Mukhtar Ahmed aged 25 years has come up in appeal against his conviction under section 302, P.P.C. For the murder of Muhammad Amjad aged 20 years by learned Sessions Judge, Multan, who vide judgment, dated 26-6-1984 sentenced him to imprisonment for life and fine of Rs.3,000 or in default 3 years' R.I. It was ordered that the entire amount of fine, if recovered, be paid as compensation to heirs of the deceased.
Nazir Ahmad 27 and Abdul Hafeez 32 both brothers and co-accused of Mukhtar Ahmad appellant were, however, acquitted by the same judgment.
Muhammad Afzal complainant filed Criminal Revision No. 64 of 1985 against Nazir Ahmed and Abdul Hafeez acquitted accused seeking remand of their case for fresh trial according to law and Criminal Revision 65 of 1985 against Mukhtar Ahmed appellant for enhancement of his sentence.
Both these revisions were not admitted and only ordered to be heard along with appeal. This judgment will dispose of both these revisions along with the appeal.
2. The prosecution case in brief, is that on 13-12-1982 at about 5 p.m., Muhammad Afzal complainant P.W. 8 and Shaukat Ali P.W. 9 were present at the shop of Saghir Ahmad (given up P.W.). In the meanwhile Muhammad Amjad deceased, a brother of the wife of Afzal complainant came there on a bicycle from city. They talked there for a short while. Saghir Ahmed then closed his shop. Muhammad Amjad deceased proceeded to his house on bicycle followed by Muhammad Afzal complainant, Shaukat Ali and Saghir Ahmad P.Ws. When Muhammad Amjad reached near the Ahata of Mukhtar Ahmed, Abdul Hafeez and Nazir Ahmed accused, suddenly the three accused came out of their Ahata. Mukhtar Ahmad had a Gandasa while Abdul Hafeez and Nazir Ahmed had hatchets. They challenged Muhammad Amjad deceased whereafter Abdul Hafeez gave a hatchet blow on his left shoulder. Muhammad Amjad fell down from the cycle. Nazir Ahmed accused then gave three hatchet blows on the back of Amjad while Mukhtar Ahmad gave repeated Gandasa blows on the forearms of the deceased as a result of which his right hand was completely severed.
The accused then left the spot and entered their Ahata with their respective weapons. The occurrence was witnessed by Muhammad Afzal, Shaukat Ali and Saghir Ahmed. They went near Amjad who was live though unconscious. The severed hand was lying nearby. They all brought Amjad to the shop of Saghir P.W. Where other villagers also assembled. He was taken to Civil Hospital, Mian Channu where he was medically examined and rendered first aid. He was then referred to Nishtar Hospital, Multan.
The motive was stated to be that about one year before this occurrence Mushtaq and two others injured Mukhtar Ahmed accused son of Faqir Muhammad. They were challenged in a case under section 326, P.P.C. Muhammad Amjad deceased had helped Mushtaq etc., accused in their defence to the annoyance of Mukhter Ahmed accused etc. After medical examination of Muhammad Amjad, the first information report Exh. P.K. Was lodged by Afzal P.W. At Police Station Mian Channu on the same day at about 7-30 p.m. Which was recorded by S.I. Falak Sher P.W.
10. The place of occurrence was a street in Chak No. 126/15-L, about 2 miles from the police station.
3. P.W. 1 Dr. Abdul Ghafoor on 13-12-1982 at 7 p.m. Medically examined Muhammad Amjad when he was still alive. He noted the following 7 injuries on his person:- (1)Left forearm along with left hand was missing. Both bones of the arm i.e. Ulna and radius were obliquely cut along with all the structures of the left forearm. The cut was from upward to inward.
(2)Incised wound 4 --" x 2" oblique on the inner side front and back of the right forearm at its middle cutting right ulna bone along with muscles of the right forearm and fracturing right radius bone.
(3)Incised wound 5" x 2" x 2" oblique in direction on the top of the left shoulder in between the neck and left shoulder joint 2" towards inner side of the shoulder.
(4)Incised wound 2" x -- " x 1" on the back of the neck on left side 4" from the left ear.
(5)Incised wound 5 --" x 2" x 2" oblique in direction on the back and middle of the left chest 8" below top of the left shoulder.
