RUSTAM S. SIDHWA, J.--Muhammad Hanif was convicted under section 302, P.P.C. For the murder of Munawwar Hussain, deceased, and sentenced to death, subject to confirmation by this Court, and to pay a fine of Rs.10,000 or in default thereof to undergo rigorous imprisonment for two years.
Out of the fine, if realised, a sum of Rs.7,000 was ordered to be paid to the legal heirs of Munawwar Hussain, deceased, as compensation. The appeal (Criminal Appeal 638 of 1983) preferred by Muhammad Hanif, convict, against his conviction and sentence and the reference (M.R. 8 of 1984) sent up by the trial Judge for the confirmation of the death sentence awarded to the said convict, are both now before us for disposal.
2. Statement Exh.P.K. Of Munawwar Hussain, deceased, in this case was r6corded by Muhammad Aslam S.I. P.W.13 in Civil Hospital, Kasur. According to the statement, Munawwar Hussain, deceased used to work in a powerloom factory and about one year back there had been some dispute between him and Muhammad Hanif, accused, as he had supported Haji Ali Muhammad, whereas Muhammad Hanif, accused, had supported Ashiq Kamboh in the election to a Local Body. In this dispute an altercation had taken place between him and Muhammad Hanif, accused. There was also exchange of abuses and on this he had caused injuries to Muhammad Hanif, accused, with a Chhuri, on which a case was registered against him.
3. On the day of occurrence, i.e. 11-11-1980, at about 6-00 p.m. Munawwar Hussain, deceased, was going to the place of his work. When he reached Kot Sher Baz Khan, Muhammad Hanif, accused, came there, armed with a Chhuri, and stated that today he would teach a lesson to him and immediately inflicted a Chhuri blow on the left side of his abdomen. The blood started oozing out of the injury. On his hue and cry, Arshad son of Chiragh and Pannoo son of Bawa P.Ws. Who were also passing from there, were attracted and rescued him. Muhammad Hanif, accused, ran away from the spot. Arshad and Pannoo P.Ws. Put him on a cot and removed to the hospital.
4. Prior to the recording of the above statement, Munawwar Hussain, deceased, had been medically examined by Dr. Sadiq Hussain Naqvi P.W.12 in the D.H.Q. Hospital, Kasur, who had found a stab wound 10 c.m. x 4 c.m. On the left side of his abdomen, with the small intestine and mesentry protruding out. The above statement of Munawwar Hussain, deceased, was scribed by Muhammad Aslam H.C. P.W.13, after he had secured certificate Exh.P.J. From Dr. Sadiq Hussain Naqvi. P.W.12 that the injured was fit to make statement. After scribing the statement Exh.P.K. At 7-15 p.m., Muhammad Aslam.S.I. P.W.13 sent the same to Police Station City Kasur, where formal F.I.R. Exh.P.A. Was recorded by Muhammad Siddique H.C. P.W.I at 7-20 p.m.
5. The Police Officer then visited the spot and took into possession blood-stained earth vide memo.
Exh.P.E. He then recorded the statements of the witnesses.
6. The same day at 8-45 p.m. Munawwar Hussain, deceased, died in the Mayo Hospital, Lahore.
7. On 12-11-1980 Muhammad Aslam S.I. Reached Mayo Hospital, Lahore, and sent the dead body of the deceased for autopsy.
8. The same day at 2-00 p.m. Dr. Muhammad Tahir Anees P.W.11 performed the autopsy on the dead body of Munawwar Hussain, deceased, and found a stab wound 6 c.m. x 3 c.m. Over left lower part of the abdomen, with intestinal loops protruding from the wound. Mesenteric blood vessels, peritoneum and some intestines were found cut. The injury .Was found sufficient to cause death.
Probable duration between the injury and death was about an hour and that between death and post-mortem examination between 12 to 24 hours.
9. On 13-11-1980 Muhammad Hanif, accused, was arrested.
10. On 20-11-1980 Muhammad Hanif, accused, led to the recovery of blood-stained Chhuri P.4, which was taken into possession vide memo. Exh.P.D., in the presence of Barkat P.W.8, Muhammad Aslam S.I. P.W.13 and Sher Muhammad (given up P.W.).
