SARDAR MUHAMMAD DOGAR, J.-- Muzammal Iqbal aged 26 years was tried by the Additional Sessions Judge, Rawalpindi for having murdered Muhammad Nawaz on 6-10-1983 at 5-30 p.m. In front of the hotel of Muhammad Bashir P.W.1 in Gujjar Khan Town. Learned trial Judge, vide judgment dated 25-4-1985 convicted him under section 302, P.P.C. And sentenced him to death plus to pay a fine of Rs.10,000 in default whereof to suffer R.I. For two years. The fine, on recovery, has been directed to be paid as compensation to the legal heirs of the deceased.
2. The convict has filed appeal. Learned trial Judge has made reference for confirmation of the death sentence. Both the matters are being disposed of together.
3. F.I.R. Exh. P.A. Was recorded at Police Station Gujjar Khan on 6-10-1983 at 6-15 p.m. By Ghulam Mustafa S.I. P.W.11 on the statement of Muhammad Bashir P.W.1.
According to F.I.R. The complainant was working at his hotel. The appellant who was running a tailoring shop in the same Bazar of the town, came there and asked the complainant as to why he had not sent meals for him two days ago, on being asked. The complainant told him that he could not do so as he had no servant with him at that time. The appellant flared up during the talk and grappled with the complainant. He raised a nose. His brothers Muhammad Rashid P.W. And Muhammad Nawaz deceased came there. They tried to rescue him from the appellant whereupon he (the appellant) brought out a dagger from his fold and gave a blow to Muhammad Nawaz on the abdomen. He fell down. The appellant gave him another blow on the right side of the chest. He then attempted to run away. The complainant and his brother Muhammad Rashid P.W.2 tried to snatch the dagger from him. In the struggle Muhammad Rashid suffered injuries. The appellant also suffered some minor injuries. However, he succeeded in running away. Muhammad Nawaz was removed to the hospital where he died soon.
4. Ghulam Mustafa S.I. P.W.11 after recording the F.I.R. Went to the hospital. He entrusted the dead body to Muhammad A.I and Talib Hussain Constables for post-mortem examination, after preparing injury statement Exh.P.L. And inquest report Exh.P.M. He visited the spot and collected blood--stained earth from there. He recorded the statement of Muhammad Bashir P.W. And sent him for medical examination after preparing the injury statement.
5. The investigation was then taken over by Javed Nisar, Inspector/S.H.O. P.W.12. He arrested the appellant on the same day at 11 p.m. Since he was found injured, he sent him to the hospital for medical examination. The blood-stained Shalwar P.4 and shirt P.5 worn by the appellant were got removed by him on 8-10-1983 and taken into possession vide memo. Exh.P.C. On 10-10-1983 the A appellant led to the recovery of dagger P.6 which was taken into possession vide memo. Exh.P.K.
The challan was submitted to Court after completion of necessary investigation. ,
6. Statements of twelve prosecution witnesses were recorded at the trial. Positive reports about stains of blood, in the earth collected from the spot, the clothes and dagger, from the offices of the Chemical Examiner and the Serologist were also tendered in evidence.
7. Dr. Ghayyur Alam, who had performed the post-mortem on 7-10-1983, appeared as P.W.5. He had noted a stab wound 1" x 1-1/2" x cavity deep on front right portion of chest with a corresponding cut on the shirt and Saluka and a stab wound 2" x 1/2" x cavity deep on front left portion of abdomen 5" left side to umbilicus with corresponding cuts on Qameez and Shalwar. He had also noted an abrasion on left elbow joint, an abrasion on the left knee joint and an abrasion on -the right knee joint.
On internal examination, he had found pleura, right lung, blood vessels, large and small intestines, left kidney, peritoneum and urinary bladder ruptured. Injuries Nos. 1 and 2 were opined to have been caused by a sharp-edged pointed weapon while the other injuries were opined to have been caused by blunt weapon.
