This Criminal Appeal arises from the judgment of learned Additional Sessions Judge, Gujrat, whereby he on 24-7-1983 convicted Abdul Khaliq aged (22/23) and Nisar Ali alias Pappu, aged (20) under section 302/34, P.P.C. For the murder of Azhar Ali and sentenced them to imprisonment for life and a fine of Rs.5,000 each, in default thereof one year R.I. Each, with the direction that the fine if realized, half of the same be paid to the legal heirs of the deceased.
2. The occurrence took place on 20-11-1981 at 12.15 noon near the Public Call Office Malakwal at a distance of 3 furlongs from P.S. Malakwal. The F.I.R. Exh. P.B. Was lodged by Muhammad Anwar P.W.
4, uncle of the deceased at the police station on the same day at 4.30 p.m. And was recorded by Sh. Farrukh Hussain. S.I. P.W. 9.
3. The motive as alleged by the prosecution was that a day before the occurrence, Farhat Abbas P.W. 2, younger brother of Azhar Ali deceased had caught one pigeon of the appellants who demanded the pigeon back. Farhat Abbas refused to return the pigeon. This led to an altercation between them. Azhar Ali deceased rebuked the appellants and asked them to leave the place.
While leaving the place, the appellants threatened that they would revenge their insult.
4. As far the main occurrence, it has been stated that at the eventful time, Anwar P.W. 4 and Muhammad Sultan P.W. 5, Raza Haider and Mazhar Ali (both not produced) were present near the call office Malkwal. Azhar Ali deceased while going towards his house passed by their side. Abdul Khaliq and Nisar Ali alias Pappu appellants were already present on the Thara of the Call Office.
They were armed with daggers. They opened the attack on the deceased. Abdul Khaliq gave first blow on the left side of the chest of the deceased. Nisar Ali also inflicted dagger blow on the chin of the deceased. Muhammad Anwar P.W.
4. Muhammad Sultan P.W. 5, Raza Haider and Mazhar Ali saw the occurrence. They tried to catch hold of the appellants but they threatened them with dire consequences and ran away taking away the weapons with them. Azhar Ali succumbed to the injuries on the spot.
5. On 21-11-1981 Dr. Nazir Ahmad Anwar, P.W. 6 conducted post-mortem examination on the dead body of Azhar All. He found the following injuries on his person:- (1)"A penetrating incised wound 4 -- c.m. x 2 c.m. x going into the chest over the left side of front of chest deeply cutting the fifth rib near its external margin. On dissection pericordium of the left verticle of the heart was found punctured in an area of 2 c.m. x 1 c.m. About 3 pints of blood was present in the pericardial space and left pleural cavity. Perforation corresponding to injury No. 1 was present in his shirt and vest.
(2)An incised wound 2 c.m. x -- c.m. x bone deep over the chin with a linear scratch 1 c.m. x -- c.m.
Extending from the medial side.
6. The appellants were arrested on 22-11-1981 by Sh. Farrukh Hussain, S.I. P.W.
9. On 22-11-1981, Abdul Khaliq led to the recovery of blood-stained dagger Exh. P. 4 from his house that was taken into possession vide memo. Exh. P.F. On the same day, Nisar Ali led to the recovery of knife Exh. P. 5 from his house which was taken into possession vide memo. Exh. P.G. The recovery memorandas were attested by Ghulam Safdar P.W. 8 and Sh. Farrukh Hussain S.I., P.W.
9. The Serologist Report Exh. P.M.
Reveals that the dagger Exh. P. 4 recovered from Abdul Khaliq was stained with human blood. It may be noted that the knife Exh. P. 5 recovered from Nisar Ali appellant was not stained with blood.
7. To prove its case, prosecution examined 10 witnesses. Muhammad Anwar P.W. 4 and Muhammad Sultan P.W. 5 have given the ocular account of the occurrence. They claim to have seen Abdul Khaliq inflicting the fatal injury with dagger on the chest and Nisar Ali giving injury with knife on the chin of the deceased. Farhat Abbas P.W. 2 and Muhammad Anwar P.W. 4 have supported the incident of quarrel over the pigeon between the appellants and the deceased. Ghulam Safdar P.W.8 has supported the recovery of dagger Exh. P. 4 and knife Exh. P. 5 from Abdul Khaliq and Nisar Ali appellants respectively. The Serologist Report Exh. P.M. Shows that the dagger recovered from Abdul Khaliq was stained with human blood. Dr. Nazir Ahmad Anwar P.W. 6 has proved the post- mortem examination report of Azhar Ali Khan deceased. The rest of the evidence is more or less of formal nature.
