' Learned Additional Sessions Judge, Sialkot, vide judgment dated 2-10-1977, convicted Allah Bakhsh, appellant, under section 302, P. P. C., and sentenced him to imprisonment for life and a fine of Rs, 5,000, or in default in payment of fine to undergo further R. I. For two years. From the second charge under section 307, P. P. C., he was acquitted. Muhammad Yasin co-accused was given the benefit of doubt and acquitted of the charges. The present occurrence took place on 2-10-1975 at 8-00 p.m. In front of the shop of Abdul Ghani situated at Chowk Dara Arain. Allah Bakhsh appellant accompanied by his co-accused Yasin came to the Chowk and threatened the shopkeepers to close their shops. Both of them went to the shop of Abdul Ghani and started throwing the crates for compelling him to close his shop. Abdul Ghani P. W. Stopped them from behaving in that manner, whereupon Allah Bakhsh appellant took out the chhuri from underneath the shal war and inflicted blow to Abdul Ghani in the abdomen. In the meantime, Allah Bakhsh appellant noticed Abdul Shakoor standing near the spot among certain persons. He shouted to his brother-in-law Yasin co- accused to apprehend Abdul Shakoor, who complied the direction and held Abdul Shakoor deceased by the collar. Thereafter, Allah Bakhsh appellant inflicted chhuri blow to Abdul Shakoor deceased on the left loin region. The deceased fell down. The occurrence was witnessed by Abdul Ghani, Muhammad Ishaq, Nuhammad Ashraf, P. Ws. And Javed (not produced). The appellant and his co-accused left the spot.
2. The motive in this case was that three days prior to the occurrence, at about Isha time, Allah Bakhsh threatened the shopkeepers of Chowk Araian but was stopped by Abdul Shakoor deceased and it led to exchange of abuses between the two. They were separated by Abdul Majid (P. W. 4) and Ch. Muhammad Sadiq (not produced). Allah Bakhsh had threatened the deceased that he would avenge the insult.
3. After the occurrence, Abdul Shakoor was removed to the Civil Hospital in a tonga by Muhammad Ashraf P. W. And Muhammad Sharif. Ishaq P. W. Left to lodge the report. Mushtaq Hussain, Sub- Inspector (P. W. 12) was performing the patrol duty near the Green Wood Street. Muhammad Ishaq met the Sub-Inspector there and made statement Exh. P. K. This statement was sent to the Police Station where formal F.I.R. Exh. P.K./1 was recorded. The Sub-Inspector accompanied by Muhammad Ishaq reached Allama Iqbal Memorial Hospital, Sialkot. He enquired from the Doctor vide application Exh. P. F. If Abdul Shakoor was fit to make statement. The doctor answered the querry in affirmative vide his endorsement Exh. P. F./1. The Sub-Inspector recorded the statement of Abdul Shakoor deceased Exh. P. G. In the presence of the doctor. The doctor again certified that the statement of Abdul Shakoor was recorded in his presence and that during that period, he remained in his senses. Abdul Sbakoor deceased had signed his statement. The deceased succumbed to the injury at about 9-40 p.m. The Sub-Inspector prepared the inquest report and sent the dead body for post-mortem examination. On reaching the spot, he collected the blood- stained earth and sealed it into a parcel. He found four broken bottles and took them into possession alongwith three empty bottle cases. He recorded the statement of Abdul Ghani P. W. At the spot, who had injury on his person. The Sub-Inspector prepared his injury statement and sent him for medical examination. Clothes of the deceased and Abdul Ghani P. W. Were also taken into possession. The Sub-Inspector raided the house of the accused and arrested him on 12-10-1975.
Allah Bakhsh appellant while in Police custody produced bloodstained chhuri P. 5 from the drawer of the dressing table. It was sealed into a parcel vide memo. Exh. P. D., which was attested by Muhammad Yousaf (P. W. 5) and Muhammad Akbar (not produced). After completing the investgation, the Sub-Inspector challaned both the accused.
