Muhammad Akram alias Matti, son of Nazir Ahmad, aged 17 years, armed with Chhuri, has been convicted under section 302, P.P.C. For the murder of Muhammad Salim Tahir, aged 22 years, and vide judgment, dated 29-11-1982 of the Additional Sessions Judge, Faisalabad, was sentenced to imprisonment for life plus fine of Rs.4,000 or in default to undergo two years rigorous imprisonment with the direction that if the fine was realized from him, it should be paid as compensation to the heirs of the deceased. Tariq Salim empty-handed, Ramzan Baig, armed with Chhuri, and Muhammad Akram alias Nanna also empty-handed, who were alleged to be his companions, were given the benefit of doubt and acquitted. The appeal of the convict is being disposed of by this judgment.
2. The occurrence took place on 2-7-1980 at 11.00 a.m. In a street of Mohallah Mansoorabad, Faisalabad City, at a distance of one mile from Police Station Civil Lines, Faisalabad. Statement Exh.
P.D was made by Abaidur Rahman P.W. 11 a friend of the deceased at 11.02 a.m. On the same day and it was recorded by Abdul Majid A.S.I. (P.W. 12) at the gate of Civil Hospital, Faisalabad where he had arrived on receiving information about the incident. On the basis of the aforesaid statement formal F.I.R. (Exh. P.D./1) was registered at the police station by Nasrullah Khan M.H.C. (P.W. 2) at 11.15 a.m. On the same day. The case was initially registered against the appellant and the acquitted co-accused under section 307/452/34, P.P.C. But on the death of the deceased on 7-6-1980 at 3.30 p.m. In the hospital section 307, P.P.C. Was altered to section 302, P.P.C.
3. The motive for crime as stated in the F.I.R. Is that the deceased had cut a joke with the younger sister of Muhammad Akram alias Nannah, acquitted co-accused, while she was going to school and it was in this background that the appellant and his companions are stated to have attacked the deceased and killed him.
4. In the F.I.R. The occurrence is reported to have taken place in the following manner: On the fateful day while Abaidur Rahman (P.W. 11) who was friend of the deceased was sitting at his shop, the appellant and the acquitted co-accused armed as described above, suddenly appeared, trespassed into the shop of the deceased while Muhammad Akram alias Nanna, acquitted co- accused, raised a Lalkara to the effect that they had come to teach the deceased a lesson for cutting joke with his sister. Thereupon, Muhammad Akram alias Nanna, acquitted co-accused, as well as Tariq Salim, acquitted co-accused who both were empty-handed, held the deceased and dragged him out of the shop. Thereafter, the appellant gave him Chhuri blow which fell on the right side of the belly of the deceased. The second Chhuri blow was given by Ramzan Baig, acquitted co-accused, which fell on his right thigh at the back. As a result the deceased fell down on the ground. On his alarm Ejaz Ahmad (P.W. 10) who was sitting in his shop nearby, was also attracted to the scene of crime. Both Abaidur Rahman and Ejaz Ahmad P.Ws. Pleaded the accused party to spare the deceased. Thereafter, the accused party left and the deceased was removed to the hospital by Abaidur Rahman P.W. In an injured condition and got him admitted there.
5. The prosecution has produced two eye-witnesses of the occurrence, namely, Abaidur Rahman (P.W. 11) stated to be a friend of the deceased, and Ejaz Ahmad (P.W. 10) who is an unconnected person and who had a shop near the shop of the deceased.
6. The appellant was arrested on 7-6-1980 by Habib Khan I.P. (P.W. 13) whereas the acquitted co- accused were arrested on 3-6-1980 by Abdul Majid A.S.I. (P.W. 12). At the instance of the appellant was recovered from his house Chhuri (Exh. P. 5) blood-stained and taken into possession vide memo. Exh. P.G., dated 12-6-1980. The attesting witnesses are Abdul Wasit (P.W. 8) Muhammad Zakir (not produced) and Habib Khan I.P. (P.W. 13). The report of the Serologist (Exh. P.R.) in respect of Chhuri (Exh. P. 5) is positive i.e. That it was stained with human blood. The trial Court has relied upon this recovery as stated in paragraph 16 of the judgment. At the instance of Ramzan Baig, acquitted co-accused, was recovered blood-stained Chhuri (Exh. P. 6) which was taken into possession vide memo. Exh. P.H., dated 12-6-1980. The attesting witnesses are Muhammad Hussain (P.W. 9) who is the husband of the sister of the deceased, Muhammad Yusuf (not produced) and Habib Khan I.P. (P.W. 13). Although the report of the Serologist (Exh. P.R.) is positive also in respect of Chhuri (Exh. P. 6) which was stained with human blood, the trial Court has not relied upon this recovery for the reasons stated in paragraph 19 of the judgment. The reasons given are that Muhammad Hussain P.W. Was closely related to the deceased and besides that he was not a resident of that locality but resides at a distance of 20 to 21 miles from Faisalabad For these two reasons this recovery has been dis--believed.