8. When examined under section 342, Cr.P.C., the appellants denied all the incriminating circumstances. Nisar Ali raised the plea of false implication on account of enmity. Abdul Khaliq, however, pleaded the right of self-defence. He stated:-- "On the day of occurrence I was passing from the Bazar and while I was present in the corner of the street which leads to the house of the deceased, the deceased came there armed with Danda, objected to my presence there and started giving blows to me with the Danda. I on seeing that he will not spare me picked up a knife from a nearby Rehri of a fruit and vegetable seller and with that inflicted injuries to the deceased in self-defence. "
9. Learned counsel for the appellants contended that prosecution has failed to prove its case against the appellants beyond reasonable doubt inasmuch as, the motive has not been proved; that Muhammad Anwar P.W. 4 and Muhammad Sultan P W 5 are not reliable witnesses, in the sense that Muhammad Anwar is the paternal-cousin of the deceased and Muhammad Sultan is a chance witness and that the statements made by them are contradictory; that the recovery from Abdul Khaliq is fake and that, in the circumstances of the case, there is a reasonable possibility, of the correctness of the defence version ~ Conversely, the learned counsel for the State has supported the judgment of the trial Court.
10. I have considered the submissions made 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 appellants. I find that Farhat Abbas P.W. 2 has supported the motive for the crime committed by the appellants. He had no previous enmity with them. His evidence cannot be discarded on account of his relationship with the deceased. Muhammad Anwar P.W. 4 and Muhammad Sultan P.W. 5 had no enmity with the appellant at all. The house of Muhammad Anwar is at a distance of 50/60 Karams from the place of occurrence. Shop of Muhammad Sultan was also at a distance of 12 shops from the place of occurrence. Both the witnesses have given plausible cause of their presence at the time of occurrence. They have successfully faced the test of cross---examination. Their statements do not suffer from infirmities such as material contradictions /discrepancies and dishonest improvements. The statement given by them are in consonance with the probabilities and materially fit in with the circumstances of the case. Ghulam Safdar P.W. 8 is a Bank Officer, He is an independent witness. He had no ill-will against the appellant. He stated that the blood-stained dagger Exh. P. 4 was recovered from Abdul Khaliq appellant on the third day of the occurrence. His house is at a distance of 50/60 Karams from the place of occurrence. The bank where he works is at a distance of 10 yards from the place of occurrence and as such he was witness of the same locality. The Serologist Report Exh. P.M. Reveals that the dagger Exh. P. 4 recovered from Abdul Khaliq was stained with human blood. For all these reasons I am of the view that the statements of the eye-witnesses cannot be discarded. So far as the plea of self-defence raised by Abdul Khaliq is concerned, I find that Muhammad Anwar P.W. 4 and Muhammad Sultan P.W. 5 have denied the factum of Abdul Khaliq receiving injuries in the occurrence. Abdul Khaliq was not got medically examined by the police. He was produced before the Magistrate. He did not make request for his medical examination. He was not medically examined with regard to his injuries by the Medical Officer of Jail. In these circumstances, the statements of Iqbal Hussain Qureshi, Dispenser D.W. 2 that he had seen Abdul Khaliq injured on 23-11-1981 and had dressed him does not prove that he had received injuries during the occurrence. It may be noted that the Dispenser has not stated the duration of the injury. There is also no evidence as to the nature of the injury and the kind of weapon causing that injury. The plea of self-defence was also not raised during the investigation.
The statement made by Khushi Muhammad D.W. 4 appears to be afterthought. He has admitted in the cross-examination that he had not disclosed the fact of having seen the occurrence to any person in the mosque. He stated that he did not go to the place of occurrence after Jumma prayer and had straightaway gone to his village from the mosque and that he had not disclosed the fact of witnessing the occurrence to anyone. The Rehriwala from whose Rehri, the appellant had allegedly taken knife at the time of occurrence has not been produced in defence right of self- defence pleaded by the appellant is neither proved by the defence nor the same is spelt out from the prosecution case/attending circumstances. I am convinced that there is no reasonable possibility of the defence version given by Abdul Khaliq, being true. As far Nisar Ali, while believing the two eye-witnesses, I feel inclined to err in his acquittal as an abundant caution on the ground that the knife recovered from him being not stained with human blood, there is no independent corroboration of the statements of the eye-witnesses qua him.
11. For what has been said above, the appeal is partly accepted. While giving him the benefit of doubt, Nisar Ali is acquitted of the charge. The appeal to the extent of Abdul Khaliq is dismissed in toto.