KHIZAR HAYAT, J.--Muhammad Ashiq son of Rubnawaz, case Sayal, aged 19 years, resident of Basti Sialan, Mohalla Kotla Toley Khan, Multan City, has been convicted under section 302 PPC, by Additional Sessions Judge, Multan, vide judgment, dated 15-12-1985, and sentenced to death and a fine of Rs.10,000 or in default thereof to undergo simple imprisonment for 6 months. The fine, if recovered, is ordered to be paid to the heirs of the deceased as compensation. The convict has filed appeal against his conviction and sentence (Cr.A.No.225/1985) and the trial Court has submitted proceedings of the trial to this Court under section 374 Cr.P.C., for confirming the death sentence awarded to the appellant. Both these matters are being disposed of by this single judgment.
2. The occurrence had taken place at 7.30 p.m., on 20-12-1984 at Chowk Kotla Toley Khan, Multan City, at a distance of 4 furlongs from police station Old Kotwali, wherein Muhammad Ayub, aged 22/23 years, was allegedly murdered by the appellant with a knife. F.I.R. Exh.P.D. Regarding the incident was lodged by Mumtaz Hussain (PW 5) maternal uncle of the deceased, at the police station the same night at 8.30 p.m., recorded by SHO Muhammad Rafiq (PW 8).
3. Motive for the murder as stated in the FIR yeas that the appellant owed a sum of Rs.100 to the deceased. Earlier in the day (20-12-1984) the deceased asked the appellant to return his money whereupon a quarrel took place, therefore, in order to take revenge of the insult the appellant committed murder of the deceased.
4. At the fateful time Mumtaz Hussain, complainant (PW 5) Nazir Ahmad and Hafiz Muhammad Yousaf PWs were chatting in the hotel of Ahmad Hassan (PW 6) after having taken tea. Ahmad Hassan , owner of the hotel, was also present there. At that time Muhammad Ashiq (appellant) was sitting outside the hotel on a bench. In the meantime Muhammad Ayub (deceased) came there for purchasing milk. As soon as the deceased arrived there the appellant stood up saying that he was waiting for him (the deceased) and declaring that he would just give him Rs.100, whipped out a knife from his Dubb. The deceased being frightened tried to run away. The appellant started chasing him. Mumtaz Hussain (PW 5), Ahmad Hassan (PW 6), Nazir Ahmad and Hafiz Muhammad Yousaf P.Ws also ran after the appellant to save the deceased but the appellant overtook the deceased at some distance, gave him a knife blow which landed on the inner side of his leg near the testicles and disappeared from the scene brandishing his knife. The deceased was immediately put in a rickshaw and taken to the hospital by the witnesses but as soon as they reached the hospital the deceased succumbed to his injury. The doctor saw him and declared him dead and advised that the dead body be taken to the place of occurrence. The witnesses brought it back and placed it on the spot. Thereafter Mumtaz Hussain -complainant went to Old Kotwali Police Station and lodged F.I.R. Ex.PD there.
5. SHO Muhammad Rafiq (PW 8) after recording the FIR Ex.PD visited the spot and removed blood- stained earth from there. He prepared injury statement Ex.PC/1 and inquest report Ex-PC of the deceased and sent the dead body under police escort to the mortuary where Dr. Iftikhar Hussain Qureshi (PW 4) at 11 a.m. On 21-12-1984 conducted postmortem examination. The doctor found on the dead body an incised wound 6 c.m. x 2 c.m. x 5 c.m. (depth) on the front of upper part of right thigh, inner portion oblique in direction, 16 c.m. Below the iliac crest, 25 c.m. Above knee joint. There were corresponding cuts on shirt and Chadder. On dissection, under the injury muscles were found partially cut and femoral vessels were completely cut and divided. In the opinion of the doctor the death had occurred due to shock and extensive haemorrhage caused by the injury which was sufficient to cause death in ordinary course of nature. The probable time between injury and death was 30 minutes and between death and post-mortem examination 12 to 24 hours.
The SHO arrested the appellant on 23-12-1984 who got recovered blood-stained knife P.6 at his pointation from a trunk lying in his house on 25-12-1984, which was made into a parcel and secured under memo Exh. PG attested by complainant Mumtaz Hussain (PW 5) and Ahmad Hassan (PW 6). Blood-stained earth removed from the spot and blood-stained knife were sent to the Chemical Examiner for analysis who vide report Exh.PJ opined that the articles were besmeared with blood which, according to Serologist's report Exh.PK was of human origin. After completing the investigation the appellant was challaned to Court for trial.
