Mumtaz Hussain aged 17/18 years was tried alongwith his brother Muhammad Nawaz by the Additional Sessions Judge, Jhang, for having murdered Iftikhar Hussain Kausar, aged 13/14 years on 23-2-1984 at 9-00 a.m. Near the Town Committee, Shorkot at a distance of 1-1/2 furlongs from Police Station Shorkot. Learned trial Judge convicted Mumtaz Hussain under section 302, P.P.C. And sentenced him to imprisonment for life plus a fine of Rs.10,000 in default whereof to suffer R.I. For one year. The fine, on recovery, has been directed to be paid as compensation to the father of the deceased. Muhammad Nawaz was acquitted vide same judgment.
2. The convict has filed appeal. The complainant has filed criminal revision seeking enhancement of sentence of the appellant from imprisonment for life to death, and setting aside the acquittal of Muhammad Nawaz. Both the matters are being disposed of together.
3. F.I.R. Exh. P.C. Was registered at the police station by Zahur Ahmad, M.H.C., P.W.9 on the statement of Fateh Muhammad PWA father of the deceased at 9 .30 a.m. On 23-2-1984.
According to F.I.R. The complainant alongwith his deceased son was going to old bus-stand to open his shop at 9-00 a.m. On 23-2-1984. When they reached near new Bus-stand they came across Sh. Nur Muhammad and Muhammad Nawaz. The complainant started talking to them. The deceased continued walking. When the deceased reached near the Town Committee, the appellant accompanied by his acquitted brother Muhammad Nawaz appeared in front of him, coming out of the hiding, near culvert close to the Town Committee. Mumtaz Hussain raised a Lalkara that `Iftikhar Hussain shall not be spared today'. The complainant accompanied by Nur Muhammad and his brother Muhammad Nawaz rushed to the spot hearing the noise raised by his son. Muhammad Nawaz (acquitted accused) caught the deceased by the arms while Mumtaz Hussain appellant gave him a knife blow on the abdomen, as a result of which he fell down.
Thereafter, Mumtaz Hussain gave him more injuries on the chest and the abdominal area. After inflicting injuries the accused ran away. Iftikhar Hussain Kausar died on the spot.
4. Motive for the occurrence given therein is that Mumtaz Hussain had abducted Iftikhar Hussain 4/5 months prior to the occurrence. On his coming back the complainant topped him mixing up with Mumtaz Hussain appellant on account of which he (Mumtaz Hussain) felt aggrieved.
5. Zahur Ahmad, M.H.C. After recording the F.I.R. Reached the spot. He despatched the dead body for post-mortem examination, after preparing injury statement Exh.P.G. And inquest report Exh. P.H.
Blood-stained earth was also collected by him from the spot. (The memo. Pertaining to the taking into possession blood-stained earth is not on the file). Thereafter the investigation was taken over by Amanullah Khan Niazi, D.S.P. Who had come to the spot. The D.S.P. Handed over the investigation on the same day to Malik Allah Bakhsh, S.H.O. P.W.10 on. His arrival to the spot. Muhammad Nawaz (acquitted accused) appeared before him on the same day. Shalwar P.1 and shirt P.2 worn by him were got removed by the S.H.O. And taken into possession vide memo. Exh.P.D. (He was, however, not arrested on that day).
Mumtaz Hussain appellant was arrested by him the same day. Blood--stained Shalwar P.3, shirt P.4 and jacket P.5 worn by him were got removed by the S.H.O. And taken into possession vide memo.
Exh.P.E. Separate parcels pertaining to the two accused were deposited in the Malkhana.
On the following day, i.e. 24-2-1984 Mumtaz Hussain led to the recovery of blood-stained knife P.6 from his house which was taken into possession vide Exh.P.F. Muhammad Nawaz was formally arrested on 16-3-1984. After completion of necessary investigation the challan was submitted to Court.
6. Statements of ten prosecution witnesses were recorded at the trial.
Dr. Abdur Razzaq, S.M.O. Who had performed autopsy on 23-2-1984 at 2-00 p.m. Appeared as P.W.1.
He had noted following injuries on the body of the deceased:- (1)A stab wound 1-1/2 c.m. x 1/2 c.m. x 2 c.m. On the back of upper part of left shoulder passing downward and medially.
(2)A stab wound 2 c.m. x 3/4 c.m. x 6 c.m. Situated on the back of upper part of the chest below the level of 7th vervical vertebra and was passing between the disc of 7th and 1st thoroach vertebra and the joint space was wide open and the wound was passing from the right towards the left.
