and Qayyum made good their escape raising Lalkara. The occurrence was seen by Muhammad Younis complainant, Muhammad Aslam P.W.8 was Sardar Muhammad P.W. (given up). Muhammad Ashraf deceased was removed in an injured condition to the hospital in a Tonga. He however succumbed to the injuries before medical aid could be given to him.

4. On 28‑12‑1982 at 11‑00 a.m. Dr. Muhammad Saeed P.W.7 conducted post‑mortem examination on the body of Muhammad Ashraf deceased found following injuries on his person:‑ (1) Incised wound 1‑1/4" x " vertically oblique on the back of left chest, 6" outer midline and two inch below the angle 'of scapula. (2) Abrasion x on the middle of left leg. (3) Abrasion " x " on the left leg, " right to injury No.

2. On Dissections under injury No.1, muscles on the left back were cut, left side pleura was cut, left lung upper lobe was cut. Pericardium was cut and heart was cut. Chest cavity contained four pounds of blood. In his opinion, injury No.l caused by sharp‑edged weapon was grievous in nature and was sufficient to cause death in the ordinary course of nature. The cause of death was shock and haemorrhage. Injuries Nos. 2 and 3 were simple and caused by blunt 'weapon. Probable time between injury and death was half an hour and between death and post‑mortem was 19 hours. In cross‑examination the doctor stated that injuries Nos. 2 and 3 could be caused if the appellant was on the back side or on the left side (Flank side).

5. On 31‑12‑1982 Muhammad Afzal appellant was arrested by Iftikhar Ahmad A.S.I. P.W.10. On the same day he led to the recovery of blood‑stained Chhuri P.4 which was taken into possession vide memo. P.B. attested by Muhammad Ahmad P.W.5 the uncle of the deceased and Muhammad Yaqoob (not produced). The memo was prepared by Iftikhar Ahmad A.S.I. P.W.10.

6. When examined under section 342, Cr.P.C. the appellant denied all incriminating circumstances. He raised plea of false implication on account of suspicion. In answer to the question as to why the case against him, the appellant stated that:‑ "The deceased had received injury elsewhere and had fallen in front of the police post B Division, from where he was removed to the hospital in the Tonga of Said Muhammad. It was not known as to who had caused injury to the deceased, and I was implicated merely on hearsay and suspicion." In defence he produced four witnesses.

7. To prove its case prosecution examined ten witnesses. Muhammad Younis P.W.6 and Muhammad Aslam P.W.8 have given the ocular account of the occurrence. They stated that at the time of occurrence Muhammad Afzal appellant and his co‑accused Qayyum came to the shop of the deceased. The appellant hurled filthy abuses to Muhammad Ashraf and declared that they had come to settle the account and they will settle the same. The appellant returned the abuses. The appellant then directed Qayyum co‑accused to drag out the deceased from his shop. Qayyum obeyed the directions and dragged Ashraf out of the shop and held him in Jappha and asked the appellant to inflict Chhuri blow to the deceased. On this the appellant whipped out Chhuri from fold of his Shalwar and gave blow with it on left side of the back of the deceased who on receiving the injury started running towards police Post and fell at a distance of 8/10 paces. When the witnesses tried to rescue the deceased, the appellant and his co‑accused ran away from the spot raising Lalkara. Muhammad Ashraf was removed to the hospital in a Tonga but he succumbed to the injuries on the way. The witnesses supported the motive as alleged by the prosecution. Muhammad Ahmad P.W.5 and Iftikhar Ahmad A.S.I. P.W.10 have stated that blood‑stained Chhuri P.4. was recovered from the possession of the appellant. The Serologist report Exh.P.K. shows that Chhuri P.4 was stained with human blood. On the other hand D.W.1 Muhammad Asghar a Rehriwala whose Rehri was opposite to the place of occurrence stated that he had seen the deceased running towards Aik Bridge from the side of Eminabad Road in an injured condition and that he was bare footed at that time. Said Muhammad D.W.2 is a Tangaywala. He stated that the deceased was taken in his Tonga in an unconscious condition to the hospital by two constables Muhammad Akhtar D.W.3 was a Councillor of Union Council. He was running a sweetmeat shop at Sialkot‑Pasrur Road near village Dheera Sanda. He with the help of Nazir Councillor and other respectables got Mst. Mumtaz rested to her parents from the deceased. Khalid Riaz A.S.I. D.W.4 brought the original register containing F.I.R. No. 364, dated 5‑12‑1974 under section 307/148/149, P.P.C. Of Police Station Saddar Sialkot. He stated that in that case Ranjah was the complainant and the F.I.R. was lodged against Muhammad Sadiq, Muhammad Yusaf, Muhammad Akram, Muhammad Ashraf alias Pervez and Muhammad Ahmed. He further stated that Lal Din, Zia Ullah, Riaz Bibi, Sabran Bibi were the injured P.Ws. in that case. He stated that Exh.D.E. was the photostat copy of original F.I.R. No. 364.

8. The trial Court while giving benefit of doubt to Abdul Qayyum co‑accused on the question of his vicarious liability punishable under section 302/34, P.P.C., acquitted him and has recorded the conviction of the appellant on motive, ocular evidence and recovery of blood‑stained Chhuri from him.

