' The convict/appellant Matloob Hussain was tried alongwith Mushtaq Ahmed and Muhammad Saleem by the learned Sessions Judge, Bahawalpur, on charges under section 302 read with section 34 of the Pakistan Penal Code for having committed the murder of Muhammad Arshad.
The learned trial Judge vide his judgment dated 19-5-1984 acquitted Mushtaq Ahmed and Muhammad Saleem, while the appellant was found guilty on a charge under section 302 of the Pakistan Penal Code and was accordingly convicted and sentenced to suffer life imprisonment and to pay a fine of Rs, 5,000 or in default of the payment of fine to suffer further rigorous imprisonment for a period of one month. The learned trial Judge also directed that the appellant shall also pay Rs, 5,000 as compensation to the heirs of Muhammad Arshad deceased and in default of the payment of such compensation the appellant was to suffer further rigorous imprisonment for a period of six months.
2. Aggrieved by the aforesaid conviction and sentence the present appeal has been preferred.
3. The unfortunate occurrence resulting into the death of Muhammad Arshad deceased took place on 2-8-1981 at 1-30 p.m. In the area of Village 136/-R, Tehsil Haroon Abad, within the jurisdiction of Police Station Faqir Wali situated at a distance of four miles from the place of occurrence. The occurrence was reported at the police station promptly by Muhammad Ashraf complainant P. W. 7, real brother of the deceased, within an hour of the occurrence, and the first information report was recorded by Muaammad Yousaf, Moharrir Head Constable of the Police Station. The first informant, Muhammad Ashraf P. W. 7 narrated the occurrence and stated, that he was a cultivator by profession and the husband of his sister, namely, Muhammad Ashraf son of Ali Muhammad, was an employee in Al-Hassan Factory; Karachi, and had come to Village to celebrate the Eid. It was further stated by the complainant Muhammad Ashraf P. W. 7, that Matloob Hussain appellant had also been employed in the same factory but had left the service and had come to village. It was further stated by the first informant, that the appellant while in Karachi had obtained a loan of Rs, 100 from his brother-in-law, namely, Muhammad Ashraf son of Ali Muhammad. On the fateful day in the morning it was alleged, that Muhammad Ashraf, the brother.In-law of the complainant and the deceased Muhammad Arshad had demanded repayment .Of loan from the appellant who refused to pay the same, which led to an altercation and scuffle between the deceased, Muhammad Arshad and the appellant. The appellant was extremely annoyed and according to the complainant, he declared, that he would avenge his insult. Muhammad Din P. W. 3 and one Abdul Aziz (not produced) pacified both sides. It was further narrated in the F. I. R., that on the same day at about 1-30 p.m. When the complainant alongwith Muhammad Aslam and one Muhammad Saleem was sitting in the street in front of the shop of Muhammad Saleem situated in the Village Chowk, he noticed his deceased brother Muhammad Arshad proceeding to his land. It was further stated, that while the deceased was passing near the Baithak of Noor Muhammad, the appellant and the acquitted co-accused emerged from the said baithak and. Challenged the deceased by raising a Lalkara that he would not go alive. The appellant was allegedly armed with a knife and the acquitted co-accused caught hold of the deceased by arms, while the appellant caused a knife blow on the right side of his chest. According to the complainant, the deceased after receipt of this injury fell down and they rushed to scene of occurrence, while the appellant and the acquitted co-accused had escaped in the meanwhile. The complainant with the help of his companions put tae deceased on a cot and carried him towards the hospital but no sootier did they reach the Chowk of Village at a distance of 10/11 Karams from the place of occurrence, the deceased breathed his last. The complainant further reported, that leaving the dead body. In the custody of Muhammad Aslam and Muhammad Saleem he had come to the police station to lodge the first information report.
4. Muhammad Yousaf Moharrir Head Constable P. W. 11 after recording the first information report, reached the spot to investigate, the case and while he was still carrying on the investigation, Nazir Ahmed Sub-Inspector P. W. 12 reached the spot and took over the investigation.
5. On 3rd of August, 1981, Dr. Captain Abdul Majeed P. W. 4 conducted the post-mortem examination on the dead body of the deceased and found the following injury :- ' An incised wound 1" x 1/2" x thorax cavity deep on front of right side of chest 3" above the medial to the right nipple and about 1" lateral to the sternum.
' Walls, third rib on the front near its sternal end, pleura, right lung in its middle lope, pericardium and heart were cut. In the opinion of the doctor, the cause of death was due to haemorrhage and shock as a result of injury No,
1. According to the doctor, the injury had been inflicted by a sharp- edged weapon. The injury was sufficient to cause death in the ordinary course of nature.
