Liaquat Ali appellant along with his co-accused Akhtar (now dead) was sent up by Police Station Hasan Abdal, District Attock for the murder of Mehtab Hussain son of Akhtar Hussain (P. W. 6).
Akhtar co---accused (a person other than P. W. 6) died before the commencement of trial. Mr. Zabir Ahmad Khan Yusufi, Sessions Judge, Attock by his judgment dated the 17th August, 1978 has convicted Liaquat Ali appel--lant under section 302, P. P. C. And sentenced him to imprisonment for life and to pay Rs. 1,000 as compensation in default whereof 1-year farther R. I. Has been directed against him. By a separate judgment of even date the appellant was convicted under the Arms Ordinance and sentenced to undergo rigorous imprisonment for one year, and both the judgments are impugned separately.
2. The occurrence took place on the 4th July, 1976 at about peshiwela in Hasan Abdal Town. Mehtab Hussain in an injured condition was removed to the Civil Hospital, Hasan Abdal, where Amir Muhammad Shah, A. S. I. (P. W. 12) recorded the statement Exh. P. H. Of Mehtab Hussain, whereupon formal F. I. R. Exh. P. J. Was recorded at 4-30 p. m. The same day. The statement of the deceased forms the F. I. R. And now the dying declaration. The formal F. I. R. Exh. P. J. Was recorded at 4-30 p. m. The same day by S. Sajjad Hussain, S. H. O. Who has not been produced by the prosecution.
3. Mehtab Hussain was removed to District Headquarters Hospital, Attock where he expired at 2 p. m. On the 5th July, 1976, whereupon the offence was amended to one under section 302/34, P. P. C.
The appel--lant was arrested on the 5July, 1976 by P. W. 12 Amir, Muhammad Shah A. S. I. And on the same day he led to the recovery of blood-stained chhuri (P. 2), which was taken into possession vide memo. Exh. P. B. And this recovery is supported by the testimony of P. W. 9 besides the evidence of P. W. 12 Amir Muhammad Shah.th
4. The ocular account is given by P. W. 10 Aftab Hussain, a brother of the deceased and P. W. I1 Abdul Aziz a resident of the same mohallah. P. W. 8 Mubarak Ali is the witness on the motive i.e. That 4 days prior to the occurrence the deceased abused Liaquat Ali appellant and his co-accused Akhtar (now dead) and they were separated on the intervention of mohallahdars.
On the 5July, 1976 Dr. Shamsuddin (P. W. 2) at 5-30 p. m. Per--formed the post-mortem examination on the dead body of Mehtab Hussain deceased and found the following injuries
(1) An incised stab wound 1" x 2" x abdominal cavity just below right hypochondrium I" to the right of medial line vertical in direction. A drainage tube was present in the abdominal cavity through this wound.
(2) Operation wound 5" long from the epigastrium down to the umbilicus.
5. The case for the prosecution succinctly stated is that at about peshiwela the deceased left the shop of his brother Aftab Hussain (P. W. 10) on the day of occurrence, for urinating, and when he reached behind the wall of a khokha of Qari Mahboob, Akhtar accused (now dead) and Liaquat Ali appellant arrived there from the opposite side and on seeing him (the deceased) Liaquat Ali appellant asked him as to why he had abused him and Akhtar co-accused a few days back and that he should be alert. Akhtar co-accused (now dead) caught hold of the deceased from the back while Liaquat Ali appellant took out a chhuri from his dub and gave a blow in the abdomen of the deceased. The alarm attracted the attention of his brother Aftab Hussain P. W. 10 who was standing near the shop of Saghir Ahmad and P. W. 11 Abdul Aziz who rushed to the spot. Both the witnesses have fully supported the case for the prosecution.