6. Eight witnesses were examined by the prosecution, at the trial.
Mumtaz Hussain, complainant (PW 5), maternal-uncle of the deceased and Ahmad Hassan (PW 6) whose hotel is situate near the place of occurrence, have supported the prosecution story as narrated above. They also stated about the recovery of blood-stained knife effected from the house of the appellant at his pointation. Mumtaz Hussain in his cross-examination admitted that Nazir Ahmad PW (given up) is his paternal cousin but denied that Hafiz Muhammad Yousaf PW (given up) is his maternal-cousin. He admitted that he lived 100 paces away from the place of occurrence. Ahmad Hassan PW also lived in the same street while the deceased lived in the adjacent house. He expressed his ignorance if the appellant was Dentor by profession. He admitted that near the place of occurrence 6/7 shops were situate belonging to Aziz Kari-Kabab Wala, Muhammad Akram and Muhammad Ramzan etc. But those shops were closed at the time of occurrence. He admitted that he worked as clerk with different advocates for 13/14 years. He denied all knowledge if Muhammad Ayub (deceased) was challaned in different cases under sections 452, P.P.C., 307, P.P.C. Or under section 13 of the Arms Ordinance, or that he was convicted in those cases. He, however, admitted that the amount of Rs.100 was not advanced by the deceased to the appellant in his presence but stated that the quarrel between the deceased and the appellant over demanding back of money had taken place half an hour before the main occurrence in his presence and that none of the parties was injured during that quarrel although they had grappled and exchanged fist blows. He admitted that Ahmad Hassan PW was previously employed as peon in Excise Department and was challaned in two criminal cases under the Arms Ordinance and Excise Act. He denied the suggestion that it was an unwitnessed occurrence or that he came to know about it next morning or that he involved the appellant in this case due to enmity.
7. Ahmad Hassan (PW 6) in his cross-examination admitted that in the years 1980-81 he was challaned under Excise Act and Arms Ordinance, which ended 3/4 years ago. He stated that he did not know who stood surety for him as he was in jail at that time. He said that he did not know if the deceased was convicted and sentenced in any case of stabbing. He stated that the deceased used to visit his hotel 3/4 times in a month for taking milk and that excepting his hotel all the surrounding shops in the Chowks were closed at the time of occurrence. He further stated that they were quite near to the appellant when he inflicted injury to the deceased but they, out of fear, did not catch hold of him because he was armed with knife.
8. The appellant when examined under section 342, Cr.P.C. Denied the allegations and explained that the deceased was a bad character, who was challaned and convicted in criminal cases under section 307, P.P.C. And Arms Ordinance. He further stated that the deceased had many enemies. He was murdered at the dead of night by unknown assailants and that because grand--father of the deceased and father of the complainant were in illegal possession of a Dera situate in Basti Sialan which was previously possessed by Sial-tribe and the deceased's grand-father and his brother had filed a civil suit against Sials wherein his (appellant's) uncle Muhammad Yar appeared as D.W.
Against them, therefore, on account of this enmity he (appellant) had been involved in the case. He produced three witnesses in his defence, namely, Muhammad Nawaz, Head Constable of Old Kotwali (D.W.1), Muhammad Arshad, Naib Moharrir of Police Station Multan (D.W. 2) and Qasim Jafri, a Staff Reporter of Daily Nawa-i-Waqt Multan (D.W. 3). D.W. 1 stated that Muhammad Ayub son of Muhammad Nawaz, case Kharal (the deceased in this case) was named as accused in case F.I.R.
No. 801/81 under section 452/34, P.P.C. (copy Exh. DA.) and also in case F.1.R. No. 73/77 under section 307, P.P.C. And that Muhammad Ayub was convicted by Sardar Muhammad Akram, Magistrate Section 30, to 3 years' R.I. Vide judgment, dated 18-5-1978. D.W. 2 stated that in F.I.R. No. 444, dated 7-10-1982 under section 307/326, P.P.C. (Copy Exh. D.C.) and in case F.I.R. No. 443/82 under Arms Ordinance (Exh. D.D.), Muhammad Ayub son of Muhammad Nawaz case Kharal of Kotla Toley Khan is named as accused. He, however, admitted in cross-examination that in both of these cases Muhammad Ayub accused was acquitted. D.W. 3 is Crimes Reporter in Daily Nawa-i-Waqt Multan who stated that at his report, news item Exh. D.E. Was published in Daily Nawa-I-Waqt Multan in its issue, dated 17-10-1982 but he did not know what fate the said case had ultimately met.
