' Muhammad Islam (20) son of Khushi Muhammad has been convicted by the learned Sessions Judge, Gujranwala, vide judgment dated 23-4-1985, under section 302, P.P.C. For causing the murder of Muhammad Akram deceased, a young male, and has been sentenced to imprisonment for life and a fine of Rs,5,000 or in default one year's R.I. Additionally he has been directed to pay Rs,50,000 as compensation to the heirs of the deceased or in default to further suffer six months' R.I.
The convict has challenged his conviction and sentence through the present appeal.
2. The occurrence in this case took place on 20-6-1984, at 6-00 p.m. On the road within the area of village Dun at a distance of two miles from Police Station Qila Dedar Singh.
The occurrence was reported to the police by P.W.10 Mst. Karim Bibi, mother of the deceased. She made statement Exh.P.G. On the same day at 7-30 p.m. Before Yousuf Ali Khan S.I. (P.W.12) who recorded the same at bus-stand Qila Dedar Singh where he happened to be present at the relevant time. Formal F.I.R. Exh.P.G./1 was recorded at 7-40 p.m. On the same day at the police station by P.W. 7 Nazir Ahmad, M.H.C.
3. Regarding motive it has been alleged that Mst. Karim Bibi and her son had a dispute relating to a watercourse with Abdul Ghani, the father-in-law of the elder brother of the appellant. Civil litigation about this dispute was admittedly pending before a Civil Judge at Gujranwala. In the F.I.R. It has been alleged that the deceased was murdered on the asking of Abdul Ghani but at the trial it has been stated by Mst. Karim Bibi that the appellant murdered the deceased at the behest of daughter of Abdul Ghani i,e, the sister-in-law of the appellant.
' It has been alleged that three days prior to the occurrence when Muhammad Akram returned from Gujranwala after performing his duties, the appellant stopped the deceased near the Saim Nulla (drain) and told him that his (the deceased) mother had caused lot of annoyance to the appellant's relative Abdul Ghani and that the deceased also used to abuse the appellant and his family and thus he held out a threat to the deceased that he should stop his mother from litigating against Abdul Ghani, failing which e (the deceased) would lose his life.
4. As for the main occurrence, it has been stated that on the fateful day, Mst. Karim Bibi, who had gone to Qila Mar Singh to make purchases, was going back to her village. Her son Muhammad Akram who had come back after performing his duty at Gujranwala also joined her and while they were proceeding at about 6-00 p.m. Towards the village, the appellant happened to be present near the Saim Nullah (drain) Duri. The appellant started abusing them. The deceased asked him not to abuse them whereafter the appellant gave a dagger blow which hit the left flank of the deceased. After receiving this injury he fell down. The appellant thereafter gave a second blow on the right side of the neck and again a third blow on the backside of the neck. Ghulam Rasul (given up) and Muhammad Ismail P.W.11 came there on motor-cycle from Qila Dedar Singh side and they also witnessed the occurrence. They tried to apprehend the appellant but he made good his escape towards village Duni. Muhammad Akram deceased succumbed to the injuries on the spot.
' Mst. Karim Bibi left Ghulam Rasul and Muhammad Ismail to guard the dead body and she herself went to the police station, but Yousuf Ali Khan S.I. Met her at the bus-stand where she got recorded statement Exh.P.G.
5. Autopsy on the dead body of the deceased was performed by P.W.5 Dr. Tanvir Ahmad, the then Medical Officer, D.H.Q. Hospital, Gujranwala, on 21-6- 1984. He found the following injuries on the dead body:-
(1) An incised wound, 2 x 2 c.m. On upper part of right side of neck.
(2) An incised wound 4 x 2 c.m. Verticle in direction on back of neck.
(3) An incised wound 3.5 c.m. x 3 c.m. On posterior axillary line of back chest.