6. The appellant Matloob Hussain was not found in the Chak but was arrested on 8th of August, 1981. On 9th of August, 1981, the appellant led the police to his house and got a blood-stained knife recovered which was taken into possession vide memo. Exh. P. B. It was attested by Mukhtar Ahmad P. W. 2 and by one Mall who was given up. The knife was sent to the Chemical Examiner and vide report Exh. P. P. C. It was found to be stained with blood. Vide report of the Serologist Exh. P. B. B. It was found to be stained with human blood. Same was the opinion of the Chemical Examiner and Serologist about the blood-stained earth taken into possession from the place of occurrence.
7. At the trial, the prosecution relied upon the ocular testimony furnished by the eye-witnesses, namely, Muhammad Ashraf complainant P. W. 7 and Muhammad Aslam P. W. 10 and Muhammad Ashraf son of Ali Muhammad P. W. 5, brother-in-law of the complainant. Muhammad Saleem son of Niaz Muhammad, a shop keeper in the Village Chowk and Muhammad Saleem son of Mukhtar though cited in the F. I. R. Were given up by the prosecution In addition to the ocular testimony the reliance was also placed upon the recovery of the blood-stained knife at the instance of the appellant, and the evidence as to the motive supported by Muhammad Din P. W. 3 and the medical evidence.
8. On 28th of January, 1984, the appellant was examined under section 342, Cr. P. C. By the trial Court. The appellant raised the following plea and made the following statement :- "The witnesses are interested and inimical and had not witnessed the occurrence. In fact Muhammad Arshad deceased came armed to the Dera of my uncle named Noor Muhammad to avenge insult to his sister's husband Muhammad Ashraf son of All Muhammad P. W. He was armed with knife and in an aggressive mood. My uncle Noor Muhammad intervened and was attacked and injured by Muhammad Arshad deceased. I picked up a= sickle and in the exercise of right of self-defence, apprehending danger to my life caused only one injury to Muhammad Arshad."
' The appellant also filed a written statement giving the details of his own version of the occurrence.
9. To substantiate his defence plea the appellant placed reliance upon the documentary evidence and produced copy of a report in the Roznamcha of the Police Station Exh. D. C. And Exh. D. D., outdoor patient slip in respect of Noor Muhammad, uncle of the appellant. Besides this documentary evidence, Noor Muhammad was also produced as P. W. 2 to substantiate the defence plea. Rana Shaukat Munir, Dispenser, D. H. Q. Hospital, Bahawalnagar, was also produced as D. W. 1 to prove the Exh. D. D. Before proceeding further to appraise the prosecution evidence it is necessary to examine the defence plea at this stage. In nutshell, the appellant raised the plea of self-defence and asserted, that in fact Noor Muhammad had received an injury and had been sent by P. W. 11 Muhammad Yousaf Moharrir Head Constable who was investigating the case to the hospital with Abdul Majeed Foot Constable P. W. 8 who had also escorted the dead body of the deceased. It was further sought to be proved, that Noor Muhammad was in fact produced before a doctor for examination but on account of the mala fides on the part of the police the medico-legal report was not obtained by the police and a cross case was not registered against the complainant side. The learned counsel for the appellant also placed reliance upon the statements of Muhammad Yousaf P. W. 11 and Abdul Majeed Foot Constable P. W.
8. It is pertinent to mention, that Abdul Majeed Foot Constable P. W. 8 entered the witness-box on 17th of November, 1983, and on the said date the defence did not choose to cross-examine him, and thus no question was put to him. Similarly, Muhammad Yousaf Moharrir Head Constable who had been promoted as A. S. I. Entered the witness-box on 1412-1983. He was cross-examined but no suggestion was put to him nor any question was asked as to the defence plea raised by the appellant. After the statement under section 342, Cr. P. C. Had been recorded on 28-1-1984, that these two witnesses were recalled for cross-examination. Accordingly, Abdul Majeed Foot Constable was cross-examined on 26-3-1984 i,e, after three months of the recording of the statement under section 342, Cr. P. C. Similarly, P. W. 1-1 was recalled for cross-examination on 6-3- 1984. In cross-examination the questions as to the injuries of Noor Muhammad were put to these witnesses. Foot Constable Abdul Majeed P. W. 8 conceded, that Noor Muhammad was sent alongwith him by A. S. I. Muhammad Yousaf P. W. 11 for medical examination. It was further admitted by the witness, that the A. S.-I. Had prepared the injury statement of Noor Muhammad which was handed over to him. The witness further conceded, that he produced Noor Muhammad before Dr. Captain Abdul Majeed, Medical Officer, D. H. Q. Hospital, Bahawalnager, who had also conducted the post-mortem examination. In cross-examination the witness also admitted. That the name of Noor Muhammad was entered in the Medico-legal Outdoor Register but Noor Muhammad disappeared from the hospital before his examination was conducted by the doctor. It is further necessary to mention here, that P. W. 4 Dr. Abdul Majeed was not cross-examined as to the production of Noor Muhammad before him for medical examination. In my view, the learned trial Judge rightly rejected the defence plea. It is hollow and devoid of any substance it is a clever contrivance on the part of the defence, to obtain some concession by winning over these witnesses during the interval between the recording of the statement of the appellant under section 342 Cr. P. C. And the re-appearance of the witnesses in the witness-box.' It is not the first case which has come to the notice of the superior Courts in which such situation has arisen. The Supreme Court of Pakistan in two cases Bagu v. The State (1) and Muhammad Sadiq and others v.