7. The appellant in his statement before the trial Court totally denied having participated) in the occurrence. He disowned the recovery and stated that he had been falsely implicated due to enmity. The acquitted co-accused also made similar statements. They pleaded that they were innocent. One D.W. Was produced namely, Hafiz Muhammad Sabir in order to show that Ejaz Ahmad P.W. Did not have a shop nearby. I have gone through the statement of this D.W. In the cross--examination he stated that his shop was closed on the day of occurrence. He did not join the investigation of this case and had not told the police that Ejaz Ahmad P.W. Was not having any shop near the place of occurrence. It was only at the trial stage that he had appeared as D.W. To state that Ejaz Ahmad P.W. Was not running any shop in the vicinity where the occurrence took place.
8. Dr. Imtiaz Ahmad Gill (P.W. 1) medically examined the deceased while he was still alive, on 2-6- 1980 at 11.00 a.m. The deceased in an injured condition was brought to the hospital by Abaidur Rahman P.W. He found the following injuries on his person. A stab wound, depth not probed, on the right side of abdomen, and a stab wound, depth not probed, on the right buttock. Both the injuries were kept under observation and had been caused by a sharp-pointed weapon and were fresh.
The deceased died on 7-6-1980 at 3.30 p.m. The same Medics: Officer conducted his post-mortem examination on the same date at 5.50. p.m. And noted the same injuries on his person alongwith incision and colostomy wounds. In his opinion death was due to shock and haemorrhage caused by injury No. 1 which was sufficient to cause death in the ordinary course of nature. The deceased died about five days after the receipt of injuries. He stated in the cross-examination that both the injuries on the person of the deceased could be caused by one and the same sharp-pointed weapon. The second injury on the buttock was simple in nature.
9. I have heard learned counsel for the appellant and carefully perused the record with his assistance. It was firstly argued that the trial Court had given the finding to the effect that the prosecution could not establish the motive in this case. The motive aspect of the case is discussed in paragraphs 8 and 9 of the judgment of the trial Court. The finding of the trial Court is that since the Investigating officer did not make an independent investigation with regard to the motive in this case, the motive did not stand proved. What I note from the evidence of the two eye-witnesses of the occurrence, in the instant case, is that the accused party came to the shop of the deceased and one of them raising Lalkara had stated that they had come to teach him a lesson for having teased the sister of Muhammad Akram alias Nanna, acquitted co-accused. The trial Court has also made the observation that the sister of Muhammad Akram alias Nanna, acquitted co-accused, was not made to join the investigation in respect of the motive. This would have been of no use because she being connected with the accused party could have given that statement which helped the accused party. One of the eye witnesses of the occurrence is stated to be friend of the deceased and he is Abaidur Rahman (P.W. 11). He had stated in the cross-examination that the deceased had told him about the cutting of the joke with the younger sister of one of the acquitted co-accused a day prior to the occurrence. There is nothing on the record to show that the eye- witnesses, in the instant case, had a motive to falsely implicate the appellant or any member of the accused party. There is no enmity established on the record and, therefore, this eye-witness could have been also believed in respect of the motive. So I do not agree with the finding of the trial Court that the prosecution could not establish the motive in the instant case. Next learned counsel argued that both the eye-witnesses of the occurrence did not reside it the locality but they resided at a distance of considerable miles from the spot. Learned counsel further stated that they might have not been present at the time of occurrence. His reasoning is that Abaidur Rahman P.W. Was a friend of the deceased, whereas Ijaz Ahmad P.6. Had falsely stated that he was running a shop near that of the deceased. But one thing which the learned counsel failed to show to me was why they should depose falsely as against the accused party or the appellant. There is nothing on the record to show that there existed any enmity between these two eye-witnesses and the appellant or any of the members of the accused party. Consequently, they had no motive to falsely implicate the appellant, etc. Even while cross-examining these two eye--witnesses no suggestion was put by the defence counsel to them about any enmity in the instant case of these eye-witnesses as against the accused party. According to the ocular version the appellant alongwith others