GULBAZ KHAN, J.-Muhammad Rafiq son of Muhammad Hussain, aged 22 years, resident of Mohallah Nurbawa, Gujranwala, was convicted on 21st February 1979 by the learned Sessions Judge, Gujranwala, under section 302, P.P.C. And sentenced to death for having committed the murder of Muhammad Younis deceased, on 6th July 1978: at about 8-00 p.m., by inflicting dagger blows on the chest, abdomen' and outer side of left buttock, near the house of Habib Ullah, situated in street No 1, Karishan Nagar. Gujranwala. The occurrence was witnessed by Muhammad Yousaf (P.W. 1). Maqsood Ahmad (P.W. 2), Muhammad Latif (P.W. 3) and Muhammad Ramzan (not produced). The motive was stated to be exchange of hot words between the deceased and the appellant, when the deceased asked the appellant to make payment for the breakfast, which he had taken at the shop of Meraj Din (P. W. 4), where the deceased was employed. Before leaving the shop of Meraj Din P. W., the appellant held out a threat to the deceased that he would avenge the insult.
2. The matter was immediately reported by Mohammad Yousaf (P.W. 1) at the Police Station, Model Town, Gujranwala, which was at a distance of about three furlongs from the spot of occurrence.
Muhammad Naeem Khan, A.S.I. (P.W. 10) recorded the F.I.R. Exh. P.A.
3. Muhammad Naeem Khan A.S.I. Reached the spot and found the dead body lying in Street No. 1.
Krishan Nagar, in front of the house of Habib Ullah. He sent the dead body to the mortuary after preparing injury statement and inquest report. He collected blood-stained earth from the spot of occurrence and sealed it into a parcel. On the next day, i.e. 7July, 1978, he received secret information about the appellant and accompanied by Mustafa Aziz (P. W. 5) and Muhammad Ismail (not produced) reached adda Gondlanwala, where he arrested the appellant. The appellantth led the Police and the recovery witnesses to adda Union Goods Transport, situated on G. T. Road, Gujranwala, and got recovered blood-stained stagger P-3 from underneath a heap of chaff, which was lying in a room on the back of the said adda. The dagger was sealed into a parcel. The Police removed the blood-stained shirt and bloodstained chadar from the person of the appellant and sealed them into a parcel. The said memos were attested by Mustafa Aziz (P.W. 5) and Ismail (not produced). Site plans Exhs. PF and PF/1 were got prepared from Ibrahim draftsman (P. W. 6). The appellant way challaned after investigation.
4. Doctor Harbans Lal, Medical Officer, D.H Q. Hospital Gujran--wala, conducted the autopsy on the dead body of Muhammad Younis on 7th July 1978, at 12.00 noon and found three incised wounds and abrasion on the person of the deceased. The incised wounds were on the front of the chest, front of abdomen and outer side of left buttock. Abrasion was on the left kneecap. Thorax wall, left pleura, left lung, aorta and abdominal wall were, injured. In the opinion of the doctor, the death was due to shock and haemorrhage. Injury No. I was sufficient to cause death in the ordinary course of nature. Time between injuries and death was immediate and between death and post-mortem examination about 16 hours.
5. The prosecution examined Muhammad Yousaf (P. W. 1), Maqsood Ahmad (P.W. 2) and Muhammad Latif (P.W. 3) as eye-witnesses of this case. Meraj Din (P.W. 4) supported the motive.
Mustafa Aziz (P.W. 5) proved the recoveries of blood-stained dagger and blood-stained clothes referred to above. Muhammad Ibrahim Draftsman prepared the site plans. Muhammad Nasim Khan, A.S.I. Had conducted the investigation. Rest were the formal witnesses.
6. In his statement recorded under section 342, Cr. P. C., the appellant denied to have taken his breakfast at the shop of Meraj Din P. W., on 6th July 1978, and further denied to have quarrelled with the deceased over the payment of the breakfast charges. He did not admit that he had commuted the murder of Muhammad Younis near the house of Habib Ullah, in street No. 1, Mohallah Krishan Nagar, by inflicting dagger blows. He admitted that he was arrested on 7th July 1978 but dented to have produced the blood-stained dagger. According to him, he was not wearing blood-stained clothes at the time of his arrest. He gave the following answer when asked as to why the case was made against him:- "A daughter of Muhammad Ramzan P. W., who was paternal niece of Muhammad Latif P.W., was on friendly terms with me and she used to write me love letters. Her name was Kausar and her nick, name was Ashi and she was generally known as baby- Since Muhammad Ramzan P. W., and his relations came to know about my love affairs with her, they falsely implicated me in this case "
He produced Mst. Kausar daughter of Muhammad Ramzan complainant in his defence. He wanted to prove that he had been implicated falsely on account of his love affair with Mst. Kausar alias Ashi alias Baby. Mst. Kausar aged 14 years stated that she had no acquaintance, intimacy or friendship with the accused. She denied to have written letters marked "A" and "B'", to the appellant.