The State (2), dealt with the similar situation which has arisen in this case. Respectfully following the dictum laid down by the Supreme Court of Pakistan I cannot attach any weight to the admission made by these witnesses.
10. The reliance by the defence on a copy of the repot in Roznamcha Exh. D. C. Falsifies the defence plea in toto. According to the aforesaid report, it was one Muhammad Amin who had caused injury to Noor Muhammad D. W. 2 and, that too after the main occurrence in which Muhammad Arshad deceased was murdered. It is further surprising to note, that none of the eye-witnesses was put any suggestion or question with regard to the injury of Noor Muhammad. Even otherwise, the report in the Roznamcha Exh. D. C. Was not proved in accordance with law because the original Roznamcha had not been summoned. There is also conflict between the statement of the Foot Constable Abdul Majeed P. W. 8 and the Dispenser D. W.
1. According to the former, he had produced Noor Muhammad before Dr. Captain Abdul Majeed, while according to the latter, he had produced Noor Muhammad before one Dr. Akmal for medical examination by him.
11. It was further contended by the learned counsel for the appellant that the recovery in this case cannot be relied upon and the opinion of the Chemical Examiner and the Serologist cannot be used, against the appellant, inasmuch as the recovery of knife was effected on'B 9-8-1981, while it was despatched to the Chemical Examiner on 12-9-1981 and no explanation exists on the record as to such delay. In support of this contention, the learned counsel placed reliance upon Muhammad Saleem v. The State (3) and Gulzar and 4 others v. The State (4).
12. I have examined the contention carefully and, in my view, the contention has to be repelled in view of the judgments All Gohar and 2 others v. The State (5), Osman v. The State (6), Rehmat All v.
The State (7) and Sana Ullah v. The State (8).
13. Adverting now to the prosecution case I am convinced, that the eye-witnesses are truthful witnesses qua the appellant. No doubt, they implicated the acquitted co-accused, but on that score alone their' testimony cannot be rejected in view of the non-applicability of the principle falsus in omnibus. The said principle it not known to our jurisprudence. The F. I. R. Was lodged within one hour at a distance of four miles at the police station and the possibility of substitution of the real culprit with the appellant is out of question. It was broad day occurrence and the question of mistaken identity also does not arise. There was no previous enmity worth the name so as to conclude, that the witnesses had a motive to implicate the appellant falsely. The motive as to the altercation and quarrel over the repayment of loan preceding D the occurrence also stands proved in view of the statement of P. W. 3 Din Muhammad. The place of occurrence in a street near the house of Noor Muhammad also stands established by the collection of the bloodstained earth from the street which is an additional factor to falsify the
(1) PLD 1972 SC 77 t2) 1984 SCMR 465
(3) 1968 P Cr. L J 538 (4) 1976 P Cr. L J 419
(5) 1984 P Cr. L J 1111 (6) 1984 P Cr. L J 1797
(7) 1984 SCM R 109 (8) 1985 P Cr. L J 130 defence plea, because the occurrence took place outside the Haveli of Noor Muhammad, and not inside as asserted by the defence.
14. The learned counsel for the appellant also drew my attention to an admission made by the doctor in cross-examination, to the effect that the injury received by the deceased could be caused by a sickle and hence the defence plea was nearer the truth. 1 am afraid I cannot agree with such contention. The nature of injury is self-speaking. It was caused with such force, that it had cut rib, lung and heart. In the opinion of the doctor, this was caused by a sharp-edged weapon. The recovers of blood-stained knife at the instance of the appellant negatives the assertion made by the learned counsel for the appellant. It was also stressed before me, that the case did not fall within the purview of section 302 of the Pakistan Penal Code, because only one single blow was caused by the appellant and it did not amount to murder. The contention is fallacious. The nature of the injury and its locale, being the chest of the deceased is sufficient, to conclude, that it was a brutal murder. The learned trial Judge has already taken a lenient view on account of the single blow and that is why the capital punishment was not awarded.
15. In view of the above discussion, I find no merit in this appeal. It must fail. Accordingly, this appeal is hereby dismissed. However, the appellant shall be entitled to the benefit of section 382-B of the Cr. P. C. As conferred by the learned trial Judge.
16. Before parting with this judgment, I must comment upon they conduct of Abdul Majeed Foot Constable P. W. 8 and Muhammad Yousafi P. W. 11 A. S.-I., who was Moharrir Head Constable at the time of the E occurrence. The attention of the Inspector-General Police, Punjab, has to be drawn on such conduct of his subordinates for such suitable action) as he may deem fit.
17. The office is directed to send a copy of this order to the Inspector-General Police, Punjab.