1993 PLP 506 (MLD)

Both the injuries were penetrating stab wounds. Left chest wall, heart, walls of abdomen and peritoneum, were found injured. Death was opined to have occurred due to shock and haemorrhage resulting from Injury No.1, which was opined to be sufficient to cause death in the ordinary course of nature. Both injuries were opined to have been caused by sharp-edged weapon. Probable time between the injuries and death was opined to be immediate while the time between death and post-mortem was opined to be within 24 hours.

9. Ocular account was deposed to by Muhammad Siddiq (P.W.2) and Muhammad Yusuf (P.W.3). Muhammad Siddiq while repeating the facts given by him in the F.I.R., admitted during cross-examination that the appellant had forbidden his son Nadeem from standing in the street and that the said incident had given rise to the latter incident. He admitted that he had come to know after the occurrence that wife of the appellant was a Lady Health Visitor and used to practise in her house. He expressed inability to rebut the suggestion that his son Nadeem had a bad reputation in the Mohallah. He stated that, he had also, asked his son that it was not decent to stand in the street. According to him the first incident, i.e. of abuses, had taken place due to fault of the appellant.

10. Muhammad Yusuf P.W.3 corroborated the statement made by P.W.2 in so far as it pertained to the actual occurrence. He also claimed to have witnessed the collection of blood-stained earth from the spot by the Police. During cross-examination he stated that he had returned home at 6-00 p.m., had taken his meals at 6-30 p.m. and had come out of his house on hearing the alarm. He stated that Anwar Iqbal (deceased) had neither slapped nor given any blow to the appellant. According to him 40-50 persons had gathered at the spot after the occurrence and the Police had arrived at 8-30 ' p.m. He stated that, womenfolk of the Mohallah had also witnessed the occurrence. Both the witnesses claimed that they had seen the occurrence in the light of the bulb. Both of them denied the suggestion that Nadeem had teased some women, who had come to see the wife of the appellant, and that when the appellant had forbidden him to do so, he hurled filthy abuses, wherein his brother-in-law Anwar Iqbal (deceased) also joined him. They further denied the suggestion that some other members of the Bratheri of Nadeem and Anwar lqbal came and started beating the accused and that as it was dark, Anwar Iqbal suffered injuries at the hands of someone of them, which resulted in his death.

11. Javed Aftab, S.I. who had arrested the appellant and during whose custody he had got recovered Chhuri P.4 appeared as P.W.6 and deposed those facts. During cross-examination he admitted that many persons were present at the time of recovery but he had not joined anyone of them to witness the same.

12. Abbas Masih, Constable who had been entrusted the warrants of arrest of the appellant for execution while appearing as P.W.11, verified that fact and stated that in spite of search he had not succeeded in executing the warrants and so he had returned the same (warrants) to the Magistrate. He further stated that the proclamation Exh.PG was also entrusted to him on 29-12-1986 and he had returned the same to the Court with report Exh.PG/1.

13. Barkat Ali, Inspector who had recorded statement Exh.PC of the complainant and had initially conducted the investigation, while appearing as P.W.13, gave the details of the investigation done by him. He also stated that as the accused was not available he had obtained his warrants of arrest and had entrusted the same to Abbas Masih, Constable No.1122 for execution of the same. He stated that as the accused could not be arrested, the challan was submitted to Court under section 512, Cr.P.C.

14. The appellant during his statement under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence. He stated as follows in answer to the question, why this case against you and why the P.Ws. have deposed against you?- "My wife is L.H.V. and women of the locality come off and on Nadeem P.W. was standing in the street without any cause oftenly. He used to joke with the women who come to see my wife for treatment. I forbade him not to do so. On the day of occurrence he made joke against the women. He felt it and was annoyed with me and gave me abuses and Anwar Iqbal who is brother of his wife came along with him. In the meanwhile several persons from the brotherhood of the deceased had assembled there and started beating me. During this, Anwar Iqbal received injuries, at the hands of some unknown persons because at that time there was dark. Since I was stranger there and the complainant party are in majority there they have made a false story against me. And the P.Ws. are related inter se of the deceased therefore, they have falsely deposed against me." Although, initially he opted to produce defence but later declined to do so. While making statement on oath under section 340(2), Cr.P.C. (after remand of the case) on 4-2-1992 he repeated the facts given by him in his statement under section 342, Cr.P.C. about the happenings prior to the occurrence, but about the happenings on the day of occurrence he stated that he had come out of his house at 8-00 p.m. on hearing noise and had seen 7-8 persons standing there armed with Chhuris and Dandas and that they had given him Danda blows and grappled with him, and that when he realized that they will not spare him, he fled away and went to Karachi and started working there in Sabzi Mandi. He stated that after a year his cousin met him in Karachi and told him that his wife and children were living a miserable life in his absence and that they thought that he had been murdered, and so he returned home. He stated that thereafter he came to Gujranwala and appeared before the Police in this case.