(6)Incised wound 5" x 1" x 1 -- " oblique in direction on the back of the right chest 9" below the top of the right shoulder.
(7)Incised wound -- " x -- " x -- " on the back of the right chest 21 above injury No.6.
All these injuries had been caused by sharp-edged weapon and were of within six hours duration.
Injuries 1 and 2 were grievous. Injury No. 7 was simple in nature while the remaining injuries were kept under observation.
Muhammad Amjad died in Nishtar Hospital on 14-12-1982.
The same medical officer on 15-12-1982 at 10 a.m. Performed autopsy on the dead body of Muhammad Amjad. He noted the same injuries on the dead body as given in detail above.
On dissection of the dead body 5th vertebra was found cut under injury No. 5. The death was due to excessive haemorrhage due to injuries Nos. 1 and 2 which "in themselves and collectively with other injuries were sufficient to result in death in the ordinary course of nature". The time between injuries and death was 24 to 36 hours and post-mortem was conducted after about 13 hours and 15 minutes of death.
The police after registration of the case undertook investigation Blood-stained earth was collected from the place of occurrence, vide memo. Exh. P.G. During inspection of spot on 13-12-1982.
Mukhtar Ahmad appellant and his acquitted co-accused Nazir Ahmad were arrested on 16-12- 1982. Abdul Hafeez acquitted accused was arrested on 20-12-1982.
Mukhtar Ahmad accused, on 22-12-1982, while in Police custody got recovered blood-stained Gandasa P.8 vide memo. Exh. P.J. From his Baithak. It was taken in possession by S.I. Falak Sher P.W.
10 in presence of Muhammad Siddique P.W. 7 and Muhammad Mushtaq (given up P.W.). It was found stained with human blood, vide report of Chemical Examiner P.L. And that of Serologist P.M.
The accused were challaned after completion of investigation.
5. The prosecution during the trial examined 10 witnesses in all in, support of its case. Muhammad Afzal P.W. 8 and Shaukat Ali P.W. 9 were examined as eye-witnesses. Muhammad Saghir, another eye-witness named in F.I.R. Was given up as unnecessary. P.W. 5 Muhammad Rafique witnessed recovery of blood-stained earth from the place of occurrence. Muhammad Siddique P.W. 7 supported recovery of Gandasa P. 8 from Mukhtar Ahmad appellant. The medical evidence was furnished by P.W.1 Dr. Abdul Ghafoor as given in detail above. The case was investigated by A.S.I.
Falak Sher P.W.10 (He was S.I. At the time registration of case). The evidence of the rest of the witnesses was formal nature.
The accused when examined under section 342, Cr.P.C. Denied the charge. Mukhtar Ahmad appellant denied the recovery of Gandasa P. 8 at his instance. It was admitted by him that he was injured about one year before this occurrence by Mushtaq etc., accused who were --prosecuted in a case under section 326, P.P.C. However, he dens, that Amjad deceased helped the accused of that case. He attributed this case against him on account of village party faction and did produce any evidence in defence. Nazir and Hafeez accused denied charge against them and pleaded innocence. They examined the witnesses in their defence.
Shakoor Elahi D.W. 1 stated that Nazir Ahmad accused, 13-12-1982 at about 3/4 p.m. Came to him along with a Rehri of cotton for sale. They boat went to cotton factory No. 4 where cotton was sold and payment was received by Nazir Ahmad accused. D.W. 3 Ch. Muhammad Ikram stated that on 13-12-1982 at about 4 p.m. Hafeez accused along with Mian Muhammad Shafi etc. Reached his Dera in Chak No. 124/15-L for settlement of dispute regarding timings departure of buses. They remained with him till about 7 p.m. On date. Ch. Abdul Majid D.S.P. D.W. 2 stated that he had investigation this case on 30-12-1982; that he found Nazir and Hafeez accused innocent and that he had recorded the statement Exh. D.C. Of Falak Sher S.H.O. In the case diary.
The learned trial Judge believed recovery of Gandasa at instance of Mukhtar Ahmad appellant. He also in the later part of r judgment held that motive against Mukhtar Ahmad accused was a: proved. He held that the two eye-witnesses were corroborated by evidence of recovery of Gandasa and as such convicted Mukhtar Ahmad appellant and acquitted his co-accused as stated above.
