Appellant Muhammad Hafeez, aged 16 years and 10 months at the time of trial, was tried alongwith Muhammad Saleem, for having murdered Muhammad Akhtar on 7-1-1982, at 4 p.m. Near Municipal Octori Post Ferozewala Road, Gujranwala, by Additional Sessions Judge, Vide judgment, dated 28- 11-1983 has been convicted under 302, P.P.C. And sentenced to undergo imprisonment for life, a fine of Rs.10,000 in default whereof to undergo R.I. For one Whole of the fine, on recovery, has been directed to be paid as compensation to the heirs of the deceased. Muhammad Saleem, his co- accused, was acquitted by the same order. The convict has filed appeal.
2. The case was registered at Police Station Satellite Town, Gujranwala, on 7-1-1982, at 6 p.m. On receipt of statement (Exh. P. C.) of Muhammad Arshad (P. W. 6), brother of the deceased, recorded by Kaleem Ahmad, S.I./S.H.O. (P.W. 8), at Civil Hospital, Gujranwala, at 5-40 p.m. On the same day.
3. According to the F.I.R. The occurrence had taken place in the following manner:-- The complainant alongwith his father Taj Din and brothers Akhtar deceased and Afzal, were going to their house after their shop on 7-1-1982. When they reached near Octroi Post, Ferozewala Road, Mohallah Faqirpura, at about 4 p.m.. Hafeez appellant alongwith Saleem (acquitted accused) came from behind on a motor-cycle, which was driven by Saleem. At that time, Akhtar was going ahead of the complainant and his father. Saleem stopped the motor-cycle ahead of Akhtar deceased and both of them came down. Saleem told him (Akhtar) that his last moments have dawn. Saleem took Akhtar into his clasp from behind, Akhtar brought out Chhuri from his fold and gave a blow on the right side of chest of Akhtar, as a result of which, he fell down. P.Ws. Tried to catch them, but both of them succeeded in running away by riding the motor-cycle.
The complainant alongwith his brother Afzal and father Taj Din, started for the hospital alongwith Akhtar injured, but the injured died on the way, as a result of the injury.
About motive, it is stated that, a day preceding the day before the occurrence, Muhammad Saleem (acquitted accused) and Hafeez appellant had come to the shop of the complainant at about Degarwela and had started abusing Akhtar, whereupon Akhtar had come out of the shop and had grappled with Hafeez. They were sep4sated by the complainant and his father. Muhammad Saleem and Hafeez while leaving threatened that they will avenge the insult in a day or two.
The S.I. After recording the statement of Arshad sent the same to the police station for registration of case. He prepared inquest report and despatched the dead body for post-mortem examination:-
3. The post-mortem examination was performed by Dr. Nazir Ahmad (P.W.2) on the following day at 10-30 a.m. The doctor noted the following injuries on the dead body of the deceased:- (1)A stab wound 33 c. m. x 1 c. m. x chest cavity deep, in front of chest upper part right side 6 c.m.
Above the right nipple and 33 c. m. Right to mid line and 5 c.m. Below the right color bone, the direction was from above downwards and inwards.
(2)An incised wound 2 -- c.m. -- c.m. On the palmer aspect of right hand outer part through and through the hand causing 2 x c.m. Wound on the back of right hand between thumb and index finger.
(3)An incised wound 4 x 1 x 5 c.m. On the outer aspect of the left upper arm with cut in the shirt.
(4)An incised wound, 5 x 1 -- x 9 c. m. On the outer aspect of left thigh in its middle, direction was from left to right and slightly forwards. Wound was through and through the front of left thigh causing another wound 2 x 1 cm, in front of left thigh. There were cuts in the Shalwar corresponding to the injury.
According to the opinion of the doctor the deceased had died, as a result of injury No. 1, which was considered sufficient to cause death in the ordinary course of nature.
Probable time between death and injury was opined to be one and a half hours, while probable time between death and post-mortem was opined to be 18 hours.
3. The appellant alongwith his acquitted accused was arrested on 18-1-1982. On the pointing out of the appellant, blood-stained Chhuri (P. 4) was recovered from the shop of the father of his co- accused, which was taken into possession vide memo. Exh.P.E., it was attested by Shaukat Ali (P.W.
