' This Criminal Appeal arises from the judgment of learned Additional Sessions Judge, Jhang, whereby he on 3-8-1983, while acquitting Jafar Hussain convicted Zahoor Ahmad appellant under section 302, P.P.C. For causing the death of Manzoor Hussain and sentenced him to imprisonment for life and a fine of Rs,5,000, in default thereof one year R.I., with the direction that the fine when recovered, half of the same be paid to the legal heirs of the deceased.
2. The occurrence took place on 1-7-1982 at about Magrib time in a lane outside the house of the deceased situated in village Rajoya, P.S. Chiniot. The distance between the police station and the place of occurrence is 7 miles. The F.I.R. Exh.P.D. Is the statement of Muhammad Ali P.W.7, sister's husband of the deceased which was recorded on the same day at 9-00 p.m. By Alim Khan S.I., P.W.9 in Chowk Chiniot, Pindi Bhattian. The Formal F.I.R. Exh.P.D/1 was drawn up by Muhammad Nawaz, Moharrir Head Constable, P.W.4 on the same day at 9-15 p.m.
3. The motive as set up by the prosecution was that on the same day at about Peshiwala, Manzoor Hussain deceased had abused Mst. Sughran, mother of appellant, hence this occurrence.
4. As far the main occurrence, it has been stated that at the eventful time, Muhammad Ali complainant was proceeding to his house and when he reached near the place of occurrence, he saw Jafar Hussain acquitted co-accused holding Manzoor Hussain deceased by his hair.
Muhammad All caught hold of Jafar Hussain and pushed him aside forcibly who struck against the nearby wall and got injury on left eye. Zahoor Ahmad then gave dagger blow on the back of the chest of Manzoor Hussain who fell down and succumbed to injury on the spot. The occurrence was seen by Muhammad Ali P.W.7, Zahoor Hussain P.W.8, Muhammad Noora and Mst. Sattan (both not produced).
5. On 2-7-1982 at about 3-00 p.m. Dr. Nazir Ahmad P.W.1 conducted post-mortem examination on the dead body of Manzoor Hussain. He found following injury on his person:- "A stabbed wound 4# c.m. x 1 c.m. On the back of chest right side 2 c.m. From mid line and 14 c.m.
Below the neck."
' In his opinion the death was due to shock and haemorrhage as a result of injury which was sufficient to cause death in the ordinary course of nature. The injury was caused by sharp-edged weapon. The probable time between injury and death was within hour and between death and post-mortem from 12 to 24 hours.
6. The appellant was arrested on 2-7-1982. On 3-7-1982, he got recovered blood-stained dagger Exh.P.2 from his residential Kotha which was taken into possession vide memo. Exh.P.E. Attested by Talib P.W.6 and Talib s/o Karam (not produced). The memo, was prepared by Alim Khan S.I., P.W.9.
The Serologist Report Exh.P.L. Reveals that the dagger was stained with human blood.
7. To prove its case, prosecution examined 9 witnesses. Muhammad Ali P.W.7 and Zahoor Hussain P.W.8 have given the ocular account of the occurrence. They claim to have seen the appellant causing injuries on the back of chest of the deceased with his dagger which resulted in his death.
Talib Hussain P.W.6 and Alim Khan S.I., P.W.9 have stated that the appellant had led to the recovery of blood-stained dagger from his residential Kotha. The rest of the evidence is more or less of formal nature.
8. When examined under section 342, Cr.P.C., the appellant deniedall the incriminating circumstances. He raised the plea of false implication. According to him it was an unseen occurrence. In defence he did not produce any witness.
9. The trial Court while giving benefit of doubt to Jafar Hussain, acquitted him of the charge.
Believing motive, ocular evidence and the recovery of blood-stained dagger from him, the trial Court has convicted and sentenced Zahoor appellant as stated above.
10. Learned counsel for the appellant submits that the prosecution has failed to prove its case beyond reasonable doubts; that the eyewitnesses are not reliable; that Muhammad, the only independent witness has not been produced; that the ocular account is in conflict with the medical evidence; that the recovery is fake and that the prosecution evidence suffers from infirmities such as contradictions, discrepancies and improvements. In the alternative, the learned counsel argued that the prosecution case accepted at its face value, the act of the appellant does not fall within the ambit of section 302, P.P.C., inasmuch as, about 3/4 hours before the main occurrence, the deceased had abused the mother of the appellant. Conversely, the learned counsel for the State has supported the judgment of the trial Court.
11. I have considered the arguments advanced by the learned counsel for the parties with care. I have not been able to persuade myself to agree with the learned counsel for the appellant. I find that it is a case of prompt F.I.R. The occurrence took place on 1-7-1982 at about Magrib time. The F.I.R. Was recorded at 9-00 p.m. On the same day. There is nothing on the record to show that the F.I.R. Exh.P.D. Was not a genuine document or that it was not written at the time and place as it indicates. The name of the appellant, the names of the witnesses, the weapon used by the appellant and the manner of the occurrence, are detailed therein. This valuable document can be used to corroborate the statement made by Muhammad Ali P.W.7 at trial. Muhammad All P.W.7 and Zahoor Hussain P.W.8 had no serious enmity with the appellant to involve him falsely in the case.
The witnesses have successfully faced the test of cross-examination. Nothing advantageous to the defence could be elicited from them. Except for minor discrepancies and immaterial contradictions, I do not see any inherent infirmity in the statements of these witnesses. Their evidence is in consonance with the probabilities. They have given probable cause of their presence at the time of occurrence. Their statements fit in with the other evidence and have inspired confidence of truth in my mind. The number of the injuries found on the person of the deceased and the number of the assailants named by them do commensurate. The appellant has failed to lay down any foundation for his substitution in place of the real culprit. It was a day light occurrence and as such there was no difficulty in the identification of the assailant. The appellant has failed to rebut prosecution case and its evidence. The recovery of dagger Exh.P.2 stained with human blood from the possession of the appellant, which is proved by Talib Hussain P.W.6 and Aleem Khan, S.I., P.W.9 also connects the appellant with the commission of crime and corroborates the statements of the eye-witnesses that the appellant had caused injury to the deceased with dagger. Talib Hussain P.W.6 and Aleem Khan, S.I., P.W.9 had no enemous against the appellant.
Their evidence also does not suffer from any legal infirmity. For all these reasons, I am satisfied that Zahoor Ahmad appellant and none else had caused the death of Manzoor Hussain.
12. So far as the nature of the offence is concerned, I find that in view of the location of the injury selected by the appellant, the kind of the weapon used by him, the force with which he stabbed the deceased and the damage done to the deceased by the injury, it is very much obvious that the appellant had no intention other than that of causing the death of the deceased and as such, the culpable homicide amounts to murder punishable under section 302, P.P.C. The incident wherein the deceased had abused the mother of the appellant 3/4 hours before the main occurrence, is not sufficient to make it a case of grave and sudden provocation. At the most, it can be treated as an extenuating/mitigating circumstance.
13. The upshot of the above discussion is that there being satisfactory basis to uphold the conviction and sentence of the appellant under section 302, P.P.C., the appeal is dismissed.