Specimen writings of the witness were taken. Muhammad Bashir (D.W. 2), Examiner of Questioned Documents, Forensic Science Laboratory, examined the two letters and compared them with the handwritings marked "A/1 and "B/1" He save the opinion in court that the letters marked "A" and "B" were similar in characteristics with the specimen writings marked "A/1" and "B/1". He submitted report Exh. DD and also gave the reasons upon which he based his opinion.
7. As regards motive, the learned Sessions Judge observed in para. 15 of the judgment, "No doubt, the morning incident of altercation between the accused and the deceased emanated from a petty matter but instances are not uncommon in our society when tragic incidents have taken place on trifles. The accused was a motor mechanic, as be has described himself while making statement under section 342, Cr. P. C. And he did not belong to that higher strata of society, a member of which ordinarily would not visit a sweetmeat shop situated in a Mohallah to have breakfast of ---halva puri---. He was, therefore, not unexpected to go there for the purpose alleged by the prosecution. As regards his refusal to pay the breakfast charges, it was no doubt a petty amount but no one knows what was in his mind and in the mind of the deceased when they fell out with each other. In any case, the conduct of Meraj Din P.W. Remained normal as an ordinary shopkeeper and not only he intervened but also apologised to the accused for the misbehaviour if any, of the deceased who happened to be his nephew as well as servant." Para. 16 which disposes of the motive reads as under:- "Despite all emphasis laid by the prosecution on the morning incident, still it would have been a matter agitating the mind of an ordinary prudent man as to why such a small matter should have triggered of a serious incident like murder in the evening of the same day if the defence itself had not alleged the existence of amorous contact between the daughter of Muhammad Ramzan P.W., the real uncle of the deceased, and the accused. It appears that the deceased had knowledge of the love affair of the accused with his cousin and perhaps the very visit of the accused to the shop, where he (deceased) was working, was annoying to him. No wonder if the accused might be using his visits to the shop of Meraj Din P.W. As a pretext to go to the locality, in which his beloved was residing, for seeing her and there may be some acrimonious background, between him and the deceased on this account. Judged in this background, the morning incident could neither be a cooked up affair nor a petty one. In fact, it is the defence which has supplied the motive by alleging and trying to Prove the love affair of the accused with the cousin of the deceased."
8. About the ocular evidence, the presence of Muhammad Yousaf P. W. Was considered to be somewhat doubtful, as according to the testimony of Muhammad Ibrahim Draftsman, there was no shop of cigarette-vendor near the place, where the said witness had shown his presence at the time of occurrence. The evidence furnished by Maqsood Ahmad and Muhammad Latif P.Ws. Was found to be blotless. The recovery of blood-stained dagger at the instance of the appellant and the recovery of blood-stained clothes from the person of the appellant were not relied upon. So far as Muhammad Bashir, Examiner of Questioned Documents was concerned, it was observed by the learned Sessions Judge that dissimilarities brought out in his statement in the cross-examination shook his credit as an Handwriting Expert.
9. It was contended by the learned counsel for the appellant that the prosecution need not allege a motive, but in a case, where motive is set up and the prosecution fails to prove it, adverse inference shall have to be drawn against the prosecution ; that in the instant case, the prosecution had alleged a motive, and if it is believed that the motive existed then it was too trivial a matter to commit the murder of Muhammad Younis that the love affair between the appellant and Mst.
Kausar alias Ashi, alias Baby, could be a motive for the false implication of the appellant and it could not give motive to the appellant to commit the 'Murder of the deceased that the evening events were not in consonance with the incident which took place in the morning that Muhammad Yousaf and Maqsood Ahmad P. Ws. Were chance witnesses, the former had gone to' purchase cigarettes, while the latter had gone to take milk from the shop of Muhammad Ramzan P. W. That several other persons had witnessed the occurrence, but they had neither been cited nor produced at the trial, making the prosecution case highly doubtful, and generalization that unconcerned persons do not come forward to become witnesses to save themselves from the difficulties and animosities would not be applicable in an urban area, that it was an un witnessed occurrence and there was a deliberate attempt on the part of the police to time it at a place where witnesses would be made available that investigation in the case was dishonest and it would react the quality of the ocular evidence, that the fact of Meraj Din son of Rahim Bakhsh owner of silk mill having accompanied Muhammad Yousaf complainant to the Police Station was suppressed and an effort had been made to introduce the name of Meraj Din son of Khuda Bakhsh in place of Meraj Din son of Rahim Bakhsh, that Muhammad Yousaf was father while Muhammad Latif was an uncle of the deceased and both of them were interested against the appellant; that Maqsood Ahmad had also connection with the complainant party as his son was employed with Muhammad Hussain, a cousin of Muhammad Yousaf complainant that Muhammad Yousaf complainant had laid the foundation of the case and it after the rejec--tion of his statement, the entire prosecution case must fall to the ground.
