IJAZ NISAR, J.--Jahangir alias Babbi son of Ahmad Ali was tried on the charge under section 302/34, P.P.C. For having in furtherance of his common intention with Allah Rakha co-accused committed the murder of Arif Hussain deceased (27) on 2-11-1980 at about 8-30 a.m. Near a tea-shop in Mohallah Mianapura, Sialkot. By judgment dated 26-4-1984 the learned Additional Sessions Judge, Sialkot, convicted him under section 302/34, P.P.C. And sentenced him to death and to pay a fine of Rs.5,000 or in default to undergo two years' R.I. He was further directed to pay Rs.10,000 as compensation to the legal heirs of the deceased or in default to suffer six months' R.I.
2. Jahangir appellant has challenged his conviction and sentence while a reference has also been made for the confirmation of his death sentence. Both the matters are being disposed of by this judgment.
It would not be out of place to mention here that Jahangir appellant had absconded after the occurrence and his co-accused Allah Rakha was tried separately in his absence by Syed Abdul Aziz Shah, Additional Sessions Judge, Sialkot who convicted him under section 302/34, P.P.C. And sentenced him to imprisonment for life plus a fine of Rs.5,000 or in default to undergo two years' R.I.
Jahangir appellant was arrested on 2-12-1981 and was put to a separate trial.
3. The prosecution case in brief is that in December, 1977 Jahangir appellant was involved in a murder case. Arif Hussain deceased was a prosecution witness against him in the said case. He was, however, acquitted. The other grievance that the appellant had against the deceased was that he and his co-accused Allah Rakha used to frequently visit one Mst. Balqees Begum, a woman of doubtful antecedents in the Mohallah of the deceased. The latter used to object to it and a day prior to the occurrence an altercation had taken place between the appellant and Allah Rakha accused on one side and Arif Hussain deceased on the other.
On 2-11-1980 at 8-30 a. m. The deceased was present at his Tea Shop, his brother Muhammad Nawaz P.W.11, Muhammad Nawaz son of Fazal Hussain P.W.12 and Muhammad Amin, D.W.1 were also present there. Allah Rakha co-accused came there and called out the deceased and took him along. He had hardly covered a few paces when Jahangir appellant came from the side of Roras Road armed with a dagger. Allah Rakha held the deceased by his arms and Jahangir appellant declared loudly that the deceased may not be spared because he had appeared as a prosecution witness against him in a murder case and had objected to his visit to Mianapura and inflicted a dagger blow on his left shoulder. The deceased tried to run away but Jahangir appellant and his companion Allah Rakha chased him. He fell injured. Jahangir appellant inflicted two more dagger blows on his legs. On the alarm raised by the P.Ws., Jahangir appellant and his companions ran away. The deceased was carried to the hospital but he expired before any medical aid could be given to him. Muhammad Nawaz P.W. Reported the matter to the police by lodging F.I.R. Exh.P.F. On the same day at 9-40 a.m.
After recording the F.I.R. Baqir Hussain, A.S.I., P.W.13 proceeded to the hospital, prepared the inquest report Exh.P.G. And the injury statement Exh.P.H. Of the deceased. He arrested Allah Rakha accused on 8-11-1980. He brought the accused Jahangir to Lahore on 2-12-1981 where he had been arrested by the police in another case.
4. Dr. Capt. Muhammad Aslam Butt conducted the post-mortem examination on the dead body of Arif Hussain deceased on 2-11-1980 and found the following injuries thereon:-
(1) Incised wound 2 -- " x 1 --" x 1" deep over the front and lower part of the left upper arm.
(2) Incised wound 1 -- " x -- " over the middle of right chin.
(3) Incised wound 1 -- " x-- " over the back of left leg upper most part.
On dissection under injury No.l, all the muscles in front of left humerus bone were cut through and through. The breacial artery and veins were cut through and through along with nerves. All the injuries were caused by a sharp-edged weapon. Injury No.l was grievous and dangerous to life while Injuries Nos.2 and 3 were simple in nature. Death was due to shock and haemorrhage resulting from Injury No.l. The probable time between injuries and death was about half to one hour while that between death and post-mortem was about 6 to 9 hours.
5. The appellant when questioned under section 342, Cr.P.C. Denied the prosecution allegations. He admitted that the deceased was a P.W. Against him in the murder case but according to him he had not deposed against him. He attributed the case to enmity stating that the family of the deceased was inimical towards him and had falsely involved him earlier in a murder case and after his acquittal had again involved him. He examined Muhammad Amin, D.W.1 in defence and produced copy of F . I . R . Exh . D . B . And attested copy Exh . D . C . Of the statement of Arif Hussain deceased. Muhammad Amin D.W.1 who was cited as an eye-witness in the F.I.R. Was given up by the prosecution as having been won over by the accused. He stated that Zafar and Arshad, brothers of the appellant had grappled with the deceased and Zafar had inflicted knife injuries on him which proved fatal and that the appellant was not present there at that time.
6. Relying on the ocular testimony of Muhammad Nawaz son of Muhammad Yousaf P.W.11 and Muhammad Nawaz son of Fazal Hussain P.W.12, the motive and the abscondence of the appellant, the trial Court convicted and sentenced the appellant as stated above.