4. The prosecution examined 12 witnesses in all. Muhammad Ishaq, P. W. 9, Abdul Ghani, P.W. 10 and Muhammad Ashraf P.W. 11 furnished the eye account of the occurrence and other eye-witness, namely, Javed was given up as unnecessary. The dying declaration of Abdul Shakoor deceased Exh. P. G. Was brought on the record. Abdul Majid, Abdul Ghani and Muhammad Ishaq deposed about the motive also. Muhammad Yousaf, P. W. 5 and the Sub-Inspector proved the recovery of blood-stained chchuri P. 5 from the appellant. Dr. Muhammad Aslam Bhatti had medically examined Abdul Shakoor deceased and Abdul Ghani P. W. He also conducted autopsy on the dead body of Abdul Shakoor. Rest were the formal witnesses.
5. The case of Muhammad Yasin was that of denial. He explained that he was implicated on account of his relationship with Allah Bakhsh accused.
' Allah Bakhsh accused after denying the other allegations, came out with the following explanation when asked as to why the case was made out against him :- "It is a false case. Actually the occurrence took place in this manner. On the night of occurrence, I went to the shop of Abdul Ghani and purchased a bottle. I had paid currency note of the denomination of Rs, 10 to Abdul Ghani P. W. 1 demanded back the remaining amount from him but he refused to return and on this my quarrel with Abdul Ghani P. W. Ensued. 10/20 persons including Abdul Ghani, P. W. Started throwing soda water bottles on me. Those persons also raised slogans that I should be killed because I had no mother or father to persue the case. I escaped unhurt. I had a small knife at that time which I brought out just to scare away the assailants. I started retreating and by chance knife struck Abdul Shakoor deceased. Yasin co-accused was not present at that time."
6. The learned Additional Sessions Judge came to the conclusion that the prosecution failed to prove the motive as well as the recovery of bloodstained chchuri. He also did not believe the dying declaration. He came to the conclusion that the occurrence had not taken place in the manner as stated by the eye-witnesses. Sifting the grain from the chaff and and examining the plea of the appellant, he held the appellant had committed culpable homicide amounting to murder.
7. The learned Additional Sessions Judge rejected the motive on the ground that only relatives supported the motive and no resident of the locality or shopkeeper was produced to support the motive. On account of the non-production of those persons, he drew inference and presumption that no person of the locality was prepared to support the motive. While discussing the motive, the learned Additional Sessions Judge observed as follows :- "The residents of Sialkot are not cowards. They are courageous people. They faced the enemy with great courage in the 1965 war with India. They are also gentle people and discourage Goondaism'.
Had the accused been Goodas or demonstrating their Goondaism, then naturally, a number of people would have come forward to depose against the accused but as mentioned above, no independent person has supported this allegation."
8. There was no material on the record on the basis of which the learned Additional Sessions Judge could make such an observation. It is a settled law that personal experience or personal knowledge or information cannot be imported into a case. Abdul Majid (P. W. 4) was the person who had separated the deceased and the appellant when they quarrelled with each other. He conveyed information about this incident to Muhammad Ishaq who fully corroborated Abdul Majid. Abdul Ghani P. W. Also supported the motive and there was ample evidence on record to show that three days prior to the occurrence, the deceased and the appellant did quarrel and the appellant had hurled threat to the deceased that he would avenge the insult. The learned Additional Sessions Judge clearly erred in drawing inference and presumption for the reason that no independent person of the locality was produced to support the motive. The learned Additional Sessions Judge did not keep in mind the suggestion put to Abdul Ghani P. W. That he had refused to sell goods to Allah Bakhsh accused due to his relationship with Abdul Shakoor deceased, who had earlier fought with Allah Bakhsh accused. In this suggestion, the earlier fight between Abdul Shakoor and Allah Bakhsh appellant had been admitted.
9. The evidence of recovery of blood-stained chhuri was discarded for the sole reason that it did not appeal to the learned Additional Sessions Judge that after arresting the appellant from his house, Sub-Inspector would not search his house. It was also stated in the judgment that no person of the locality attested the memo. Again an erroneous view had been taken in the matter. It was not necessary for the Sub-Inspector to search the house of the appellant after his arrest. The appellant was interrogated and on 12-10-1975, he offered to lead to the recovery of the blood- stained chhuri, and consequently produced the same from his house. Muhammad Yousaf was a disinterested person and he fully supported the recovery. There was no material on record to show that the said recovery witness resided at a far-off place. The blood-stained chhuri was sealed into parcel. It was sent to the Chemical Examiner. The reports of the Chemical Examiner Exh. P. S. And that of the Serologist Exh. P. T. Proved that the chhuri was stained with human blood.