came to the spot; two of them entered the shop of the deceased and dragged him out. Then the appellant who was armed with Chhuri, gave a blow to the deceased which fell on his abdomen region, whereas Ramzan Baig, acquitted co-accused, who was-also armed with Chhuri, gave Chhuri blow which hit on the back side of his right leg. The deceased fell down on the ground and in an injured condition was taken to the hospital where he died after five days as a result of the abdomen injury. There had also been a dying declaration of the deceased (Exh. P.K,) recorded by the Police Officer but the trial Court has not relied upon it for the reason that it was recorded as a statement under section 161, Cr.P.C. By the Police Officer and that it was not recorded as a dying statement by the Magistrate and that furthermore even the Police Officer did not record it in the presence of the Medical Officer or with his permission. Thereafter, the trial Court has discussed the medical evidence in the instant case which is to the effect that both the injuries on the deceased could have been caused by one and the same sharp edged and pointed weapon. Finally, the recovery evidence has been believed in the case of the appellant, whereas it has been disbelieved in the case of Ramzan Baig, acquitted co-accused. The trial Court has proceeded to disbelieve the recovery evidence in respect of Ramzan Baig, acquitted co-accused, for the reason that the public attesting witness produced in that case of recovery of Chhuri was closely related to the deceased and did not belong to the locality. The trial Court has not discussed as to why he had disbelieved the Police Officer who was also an attesting witness of the recovery as there is nothing on the record to indicate that he had conducted the investigation in a dishonest manner. On this point learned counsel argued that the police officer should be considered as an interested party because obviously he wanted the prosecution case to succeed as he had investigated the matter. On the basis of this argument learned counsel stated that if the recovery, in the case of Ramzan Baig, acquitted co-accused, had not been ? Plied upon, the case of the appellant was also identical and the recovery should not be relied upon even in his case. I have carefully considered the arguments of learned counsel.
Whether the recovery evidence in the instant case is believed or not, the ocular testimony comes from ar. Independent source and has been rightly relied upon. I would have relied upon the ocular testimony in this case even so far as the case of Ramzan Baig, acquitted co-accused is concerned but since he has already been acquitted by the trial Court, and furthermore there is no private criminal revision or State Revision/appeal as against his acquittal and even otherwise the injury attributed to him was on the leg of the deceased and simple in nature, I am not inclined to issue suo motu notice to him. But so far as the appellant is concerned, he stands implicated according to the ocular testimony in the instant case in the background of the motive version. At this stage learned counsel for the appellant attempted to argue that if I were to believe in the motive version and also the ocular testimony, in the instant case, then it was a case of sudden provocation in the sense that the appellant had not intended to commit the murder of the deceased but since the deceased had cut joke with the sister of one of the acquitted co-accused, the appellant gave him a Chhuri blow in the abdomen in order to teach him a lesson and under provocation but not with the intention of committing his murder. Therefore, according to learned counsel, his conviction and sentence under section 302, P.P.C. Were not proper but he could at the most be convicted and sentenced under section 304, Part II, P.P.C. I am afraid, I cannot accept this reasoning as there is no evidence on the record that the incident of cutting joke with the sister of one of the acquitted co- accused had taken: place immediately before the present occurrence so as to draw the inference that it was a sudden affair and the injury was a result of provocation. According to the prosecution version, the incident of cutting joke had taken place 2/3 days before the present occurrence and ordinarily it cannot be said that a blow given in the abdomen with a Chhuri to a person is not with the intention of committing his murder but only in order to teach him a lesson for some objectionable act. Be that as it may, in the light of the ocular testimony supported by the medical evidence and the motive version and corroborated by the recovery evidence at least so far as the appellant is concerned, I am convinced A in my mind that the conviction as well as sentences awarded to the appellant in the circumstances of the case were quite proper and are accordingly maintained. The result is that this appeal is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.