LEHRASAP KHAN, J.--Muhammad Asif (25) son of Ilam Din has been convicted by a learned Additional Sessions Judge, Lahore on 29-4-1982 under section 302 P.P.C. For causing the murder of Khalid Pervez (20/21) and has been sentenced to death and a fine of Rs.5,000 or in default three years' R.I. No order regarding compensation has been made.
2. The aforementioned convict has challenged his conviction and sentence through the present appeal viz. Criminal Appeal No. 234 of 1982 while the matter also stands referred to us under section 374, Cr.P.C. Vide Murder Reference No. 110 of 1982 seeking confirmation of death sentence awarded to Muhammad Asif. Both these matters shall be disposed of by this judgment.
3. The occurrence in this case took place on 17-6-1981 at 3-30 p.m. At the shop of Muhammad Ashiq barber P.W.8 situate on Ganda Nullah in the area of Sahwari about one mile from Police Station Moghalpura, Lahore. The occurrence was reported to the police by P. W. 7 Muhammad Ismail, the father of the deceased who made a statement Exh. P.C. On the same day at 4-20 p.m. In Mayo Hospital, Lahore, before Maqsood Ali Sub-Inspector P.W.10. The formal F.I.R. Exh. P.C./1, was recorded at 5-15 p.m. On the same day at the police station by P.W.4 Meraj Khalid S.I.
4. Regarding motive, it has been alleged that the appellant suspected that the deceased acted as an informer and got Rashid, the brother of the appellant, arrested in a criminal case. He, therefore, harboured grudge against the deceased and hence this occurrence.
5. So far as the main occurrence is concerned, it has been stated that at the eventful time Muhammad Ismail, the father of the deceased, was on a round as he was a vegetable vendor. He met Muhammad Amjad P.W.6, his Saalaa (were's brother) and when they were near the Polish Factory of one Fayyaz, they heard noise from the shop of P. W.8. Muhammad Ashiq barber whereupon they rushed to the shop and saw Muhammad Asif appellant armed with 'Khanjar' quarrelling with Khalid Pervez deceased. Within their view Muhammad Asif appellant inflicted a blow in the chest of the deceased with the dagger. When the two witnesses tried to apprehend him he gave two more blows, one on the left hand and the other on the thigh, of the deceased.
Thereafter, Khalid Pervez fell down and the witnesses with the help of P.W.8 Muhammad Ashiq barber and Arshad (given up P.W.) apprehended the accused alongwith the dagger. The complainant removed the deceased in a rickshaw but on reaching the hospital, he died.
6. P.W.12 Dr. Sabir Ali, the then Superintendent Dispensary Mayo Hospital, Lahore, held the autopsy on the dead-body of Khalid Pervez deceased on 18-6-1981 at 11 a. m. And he noticed the following injuries on the dead body of the deceased:-- (1)Stab wound clean cut 5 c.m. x 1 c.m. Going deep placed vertically on the left outer chest 9 c.m.
Below the nipple at 5-00 O'clock position.
(2)Incised wound 4 c.m. x 1 c.m. Subcutaneous tissue deep on the space between the left thumb and index finger on the palm.
(3)Incised wound 1-1/2 x 1/4 c. m. Skin deep with linear tail 3 c.m. Placed on the outer end of the left eye-brow.
(4)Incised wound 1 c.m. x 1/2 c.m. Muscle deep outer upper half left arm.
(5)Stab wound clean cut 10 x 3-1/2 c.m. Inner tower half left thigh placed vertically oblique. The femoral vessels were found completely cut.
Dr. Sabir Ali opined that all the injuries were ante-mortem inflicted by some sharp-edged weapon and that injury No.5 was sufficient to cause death in the ordinary course of nature. According to him, the cause .Of death was shock and haemorrhage resulting from injury No.5.
7. On the same day, Dr. Sabir Ali medically examined Muhammad Asif appellant and found the following injuries on his person:- (1)Linear superficial incised scratch 1 c. m. Long on the space between light thumb and index finger.
(2)Abrasion 1/2 x 1/2 c.m. Outer right knee.