6. I have gone through the evidence on record with the assistance of learned counsel for the appellant and have also heard the learned counsel appearing on behalf of both the parties at some length.
7. It is contended on behalf of the appellant firstly, that the eye--witnesses were interested; they were chance witnesses; they made improvements in their statements during the trial and that they were not corroborated by any independent corroborating evidence. Secondly, that the motive in this case was not proved .By the prosecution and thirdly, that the recovery of Gandasa P. 8 could not be considered a corroborating evidence against the appellant. The learned counsel appearing on behalf of the complainant and the state controverted these contentions. The learned counsel for the complainant, however, did not press the two criminal revisions filed by the complainant.
8. Muhammad Afzal P.W. 8 is married to Mst. Shahida, a sister of Amjad deceased. Shaukat Ali P.W.
Was a partner of Muhammad Saghir given up P.W. The said Saghir was a first cousion of Bashir Ahmad father of Muhammad Afzal complainant. Shaukat Ali P.W. 9 resided in the Ahata of Saghir given up P.W. The two eye-witnesses are, therefore, connected with the deceased but they had no enmity whatsoever against the appellant to falsely implicate him in this case. As such mere fact that Muhammad Afzal P.W. Is related to the deceased and Shaukat P.W. Was a partner of Saghir P.W. Would not make them interested witnesses A against Mukhtar Ahmad appellant. Muhammad Amjad deceased also had no enmity with Mukhtar Ahmad appellant. It was argued by the learned counsel for the appellant that Amjad deceased was not related to Mushtaq etc., who were prosecuted for causing injuries to Mukhtar accused about one year before the present occurrence and that Mushtaq etc. Accused were acquitted as there was compromise between the parties. This fact is admitted by Muhammad Afzal P.W. In his cross-examination but it is nowhere indicated in evidence that Amjad deceased was also a party to the said compromise. Amjad deceased was a College fellow of Mushtaq accused of 326, P.P.C. Case. He had helped them in the defence of the said criminal case and naturally Mukhtar Ahmad appellant felt annoyed with Amjad deceased and thus had a motive to launch an assault on him. The evidence on motive is supported by Muhammad Afzal P.W. There is nothing to disbelieve him on this point. As stated above the deceased, the eye-witnesses and the accused had absolutely no other enmity of differences between themselves. It was pointed out by Mukhtar appellant that he has been implicated in this case on account of village party faction. However, no such party faction was brought on record or even alleged during recording of evidence of the two eye-witnesses.
The recovery of Gandasa P. 8 was witnessed by Muhammad Siddique P.W. 7 and S.I. Falak Sher P.W.
10. The learned counsel for the appellant challenged this recovery by contending firstly, that Mushtaq, another recovery witness was not examined, secondly, that Muhammad Siddique P.W.
Was inimical towards Mukhtar appellant, thirdly that the recovery was not witnessed by the residents of the locality. Fourthly that it was made 9 days after the occurrence and, therefore, could not be relied upon and finally, that in the remand application, dated 23-12-1982 it was stated that the recovery of crime weapon had yet to be made from the accused which would mean that no recovery was effected on 22-12-1982 from Mukhtar Ahmad appellant. I have considered these contentions minutely. It was not necessary for the prosecution to examine Mushtaq as recovery witness in this case. The recovery was supported by Falak Sher S.I. P.W. 10 and Muhammad Siddique P.W.
7. It was admitted by Muhammad Siddique P.W. In cross-examination that Yaqub, a cousin of the accused had appeared as a prosecution witness against him in a case under section 324, P P.C.1 and that he was convicted in the said case. This witness is not related to the deceased or any of the eve-witnesses. He had no direct enmity with Mukhtar Ahmad appellant. The fact that Yaqub, a cousin of Mukhtar appellant had appeared as a prosecution witness against him would not mean that he had enmity against Mukhtar Ahmad appellant or that he had made a false statement in Court. Besides Muhammad Siddique P.W. The recovery was also witnessed by S.I.