6. The appellant has not denied his presence at the scene of incident. In answer to question No. 4 "why this case against you", he stated "Co-accused Akhtar since dead and Mehtab Hussain deceased were my schoolmates. The deceased was the eldest and he used to cut indecent jokes with me but I always avoided. Once the deceased had injured late Akhtar with knife but no case was registered as Dr. Alvi had got effected compromise. On account of the misbehaviour of the deceased I left the school and went to Rawal- -pindi where I remained for 2 years. A year before the occurrence I returned to Hasanabdal. On the day of occurrence I went to bazar to give some clothes to the tailor and on my return late Akhtar met me in Chauk Bazar. When we both reached near the spot, I saw Mehtab Hussain deceased standing with Mubarik Ali P. W. Shafiq, Tauqir and Saeed-ur-Rehman's. When we reached near them, the deceased shouted at me, ---O catamite, why do you have association with Akhtar and why do not you like me." On bearing this I tried to catch hold of the deceased by the neck but could not succeed as he was taller than I, rather he tried to strangulate me. There was a commotion.
Suddenly Mehtab Hussain's grip on my neck loosened and he fell down and at that time I noticed that he had sustained injury with knife or chhuri. I cannot say if it was given by late Akhtar or some one else. The other 4-5 boys who were standing there, were either intervening or beating. There was a melee. After the fall of Mehtab Hussain the other boys razz away while I and Akhtar went to our houses and the same evening we were arrested. Neither of the eye-witnesses was present at the spot."
7. I have been taken through the record and I have heard the learned counsel for the appellant as well as the learned counsel for the State. The learned counsel for the appellant has vehemently argued that the dying declaration Exh. P. H. Is a forged one and that the deceased did not make any statement. The learned counsel has asserted that the prosecution has suppressed the facts of abusing given to the accused, and that the defence version is the truth. I find the dying declaration Exh. P. H. As a doubtful document. P. W. 8 Mubarik Ali has deposed that the Police arrived in the hospital during his presence. His statement was recorded. Akhtar Hussain, the father of the deceased and Aftab Hussain, P. W. 10, brother of the deceased were examined, and he stated furtherth "Nothing else was done by the Police during my presence."
P. W. 1 Dr. Rehmat Elahi, Medical Officer, who attended to the deceased in the Civil Hospital, Hasan Abdal does not at all mention the recording of dying declaration. He states: "Immediately after medical examination Mehtab Hussain was referred to D. H. Q. Hospital, Attock, within an hour of his arrival. His statement was not recorded by Police in my presence. I have been attending Mehtab Hussain throughout the period he remained in my hospital."
I have no doubt about the testimony of Dr. Rehmat Elahi, as he is an independent witness and he has no motive to falsely depose. The testimony of Dr. Rehmat Elahi finds corroboration from the admission of Akhtar Hussain (P. W. 6), father of the deceased when he admits that he along with the deceased left for the District Headquarters Hospital, Attock in a wagon at 3-15 p. m. And reached the hospital at 4-40 p. m. Whereas according to the document Exh. P. H. The same was recorded at 3-30 p.m., therefore, I rule the document Exh. P. H. Out of consideration. Nevertheless, there is strong evidence of Aftab Hussain P. W. 10, corroborated by Abdul Aziz P. W.
11. None of them has any previous enmity with the appellant. This is a broadday occurrence in Hasan Abdal Town and therefore, the question of substitution does not arise, in fact, the appellant has not denied his participation in the incident, though his defence only suggests that during the grappling etc. The deceased suffered an injury at the hands of someone else. This defence has no force, whatsoever.
Abdul Aziz P. W. 11 appears to be a very truthful person. In a truthful manner he states that when he was proceeding after saying his prayers he was attracted to the spot and he saw Liaquat Ali appellant and his co-accused Akhtar (now dead) grappling with Mehtab Hussain deceased. He raised alarm and both the accused fled away and when he reached near the spot he saw the brother of the deceased, namely Aftab Hussain P. W. 10, who told him that Liaquat Ali appellant had given a chhuri blow to the deceased, and he also noticed that Mehtab Hussain was injured. If P. W.