(3)Abrasion 112 x 1/2 c.m. Back right elbow pint.
According to the doctor, all these injuries were simple; Injury No.1 was caused by a sharp-edged weapon and the others by a blunt one. In cross-examination, the doctor stated that there was no possibility of injury No.1 in case of Muhammad Asif having been caused to him while warding of of a full force blow.
8. As already stated, the appellant, was apprehended on the spot. The dagger P.3, blood-stained, was produced by Muhammad Amjad P.W.6 as this dagger was allegedly snatched from the appellant by Muhammad A Amjad and Muhammad Ismail with the help of Muhammad Ashiq and Arshad when they apprehended Muhammad Asif. This dagger was taken into possession by the police-vide memo. Exh. P.D. Which has -been attested by Muhammad Amjad P.W.6, Muhammad Ashiq P.W.8 and Maqsood Ali, S.-I. P.W.10.
9. As per contents of Chemical Examiner's report, Exh. P.L., and Serologist's report, Exh. P.M. The dagger P.3 has been reported to be stained with human blood.
10: Muhammad Amjad P.W.6, Muhammad Ismail P.W.7 and Muhammad Ashiq P.W.8 testified at the trial as eye-witnesses and they fully supported the prosecution version. Admittedly Muhammad Amjad is the maternal uncle of Khalid Pervez deceased while Muhammad Ismail is father of the deceased, but Muhammad Ashiq P.W.8 is absolutely an independent witness. He is a barber. At his shop the occurrence took place. He is, therefore, most natural witness of the occurrence. There is no evidence of any previous enmity or animosity between the families B of Muhammad Amjad and Muhammad Ismail on the one hand and that of the appellant on the other and thus there was no motive for Muhammad Amjad and Muhammad Ismail to falsely involve the appellant in a murder case. Muhammad Yaqoob A.S.I. P.W.5 testified that he received warrants of arrest of Rashid, the brother of Muhammad Asif appellant, issued by the Court of Mr. Irshad Ahmad Bosal, Magistrate Section 30, Lahore and Khalid Pervez deceased led him to the house of Arshad and on his pointing out he arrested Arshad, the brother of Muhammad Asif appellant, on 26-4-1981. The said Arshad was involved in nine theft cases.
11. The appellant claimed to have done Khalid Pervez to death under grave and sudden provocation in exercise of right of self-defence. In reply to question No. 10: "Why this case against you", asked from the appellant while recording his statement under section 342, Cr.P.C., he stated: "I went to the shop of Ashiq barber P.W. At the date and time of occurrence for hair cutting. After some time Khalid Pervez also reached there. He told me that he was having some relations with my sister Rukhsana and asked me as to why we had married Rukhsana to another person as he wanted to marry her. He also threatened me that he would tell about his relation with Rukhsana to my brother-in-law Ijaz. Over this accusation of Khalid Pervez I got enraged and abused him. Khalid Pervez was a stout and healthy boy whereas I was of weak structure and T.B. Patient and so Khalid lifted me up and threw me to the floor of the shop of Ashiq P.W. As a result of his throw I sustained injuries on the right elbow and right knee. Then Khalid Pervez picked up a razor from the shop of Ashiq and attacked me. In this scuffle while defending myself I sustained injuries on my right thumb and index finger. Then Khalid Pervez used filthy language and threatened me that he would disclose to the public that my sister Rukhsana had illicit relation with him. At this threat of Khalid I got provoked and as Khalid was stronger than I and he had a razor in his hand I picked up another razor from the shop of the said barber and in my self-defence and under the said provocation caused injuries to Khalid Pervez."
The appellant produced the certified copy of 'Nikahnama' of his sister Rukhsana, Exh. D.D., certified copy of F.I.R. Exh. D.E. And certified copy of bail bond of Khalid Pervez, Exh. D.F. No other evidence in defence has been produced. The contents of Exh.D.D. Simply suggests that Rukhsana was married to one Ijaz Ahmad on 29-5-1981. As per contents of F.I.R. Exh. D.E., the then Manager United Bank Limited, Allama Iqbal Road Branch reported about the theft of a cycle of their peon. No culprit has been named in the F.I.R. The contents of copy of bail bond, Exh. D.F. Suggests that Khalid Pervez deceased was admitted to bail in some criminal case. These documents have no direct bearing on the facts of this case.