There was a cut on the 7th vervical vertebra.
(3)An incised wound 5 c.m. x 2 c.m. x bone deep on the right tempoparital of skull above the right ear pinna.
(4)A stab wound 1-1/2 c.m. x 1 c.m. x 2.5 c.m. On the front of right side of the chest at the level of right nipple on its medial side.
(5)A stab wound 2 c.m. x 1 c.m. x passing the chest from above downward and medial into right chest cavity perforation inter-costal space on the front and there was perforation of right lung and perforation of paricardium and right chest cavity containing 1,000 c.c. Of the blood.
(6)A stab wound 2 c.m. x 1 c.m. On the front of right side of lower part of the chest 10 c.m. Below the right nipple and was passing from the chest into the abdomen. There was also cut on the liver and the blood was clotted into the abdomen under the injury.
(7)A stab wound 2 c.m. x 1 c.m. On the front of right side of the abdomen 3 c.m. Above the umbilicus and the wound was directed obliquely from below upward. There was cutting of the omentum and stomach perforated and the abdomen was full of blood.
(8)A stab wound 2 c.m. 1 c.m. Situated on the front of the left side of the abdomen 3 c.m. Below the umbilicus. The wound was passing from the front into the abdominal cavity and there was a perforation of small intestine.
(9)A stab wound 3 c.m. x 1 c.m. Situated on the front of lower part of right side of the abdomen and the small intestine was lying outside (loop). There was perforation of small intestines at three.
Places and the pervis was full of blood. There was also clotted blood into the mesentary left side.
(10) An abrasion 1-l/2 c.m. x 1 c.m. On the back and lateral aspect of chest 14 c.m. Below the lower and of scapula.
(11) An abrasion 1 c.m. x 1/4 c.m. On the back and lower part of right side of the chest 1 c.m. Away from the vertebral line.
(12) An incised wound 3 c.m. x 2 c.m. x 1 c.m. On the back of right upper arm 5 c.m. Above the right elbow.
(13) An incised wound 1.5 c.m. x 0.5 c.m. x 1 c.m. On the back of right forearm 1 c.m. Below the right elbow joint.
On internal examination, right pleurae was found ruptured, right lung, pericardium, peritoneum, stomach and small intestines were found perforated and liver was found cut. The stomach contained 8 ounces of undigested food.
Death was opined to have resulted from shock and haemorrhage caused by injuries Nos. 2, 5, 6, 7, 8 and 9. Except injuries Nos. 10 and 11, which were opined to have been caused by blunt weapon, the rest were opined to have been caused by a sharp-edged pointed weapon.
During cross-examination, the doctor stated that the deceased might have survived for about 15 minutes after receipt of injuries.
7. The ocular account was deposed to by Fateh Muhammad complainant (P.W.4) and Nur Muhammad (P.W.5).
Fateh Muhammad P.W. Is father of the deceased, while Nur Muhammad P.W. Is uncle of the complainant. Nawaz, the third witness mentioned in the F.I.R. Was given up as unnecessary., Fateh Muhammad P.W. Repeated the facts given by him in the F.I.R. The only improvement he made in Exh.P.C. Is that he gave the period of abduction of the deceased by the appellant prior to the occurrence to be 24/25 days and also stated that Mumtaz Hussain (appellant) was of bad character. He gave the distance of the residence of Nawaz P.W. From the place of occurrence to be 6 miles. The house of Nur Muhammad P.W. According to him was situated at a distance of 2 furlongs from the place of occurrence.
He admitted that there were a number of shops on both sides of the road from Sabir Chowk to new Bus-stand, which was near the place of occurrence. The Sub-Divisional Courts, the Court of the Tehsildar and other offices according to him, were also situated near the place of occurrence. He disclosed that he was a partner in the cloth shop being run by his brother. The shop located at the bus---stand, according to him, pertained to spare parts. The cloth shop, he conceded, was near his house. He stated that Nur Muhammad P.W. Had told him that he was going to purchase a buffalo. He denied the suggestion that there was no cattle fair on the day of occurrence. According to him, Muhammad Nawaz (acquitted accused) had released the hands of the deceased on infliction of the first injury by the appellant and then had remained standing only. He denied the suggestion that Mumtaz Hussain had not abducted his son and that he had concocted a false story in that regard, for setting up motive. He gave the distance of his house from the house of the appellant to be 2 furlongs. He denied the suggestion that he was married 22/23 years prior to the occurrence. He stated that he was married 15 years prior to the occurrence. He denied the suggestion that the deceased was 18/20 years at the time of occurrence. The suggestion that the deceased had committed sodomy with many boys of the Mohallah and had abducted Abdur Rehman son of Bakriwala or that Bakriwala had threatened him (the deceased) to be killed or that Abdur Rehman had left his shop and disappeared after the occurrence, was denied by him. He denied the suggestion that Nawaz had forcibly taken the possession of the house of his partner Muhammad Aslam and that they had to get the possession of that house on payment of Rs.10,000.