9. The learned counsel for the appellant contended that prosecution has failed to prove its case beyond reasonable doubt inasmuch as there was no motive for the appellant to kill the deceased and in case the background of the murder is accepted then the motive was with the deceased to harm the appellant; that the two eye‑witnesses Muhammad Younis and Muhammad Aslam being the brothers of the deceased are very much interested in the conviction of the appellant; that although the occurrence had taken place in front of shops yet no independent shopkeeper was produced and that the recovery of blood‑stained Chhuri from the appellant is fake. In the alternative the learned counsel for the appellant submitted that the act of the appellant causing the death of Muhammad Ashraf was a culpable homicide punishable under section 304 (11), P.P.C. and that it was not a case of capital punishment. Conversely the learned counsel for the State assisted by the learned counsel for the complainant maintained that prosecution has successfully brought home the guilt not only to Muhammad Afzal appellant but also to Abdul Qayyum acquitted co‑accused. They prayed for the retrial of Abdul Qayyum on the ground that he has been acquitted without legal and factual justification.

10. Since it is a case where the appellant has not raised any special plea therefore keeping in mind the guiding principles laid down by the superior Courts for the appreciation of such like cases that an accused is presumed to be innocent till he is proved guilty; that the entire onus is on the prosecution to prove the charge against the appellant beyond shadow of doubt and that weakness in defence or absence thereof does not strengthen the prosecution case, we propose to start with the F.I.R. which is a foundation of the case. We find that it was lodged with great promptitude. The occurrence took place at 3‑30 p.m. and the report was made at 3‑58 p.m. On the same day after 28 minutes of the occurrence when the complainant party had no occasion and opportunity for consultation and deliberation. The alleged motive, the names of the eye‑witnesses, the name of the appellant and acquitted a co‑accused. The weapon used by the appellant and the manner of the occurrence, all are detailed therein. We do ‑not see any reason to doubt the genuineness of this valuable document. The learned counsel has failed to show that the F.I.R. was not written at the time and place as it purports. This prompt and genuine document, can safely be used to corroborate the statement of Muhammad Younis i.e. its maker. Adverting to the ocular account, we find that the statements of the, two eye‑witnesses are in consonance with the probabilities and fit in with other evidence and attending circumstances. Despite lengthy and searching cross‑examination the defence could not impeach the character of .the eye‑witnesses and could not elicit anything damaging to their veracity and integrity. The witnesses have given plausible cause of their presence at the place of occurrence. They being the brothers of the deceased and Muhammad Younis also having a shop nearby, their presence at the time of occurrence in or near the shop of the deceased does not run counter to the natural probabilities. No doubt both the eye‑witnesses are brothers of the deceased but it is by now well‑settled that mere relationship of a witness with the deceased will not make him an interested witness. As held in case Nazir and others v. The State reported as PLD 1962 S C 269 interested witnesses are those who have some motive for the false implication of the accused. Since the two eye‑witnesses had no enmity at all with the appellant and Qayyum acquitted co‑accused therefore they cannot be treated or termed as interested witnesses. The nature of the attack and the injury commensurate with the number of the persons named by these witnesses. The occurrence took place in the daylight. The appellant and Qayyum were acquainted to the witnesses previously and as such there was no difficulty in the identification of the assailants. The appellant has not been able to lay foundation for the substitution of the appellant in place of the real culprits. We also find that the two eye‑witnesses have not been disbelieved to the extent of Qayyum, acquitted co‑accused. He was acquitted because the application of the provisions of section 34, P.P.C. was doubtful in his case. There is nothing on record to show that he knew from the very beginning that Muhammad Afzal appellant was having Chhuri in his Neifa and that it was during the occurrence that all of a sudden the appellant took out Chhuri from the Neifa. We are convinced that in the peculiar circumstances of the case the conviction can safely be sustained even on the uncorroborated testimony of the two eye‑witnesses. There is however sufficient corroborative evidence on record which connects Muhammad Afzal appellant with the crime. Blood‑stained Chhuri P.4 was recovered from his possession which stands proved from the evidence of Muhammad Ahmad P.W.5 and Iftikhar Ahmad A.S.I. P.W.10. These witnesses had no ill‑will against the appellant. We do not see any, reason to disbelieve their statements. The Chhuri was stained with human blood. The appellant instead of giving explanation of the human blood on the Chhuri has denied the very factum of recovery. The defence evidence in no manner rebuts prosecution case and its evidence. So far as the nature of offence is concerned, the nature of the injury, the kind of weapon used, the force applied, the location of the body selected and the damage done by the injury to pleura, lung, pericardium and heard leads to an irresistible conclusion that the appellant had no intention other than of causing the death of the deceased and as such his act; amounts to murder and not culpable homicide. For all these reasons, we are fully satisfied that the trial Court has rightly convicted the, appellant under section 302, P.P.C.

11. This brings us to the question of sentence. Having considered the same very carefully, we find that there are extenuating/mitigating circumstances in favour of the appellant for lesser penalty. From the prosecution evidence it is very much obvious that Muhammad Ashraf deceased had also abused the appellant before he was attacked at and as such the possibility that the act of the appellant was somewhat provoked, cannot be excluded. So giving him the benefit of doubt on the question of sentence, we alter the sentence of death to imprisonment for life. The fine awarded by the trial Court, imprisonment in default thereof and the directions given for the payment of fine to the legal heirs of the deceased are, however, maintained. We feel that Abdul Qayyum's case was 'quite distinguishable and was rightly acquitted. Resultantly, the Criminal Revision is dismissed. M. Y. H. Appeal partly accepted.