Death was opined to have resulted due to shock and haemorrhage resulting from injuries Nos. 1 to
5. Injury No.2 was opined to be sufficient to cause death in the ordinary course of nature. Duration between the injuries and death was opined to be immediate while the time that elapsed between the death and post-mortem was opined to be 15 hours.
8. The same doctor had medically examined Muhammad Rashid P.W. At 9-30 p.m. On 6-10-1983 and had noted an incised wound 1/2" x 1/6" x muscle deep on palmer side of thumb of left hand, an incised wound 1/3" x 1/6" x muscle deep on web between thumb and index finger of left hand, an incised wound 1/3" x 1/6" x muscle deep on the web of thumb and index finger on left hand, an incised wound 1/2 x 1/6" x muscle deep on the web of left hand 1/4" lateral to injury "No.3, an incised wound 1/3" x 1/6" x muscle deep on base index finger of left hand, and an incised wound 2" x 1/6" x muscle deep on palmer side of -index finger of right hand.
All the injuries were opined to have been caused by a sharp-edged weapon within a duration of 4 hours, and were declared to be simple.
He had also examined Muzammal Iqbal (appellant) at 1-30 a.m. And had noted a contused area 1/2" x 1" on index finger of right hand with swelling, another contused area with swelling 1/4" x 3/4" on nose (he was bleeding from the nose) and swelling 2" x 3" on back left side of head. Vide X-ray report nasal bone was found fractured. Middle phalenx of index finger of right hand was also found fractured. Both the injuries were declared grievous.
9. Muhammad Bashir P.W.1, Muhammad Rashid P.W.2 and Ghulam Farid P.W.3 deposed the ocular account. Muhammad Bashir P.W. Repeated the facts given by him in the F.I.R. During cross- examination he admitted that there were shops all around the hotel and that the number of shops in the Bazar would be 50/60. The shop of the appellant, according to him, was 100/150 yards away from the hotel of the complainant. He stated that the accused used to take his meals from his hotel but once or twice a month he would take the meals to his shop as well, and sometimes he would send the meals to his shop through servant. Muhammad Nawaz deceased, according to him was a truck driver while Muhammad Rashid P.W. Was serving in the Pak. Army and had come on vacation.
In answer to another question he stated that two days prior to the occurrence the accused had visited his hotel and had asked him to send meals to his shop but he had told him that as no servant was available, he would not be able to do that on which the accused had gone back to his shop. He conceded that the accused thereafter visited him only at the time of occurrence. He stated that the appellant had brought out Chhuri only when Muhammad Rashid and Muhammad Nawaz had intervened to rescue him from him (the appellant). He admitted that 15/20 persons had gathered at the spot. Muhammad Rashid, according to him had suffered injuries when he had caught the Chhuri in order to snatch the same from the appellant. He stated that Muhammad Rashid P.W. Had given fist blows to the appellant.
10. Muhammad Rashid P.W.2 corroborated the statement made by P.W.1. During cross-examination he admitted that two other persons had accompanied them to the hospital when the deceased was taken there but expressed inability to give their names. He denied the suggestion that he was suppressing their names as they were not supporting the prosecution case. He also denied the suggestion that he had fled away from the spot being aggressor and had joined the investigation on coming to know that his brother had won over favours of the police. In answer to another question he stated that neither he nor Muhammad Nawaz deceased had abused the appellant and so had not caused any annoyance to him. He stated that none of the persons present at the place of occurrence had chased the appellant.
Both P.W.1 and P.W.2 denied the suggestion that Muhammad Nawaz deceased and Muhammad Rashid P.W. Had tried to take away their stitched clothes from the appellant without making payment and that they had attacked him on being objected by him and that the appellant had caused injuries to the deceased and to P.W. Rashid in self-defence. Muhammad Bashir P.W. Himself as well as Muhammad Rashid P.W. Denied the suggestion that Muhammad Bashir had not witnessed the occurrence.