Falak Sher. There nothing to disbelieve him. He is an independent witness having no enmity against the accused or relationship with the complainant party. Reliance is placed on 1980 SCMR 791 at 794 Kamir v. Nazir Ahmad and others. In my view Mukhtar Ahmad appellant got recovered Gandasa P.8 in the presence of these two witnesses. It is correct that the residents of the nearby houses were not made to join the proceedings of recovery of Gandasa but it does not in any way effect the prosecution case because it is well-known that people usually do not core forward to give evidence in such like cases to avoid earning displeasure/ enmity of either of the parties. The recovery was effected after about nine days of the occurrence from the Baithak of the house of the accused. This fact alone would not justify a conclusion that the recovery of Gandasa was fake or fabricated. I have gone through the challan papers of the Is case. Mukhtar Ahmad appellant and his co-accused Nazir Ahmad were arrested on 16-12-1982. They were produced before the Illaqa Magistrate for police remand on 17-12-1982 with a request that ten days personal remand be allowed. It was stated in this application that they had to be interrogated and crime "weapons" had to be recovered. The Magistrate, however, allowed remand till 22-12-1982 with an order that the accused will be produced in Court on 23-12-1982. Both the accused were produced before the Court on 23-12-1982 with a request that further Police remand be allowed till 29-12-1982. It was stated in this application that a crime "weapon" had to be recovered and further investigation is to be held. The Magistrate allowed the remand as prayed for with a direction that the accused Mukhtar Ahmad and Nazir Ahmad be produced before the Court on 30-12-1982. A perusal of these two applications would show that on 17-12-1982 it was stated that-both the accused had to be interrogated and "weapons" A had to be recovered while on 23-12-1982 it was stated in the application that further investigation had to be made and crime "weapon" had to be recovered.
There were two accused with the police and crime weapon had only been recovered from Mukhtar Ahmad while weapon of offence had yet to be recovered from Nazir Ahmad accused. It is correct that the fact of recovery of bandasa was not mentioned in the application, dated 23-12-1982 which should have been done. I have checked- up the case diary of this case regarding 22-12-1982. It supports the recovery of Gandasa P. 8 from Mukhtar Ahmad accused on that date. The appellant was represented by -a counsel during the trial. The two applications for Police remand, dated 17- 12-1982 and 23-12-1982 should have been put to the Investigating Officer when he appeared as witness during tie trial so that he could have explained the alleged disparity in the recovery memo.
And the application, dated 23-12-1982. This was not done. Falak Sher S.1. P.W 10 who had investigated this case could have explained the omission to mention the fact of recovery of Gandasa p. 8 in the remand application, dated 23-12-1982. It was probably for this reason that the two applications were not put to the Investigating officer during cross-examination for his explanation. I am satisfied that the Gandasa P. 8 was recovered on 22-12-1982 at the instance of Mukhtar Ahmad appellant. The Gandasa was found stained with human blood. It, therefore, fully corroborates the eye-witnesses account of airs case.
It is correct that Muhammad Afzal P.W. Was related to the deceased and Shaukat P.W. Was partner of Saghir given up P.W. But as stated above these two witnesses had no enmity to falsely implicate the accused in this case. They cannot be considered as chance witnesses. They have given reasonable and plausible explanatio6 of their presence at the shop of Saghir P.W. Shaukat P.W. Was a partner of Saghir in tractor business. It was, therefore, natural for him to go to the shop of Saghir to inform him of the day's job done by him on that tractor. Muhammad Afzal P.W. Had stated in his statement recorded by the A.S.P. Exh. D.A. That he had gone there to purchase soap and tea.
Though during the trial he disowned that statement. This fact alone is not enough to disbelieve him.
I have noted a few improvements in the statements of the two eye-witnesses. It was stated by- Muhammad Afzal in his statement Exh. D.A. That Hafeez accused had given blow on the back of the deceased; that he had purchased soap and tea but did not pay the price as it was entered in his Khata and that 2/3 other persons also arrived at the place of occurrence Similarly Shaukat P.W. In his statement Exh. D . B . Recorded by the A.S.P. Stated that he and Afzal P.W. Went together to the shop and had gap shape that Hafeez had given two hatchet blows on the back of the deceased while Mukhtar accused gave one hatchet blow to him and that Afzal had made purchases from the shop. These improvements are of minor nature and do not in any way effect the merits of this case or their veracity.' Secondly, I have gone through the statements Exhs. D.A. And D.B. These are not statements under section 161, Cr.P.C. The case was investigated by S.I. Falak Sher P.W.