10. It was vehemently contended by the kawined counsel for the State that for invalid reason, the statement of Muhammad Yousaf was rejected by the trial Court, that after considering the evidence on record, the trial Court should have come to the conclusion that Muhammad Yousaf P.
W. Had purchased the cigarettes from a shop near Jama Masjid Siddiqia, which was in front of the shop of Muhammad Ramzan and Muhammad Latif P. Ws. Across street No. 18, that the eye- witnesses of this case could not be dubbed as interested witnesses. It was frankly conceded by the learned counsel for the State that the morning incident had Pot taken place over the payment of the breakfast charges and the possibility that the quarrel had taken place between the accused and deceased on account of the liaison between the appellant Mst. Kausar alias Baby could not be ruled out.
11. Learned counsel for the complainant also addressed is and submitted that at least, Maqsood Ahmad P. W, had interest in the case as he was neither related to the deceased nor inimical towards the appellant, that the reason that his son was employed with a cousin of the complainant would not make him an interested witness; that it was not a case of false implication and there was no possibility of the substitution of an innocent person in place of the real culprit ; that it was not a case of misidentity of the accused, nor it was an unseen murder.
12. The occurrence had taken place on 6th July, 1978, at about 8-00 p.m., as stated by the eye- witnesses. The report was lodged at 8-30 p.m. The same night, at Police Station, Model Town, Gujranwala, which was at a distance of three furlongs from the spot of occurrence. There was no material on the record to come to the conclusion that the place and time of occurrence had been wrongly recorded so as to prove the presence of the witnesses at the spot. There is enough material to show that Haji Meraj Din son of Rahim Bakhsh had accompanied Muhammad Yousaf com--plainant to the Police Station. The witnesses tried to show that Meraj Din son of Khuda Bakhsh had accompanied the complainant to the Police Station. The fact as to whether Haji Meraj Din son of Rahim Bakhsh had accompanied the complainant to the Police Station or Meraj Din son of Khuda Bakhsh had accompanied him would have no effect on the ocular evidence furnished by the witnesses. It was a case of solitary accused where the possibility of false sub-situation of the appellant in place of real culprit was very remote.
13. It was the case of prosecution that the murder had been committed in the lane in front of the house of Habib Ullah, in Street No. 1, Krishan Nagar, which was close to the shop of Muhammad Latif and Muhammad Ramzan P. Ws. The suggestion to Muhammad Yousaf P. W. Was that the occurrence had taken place in the street where house of Mubashar Ahmad P. W. Was situated. The said street has been indicated in the site plan and it was in another lane. The A. S. I. Reached the spot and he found the dead body in front of the house of Habib Ullah. He recovered blood-stained earth from this spot. The Draftsman noticed some signs of blood stains at place 'A' shown in the site plan. There was enough evidence to show that the murder had been committed in street No. 1. In front of the house of Habib Ullah, and not in the lane where the house of Mubashar Ahmad was situated it was an half-hearted attempt on the part of the defence to prove that the murder had been committed at some other place.
14. Muhammad Yousaf complainant and his brother Muhammad Ramzan (not produced) had a joint shop shown in the site plan. The said shop was towards the north of place of murder at a distance of about 23 yards. Muhammad Latif deposed in Court that he and his brother Muhammad Ramzan were running the shop jointly and had equal shares in it. True that the complainant did not mention the name of Muhammad Ramzan as an eye-witness but from the circumstances and the evidence given by the eye-witnesses in Court, it was sufficiently proved that Muhammad Ramzan P. W. Was also present at the shop at the time of occurrence. He was rightly given up at the 'trial by the learned A. P. P, as unnecessary because prosecution was .Not required to produce him, when his real brothers Muhammad Yousaf and Muhammad Latif had already been examined.
Muhammad Latif was a natural witness and his presence could not be legitimately challenged.