9. Learned trial Court on consideration of the material on record convicted and sentenced the appellant as indicated above, hence this appeal.
10. Learned counsel appearing on behalf of the appellant argued that it was an unwitnessed occurrence. The deceased's relatives learnt about the death of the deceased next day and then after prolonged deliberations the appellant was named in the F.I.R. As accused and consequently the post-mortem examination of the deceased was delayed till 22-12-1984 but in order to conceal it, the post--mortem examination report was tempered with and its date "22-12-1984" was changed into 21-12-1984" by overwriting. The contention has no force. The post-mortem examination report Exh. P.B. Was drawn at 11 a.m. Wherein the duration between death and post- mortem examination is given as 12 to 24 hours which covers the time of death of the deceased, i.e. 7-30 p.m. On 20-12-1984, as alleged by the prosecution. This opinion is not over written. Had the doctor tampered with the `date of examination' at the asking of police subsequently, then he would have also changed the opinion expressed by him regarding the time elapsed between death and post-mortem, but it is not so.
11. It is next contended that Mumtaz Hussain complainant is a close relation of the deceased while Ahmad Hassan P.W. Is his Mohalladar and' friend, therefore, their testimony should not be believed without any independent corroboration. It is further contended that Mumtaz Hussain is not truthful person who being maternal-uncle of the deceased knew that the deceased had been convicted and sentenced in criminal cases but had denied all knowledge about it, therefore, his testimony is not credible. We are not persuaded that merely because Mumtaz Hussain P.W. Denied about conviction of deceased in a criminal case, therefore, his testimony merits rejection which we have found as confidence inspiring. Furthermore, mere relationship of a witness with the deceased is not enough to keep it out of consideration. Ahmad Hassan P.W. Though a Mohalladar of the complainant yet there is nothing on record suggesting that he had special relations with the deceased and his family or any animosity with the appellant making him as an interested witness.
The place of occurrence is not disputed. It is close to the tea-shop of the witness, therefore his presence at the time of occurrence cannot be doubted. It is common knowledge that tea-shops remain open till late at night. The F.I.R. In this case was lodged with promptitude naming the accused and the P.Ws. Therein, which tends 'to show that the occurrence was not unwitnessed one.
The deceased was convicted only in one case under section 307, P.P.C. In the year 1978, which does not mean that the deceased had many enemies. Again, substitution is a rare phenomenon and an accused had to lay very firm foundation and produce convincing evidence to earn benefit of such a plea but the appellant did nothing of the sort. He produced no evidence to prove his alibi.
12. Learned counsel for the appellant lastly contended that the deceased was not a regular visitor of the hotel of Ahmad Hassan P.W. Which means that the occurrence took place when the deceased had per chance met the appellant outside the hotel and demanded his money back from him and during exchange of hot words the appellant caused single blow on upper part of his right thigh a non-vital part of the body. These facts apparently negative intention on the part of the appellant to kill the deceased. Reliance is placed on Muhammad Saleem's case 1983 SCMR 53 and Munawar Hussain's case 1983 SCMR 1165. Contrarily learned Additional Advocate-General stated that since the appellant gave a formidable blow to the deceased with knife which cut his femoral artery resulting in his death, therefore, it spells out appellant's intention to kill the deceased, hence his conviction under section 302, P.P.C. And sentence of death awarded to him is justified. He has placed reliance on Muhammad Siddiq's case 1970 P Cr. L J 585.