10. Abdul Shakoor deceased was taken to the hospital on 2-10-1975 at 8-35 p.m. By Muhammad Ashraf P. W. He was medically examined by the doctor. He had an incised wound, V' x 1" x not probed, on the back left side of chest at lower part. The patient was restless. His pulse was fast and thready. The injury was kept under observation, which had been caused by sharp-edged weapon within a duration of one hour. The statement of Muhammad Ishaq was completed by the S. I. At 8- 50 p.m. After completing that statement, he reached the hospital and enquired from the doctor at 9-05 p.m. If Abdul Shakoor was fit to make statement. The doctor certified vide endorsement P. F./1 that the deceased was fit to make statement. Thereafter, in the presence of the doctor, the S.
1. Recorded the statement of Abdul Shakoor. It was duly signed by the deponent. At the end, the doctor certified that Abdul Shakoor remained in his senses and the statement was recorded in his presence. The learned Additional Sessions Judge was persuaded by the fact that the patient was restless and his pulse was fast and thready and for that reason, he came to the conclusion that Abdul Shakoor was not fit to make statement. The doctor was a responsible officer. He had no connection with either of the parties. Without any substance on the record, it could not be said that the doctor had given a false certificate and had made an incorrect statement on oath in Court. I have compared the dying declaration and the statement of Muhammad Ishaq which formed the basis of the F. I. R. The dying declaration is not a verbatim copy of the F. I. R. The deceased and Muhammad Ishaq had narrated the same facts. The dying declaration was discarded without cogent and sufficient cause.
11. It is true that the deceased was related to Muhammad Ishaq and Abdul Ghani P. Ws. But on the basis of relationship, their statements could not be thrown away. Similarly the dying declaration could not be rejected on the ground that it was in line with the F. I. R. The statements of these two witnesses were fully corroborated by the statement of Muhammad Ashraf (P. W. 11) who was a disinterested witness. It was surprising that the statement of Muhammad Ashraf was rejected on the ground that he had attested the memos with regard to the recovery of clothes of the deceased and broken bottles and three cases. This could hardly be a ground for rejecting his statement which otherwise was very convincing. In spite of lengthy cross-examination no serious contradictions could be brought in the statements of the eye-witnesses. The occurrence had taken place in front of the shop of Abdul Ghani. The appellant admitted his presence and participated in the occurrence but his pleas during cross-examination of Abdul Ghani and during his statement under section 342, Cr. P. C., were inconsistent. It was suggested to Abdul Ghani, P. W. If he refused to sell goods to Allah Bakhsh accused due to his relationship with Abdul Shakoor deceased who had earlier fought with Allah Bakhsh accused, and that Allah Bakhsh insisted to purchase goods from him and that he and the deceased threw bottles on the accused and when he and the deceased tried to catch hold of him (appellant), he brought out knife and with that inflicted injury to the deceased in order to save himself and this suggestion was denied by the witness. During his statement in Court, the appellant took up the plea that on the night of the occurrence, he went to the shop of Abdul Ghani and purchased a bottle and paid ten-rupee note to Abdul Ghani and demanded back the remaining amount from him but he refused to return ; that on that account, he quarrelled and shouted and 10/20 persons including Abdul Ghani P. W. Started throwing soda water bottles on him and these persons also raised slogans that he should be killed ; that he escaped unhurt ; that he had a small knife at that time which he brought out just to scare away the assailants and he started retreating and by chance, the knife struck Abdul Shakoor deceased.
' The appellant admitted the place of occurrence. He admitted to have gone to the shop of Abdul Ghani. In case 10/12 persons had thrown bottles at him, he would have received injuries. He was arrested on 3-10-1975 and no injury was found on his person. It belied version that bottles were thrown at him. Four broken bottles and three cases were recovered from the spot but that fitted in with the prosecution version as according to it, the appellant had thrown those cases. During cross-examination of Abdul Ghani, plea of right of self-defence had been specifically taken but at trial, the appellant went back from that position and stated that by chance, the knife struck Abdul Shakoor deceased. The plea of the appellant was nothing but a pack of lies, which is rejected.
12. The case was fully proved against the appellant through the dyin declaration and the statements of Muhammad Ishaq, Abdul Ghani an Muhammad Ashraf. P. Ws. The recovery of blood- stained chhuri was prove as well as the motive in this case. After having given serious consideration to the entire evidence, I hold that the appeal is without any merits and dismissed.