Maqsood Ahmad P. W. Had given a reasonable explanation of his presence at the spot and we do not see any improbability in it. His house was not far of and was at a distance of about 50 paces. It was explained by Muhammad Yousaf that he had gone to the shop of a person commonly known a mama for the purchase of cigarettes. The presence of this witness was considered doubtful by the trial Court on the sole ground that according to the Draftsman, there was no shop of a cigarette-vender near the place, where Muhammad Yousaf-P. W. Was alleged to be present. It was justifiably contended by the learned counsel for the State that for insufficient reason, the statement of this witness had been discarded. Muhammad Yousaf deposed before the trial Court that he had gone to a shop in his locality in order to purchase cigarettes and that he did not know the name of that shopkeeper but he was generally known as mama. During cross-examination, he stated that shops of Feroz Din Butt and Faqir Muhammad Rajput were situated near Jamia Masjid Siddiqia and those shops were lying open at the time of occurrence. He further stated that Faqir Muhammad was washer--man while Feroz Din Butt had a tea-stall. Maqsood Ahmad also admitted in cross- examination that there were two shops near the mosque in front of the shop of Muhammad Latif and Muhammad Ramzan across street No. I and one shop was of a washerman while the other of a cigarette vendor, who also sold tea and those shops were lying open at the time of occurrence.
He also did not know the names of those shopkeepers. During examination-in-chief, Muhammad Yousaf stated that Muhammad Younis deceased was in the shop of Muhammad Ramzan P. W.
Situated across the street in front of the shop where he was standing. It is a matter of common observation that at a tea stall some other person sells cigarettes. By reading the examination-in- chief of Muhammad Yousaf and the cross-examination about the shops of washerman and tea- vendor, one would come to the conclusion that Muhammad Yousaf complainant was present near the mosque at the shop of Feroz Din Butt, tea-vendor, where Mama sold the cigarettes, and it was from this place that he reached at point No. B in the site plan and witnessed the occurrence. The Draftsman had not been asked any question about the cigarette-vendor and the person known as Mama. He had shown point `B' in the site plan and this point represented the place from where Muhammad Yousaf P. W. Saw the occurrence. The Draftsman had indicated the two shops near Jamia Masjid Siddiqia as the shops of Faqir Muhammad and Feroz Din, but he did not mention their profession. The statement of Muhammad Yousaf could not be rejected for the sole reason that according to the Draftsman, there was no shop of cigarette-vender in the vicinity. It was a case of mis-appreciation of evidence. If Muhammad Yousaf P. W. Wanted to invent a false excuse to show his presence at the spot, he could conveniently say that he was present at the shop of Muhammad Latif and Muhammad Ramzan P. Ws. And it would have sounded well but he gave the correct reason for which he was present near the spot. In view of the circumstances, we cannot agree with the finding of the learned Sessions Judge that presence of Muhammad Yousaf was somewhat doubtful.
15. It was not an un-witnessed occurrence as argued before this Court. Several other persons had seen the occurrence. Some of them were present near the shop of Muhammad Latif and Muhammad Ramzan P. Ws: Those persons have not come forward to make statements against the appellant. It is a matter of common observation that persons generally hesitate to become witnesses in a murder case for fear of their own lives. We are not prepared to draw any adverse inference on account of the non-production of those persons. Muhammad Yousaf and Muhammad Latif P. W. Are further and uncle of the deceased, respectively. Their statements could not be rejected on the ground of relationship. No doubt, the son of Maqsood Ahmad P. W. Was employed with a cousin of the complainant, but this fact would not make Maqsood Ahmad as an interested witness, especially for the reasons that he was neither related to the deceased nor bad any hostility against the appellant, at all, corroboration of statement of Muhammad Yousaf and Muhammad Latif was required, that could be found from the statement of Maqsood Ahmad. The three eye-witnesses were subjected to lengthy cross-examination, but we have not found any discrepancies in the statements of the said three eye-witnesses. There was a frank admission on the part of Muhammad Latif that he was indulged in gambling for the last several years and was challaned in two cases. According to him, the father of the appellant was running a gambling den and he used to gamble there. A gambler need not necessarily be a liar. We cannot agree with the learned counsel that he was under the influence of Police as be required their protection.