5), given up P.W. Ali Nawaz, and Kaleem Ahmad, S.I. (P.W. 8).
After completion of necessary investigation, challan was put to Court.
5. At the trial, prosecution in all produced eight witnesses. Positive reports of the Chemical Examiner (Exhs. P.J. And P. K.) and that of the Serologist (Exhs. P.L. And P.M.) were also tendered in evidence.
These reports pertain to blood-stained earth taken into possession from the spot and Chhuri, alleged to have been recovered at the stance of the appellant.
6. Both the eye-witnesses, who are real brothers of the deceased, have stated at the trial that after having closed their shop they were going to their house, on the day of occurrence, when Hafeez appellant and Muhammad Saleem (acquitted accused) had attacked Akhtar deceased near Octroi Post on Ferozewala Road. According to them, Hafeez and Saleem had come to the spot riding a motor-cycle and before attacking, had blocked the way of Akhtar deceased by stopping the motor-cycle ahead of him, when they (P.Ws.) were following the deceased at some distance.
While assigning specific parts, they stated that Saleem had taken the deceased into his clasp while Hafeez had given four injuries with the Chhuri. They also stated about both the accused having shouted at the deceased that his last day had come.
Muhammad Arshad also narrated the incident which happened two days before the occurrence, in that, he stated that both the accused had come to the shop and had started abusing Akhtar.
Akhtar had grappled with Hafeez, after coming out of the shop, but he and his brother Afzal alongwith their father had intervened and separated them. According to him, Hafeez and Saleem, while going away had threatened him that they will take the revenge of this insult. Muhammad Arshad also stated of having told the police that in addition to the one injury mentioned by him in the F.I.R. Hifeez had given three more injuries. He stated, that in this regard, his supplementary statement was recorded 5/6 mintues after recording of Exh. PC and that this statement was made by him on the asking of the police.
Muhammad Afzal P.W. Admitted in cross-examination that his were Mst. Najma had filed a suit for dissolution of marriage against him, which was decreed in her favour, but he denied that the appellant or his family were helping his were against him. He did not specifically deny the suggestion that the appellant's family was challenged as a second party in proceedings under section 107/151, Cr.P.C. Which were taken against him and his other family members. It has also been stated by Muhammad Afzal in cross-examination that although he had narrated the facts to the S. I. In the hospital on the day of occurrence and made a detailed statement, but the S. I. Did not record his statement on the same day and instead, recorded his statement on the following day.
The fact of his statement having been recorded on the second day of the occurrence, has been admitted by Kaleem Ahmad, S.I. (P.W. 8).
Shaukat Ali (P.W. 5) who had attested the recovery memo (Exh. PF) about the recovery of Chhuri (P.
4) admitted that Ali Nawaz and he resided in a village which was at a distance of 10/I1 miles from the place of occurrence. It has also been admitted by him that he had been visiting the police station in connection with the pursuit of this case and had also been trying to help the police in effecting gay rest of the appellant and his co-accused. It has also been admitted by him that at the lime of recovery of Chhuri, some other persons were also present.
7. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case. He denied that Chhuri (P. 4) was recovered at his stance. In answer to the question, why this case against him, he stated as under:--- "Najma were of Afzal P.W. Filed a suit for dissolution of marriage against her husband and I and my father helped her during these proceedings. In those days security proceedings were instituted against ourselves and the complainant party. Due to this fact Afzal and his family were inimical towards us as to why we helped Mst. Najma. On the night of occurrence some unknown persons injured Akhtar and his dead body was found lying behind the octroi post and complainant party in connivance with the police implicated me in this false case."
(8)Arguments heard. Record perused.
9. There seems to be substance in the argument of the learned counsel for the appellant that Muhammad Afzal P.W. Had not witnessed the occurrence. His statement was admittedly recorded on the following day of the occurrence. According to him, he had accompanied the deceased to the hospital and had met the S.I. On the same day. He has emphatically stated that he had narrated the ocular account to the S.I. But the S.I. Had not recorded his statement on that day and that his statement was recorded on the following day. The S.I. Has supported him, by stating, that Afzal had met him on the day of occurrence in the hospital and had verbally told him about the occurrence. In spite of this, there seems to be no justification, as to why his statement was not recorded by the S.I. On the same day. He recorded the statement of Taj Din, father of the deceased in the hospital, after having prepared the inquest report. He also recorded the statements of Ali Nawaz and Shaukat Ali on the same day at the spot, after visiting the spot. In fact, except the arrest of the appellant, he had completed almost all important aspects, of the investigation on the very first day.