13. We have considered the contentions carefully. In Muhammad Siddiq's case, Muhammad Sharif, deceased, had quarreled with Abdul Latif accused. After some time Latif and his brother Muhammad Siddiq accused waylaid and injured the deceased with Chhuris. Muhammad Siddiq accused caused two injuries, one on left thigh causing an incised stab wound 1-1/4" x 1" x femoral vein deep which proved fatal and another incised simple wound over the inner side of right upper arm. According to medical opinion, the death of the deceased occurred due to shock and haemorrhage following injury No. 1 which was sufficient in the ordinary course of nature to cause death. Muhammad Siddiq accused was convicted under section 302, P.P.C. And sentenced to death by the trial Court and upheld by the High Court. Muhammad Siddiq accused then filed appeal in the Supreme Court of Pakistan, where it was argued that the injury was caused on the thigh of the deceased which is not a vital part of the body, therefore, the accused should be given lesser penalty. Their Lordships of Supreme Court repelled the contention observing that the attack was premeditated, and the Chhuri had 9" long blade which was used with considerable force resulting in cutting femoral vein which is a large blood vessel on the thigh, therefore, it was manifest that the appellant had intended to cause an injury which was sufficient to cause death in the ordinary course of nature and consequently conviction and sentence was upheld. In Muhammad Saleem's case 1983 SCMR 53, Shahid (deceased) was secured by Muhammad Aslam accused while other accused persons, Shahid and Munnawar inflicted blows to him with Chhuri and knife, respectively, causing him two incised wounds one on the lateral side of the left knee and the other on right forearm besides one superficial incised abrasion and two contused abrasions one on chin and the other on left knee of the deceased. The accused were convicted under section 302, P.P.C. By the trial Court with an award of imprisonment for life. On appeal the High Court acquitted them. An appeal against acquittal was filed in the Supreme Court of Pakistan.
Their Lordships of the Supreme Court setting aside High Court's order of acquittal observed that the incident was not premeditated but a sudden affair and the injury caused on the knee in the heat of moment on the thigh and the other injury also not being on vital part of the body, indicated absence of the element of intention and convicted the respondents under section 304, Part II, P.P.C., etc. Again in the case of Munawar Hussain 1983 SCMR 1165 the appellant caused an incised wound 3" x 2" x 6" on the outer side of the left thigh of Jaidi (deceased) with a dagger having 8" long blade. The deceased died as a result of shock and haemorrhage. Caused by this injury which was declared as sufficient to cause death in the ordinary course of nature. The appellant was convicted under section 302, P.P.C. By the trial Court and awarded death sentence and the High Court on appeal maintained the conviction but altered the sentence to imprisonment for life. The appellant went in appeal. Leave was granted mainly to consider whether the appellant, a layman could not be saddled with knowledge of location of different arteries or veins in human body and as such by giving a blow on the thigh cutting femoral artery was sufficient to show that he intended to murder the deceased in the meaning of clauses secondly, thirdly or fourthly of section 300, P.P.C. Or not?
Their Lordships surveying upto-date case-law both of Indian and Pakistan jurisdiction on the point, and particularly noticing Muhammad Siddiq's case (relied upon by learned Additional Advocate- General before us) have observed as under:-- "Although the injury caused was of substantial dimension, nonetheless it was not on a vital part of the body. If at all he had the intention to kill, he would not have selected the thigh and ought it to be said that he could not have known that his blow would cause the severance of femoral artery as he was an illiterate. In these circumstances, only knowledge likely to cause death can be imputed, but not the intention to kill. The offence would, therefore, fall under section 304, Part 11 and not under section 302, P.P.C."
Considering the facts of the case in hand we observe that there is no evidence that the appellant knew that the deceased would visit tea shop of Ahmad Hassan P.W. Therefore, in view of the facts that the appellant and the deceased had a chance meeting at the time of occurrence; the attack was not premeditated; the injury was caused on the thigh which is not a vital part of the body; the knife used was not of extraordinary length; the blow was not repeated; and the accused is also a layman, and taking light from the above-cited cases, we find that the intention to kill on the part of the appellant is absent and only knowledge to cause death can be imputed to him. The offence thus committed by him is one of culpable homicide not amounting to murder punishable under Part II of section 304, P.P.C. We, therefore; alter his conviction from section 302, P.P.C. To section 304, Part I1, P.P.C. And sentence him to 10 years' R.I. And a fine of Rs.5,000 or in default to undergo 6 months' R.I. The fine if recovered shall be paid as compensation to the heirs of the deceased. The appeal is partly allowed in the terms indicated above and the reference is rejected. The sentence of death is not confirmed.
N.H.Q./M-1516/L 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.