' MAZHARUL HAQ, J.--Muhammad Sabir (23) was tried for the murder of Muhammad Asghar. On 16- 2-1982, Sessions Judge, Multan found him guilty under section 302, P.P.C. And sentenced him to death with a fine of Rs, 5,000 in default to undergo one year's R.I. The fine if realised was ordered to be paid as compensation to the heirs of the deceased. Convict's appeal and the connected.
Murder reference are before us.
2. About a fortnight before the occurrence in this case Sabir accused borrowed Rs, 800 from Asghar deceased. In the evening on 17-12-1980, Asghar asked Sabir to pay back the money but Sabir put him off on which Asghar abused him and in order to avenge the insult on the following day as Asghar and his cousin (Phoophi Zad) Zaheer Ahmad (informant) were on their way towards Delhi Gate, when they reached near the shop of Feroze Din, Sabir suddenly appeared on the scene and raised a Lalkara at Asghar saying that he would teach him a lesson for the insult and that he would not spare him. He ripped out a knife from the Nefa of his Shalwar and pounched upon Asghar.
While trying to resist the attack Asghar receded but Sabir's dagger went through and through his left thigh. Asghar fell down. The occurrence was also witnessed by P.W.13 Khalilur Rehman and Haji Munshi Khan (given up as unnecessary). Sabir fled away with the dagger. Asghar was carried to the hospital in a Rickshaw but on reaching the hospital he died; thereafter P.W.12 Zaheer Ahmad went to Police Station Kup and made F.I.R. Exh. P.J. To P.W.14 Muhammad Bakhsh S.I. At 11-00 a.m. The same day. After registering the case the S.I. Went to Civil Hospital, Multan, prepared the necessary documents and sent the dead body for its post-mortem examination. He then went to the place of occurrence, took into possession blood-stained earth and recorded the statements of the witnesses.
3. P.W.1 Dr. Imtiaz Ahmad Paracha, Medical Officer, Civil Hospital, Multan, held the autopsy on 19-12- 1980 and found an incised wound through and through on back of lef thigh towards the inner side.
The wound of entrance 5i c.m. x 2 c.m. Cutting muscles, veins and arteries. Its exit was 3 c.m. x 2 c.m. On the inner left side of the thigh. Stomach contained semi-digested food. Chyme was present in small intestine. Faecal matter in the large intestine. In doctor's opinion, death was due to shock and haemorrhage caused by the injury, which was sufficient to cause death in the ordinary course of nature.
4. Sabir accused could not be traced. His warrants of arrest Exh. P.G. And pro clamation Exh. P.F.
Were issued by a local Magistrate. Since he could not be arrested the case was submitted to Court under section 512, Cr.P.C. P.W.2 Umar Farooq Inspector S.H.O. Haram Gate, Multan on 5-3-1981 arrested Sabir who produced blood-stained dagger P.1 before him. It was taken into possession and made into a sealed parcel vide memo. Exh. P.D. Attested by P.W.9 Taj Din, Usman Hussain (given up). Since Sabir caused resistance at the time of his arrest the S.H.O. Had beaten him up and later got him examined for his injuries. P.W.1 Dr. Imtiaz Ahmad Paracha examined Sabir on 5-3-1981 and found three abrasions, a swelling on he back of left thigh, left leg and the left knee cap. All injuries were simple caused by blunt weapon. After completing the investigation the accused was sent up for trial and on examination Sabir accused denied guilt and also denied having taken a loan from the deceased. He added that the case was foisted against him by the witnesses who were related to the deceased. He led no evidence in defence.
5. Trial Court did not rely on the evidence of the recovery of dagger P.1 as according to it the dagger could not have remained smeared with blood for over 2i months and it was not certain whether the weapon was the same with which the crime was oommitted. It, however, relied on the motive story, the ocular testimony and treating the absconsion as a corroborative evidence. It came to the conclusion that the prosecution case was satisfactorily proved against the accused.
Criticising the finding it was contended that the eye-witnesses have managed their presence at the spot; in fact they had not seen the occurrence. It was argued that the occurrence took place during day in a busy street with shops all around the place of occurrence, but the prosecution has not produced witnesses of the locality and it was in fact later that after due deliberations and consultations the F.I.R. Was made in this case. Next contended that neither in the F.I.R. Nor in the police statement of P.W.13 Khalilur Rehman it was mentioned that upon their inquiry Asghar (deceased) told them that the accused had attacked him because he had demanded back the borrowed money.
6. We have considered the submissions. No doubt P.W.12 Zaheer Ahmad is the first cousin of the deceased but we find that he has no enmity with the accused. This witness claimed to be going to the shop of the deceased with him because he was to pay the deceased Rs,5,000. We are not impressed with the submission that Zaheer Ahmad could have given the money to the witness from his house from where the two started for the shop because normally there would not be so much money in the shop. These are such matters about which one cannot be certain unless a witness is confronted with the question as to why he did not give the money from his house and whether he had kept so much money in the shop. In the absence of such questions to the witness it will not be proper to uphold the submission. However, we find no reason to disbelieve Zaheer Ahmad on this score. We also do not find any force in the submission that, had Zaheer Ahmad P.W.