10. He had recorded detailed statement of these two witnesses under section 161, Cr.P.C. The investigation was verified by the A.S.P. During the verification of investigation by A.S.P. Muhammad Afzal and Shaukat Ali P.Ws. Also appeared before him. The A.S.P. Put a few questions to Muhammad Afzal which were recorded in para. 3 of diary No. 11. He gave answers to those questions. Similarly some questions were put to Shaukat Ali P.W. He gave answers to those questions which were recorded in para. 5 of the same diary. These two paras of case diary No. 11 were recorded on 28-12-1982. 'These were not detailed statements but were only answers to a-few questions put to them by the A.S.P. The statements Exh. D.A. And Exh. D.B. Can, therefore, not be considered as statements recorded under section 161, Cr.P.C. During investigation of the case. These were only parts of the Police diary and inadmissible in evidence. The accused had no, right to 6 a the witnesses confronted with these two documents. Reliance respectfully placed on Subhanuddin v. The State 1976 SCMR 506 and the judgment reported as Muhammad Akbar v. The State 1985 P Cr. L J 338. These witnesses cannot be considered chance witnesses because firstly, their houses were only about 100 to 200 'yards from the place of occurrence in same Chak and secondly .Hey both gave reasonable/ plausible explanation, of their presence at the spot at the time of occurrence. I agree with the learned counsel for the appellant that other persons residing in the nearby houses were not cited or examined as witnesses during the trial. As held above firstly. People do not come forward to give evidence in such like serious cases and: secondly it was not necessary for the prosecution to examine all such' witnesses. The learned counsel pointed out three discrepancies in the statements of the two eye-witnesses in support of his arguments that the witnesses were not reliable. It was stated by P.W. 8 that the accused started giving injuries in their presence; that the deceased did not raise alarm; and that 2/3 other persons reached the spot after the accused had left. On the other hand P.W. 9 Shaukat stated that they saw the occurrence when they took a turn in the street that the deceased raised alarm and that no other person came at the spot. These three discrepancies are minor in nature and cannot be considered as a circumstance to disbelieve the two witnesses.
It may here be stated that the two eye-witnesses were independent! Witnesses. Even if the recovery of Gandasa P. 8 is excluded then also they being independent witnesses required no corroboration in the facts and circumstances of this case.
It was finally argued by the learned counsel' that the two accused were acquitted on the same evidence which benefit should also be extended to Mukhtar Ahmad appellant. The two accused were acquitted firstly, because they were found innocent by the Police and secondly, no crime weapon was recovered from their possession. Their case was, therefore, distinguishable from that of Mukhtar Ahmad appellant and as such it could not, be said that the evidence against him was not divisible.
It was pointed out by the learned counsel that the deceased was lying on the ground with movements of his hands and as such the injuries on his forearms could not have been caused in the manner stated by the two eve-witnesses. A perusal of the medical evidence would show that injury No. 5 on the back and middle of left chest had resulted in cut of vertebra. This means that the spinal cord of Amjad deceased had been injured resulting in failure of movement of his various limbs. Tale argument of learned counsel for the appellant has, therefore, no force. It was half- heartedly argued by the learned counsel that the F.I.R. Was recorded in this case after some preliminary enquiries. He referred to the statement of Falak Sher S.I. Exh. D.C. Recorded by D.W. 3 Ch. Abdul Majid D.S.P. On 30-12-1982. I have gone through this statement. It was not a statement recorded under section 161, Cr. P.C. The D.S.P. Abdul Majid had made certain inquiries from the Investigating Officer during verification of investigation by him. Falak Sher S.I. However, denied having made this statement. He only admitted to have stated that two accused were innocent and that only Mukhtar Ahmad was the culprit. I denied to have made any other statement before the D.S.P. The D.S.P. Ch. Abdul Majid D.W. 2 did not in his evidence state that Exh. D.C. Was word by word statement of Falak Sher or that he correctly recorded it without adding to or omitting from what was stated by Falak Sher S.H.O. No reliance can, therefore, be placed on the alleged statement Exh.
D.C.
9. In view of the above discussion I find no merit in this appeal which is accordingly dismissed. The conviction and sentence of Mukhtar Ahmad appellant is maintained.
10. In view of the above decision in appeal the two criminal revisions are dismissed in limine.