11. Ghulam Farid P.W.3 corroborated the statement made by P.W.1. During cross-examination he however, stated that he had left the spot after the occurrence was over and had appeared before the police on the following day. He stated that he had not been summoned by the police but had appeared of his own to make statement. He stated that he did not know the name of the accused to the occurrence nor did he know the names of the witnesses. According to him the persons present at the spot had given him the names of the accused and the witnesses. He expressed ignorance about the appellant being a tailor-master. He added that when he had seen the appellant for the first time he was not holding any dagger. He denied any relationship or intimacy with the complainant party and also refuted the suggestion that he had come up as a false witness on being approached by the complainant party.
12. Muhammad A.I Khan, Constable P.W.4 verified the fact of Shalwar P:4 and shirt P.5 of the appellant having been taken into possession by the Inspector on 8-10-1983. His statement in this regard has been corroborated by Javed Nisar, S.H.O. P.W.12.
13. Muhammad Din who had prepared the site plan appeared as P.W.7. During cross-examination he admitted that he had only shown the points from where Muhammad Bashir and Muhammad Rashid P.Ws. Had witnessed the occurrence.
14. Muhammad Hussain P.W.8 stated about having witnessed the taking into possession of blood- stained earth from the place of occurrence and of the appellant having led to the recovery of dagger P.6. His statement with regard to the collection of blood, has been corroborated by Ghulam Mustafa, S.I. P.W.11 and by Javed Nisar, Inspector P.W.12, with regard to the recovery of dagger P.6.
15. Ghulam Mustafa P.W. Gave the account of registration of case, recording of statements of the witnesses, despatch of dead body for post-mortem examination and collection of blood-stained earth from the spot. He admitted during cross-examination that he had only shown the points wherefrom Muhammad Rashid and Muhammad Bashir P.Ws. Had witnessed the occurrence.
16. Javed Nisar, S.H.O. P.W.12 who had arrested the appellant and had got removed the blood- stained clothes worn by him on 8-10-1983, explained that the clothes were not removed on the day of arrest as alternative clothes were not available. He also stated about the recovery of dagger at the instance of the appellant on 10-10-1983. During cross-examination he stated that Muzammal Iqbal (appellant) on arrest had taken the plea of self-defence before him. He stated that none from the Bazar had appeared before him to claim to have witnessed the occurrence. Both the Investigating Officers, i.e. P.W.11 and P.W.12 denied that they had twisted the real facts and put up a false version before the Court.
17. The appellant during his statement under section. 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. He made following statement in answer to the question, `why this case against you':- "Actually, I had stitched the clothes of Nawaz deceased. On the day of occurrence they wanted to get the clothes without making the payment of charges, but I refused. Both of them abused me and then Rashid P.W. Grappled with me whereas Nawaz deceased had given me stick blows. In that situation I apprehended danger to my life, picked a simple knife from my shop and gave two blows to Muhammad Nawaz deceased in self-defence. Rashid P.W. Attempted to snatch the knife and received injuries on his hand. I went to the police station myself and gave information of this occurrence to the police, where I was detained. Thereafter, the complainant party and police fabricated a false version and involved me in this case."
He did not produce evidence in defence. However, he made statement on oath, wherein also he took up the same plea. During cross-examination he denied the prosecution version of the occurrence.
18. Learned counsel for the appellant after taking us through the prosecution evidence, criticised the impugned judgment and contended that the police had joined hands with the complainant party in building up a false case by excluding any independent witness from the locality; that Muhammad Bashir P.W. Had not witnessed the occurrence and that no credence can be given to the testimony of Ghulam Farid P.W.3 as neither his name is mentioned m the F.I.R. Nor did he make a coherent statement. Learned counsel contended that the version put forth by the appellant was more probable and nearer the truth.
Lastly, learned counsel submitted that even if conviction of the appellant is maintained under section 302, P.P.C., it would not be a case of extreme penalty of death as there was no previous animosity between the parties and the appellant does not seem to have committed the crime with premeditated mind.