12. It has been urged on behalf of the appellant that he acted in exercise of his right of private defence in that the deceased himself provoked the appellant by disclosing tour him that the deceased had illicit relations with the sister of the appellant and that why the said sister was married to another person. This version of exercise of right of private defence of provocation has not been substantiated by producing any independent evidence. Three documents as detailed above, produced by the appellant, do not in any manner, advance the case of the defence while on the other hand Muhammad Ashiq P.W.8 who is absolutely an independent witness and at whose shop the occurrence admittedly took place, has fully supported the prosecution case. His testimony, as already observed, furnishes corroboration to the statements of other eye-witnesses, namely, Muhammad Ismail and Muhammad Amjad who though are father and maternal uncle of the deceased, respectively but had no motive for the false involvement of the appellant on the charge of murder. The appellant has been caught red-handed alongwith the weapon of offence viz. Dagger P.3. The appellant has not been able to offer, any satisfactory explanation about the injuries on his person. It appears that while snatching the dagger from him he suffered injury, on the space between right thumb and index finger while the other two abrasions resulted from struggle which he made to avoid his apprehension.
13. We have minutely analysed the prosecution evidence and the circumstances of the case. We find that the appellant has murdered the deceased in the manner as alleged by the prosecution.
The motive as alleged by the prosecution also stands proved by the testimony of Muhammad Yaqoob, A.S.I. P.W.5.
14. It has been argued on behalf of the appellant that the injury which according to 'the medical evidence has proved to be fatal has allegedly been caused on the thigh which is a non-vital part of the body and, therefore, the offence committed by the appellant does not amount to murder punishable under section 302, P.P.C. His act falls within the ambit of causing of grievous hurt by dangerous weapon, punishable under section 326, P.P.C. In support of this contention, reliance has been placed on the case of Muhammad Asif v. The State 1972 P Cr. L J 1160 and Feroze Mushke v.
The Sate 1974 P Cr. L J 567. In the former case, the accused had no animosity with the deceased and he inflicted only one injury on the thigh which proved to be fatal. It was, therefore, held that the offence committed by the accused fell under section 326, P.P.C. And thus, the conviction under section 302, D P.P.C. Was altered to one under section 326 , P.P.C. Similarly, in the latter case the accused on the spur of moment took out dagger and inflicted injuries on deceased's hand and thigh. He did not further repeat the attack although he was placed at his mercy. It was held that the accused had no intention to cause death of the deceased and, therefore, conviction under section 302, P.P. C. Was converted to one under section 326, P.P.C.
15. The circumstances of the present case are distinguishable from those of the cases cited as precedent. In the instant case the appellant had the motive to kill the deceased. He caused as many as 5 incised wounds and stab wounds with a dagger on the person of the deceased including the one on the outer chest below the nipple, although the wound caused on the thigh proved to be fatal as femoral vessels were found completely cut. In Muhammad Siddiq v. The State 1970 SCMR 313 the accused caused injury by 'Chhuri' of 9" blade on victim's thigh resulting in cutting away a large blood vessel and eventually the death of the victim. The defence contention that thigh not being vital part of the body, accused should be given lesser penalty of imprisonment for life was not accepted and it was held that premeditated use of 'Chhuri' by the accused with such force as to cut away large vessel was indicative of his intention to cause injury sufficient to cause death in the ordinary course of nature. It was thus found that the case was covered by third clause of section 300, P.P.C. And that the accused was rightly, sentenced to death. In the present case also the appellant used 'Khanjar' and caused as many as 5 injuries on the person of the deceased including the one on his chest, a vital part of the body, although the injury on the thigh proved to be fatal as it was caused with such a force that the femoral vessels were found completely cut. His act, therefore, clearly amounts to intentional murder.
16. For the foregoing reasons, we uphold the conviction and sentence of the appellant and dismiss his appeal. Death sentence awarded to the appellant is confirmed.