1989 PLP 744 (MLD)

5. Dr. Haji Ataul Mustafa, Medical Officer, Civil Hospital, Gujranwala (P.W.1) had medically examined Muhammad Arif on 16-2-1986 at 8-00 a.m. in the hospital, where he was taken by Mahmood Haider in an injured condition, and found him in an unconscious state having incised wound 2-1/2 x 1 c.m. x going deep on left side of chest 6 cm. from left nipple with correspondent cuts on Kameez and Sweater and two muscle-deep incised wounds on the left upper arm each having the dimension of 2 c.m. x 1 c.m. According to the witness, all the injuries were caused by a sharp-edged weapon within a short duration. He kept injury No.1 under observation, while declared injuries Nos. 2 and 3 as simple vide his medico-legal report (Exh.PA.) which he proved as such.

6. The injured died in the hospital after about half an hour of his arrival and autopsy on the dead body was conducted by Dr. Naseer Rana, Medical Officer, Civil Hospital, Gujranwala (P.W.5). On external examination, he found the same injuries on the dead body which were noticed by his colleague Dr. Haji Ataul Mustafa (P.W.1) at the time of medico-legal examination. He, however, found injuries Nos. 2 and 3 as perforating wound. On dissection, he found third rib close to medial junction with cartridge and sternum, besides plura and right lung, cut under injury No.1, with chest cavity full of blood. Death, in his opinion, occurred due to haemorrhage and shock as a result of injury No. 1 which was sufficient in the ordinary course of nature to cause it. He proved his post-mortem report (Exh.P.B.) and sketch of injuries (Exh.P.B./1).

7. Muhammad Asghar (P.W.7) had witnessed the recovery of blood-stained dagger P.1 at the instance of the appellant, and Rehmat Ullah (P.W.10) was a witness of motive. Both of them deposed accordingly.

8. Muhammad Aslnm (P.W.8) and Abdul Qayyum (P.W.9) gave the eye witness account which finds reflection in the above narration of the prosecution story. It shall be subjected to detailed appraisal in due course; where necessary.

9. The last witness was S.I. Saadat Ali Khan (P.W.11) who gave details of the investigation.

10. The learned prosecutor gave up Muhammad Aslam P.W. son of Amir Khan as having been won over and Mahmood Haider, Amjad Hamayun, Shabbir Ahmad, Haji Muhammad Rafiq and Abdul Rehman as unnecessary. He tendered in evidence the report of chemical examiner (Exh.P.K.) and that of Serologist (Exh.P.1.) and closed the prosecution case. 11, The appellant, in his statement recorded under section 342 as also under section 340, Cr.P.C. denied all the incriminating circumstances figuring against him in the prosecution evidence and professed innocence on the plea of self defence. Explaining his participation in the occurrence, he stated that a day prior to the occurrence his cousin Shakeel and Aftab, a relation of the deceased, both school boys, quarrelled in the school and on the receipt of this information he went to the school and gave beating to Aftab aforesaid. According to him, on the following day when he was going on a cycle to the office of M.E.S. in Gujranwala Cantt. to perform his official duty, he was accosted by Muhammad Arif (deceased) and one other near the graveyard of village Gulabpura and protested to him for giving beat in to his relation Aftab. He added that he explained his position to the decease and his companion but they started abusing him and felling him on the ground. Muhammad Arif (deceased) pressed his throat with his hands shouting at the same time that he shall kill him and he (appellant) in order to save his life took out the knife from his pocket and used it an self-defence which loosened the grip of his assailant on his throat and disentangling himself he ran away towards the village, leaving behind his belongings, including the cycle and his shoes on the spot. He further stated that none of the eye-witnesses produced by the prosecution was present at the time of occurrence and on the death of Muhammad Arif, his relations concocted a false story. He produced his duty certificate (Exh.DA.) and closed his defence.

12. On the conclusion of his trial he was convicted and sentenced in the manner aforesaid, against which he has preferred this appeal.

13. It is argued on behalf of the appellant that there are two versions of the incident in this case and the Court is to find out as which of them is plausible. According to the learned counsel, the appellant never knew that Muhammad Arif (deceased) would be present at a particular time and place and since the former was going to his office to attend to his duty, there could be more possibility of latter's being on the look out for his opponent and on his arrival at the place of occurrence, taking up quarrel with him for the incident of boys' fighting in the school a day earlier which is an admitted fact. He submits that if the occurrence had taken place in the manner narrated by the prosecution, then there was sufficient time and opportunity available to Muhammad Arif (deceased) to have run away from the spot when the appellant was advancing towards him in a threatening posture after parking his cycle and taking out dagger started to his shin and in that event he would not have-suffered injuries on the front part of his body or at least he would have moved high and arms in order to ward off the knife blows being inflicted by his assailant but the absence of his injuries on the hands and arms indicate that he was not attacked in the manner alleged by the prosecution. It is urged that the appellant being hardly 18 or 19 years old, would not have dared to attack the deceased if the latter was accompanied by his brother Muhammad Aslam complainant, his cousin Abdul Qayyum P.W. and Amjad Humayun (given up P.W.) but if all these witnesses, who posed themselves as eye-witnesses, were not present at the time of occurrence, then the prosecution story to that extent had been concocted. Elaborating his arguments on this point he submits that if these three persons were present at the time of occurrence they would have taken the injured to the hospital for treatment but, as it appears from the medico-legal report (Exh.PA.), it was Mahmood Haider who took him to the hospital. Commenting on another aspect of the matter, he contends that if the appellant had attacked the deceased and ran away after hurriedly inflicting 2 or 3 injuries on his person, there could be no possibility of his taking off his shoes but his shoes wgre admittedly found lying on the spot and this fact by itself indicates that there was a grappling between the appellant and the deceased and in that process his shoes had fallen off his feet and, after disentangling himself, he had to run away without his shoes.