' On exploration, it transpired that injuries Nos. 1 and 2 were muscle deep, while injury No,3 passed through the skin and subcutaneous tissues, cutting the 9th left rib entered the lower lobe of left lung and passing through it, cut the diaphragm on left side. Finally it cut the inferior vena-cava and injured the upper part of abdominal arota. The doctor opined that all the injuries were ante- mortem caused by sharp-edged weapon. Injuries Nos. 1 and 2 were simple while injury No,3 was sufficient to cause death in the ordinary course of nature. According to him, probable time between the injuries and death was immediate
6. The appellant was arrested on 23-6-1984 by Abdul Jabbar S.H.O./Inspector P.W.13. At the time of his arrest, Shirt P.2 and Shalwar P.3, both blood-stained, were got removed from his person and seized vide memo. Exh.P.D. Which has been attested by Muhammad Sharif (given up), Fateh Muhammad P.W.4 and Abdul Jabbar S.H.O. P.W.13. On the same day, the appellant led to the recovery of Chhuri P.1 blood-stained from his cattle shed from underneath the cow-dungs. The Chhuri was taken into possession vide memo. Exh.P.C which has been attested by the aforementioned witnesses. As per contents of Chemical Examiner's report Exh.P.L. And Serologist's report. Exh.P.M., the result in regard to stains of blood on the Chhuri and the aforementioned clothes has been returned in positive.
7. At the trial P.W.10 Mst. Karim Bibi and P.W.11 Muhammad Ismail testified as eye-witnesses and they fully supported the prosecution version as contained in the F.I.R. Ghulam Rasul was, however up.
' P.W.8 Qaiser Mahmood, Ahlmad Civil Court, Gujranwala, appeared to state about the pendency of civil suit titled Muhammad Ashraf etc. v. Abdul Ghani etc. P.W.12 Yousuf Ali, S.I., as already stated, recorded the statement Exh.P.G. Of Mst Karim Bibi at the bus-stand Oila Dedar Singh. After recording the statement he sent the same to the police station for registration of the case and himself went to the spot, where he prepared the inquest report and injury statement and despatched the dead body to the mortuary for post-mortem examination. Subsequently, he handed over the investigation to Abdul Jabbar P.W.13, the then S.I./S.H.O. P.S. Oila Dedar Singh. This witness arrested the appellant on 23-6-1984, effected the recoveries of blood-stained clothes and the blood-stained crime weapon. He completed the investigation and submitted the challan. The rest are, of course, formal witnesses.
8. The appellant claimed to be innocent. In reply to the question 'why this case against you and why the P.Ws. Have deposed against you', he stated:- "Karim Bibi complainant and her son had a long-standing civil and criminal litigation with Abdul Ghani. My brother Yaqoob used to help Abdul Ghani. Muhammad Ismail, Ghulam Rasul P.Ws.
Belong to the party of Karim Bibi and were lending active support to her in the litigation. I was on my way to my Dera and on a chance meeting with Muhammad Akram, was assaulted by him with a Danda. In order to save myself I had a small knife which I used to keep for the daily use. I warded off his blows and during this process, injury was sustained by deceased Muhammad Akram. Karim Bibi, Ismail and Ghulam Rasul P.Ws. Had not witnessed the occurrence. Place of occurrence is not the same which has been shown by the prosecution. The real spot is at a distance of 2-1/2 Acres towards Botala Jhana Singh from where Katcha path leads to my village."
' No evidence, however, has been led by the appellant in his defence except that he made his own statement on oath under section 340, Cr.P.C. Wherein he disclosed that he had already given the detailed statement (reproduced above) on 9-4-1985 and that he had not committed murder of Muhammad Akram deceased. When cross-examined he could not say where that Sota was by which the deceased allegedly gave beating to him and he denied that, in fact, he did not sustain any injury by Sota and that he has introduced the Sota just to save his skin.
9. The learned counsel for the State while supporting the judgment under appeal maintained that in this case single accused is involved and the report was lodged promptly within an hour or so after the occurrence, no injury was found on the person of the appellant and that Muhammad Ismail P.W. Is an independent witness. In the circumstances there was no occasion to doubt the prosecution version and to accept the highly improbable story tailored by the appellant to save his skin.