The contention of the learned counsel for the appellant that the statement of the complainant, on the basis' of which F.I.R., been recorded, is contradictory to the medical evidence, stands unrebutted. The factual position is that the complainant had stated in the F.I.R. That the appellant had caused one Chhuri blow on the chest of the deceased, as a result of which he had fallen. He had not mentioned any other injury. Although at the trial he had given the account of other three injuries as well, quite in line with the medical evidence and has also explained that he had mentioned about the three other injuries in his supplementary statement to the S.I. When the latter had inquired from him about this fact. But he has not offered any explanation as to why he had not mentioned this fact while making the initial statement. Now this is not a minor contradiction. The deceased had suffered three other incised injuries and if the complainant had witnessed the occurrence, he could not have made such a big blunder. Were it a case of missing of one injury or if it were a case of difference of seat of some injury one could find some explanation or some excuse could be offered, but here the contradiction is very vast. Instead of mentioning four injuries, he had stated about one injury only having been inflicted. The explanation was given by him, after the S.I.
Had examined the dead body and had noted four injuries on his person. In fact, the S.I. Has stated this fact clearly that he had asked about this contradiction from the complainant and thereafter, he had made the supplementary statement.
From what has been observed above about Muhammad Arshad and Muhammad Afzal P.Ws. On individual count, the other thing which makes their statements doubtful is, emphatic statement of both that at the time of occurrence all the shops around the place of occurrence were closed. Now this is something which does not appeal to reason. The site plan shows that there were different types of shops around the place of occurrence. Existence of some residential houses has been shown in the site plan. There could be some reason to close the shop by one or the other shopkeeper, but there is no reason to believe that all the shops would have been closed by 4 p.m.
No doubt, it was the month of January and it was winter season, but the sun in those days used to set at 5 p. m. The closing of shops an hour before the sunset is something not only unusual but also unbelievable.
Learned counsel for the appellant had raised the contention that the position taken by the eye- witnesses, that they had closed their shop before 4 p. m. And had started towards their house seems to be something exceptional and since no explanation for that has been given their statements should be dubbed as concocted ones, on that count as well.
One other contradiction in the statement of Muhammad Arshad P.W. Is also worth noting and that is that although at the time of lodging of F.I.R. He had stated that Saleem had told the deceased that his last hour had come. At the trial, he had stated that both of them, i.e. The appellant and his acquitted accused, had uttered these words.
The statement of this witness about the motive of the occurrence also does not lead to an inference, that the appellant had any motive to murder the deceased. It has not been explained at any stage, by anyone, as to why he alongwith his co-accused had gone to the shop of the complainant and started abusing Akhtar. Even if that aspect is set apart, then the other thing which requires consideration is, that it was the appellant who behaved in an unwholesome manner. He went to the shop of the deceased and started abusing him. There is no allegation that the deceased had also returned any abuse, although it is stated that the deceased came out of the shop and grappled with Hafeez appellant, but no allegation is levelled of his having done any thing to aggravate the situation. It has also not been explained, as to of what, he had threatened to take revenge of.
For all the reasons enumerated above, I feel inclined to agree with the argument of the learned counsel for the appellant that Arshad and Afzal P.Ws. Had not witnessed the occurrence. The evidence of recovery of Chhuri from the appellant, even if be believed, cannot advance the case of the prosecution in any manner because the evidence by itself is not confidence inspiring. The recovery witness, who has been produced and the one who has been given up, both belonged to a distant village. It is not known how they had come to the place of occurrence at the time of spot inspection. Further the anxiety and interest shown by them in the pursuit of this case by coming to the police station of and on and for making attempts and efforts in getting the accused arrested and then joining the police at the time of arrest and recovery, makes their credentials doubtful.