The suggestion that his nephew Ijaz had borrowed a sum of Rs.44,000 from Nawaz and that a fight had taken place on Ijaz's refusal to return the amount, was also denied by him. He denied the suggestion that he had not witnessed the occurrence.
Nur Muhammad P.W.5 corroborated the statement made by P.W.4. He explained that he had met the complainant and the deceased near the place of occurrence while going to cattle fair to purchase a buffalo. He admitted that he had not made any effort to catch the accused. He denied the suggestion that neither he nor the complainant had witnessed the-occurrence and that they had come to know of the occurrence through younger brother of the deceased.
Muhammad Ashraf P.W.7 deposed about having witnessed the taking into possession of blood- stained earth from the spot, the clothes of the two accused and recovery of knife P.6, at the instance of the appellant. He admitted that he was uncle of the complainant. He disclosed that he was a teacher in village Bhangu, which was at a distance of 1-1/2 miles from Shorkot City. He explained that he was on a day's leave because of illness of his wife on the day of occurrence, and that he had reached the spot on coming to know of the occurrence at 10-00 a.m. He disclosed that the day of recovery of knife was a holiday. He admitted that some other persons had also collected there and had witnessed the recovery but none of them had signed. He conceded that father and other family members of the appellant resided in the house wherefrom knife P.6 was recovered. He gave out that the appellant was interrogated in his presence about the crime weapon. His testimony with regard to the recovery of knife P.6 has been corroborated by Malik Allah Bakhsh, Inspector, P.W.10.
Zahoor Ahmad, M.H.C. Who had registered the case and inspected the spot, appeared as P.W.9. He stated about having taken into possession blood-stained earth from the spot' and of having despatched the dead body to the mortuary after preparing the inquest report and injury statement. He denied the suggestion that he had incorporated the story of motive at some later date.
Malik Allah Bakhsh, Inspector, who appeared as P.W.10, stated about having taken into possession clothes worn by Nawaz on 23-2-1984 and of having arrested Mumtaz appellant on the same day, and of having taken into possession blood-stained clothes worn by him. He also stated about the recovery of knife P.6 at the instance of the appellant. He gave. Out that Nawaz was not arrested by him on 23-2-1984 but was arrested later, on 16-3-1984. During the cross-examination he admitted that memos. Exhs.P.D. And P.E. Pertaining to the clothes of Mumtaz appellant and Nawaz accused respectively were not written by him. He denied the suggestion that knife P.6 was not recovered at the instance of the appellant but in fact was planted on him. The suggestion that he had falsely challaned the accused was also denied by him.
8. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole. According to him the P.Ws. Had deposed against him due to enmity. He stated as follows in answer to the question `why this case against you':-- "The deceased was vagabond. He had abducted boys and had committed sodomy with them. So many persons were after his life and somebody had killed him and occurrence was not witnessed by anybody. Fateh Muhammad P.W. And his relatives nourished a grudge against me and my father over the dispute of property and money and I have been falsely involved due to this enmity."
He declined to make statement on oath under section 340(2), Cr.P.C. And did not produce any defence. Similar position was taken by the acquitted accused.
9. Learned counsel for the appellant after taking me through the evidence, criticised the impugned judgment and contended that both the eye-witnesses in this case were related and interested; that the occurrence had taken place in a public place where quite a number of persons must have seen the occurrence but in spite of that neither anybody was named nor produced at the trial; that the evidence of recovery of knife P.6 was not worth reliance and so, is of little value for corroborating the ocular account. Learned counsel submitted that the knife which was said to have been recovered on 24-2-1984 was not sent to the office of the Chemical Examiner.-till 14-3-1985 and so no importance should be given to the opinion of the Chemical Examiner and that of the Serologist about the stains of human blood.
Learned counsel further submitted that the motive set up by the prosecution appears to be highly unbelievable.
10. Learned counsel for the State/complainant defended the judgment of the trial Court and submitted that the matter was reported promptly and the witnesses had not tried to take any undue advantage of the occurrence and had not made any effort to lay a wide not to involve their enemies, if any.