10. The learned counsel for the appellant, on the other hand, contended that Mst. Karim Bibi, the mother of the deceased, being highly inimical towards the appellant, who claims herself to be a chance witness, does not deserve any credence. Regarding Muhammad Ismail, it has also been urged that he too is a chance witness. His presence at the time of occurrence has not been established. According to the learned counsel both these eye-witnesses were not present at the time of occurrence and if it is so found, the Court is left with the version of the appellant, which in such eventuality has to he accepted in to including the exculpatory part thereof that he caused the death of the deceased in exercise of right of private defense. It has been said on behalf of the appellant that regarding Muhammad Ismail it has come on record that he got lift from Ghulam Rasul on motor-cycle and both of them per chance reached the place of occurrence riding on a motor-cycle being driven by Ghulam Rasul. It has been argued that if it was so, Ghulam Rasul ordinarily would have gone to lodge the report or at least he would have given lift to Mst. Karim Bibi to the police station and she would not have gone on foot as has actually been done in this case.
' It has next been urged that actually the appellant was apprehended on the very day of occurrence and that at that time he had injuries on his person. After the same were healed his formal arrest has been shown to have been effected on 23-6-1984. It has been canvassed that this contention finds support from the fact that clothes recovered from the person of the appellant were found blood-stained. Normally he would not have worn blood-stained clothes for three days.
11. The contentions raised on behalf of the appellant have been thoroughly considered. The occurrence, of course, has not been denied by the appellant. He has, however, pleaded the exercise of right of private defence. His plea has to be accepted if it be found that Mst. Karim Bihi and Muhammad Ismail who have testified at the trial as eye-witnesses were actually not present at the spot and had not witnessed the occurrence. If actually the appellant was injured at the hand of the deceased and even if the injuries h-ad healed during the period of two days, the marks of injuries in all probability could he noticed even on the third day of the occurrence when he was allegedly arrested. It cannot, therefore, he conceived that to suppress the injuries on the person of the appellant, the date of his formal arrest has been delayed, although he was actually arrested earlier. In this case, the recovery of blood-stained clothes from the person of the appellant or the recovery of crime weapon at his behest arc not of much consequence as the occurrence had not been denied by him. The presence of Mst. Karim Bibi on the spot at the time of occurrence is supported by the fact that the report has been lodged promptly after the occurrence. It has come on record that she left the place of occurrence about half an hour after the death of her son. The distance between the place of occurrence and the bus-stand Qila Dedar Singh is said to be two miles. Even if she had left the place of occurrence at 6-30 p.m. She would consume about an hour for covering the journey on foot from he place of occurrence to the bus-stand Qila Dedar Singh.
The formal F.I.R. In this case was recorded soon thereafter at 7-40 p.m. Admittedly the village of Mst.
Karim Bibi is four or more than four miles from Qila Dedar Singh and if she were to come from the village she could not possibly lodge the report within an hour and a half of the occurrence. This much time was required for communicating the incident to her in the village.
Muhammad Ismail P.W. Is not related to the deceased or Mst. Karim Bibi. He has not proved animus against the appellant and his family. There is nothing on the record to suggest that he had any motive to falsely involve the appellant on a capital charge. Injuries noticed by Dr. Tanvir Ahmad on the dead body of the deceased at the time of post-mortem examination support the prosecution version given by Mst. Karim Bihi at the time of recording statement Exh.P.G. Ghulam Rasul was deputed by Mst. Karim Bihi to guard the dead body and in the circumstances she could not utilize his motor-cycle for going to the police station.
12. In the light of the above discussion, there is no substance in the contention that Muhammad Ismail and Mst. Karim Bibi were not present at the time of occurrence.
' Regarding the plea that actually the occurrence took place elsewhere, it may be observed that blood-stained earth has been collected from the place which has been shown as site of occurrence in the F.I.R. And there is nothing on the record to suggest otherwise.
13 For the foregoing discussion it is concluded that prosecution has successfully brought home the guilt to the appellant beyond any reasonable doubt and there is no substance in the plea of defence advanced by the appellant. His conviction under section 302, P.P.C. Is, therefore, upheld.
The sentence awarded to him cannot be considered as harsh in any manner. The same is, therefore, also maintained. The appeal accordingly fails and is