15. Learned counsel for the appellant after having taken me through the evidence, criticised the impugned judgment and contended that the eye witnesses do not appear to have witnessed the occurrence; that even if they were there, they could not have seen the occurrence as it was dark; that no reliance can be placed on the testimony of P.W.2 for being related to the deceased and that as there was no other evidence to corroborate the ocular account, it would be highly unsafe to maintain the conviction of the appellant. Learned counsel submitted that-even if it is believed that it was the appellant who had caused injuries to the deceased, he cannot be held liable for having committed culpable homicide amounting to murder as the occurrence appears to have taken place suddenly due to provocative attitude of the deceased.

16. Learned counsel for the State defended the judgment of the trial Court.

17. The prosecution's stance that the appellant had stopped Nadeem soft of the complainant from standing in the street and that a quarrel had taken place amongst them due to that, was not denied by the appellant, both while making statement under section 342, Cr.P.C. and while making statement under section 340(2), Cr.P.C. on oath. In the circumstances it cannot be assumed by any stretch of imagination that motive for the occurrence mentioned by the prosecution was not correct.

18. The appellant had taken up residence near the house of the complainant 6-7 months prior to the occurrence. Except the grievance of the appellant, which had arisen due to Nadeem's standing in the street, there was no other difference or animosity between the complainant and the appellant. Actually, the complainant even did not know about vocation of the appellant. They were neither inimical nor intimate. It is obvious from the stance of the appellant that he did not deny, that he was present at, and during the time when the deceased had suffered injuries as a result of which he died. The account given by the eye-witnesses, therefore, to that extent, stands un-rebutted, rather stands candidly admitted. The only part of the occurrence, which remains to be adjudicated, is whether it was the appellant who had caused injuries to the deceased, which resulted in his death, or the deceased had suffered those injuries at the hands of some other persons, as alleged by the appellant?

19. None of the persons who had gathered at the spot was inimical to the deceased rather they were related and blonged to the Bratheri of the deceased, as put forth by the appellant. The street-light bulb, was on. Those persons could not have made a mistake of causing injuries to their own relative, letting off the appellant, whom they had allegedly come to attack and beat. Even if it is assumed for the sake of argument that there was no light, it has got to be granted that relatives of the deceased would have identified him even in darkness, because at the time of occurrence it would not have been a pitch dark. Still another aspect is, that the deceased had suffered two injuries and both on vital parts. The deceased, on receiving the first blow must have raised hue and cry, if he was being caused the injuries by someone of his own relatives due to mistake, then they would not have repeated the blow. The ocular account has not only been furnished by the father-in-law of the deceased but has been deposed to by another witness also, who was neither related to the deceased nor even intimate family friend. Both the witnesses were not inimical in any manner to the appellant. As such they would not have involved him falsely in the case.

20. The appellant had remained absconding for a period of one year and one month. The explanation given by him about his disappearance and abscondence is not worth believing. The same appears td be a cock & bull story. His conduct of abscondence therefore, lends corroboration to the ocular account, which finds support as well, from his admission, about being at the spot at and during the time when the deceased was attacked, and from the medical evidence. In the circumstances, no doubt is left in my mind that it was the appellant at whose hands the deceased suffered injuries which resulted in his death.

21. The argument of learned-counsel for the appellant that the appellant does not appear to have committed intentional murder is without any basis. There is nothing on record to hold that the appellant had been provoked by the deceased. He had, of course, a quarrel with Nadeem, but Nadeem was not there at the time of occurrence. He had launched attack on the deceased only on account of the fact that he had helped Nadeem his brother-in-law, when a quarrel had taken place between Nadeem and the appellant. The fact that the appellant inflicted two injuries and both on vital parts shows that he had apt intention to commit the murder. In the circumstances, no interference is called for in the conviction of the appellant under section 302, P.P.C. His conviction and sentence of imprisonment are, therefore, maintained. However, the amount of fine of 8 Rs.50,000 seems to be not only excessive but disproportionate also. The same is, therefore, reduced to Rs. 30,000 (Rs. thirty thousand only), in default whereof he shall undergo R.I. for two years. Whole of the fine, on recovery, shall be paid as compensation to the heirs of the deceased. Benefit of the provisions of section 382-B, Cr.P.C. shall also be extended to the appellant. N.H.Q./M-612/L. Order accordingly.