11. The occurrence, no doubt, had taken place at a time and place where some other persons might have also witnessed the same but mere non-production of such persons is no proof of the fact that the occurrence had not taken place as narrated by the two eye-witnesses. It was never the case of the accused that some persons had seen the occurrence and they had appeared before the authorities to say that the F.I.R. Was lodged incorrectly. The persons who did not come up for the prosecution also did not come up for the defence to negate the version. General apathy of people in showing civic sense in this regard is now widely known. The testimonies of the eye- witnesses, therefore, cannot be thrown away merely on account of their having not made other persons also as witnesses. The case has to be judged, therefore, on the intrinsic value of the statements made by the witnesses.
12. The deceased in this case was found to have suffered 13 injuries. The complainant who had named the elder brother of the appellant also to have participated in the occurrence, did not assign him any role of significant importance, i.e. Of having caused injuries to the deceased or of even being armed. If he had to come up with a false and concocted story, he would have definitely apportioned some of the injuries to Nawaz also. Had the fact of the deceased a having other enemies also been correct, the complainant would not have spared them. In the presence of a large number of injuries on the body of the deceased, he could have involved a sizable number of other persons also alongwith the accused named in the F.I.R. Even otherwise the suggestion of the defence that the deceased had created many enemies because of being sodomite, seems to be an absolute exaggeration. The complainant had given his age to be 13/14 years at the time of occurrence. The same opinion about his age was expressed by Dr. Abdur Razzaq P.W.1 who had performed the autopsy. Such an allegation against a boy of that age can easily be termed as wild.
13. The occurrence had taken place at 9-00 a.m. It was reported at 9-30 am at the police station.
The prompt lodging of F.I.R. Also excludes all possibilities of fabricating a false case against innocent persons by naming false witnesses. Reporting of the occurrence promptly is also borne out from the fact that the autopsy on the dead body of the deceased was also performed on the same day at 2-00 p.m. If the occurrence had been reported late, the autopsy could not have been performed by that time.
14. The house of Nur Muhammad P.W. Was situated only at a distance of 2 furlongs from the place of occurrence. His presence near the place of occurrence, therefore, cannot be doubted for any reason. Moreover, he has given explanation also for that, which has been corroborated by P.W.4.
The presence of P.WA at the spot can also not be doubted as he has not only given plausible explanation for that but also stood the test of cross-examination, which was directed to dislodge his claim of being present at the spot.
15. The contention of learned counsel for the appellant that motive part of the prosecution case was not believable as the case of abduction was neither reported by the complainant at the time of abduction nor any complaint was lodged after the return of the deceased, in my assessment does not possess much weight, because the complainant might not have reported the matter to the police either out of frustration or with a view to have his son returned through good offices. As noted earlier, the occurrence was reported within half an hour. He could not have concocted such a story with such a state of mind in so short a time.
16. The evidence of recovery of blood-stained knife at the instance of the appellant also does not appear to be improbable, in that, the Inspector during whose custody the appellant had led to the recovery of knife, had not only denied the suggestion that the knife was planted on him, the other important aspect is that the conduct of the Inspector in the matter of investigation does not appear to be questionable. He had not arrested Nawaz accused who was named in the f F.I.R. In spite of the fact that he was available to him on the first day of the t occurrence. He postponed his arrest for about 25 days so as to be sure about his It E participation in the crime before taking him into custody. Such a person would not have falsely planted the weapon of offence on the other brother, only to strengthen the case against him. The evidence of recovery of knife, therefore, deposed to by P.W.7 and P.W.10 cannot be disregarded.
The ocular account in this case not only inspires confidence but has also been corroborated by the motive and the evidence of recovery of weapon of offence at the instance of the appellant. The appeal filed by the appellant in the circumstances, appears to be without any merit. The same is dismissed.
17. Learned counsel for the petitioner has not laid much stress on the prayer for enhancement of sentence of imprisonment for life of Mumtaz appellant to death. Even otherwise the reasoning given by learned trial Judge for awarding him lesser penalty does not call for any interference.
18. Learned counsel for the petitioner in criminal revision has not been able) to show any good ground to set aside the acquittal of Muhammad Nawaz respondent. He was not found armed at the time of occurrence. His clothes taken into possession were not found stained with blood.
Nothing else was recovered from him, no motive was alleged against him. The prayer made in the revision petition for setting aside his acquittal, therefore, is without any merit. The prayer made for enhancement of sentence of Mumtaz appellant has not been pressed.
The revision petition, therefore, stands dismissed.
S.A./M-1450/L