14. With regard to the medical evidence he argues that Dr. Haji Atta-ul Mustafa (P.W.1) who medically examined Muhammad Arif (deceased), did not correctly describe his injuries on the left upper arm because he indicated two separate injuries while in fact it was one injury through and through as, according to Dr. Muhammad Naseer Rana (P.W.5), it was a perforating wound which could be caused by a single blow. This fact, as per learned counsel also shows that the eye-wtinesses, namely, Muhammad Aslam and Abdul Qayyum P.Ws. were not present at the time of occurrence as they had stated that the appellant had given two blows on the left upper arm of the deceased, while in fact it was only one knife blow which pierced through. With reference to the statement of Abdul Qayyum P.W., he submits that this witness, while giving the eye-witness account, stated that the appellant had given 2 or 3 dagger bows to Muhammad Arif (deceased) falling at his chest and back but in fact there was no injury on his back and this inconsistency between his statement and medical evidence also proves his absence from the spot at the time of occurrence.

15. The learned State counsel, on the contrary, is of the view that the occurrence took place in the manner alleged by the prosecution and there could be no possibility of the appellant's having given so forceful knife blows to Muhammad Arif (deceased) while lying prostrate underneath him, particularly when the latter had pressed his throat with his hands, so rigidly because in that event, the appellant must have lost his grip of the handle of the knife. According to him, the fact of appellant's leaving behind his shoes by itself indicated that after the infliction of dagger blows on the victim he was in an extreme haste to disappear from the scene of occurrence and since he wanted to run faster, he purposely took off his shoes while taking to his heels.

16. There is hardly any case in which the prosecution and the defence might not have resorted to Exaggeration and suppression of real fads with a view to steal a march over each other. This case is also no exception to this general practice prevalent in our law Courts. Where I am inclined to agree with the views of the learned counsel for the appellant that the presence of Muhammad Aslam complainant (P.W.8) at the time of occurrence was doubtful for various reasons given by him, I am also not impressed by the version of the occurrence given by him with reference to the statement of the appellant. Had Muhammad Arif (deceased) strangulated the appellant with his hands after falling him down, as stated by the latter, due to lesser space and limited manoeuvrability of his arm and hand in which he was holding the dagger or knife, there could be lesser possibility of his inflicting so forceful blows on the victim as the same were noticed by4lhe medical expert conducting the post-mortem examination. Neither the chest of the victim could be punctured to that extent nor his right upper arm could be pierced through. These injuries were obviously the result of forceful knife or dagger blows infected by the hand having full grip of its handle and the arm having maximum space and manoeuvrability which could only be possible if the appellant had caused these injuries while standing face to face with his victim. This conclusion goes in favour of the prosecution whose version of the occurrence acquires greater plausibility. All the three eye-witnesses, as alleged by the prosecution, might not be present at the time of occurrence but the presence of one of them is admitted impliedly even by the appellant himself in his statement recorded under sections 342 and 340, Cr.P.C.

17. The motive as alleged by the prosecution is almost the same as stated by the defence. The only difference between the two versions is that after the admitted quarrel between two school boys, the deceased is alleged to have given beating to the boy related to the appellant, a day, prior to the day of occurrence, while the appellant claims to have given beating to the boy related to the deceased. In any case; the quarrel between the boys related to the deceased and the appellant gave rise to an annoyance between them which ultimately resulted in the unfortunate occurrence. It a difficult to believe that the appellant was going innocently to his office in order to perform his official duty and the deceased intercepting him, triggered off the fight. If he was going to his office in routine then why he was carrying a formidable weapon like a dagger or a big knife and if the deceased was lying in wait for the arrival of his opponent at the place of occurrence with a view to take revenue of the incident of verbal wrangling and grappling taking place a day earlier, then why he was empty handed. To my mind, what seems to have actually happened was that the deceased was present near the place of occurrence, may be m connection with the earth-filling activity of his relation near the under-construction road, and the appellant, who was proceeding to some destination on his cycle, may be his place of duty, also happened to pass that way and seeing each other, they happened to again fell out in the acrimonious background emanating front the incident taking place a day or so earlier and since the appellant was mentally prepared and fully armed, he happened to take undue advantage over his adversary who was empty handed and was not mentally ready to face such an ugly situation. In that process the appellant did not suffer even a scratch on his body.

18. In these circumstances, the appellant committed murder of Muhammad Arif (deceased) and he was rightly convicted and sentenced by the trial Court. There is, therefore, no substance in the appeal and the same is dismissed only with this modification that in default of payment of compensation to the legal heirs of the deceased he shall undergo six months' R.I., the maximum provided for by section 544-A, Cr.P.C., instead of one year's R.I. SA./M-1157/L Appeal dismissed.