11. The blood-stained earth recovered from the spot and the blood--stained Chhuri recovered at the instance of Muhammad Hanif, accused, were sent to the office of the Chemical Examiner and the Serologist for detection of the origin of blood, who both opined that the same was of human origin.
12. After completing the necessary investigation, challan against the accused was sent up.
13. At the trial, the prosecution produced Arshad P.W.9 to prove the motive, the said witness and Pannu P.W.10 in proof of the ocular account, Barkat P.W.8 and Muhammad Aslam S.I. P.W.13 in support of the recovery and Dr. Muhammad Tahir Anees P.W.11 and Dr. Sadiq Hussain Naqvi P:W.12 in corroboration of the medical testimony.
14. The accused denied all the accusations that were levelled against him, including the recovery alleged to have been made at his instance. He imputed his false involvement due to enmity. He submitted that Munawwar Hussain, deceased was a Goonda who had enmity with many people and some one had murdered him and since the occurrence was not witnessed by anybody, he had been falsely implicated on account of enmity.
15. The learned trial Judge, relying upon the motive, the ocular account, the recovery and the medical testimony, convicted and sentenced Muhammad Hanif, accused, as stated in para. 1 above.
16. We have heard the arguments of the learned counsel for the appellant and the State and have also perused the record. The evidence as regards motive is furnished by Munawwar Hussain, deceased, himself in his dying declaration Exh.P.K., which stands reproduced in para. 2 above and need not be repeated. Arshad P.W.9. Also confirms the motive story in his examination-in-chief and so does Pannu P.W.10 in his cross--examination. Muhammad Hanif, appellant, in his statement under section 342, Cr.P.C. Denied that he had any enmity with the deceased on the score of election, but admitted that the deceased was a Goonda and he had stabbed him and one Riaz Ahmad, on which a case was registered against him under section 307, P.P.C. In this view of the matter, the evidence on the record sufficiently establishes the motive against the appellant.
17. The ocular account in this case is furnished by Arshad P.W.9 and Pannu P.W.10. The former is a fellow worker with the deceased in the same handloom factory, whereas the latter happens to be the paternal uncle of the deceased. Their version of the occurrence also stands reproduced in para. 2 above and need not be repeated. Both have no enmity with the appellant at all. However, the following submissions have been made by the learned counsel for the appellant; with regard to the said two eye--witnesses. First, that though both the witnesses claimed to have picked up the deceased and placed him on a cot and of having taken him to the hospital and of having their clothes besemeared with blood and having shown them to Muhammad Aslam P.W.13, the said Police Officer denies that blood-stained clothes were shown by the said witnesses to him. Second, that both the witnesses showed callous indifference to the deceased by dumping him in the hospital and then leaving, without bothering to inform the police about the incident, which conduct does not appear to be natural. Third, that the testimony of both the eye-witnesses was discrepant as regards whether the incident took place in front of the factory of Muhammad Hussain or not, or whether the police arrived in the hospital after their departure from the hospital or before, or whether their statement were recorded at the spot or at the police post. With regard to the first submission, the fact whether the blood-stained clothes of the eye--witnesses were shown by them to the Police Officer or whether the Police Officer happened to notice them, is of no consequence, because their presence is also admitted by Munawwar Hussain, deceased, in his dying declaration.
The main question that arises is whether the witnesses were present at the spot at the time of occurrence. If they were so, the fact whether their clothes got besemeared with blood or not, when lifting the deceased and placing him on a cot, is of little consequence. Arshad P.W.9 at the relevant time was going to the factory of Sultan at Raianwala where he was employed and saw the occurrence which took place in front of the factory of Muhammad Hussain. He has, therefore, established his presence. Pannu P.W.10 was coming home after performing his duties, when he saw the occurrence. He was also, therefore, a natural witness. Nothing has been brought on the record to suggest that they were not so present at the place of occurrence, or could not have been present, in the background of the explanation given by them. With regard to the second submission, nothing turns on the conduct of the eye-witnesses, as imputed to them. It is not shown that other relatives had not turned up by the time the said two witnesses had departed from the hospital. The submission, therefore, has no force. With regard to the third submission, the minor discrepancies pointed out do not detract from the veracity of the witnesses, who otherwise were present, as held by us already. Even natural and truthful witnesses make mistakes, whilst furnishing evidence. The minor discrepancies pointed out by the learned counsel for the appellant are not such as to vitiate their testimony. Taking into consideration the testimony as a whole and the surrounding circumstances, we are convinced that both the witnesses were present at the spot and witnessed the occurrence and that their testimony can be accepted, without any further corroboration.