11 was to tell a lie he could have conveniently stated that the stab wound was inflicted within his sight, and he need not have stated the occurrence in the manner as stated in Court, and on the contrary he could have conveniently deposed in line with his statement under section 161 of the Code of Criminal Procedure. I, therefore, believe his testimony that he arrived at the scene of incident almost immediately and at his alarm the appellant and Akhtar co-accused fled away He found Aftab Hussain P. W. 10 present there, who told him that the appellant had injured Mehtab Hussain (deceased) and that Abdul Aziz P. W. 11 in fact found Mehtab Hussain injured, therefore. I am quite clear in my mind that Mehtab Hussain deceased received the fatal injury at the hands of Liaquat Ali appellant.
The ocular testimony is further corroborated by the recovery of blood-stained chhuri (P. 2) at the instance of the appellant, which recovery is proved by the credible testimony of P. W. 9 Qasim Hussain besides the evidence of P. W. 12 Amir Muhammad Shah A. S. I., and neither of the two has any motive to falsely plant the recovery.
8. However, this conclusion would not be enough to uphold the conviction of the appellant under section 302, P. P. C. It is admitted by P. W. 10 Aftab Hussain, brother of the deceased:-- "The deceased had told me immediately after the first incident that he had abused both the accused who in retaliation had also abused but some persons intervened and separated them.
The deceased had admitted that it was his fault as he had initiated the trouble by abusing the accused.. The deceased had further stated that the two accused had tried to manhandle him but the passers by had come to his rescue."
Similarly, he stated:-- "It is correct that the deceased had forbidden the two accused from visiting our lane though at that time they were outside it."
(The underlining" is mine).
Because of the conduct of the deceased, I am of the view that the below-quoted portions from the statement of the appellant may lie true:- "Co-accused Akhtar since dead and Mehtab Hussain deceased were my school-mates. The deceased was the eldest and he used to cut indecent jokes with me but I always avoided ...............................--------------------------------------------- -------------------------------- -------------------------------------------------------------------On account .Of the misbehaviour of the deceased I left the school and went to Rawalpindi where I remained for 2 years. A year before the occurrence I returned to Hasan Abdal. On the day of occurrence, I went to bazar to give some clothes to the tailor and on my return late Akhtar met me in Chauk Bazar. When we both reached near the spot, I saw Mehtab Hussain deceased standing with Mubark Ali P. W., Shafiq, Tauqir and Saeed-ur-Rehman's. When we reached near them, the deceased shouted at me, "O catamite, why do you have association with Akhtar and why don---t you like me.' On hearing this I tried to catch hold of the deceased by the neck but could not succeed as he was taller than I, rather he teed to strangulate me------------------------------------------.--- I find the above-quoted defence version to be quite plausible and accept the same bearing in mind the conduct of the deceased himself on a previous occasion and his unjustified forbidding that the appellant and Akhtar accused should not come to the lane. The deceased was about 15-16 years in age and from the birth entry Exh. D, B: it is Clear that the appellant was also of the same age at the time of incident. There is admittedly no previous enmity. This is a chance encounter. The deceased admittedly was himself at fault in abusing the appellant on the previous occasion, for what reason he abused, nobody has taken the Court into confidence. It was the deceased who had forbidden the appellant from visiting the street, why? We do not know. Only a single blow has been given and in the above-stated circumstances the incident appears to be a. Case of juvenile aberration, therefore, the conviction recorded under section 302. P. P. C. Is altered to one of under section 304, Part II of Pakistan Penal Code, and considering under section 382-B of the Code of Criminal Procedure the period of detention pending the trial, I sentence him to undergo 5 years' R. I.
The sentence of fine is reduced to Rs. 100, in default whereof he is to suffer further R. I. For one month. I also direct the appellant under section 544-A of the Code of Criminal Procedure to pay a compensation of Rs. Ten thousand to the heirs of the deceased, and in this regard I gave notice to the learned counsel for the appellant who accepted the same and I have heard him on the question of awarding a compensation.
Appeal partly allowed.