7. It is contended that both the eye-witnesses are interested persons being closely related to the deceased and in the absence of any corroboration from some independent source their evidence should not have been relied upon. It is further stated that Muhammad Amin D.W.1, named as an eye-witness in the F. I. R., had not supported the prosecution and had given altogether different version of the occurrence. It is next submitted- that no legal evidence about the abscondence of the appellant was produced. Lastly, it is contenoed that since the grievous injury was not on a vital part of the body, the appellant cannot be said to have intended to kill the deceased and only .Knowledge likely to cause death could be imputed to him and as such his conviction under section 30?, P.P.C. Was not justified.
No doubt, Muhammad Nawaz son of Muhammad Yousaf, P.W.11, is a real brother of the deceased and Muhammad Nawaz son of Fazal Hussain P.W.12 is married to a cousin of the deceased but as repeatedly held the evidence of related witnesses cannot be discarded merely on the ground of their relationship with the victim. Though rule of caution requires that some corroboration should be sought of such witnesses A but it is not an inflexible rule. The eye-witnesses examined by the prosecution have given cogent explanations for their presence at the spot. They were present at the tea shop of the deceased at the relevant time and according to them were taking tea when Allah Rakha accused called out the deceased and took him along and shortly thereafter his companion Jahangir appellant attacked him with a dagger. Muhammad Nawaz son of Fazal Hussain P.W.12 lived in the close approximity of the tea shop and thus, his presence at the spot was quite natural. B They had no direct motive to falsely implicate the appellant. The F.I.R. Was promptly.
Lodged with all the necessary details. Being a day time occurrence there was no question of any mistaken identity nor could there be any chance of substitution. The eye-witnesses would not have let off the real assailant and substituted the appellant for him. The truthfulness and fairness of the P.Ws. Can be judged by the fact that they have not attributed any injury to Allah Rakha co-accued which they could have easily done, in view of the presence of more than one C injury on the person of the deceased. The fact that the F.I.R. Was promptly lodged rules out the possibility of having made it after deliberations and consultations. The abscondence of the appellant is yet another circumstance against him. His absconsion stands proved by D the evidence of Munawar Ahmad F.C., P.W.4, Muhammad Aslam S.I.I P.W.7 and Baqir Hussain P.W.13. According to Munawar Hussain P.W.4 he had affixed one copy of the proclamation at the house of the appellant and the second in the Court's compound. The appellant was arrested E about 13 months after the occurrence with absolutely no explanation, for his absence for such a long period. Proceedings under section 512, Cr.P.C. Were initiated against him and his trial was separated from Allah Rakha co-accused. The other circumstance which supports the ocular testimony is the motive. It is not denied that the deceased was a witness against the appellant in a murder case. The altercation taking place between the appellant and Arif Hussain deceased a day prior to the occurrence over the latter's visit to Mst. Balqees stands proved by the evidence of Muhammad Nawaz P.W.11. Despite lengthy cross---examination his evidence remains unshattered. The defence version appears to be an afterthought as it was not put to the prosecution witnesses. The evidence of Muhammad Amin D.W.1 does not inspire confidence. He was given up by the prosecution as having been won over by the appellant. There is absolutely no corroboration of his testimony.
9.For the reasons discussed above, the prosecution has succeeded in bringing home guilt to the appellant beyond all shadow of doubt.
10. The most important question that falls for determination is as to what offence in the given circumstances the appellant has committed and whether his conviction under section 302, P.P.C.
Was justified. According to the post-mortem report, out of three injuries found on the body of the deceased two were simple while the third was grievous and dangerous to life. None of the injuries was on the vital part of F the body. The injury that proved fatal was over the front and lower part of the left upper arm while the other injuries were on the right shin and back of left leg. The dimension of the injury proving fatal was 2 -- " x 1 -- " x 1" deep. From the nature and seat of injuries it appears that the appellant did not intend the killing of the deceased G because in that case he would not have selected his arm or legs. We stand fortified in our views by the statement of Dr. Capt.
Muhammad Aslam Butt P.W.1 who stated that people are known to have survived even if their whole of arm was completely amputated.. In these circumstances, only knowledge likely to cause death could be imputed to him but not the intention to kill. The offence would, therefore, fall H under section 304 (II), P.P.C. And not under section 302, P.P.C. The relevant judgments, which may be referred, are Munawar Hussain v. The State 1983 SCMR 1165; M.A. Jalil v. The State PLD 1969 SC 552 and Emmanuel Bahadur Joseph v. Paul Jackson- and another 1981 SCM R 663.
For the reasons mentioned above we would partly allow the appeal, alter the conviction from section 302, P.P.C. To section 304 (II), P.P.C. And sentence Jahangir alias Babbi appellant to ten years R.I. Plus a fine of Rs.10,000 or in default to undergo one year R.I. Further. The fine, if recovered, shall be paid to the heirs of the deceased as compensation. The appellant shall also have the benefit of section 382-B, Cr.P.C.
Though Muhammad Nawaz complainant (brother of the deceased) and his father Muhammad Yousaf have forgiven the appellant and have filed affidavits to this effect, we are not inclined to give him any I further concession firstly because the offence for which he is being convicted is not compoundable under the law and secondly for the motive behind the occurrence, viz. Murdering the deceased because he was a prosecution witness against the appellant in another murder case.
11. The death sentence of Jahangir allas Babbi appellant is not confirmed.