16. Coming to the motive, we agree that it was not over the payment of breakfast charges. The version given by the eye-witnesses that the appellant had taken away the deceased from the shop of Muhammad Latif and Muhammad Ramzan on the pretext of making payment did not appear to be correct. But the entire statements of the three eye-witnesses could not be rejected for the reason that they had not told the truth with regard to this aspect of the case. "Falsus in uno, falsus in omnibus" is no more applicable in this country. When the statement of an eye-witness can be rejected against some and accepted against others, we find no fault in accepting the statements of the, three eye-witnesses which otherwise ring true, notwithstanding that they wrongly stated that the appellant took away the deceased from the shop of Muhammad Latif and Muhammad Ramzan P. Ws. On the pretext of making the payment. It was the case of the appellant that he had friendly terms with Mst. Kausar alias Ashi alias Baby and she used to right him letters and the relations of Mst. Kausar came to know about the love affair and for that reason, he had been involved in this case. It appears that the quarrel had taken place between the appellant and the deceased on the day of occurrence, but since the family honour was involved, the true cause was not disclosed. The house of Muhammad Ramzan father of Mst. Kausar alias Ashi alias Baby was situated closed to the spot of occurrence. It seems that the deceased bad come across the appellant at the spot of occurrence and had taken exception to the presence of the appellant upon which, the appellant caused injuries to the deceased. The witnesses were attracted and they saw the occurrence. This inference is flowing from the evidence on record.
17. We need not discuss the evidence of the recoveries of blood-stained dagger and blood-stained clothes as the same had been rightly discarded by the learned Sessions Judge. No person would continue wearing the blood-stained clothies after the occurrence. He would immediately change the clothes. The prosecution version that the appellant was wearing blood-stained clothes till next day, was not believable. Recovery of blood-stained dagger was not proved through reliable independent evidence.
18. It was submitted that the statement of Muhammad Latif P. W. Was recorded on 7th July, 1979, by the Police after post-mortem examination and not on 6th July, 1978. Our attention was drawn to the fact that in his police statement, it was recorded that he identified the dead body. We would like to make it clear that statement of the witness made in Court was wrongly confronted with his Police statement. It was put to the witness if at the time he made statement regarding the occurrence, he also stated about the identification of the dead body at the time of post-mortem examination and the witness replied the question in the negative. Thereafter, he was confronted with his police statement. The factual position is somewhat different. He only stated before the Police that he identified the dead body. He did not state therein that he identified the dead body at the time of post-mortem examination. Inquest report was prepared first and in Column No. 4, which was meant for the identification of dead body the name of the witness was recorded. The explanation given by the A. S. I. In this regard could not be disputed. For the reasons stated above, we are not prepared to accept the contention that the statement of Muhammad Latif P. W. Was recorded by the Police on 7th July, 1978 after post-mortem examination.
19. The deceased had three incised wounds for which, at least three persons could be implicated, but in this case, only the appellant had been named. It is not conceivable that the complainant had let of the real culprit and substituted an innocent person in place of real culprit.
20. The defence had taken many contradictory positions during the cross-examination of the witnesses. It was put to Muhammad Yousaf P. W. If the occurrence took place in the street of Mubashir Ahmad in the darkness and the occurrence remained unseen. The witness denied the suggestion. Again the same witness was asked if the deceased was killed by some of his enemies in gambling and he involved the accused falsely because of his illicit relations with his niece. The witness refuted the suggestion. Maqsood Ahmad P. W. Was asked if the occurrence took place some time during night in the dark while he was asleep in his house and no body saw it, the suggestion was denied. Muhammad Latif was asked if he attacked the accused after pulling out brick-bats from the street and held him in clasp from behind, but he wriggled out and that Yousaf P. W. Caught hold of the accused by the hand in which he was holding dagger. The witness refuted it. No doubt the accused can take contradictory pleas at the same time. He can take up the plea of self-defence and at the same time plead alibi. From the contradictory sugges--tions, Court can validiy infer that the accused had no defence to put forth. Due to the contradictory positions taken up in this case by the accused, w are convinced that he had been firing in the air aimlessly.
21. After having considered the entire material on record, we hold that Muhammad Younis was done to death at point `A' indicated in the site plan and the occurrence was witnessed by Muhammad Yousaf. Maqsood Ahmad and Muhammad Latif P. Ws. And Muhammad Ramzan (not produced). We further hold that it was not a case of substitution of innocent person in place of a real culprit. The appellant had been named in the F. I. R. Which was lodged with promptitude. We are of the firm view that the appellant had committed the murder of the deceased and he was rightly convicted. He did not deserve any leniency in the matter of sentence and proper sentence was awarded in the case. W cannot help making an observation that the learned Sessions Judge did not comply with the mandatory provisions of section 544-A, Cr. P. C He did pass any order for compensation as required by the said section no nsuch compensation. Offers be assigned any reasons for not awarding under section 302, P. P. C. Is punishable with death, or tmpriaonmen r life, and also fine, but the appellant was not sentenced to Pay a fin for 'her. At this stage, we do not consider it proper to pass any order with either. , Finding no merit in this appeal, we regard to fine or compensation dismiss it.
The sentence of death of Muhammad Rafiq is confirmed.