19. Learned counsel for the complainant/State defended the judgment of the trial Court.
20. It is not the case of either party that there was any long-standing enmity between them. In fact, the appellant was a regular customer of the complainant and they had never differed on anything, what to say of quarrelling with each other. The only thing that had happened between the two prior to the occurrence, was that the complainant had failed to send meals to the appellant at his shop, 2 days before the occurrence, but for that the appellant had not made a complaint till he met him at the time of occurrence. Similarly, he had no enmity or differences with the deceased or Muhammad Rashid P.W. Too. In the circumstances, the testimonies of these two witnesses cannot be thrown away unless a strong case for that is made out. The presence of Muhammad Rashid P.W., at the time of occurrence, has not been denied by the appellant while the presence of Muhammad Bashir P.W. Cannot be ruled out as he was running the hotel and the occurrence had started in his hotel and had ended just in front of the same.
21. The appellant has not denied that the deceased did not die of the injuries suffered at his hands.
He did not even deny that Muhammad Rashid P.W. Had suffered injuries at his hands. In fact he put up his own version of the occurrence, saying that Muhammad Rashid P.W. And the deceased had given him beating with a stick when he had objected to their taking away their stitched clothes from his shop and that he had caused injuries to the deceased and Muhammad Rashid P.W. In self-defence. His version has to be examined in juxtaposition with the version put forth by the prosecution in order to reach a correct decision.
22. The spot from where the blood-stained earth was taken into possession, was at a distance of 14 feet from the hotel of Muhammad Bashir complainant. The shop of the appellant was at a distance of 100/150 yards from the place of occurrence. If the occurrence had taken place as stated by the appellant in his shop, the blood would not have been found lying so far away from his shop and so near the hotel of the complainant. The injuries found on his person although are not so significant yet the fact of the nose and middle phalanx of index finger having been found fractured ensures to hold that if he had suffered these injuries in the initial moment of the occurrence, he would not have been in a position to cause two injuries to the deceased who was a healthy young roan and so many injuries to Muhammad Rashid P.W. Also who was a young military-man. Moreover, if the deceased or the witnesses or for that matter anyone of them had been armed with a Soti, the loss on their side would not have been the one, they faced. Except the statement made by the appellant, nothing else has been brought on record which may lend support to the version put forth by him. On the other hand, as mentioned earlier P.Ws. Muhammad Rashid and Muhammad Bashir had no previous animosity with him. Never any incident or occurrence had taken place amongst them. In fact the relations between him and Muhammad Bashir complainant were cordial as he was a regular customer of the latter. In the circumstances, it cannot be assumed that they would have built up a false case against him.
23. For the aforesaid reasons, we are clear in our mind that the version put forth by the appellant does not possess any substance and appears to be an afterthought. The mere fact that the Inspector P.W. Stated that he had taken up that plea, on arrest, cannot give the colour of truthfulness to that. While coming to the conclusion that the prosecution version was worth reliance we have not placed reliance on the testimony of Ghulam Farid P.W.3 as we find substance in the argument of learned counsel for the appellant that his testimony does not inspire confidence on account of his clear admissions that he neither knew the deceased before, nor the witnesses nor the appellant. (He was never asked to identify the accused during identification parade). In fact, he conceded that he did not know the name of anyone there. The fact of his name not having been mentioned in the F.I.R. As an eye-witness, also has weighed with us to come to that conclusion.
24. The prosecution evidence in our assessment has sufficiently brought home the charge of murder against the appellant. His conviction under section 302, P.P.C. Is, therefore, maintained.
However, we find substance in the argument of learned counsel for the appellant that it was not a case of extreme penalty of death.
25. As stated earlier, there was no long-standing enmity between the parties prior to this occurrence. The appellant does not seem to have come to the hotel of the complainant with a premeditated mind to commit the murder. In fact he did not even know that the deceased would come there. He had brought out the dagger only during the occurrence and had then used the same.
He shall also be given benefit of provisions of section 382-B of the Code of Criminal Procedure.
M.Y.H./M-1456/L