Been. With the deceased at the time of the attack on him, being a close relative he would have interfered. Suffice it to say that normally unarmed persons find it difficult to intervene in an attack of this kind where the assailant after nflicting the single blow makes good his escape. It may be added here that the accused ripped out the knife after raising a Lalkara. Under the circumstances there was not much time for the deceased to escape and for the others to help him. In all probability the attack took about a second because the accused did not repeat the blow and fled away with the weapon. After the attack if the victim is alive then the anxiety always is to save his life by straightaway taking him ,to the hospital. We find that after P.W. Zaheer Ahmad was told that Asghar had died he went to the police station and made the C report without loss of time. The occurrence was said to have taken place at 10-00 a.m and the F.I.R. Was registered after an hour i,e, at 11-00 a.m.
7. No doubt in the F.I.R. And in the police statement of P.W.13 Khalilur Rehman both the eye- witnesses did not mention that upon their inquiry the deceased gave the reason for attack on him.
A perusal of the F.I.R. Would show that the motive story was supplied by the informant in the F.I.R.
The informant's case is that he learnt it from the deceased' after he had been attacked. We see no reason to disbelieve his statement and under the circumstances the omission in the .I.R. That the deceased gave the reason for the attack on him would ntt be material. The same omission was made by P.W.13 Khalilur Rehman in his police statement. He is neither related to the deceased nor inimical towards the accused. He thus has no motive to put up a false case against the accused.
As such the same omission made by him also before the police would not go to prove that the witness had in fact not seen the occurrence. In the first place we do not think that the eye- witnesses had made the improvements on their own, because it was natural for those who were present there to make such queries from the injured. However, even if as a matter of abundant caution this part of the statement of the eye-witnesses that the deceased gave them the reason for the attack on him is considered an improvement, it would still not effect their testimony in so far as the occurence was concerned. There is also no force in the submission that the eye-witnesses were chance witnesses. P.W. Zaheer Ahmad (informant) was going to his shop which was not far away from the place of occurrence whereas P.W. Khalilur Rehman was going from his shop to his house because he was informed that his son had fallen ill and as he came down he saw the occurrence. Under these circumstances they cannot be called chance witnesses. We agree with the finding of the trial Court that they were in fact natural witnesses. The fact that the wound of entry was in the back of the left thigh of the deceased further supported the narration in the F.I.R.
That the deceased tried to recede but was stabbed by the accused with the dagger. Deceased's act of receding would imply that he turned round to avoid the attack but the accused came too close, therefore, he was unable to avoid the attack. We are satisfied with the ocular testimony in this case.
8. There is evidence to show that Sabir accused was not available to the police till 5-3-1981 although his warrants of arrest and proclamation had been issued which have been duly proved.
At the trial Sabir accused denied absconsion but gave no explanation of the injuries on him which were inflicted to him by P.W. 2 Umar Farooq S.H.O. At the time of his apprehension because he resisted arrest.. Sabir accused has also not said whether he was arrested much before he was shown to have been arrested or had not been arrested till 5-3-1981. In this context the Investigating Officer has also not been suggested anything by the defence. It thus follows that the accused had absconded after the occurrence which in the circumstances of this case would be taken into account as a corrobortive piece of evidence.
9. We are not satisfied with the recovery of the dagger. It did not stand to reason that the accused would keep with him the blood-stained dagger for about 21 months. This was too obvious an overdoing by the investigator. This, however, would not adversely reflect on the prosecution case about the arrest of the accused because Sabir had been named as an accused in the F.I.R. And it was for over 21/2 months that the police was not able to arrest him. As observed earlier there is K no explanation given by the accused as to where he had been all along, we are, therefore, satisfied with the evidence of his absconsion and arrest.
10. Learned counsel also argued that the solitary injury was inflicted in the thigh which indicated that the accused had no intention to kill and would, therefore, be liable only for causing hurt with a sharp-edged weapon. We find no force in the submission because the injury inflicted by the accused was sufficient to cause death in the ordinary course of nature. True it was in the thigh but damage caused by the injury was severe haemorrhage and shock as a result of which Asghar died. We, therefore, maintain his conviction under section 302, P.P.C. In so far as sentence is concerned, we have earlier observed that since the eye-witnesses had not mentioned in their police statements that the deceased had disclosed to them the reason for the attack on him, would not effect their testimony in so far as the occurrence was concerned, this circumstance may reflect on the motive story in this case. Keeping this in view and the fact that the accused did not repeat the attack we substitute the sentence to life imprisonment for the capital punishment awarded to him. Sentence of fine is, however, maintained. Death sentence is not confirmed.