18. Corroboration is furnished by the recovery of the Chhuri P.4 at the instance of the appellant and the medical testimony furnished by Dr. Muhammad Tahir Anees P.W.11 and Dr. Sadiq Hussain Naqvi P.W.12. The evidence of Barkat P.W.8 and Muhammad Aslam S.I. P.W. 13 conclusively establishes the recovery of the blood-stained Chhuri P.4 at the instance of Muhammad Hanif, appellant, on 20- I 1- 1980, within a week from the date of his arrest. Barkat P.W.8 is a resident of Kot Sher Baz Khan, where the recovery was made. Nothing has been brought out on the record from which it can be suggested that the evidence of Barkat P.W.8 and of Muhammad Aslam S.I. P.W.13 is untruthful, or cannot be accepted with any degree of safety. The recovery of the blood-stained Chhuri P.4 at the instance of the appellant, therefore, stands clearly established and acts as a strong piece of evidence against him. The testimony of the two doctors above named clearly establishes that the deceased died of a stab wound of the nature which could have been caused with the Chhuri P.4.
The medical testimony, therefore, also acts as strong corroboration showing the participation of the appellant in the crime in instance.
19. In the instant case Munawwar Hussain, deceased, himself got recorded the statement Exh.P.K., which was taken down by Muhammad Aslam S.I. P.W.13. This was within one hour and fifteen minutes of the occurrence, It is true that at 6-25 p.m. When the deceased was examined by Dr. Sadiq Hussain Naqvi P.W.12 at D.H.Q. Hospital, Kasur, on 11-1-1980, the deceased was in a semi conscious state, but before the statement of the deceased was recorded by the Police Officer at about 7-15 p.m., the same day the same doctor had already issued his certificate Exh.P.J. Stating that the deceased was fit for making a statement. In cross-examination the said doctor denied the fact that the injured was not in a fit condition to make the statement. This obviously refers to the time when he had issued such a certificate. In these circumstances, it cannot be inferred that at the time when the deceased was having his statement recorded, he was semi conscious, or semi unconscious, or that he was not in a proper mental condition to give a coherent statement. We feel that the statement was recorded during the lucid interval when the deceased was in a fit state of mind to make a statement and that though the deceased may have given the statement in a low voice, it was a statement which could be relied upon and accepted by this Court safely.
20. The upshot of the above discussion is that the motive, the ocular account, the recovery, the medical testimony and the dying declaration furnished by the deceased prove the case of the prosecution to the hilt against the appellant. Muhammad Hanif, appellant, therefore, appears to have been properly convicted under section 302, P.P.C.
21. On behalf of the appellant it is suggested that the death sentence should not be imposed, as something apparently triggered the occurrence, which has not been disclosed by the witnesses. In this connection, it is submitted that though the deceased had made an attempt on the life of the appellant and one Riaz, for which a case under section 307, P.P.C. Was still pending against the deceased, yet the appellant had made no attempt in between to square his account. It is submitted that whilst the appellant and the deceased bumped into each other on the day of occurrence, some untoward talk must have taken place, which may have prompted then appellant to take the action, which he did. We are inclined to agree with the submission of the learned counsel for the appellant in this respect. It is true that nothing took place for a year.
Something said or done whilst the deceased and the appellant happened to cross-path, appears to have! Sparked off the present incident; but this is a mystery and the witnesses do not refer to the same. Out of abundant caution we are inclined to grant the lessor penalty to the appellant. We, therefore, alter the sentence from death to imprisonment for life. The fine of Rupees ten thousand (Rs.10,000) imposed by the trial Judge shall, however, stand. Out of the fine, if realised, Rupees seven thousand (Rs.7,000) shall be paid to the legal heirs of Munawwar Hussain, deceased. In case of default in the payment of fine, the appellant shall undergo rigorous imprisonment for two years.
The appellant shall also be granted the benefit of section 382-B, Cr.P.C.
22. For the foregoing reasons, this appeal is partly accepted, in terms of the reduction in the sentence, as stated above. The sentence of death is not confirmed. 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.