A.M.TIWANA, J.-- Muhammad Nawaz alias Najoo appellant was tried by Sardar Ghulam Fareed, Addl. Sessions Judge, Gujranwala, on the charge of committing murder of his co-villager Muhammad Arif and, vide his judgment, dated 22.7.1986, he was convicted under section 302 PPC and sentenced to imprisonment for life and a fine of Rs. 2,000/- or in defauIt to further undergo two years R. I. He was also directed to pay compensation of Rs. 5000/- or in defauIt to undergo one year R. I.
2. The prosecution story is that on 16.2.1986 at 7.00 A. M. When Muhammad Arif(dcccascd) along with his brother Muhammad Aslam (PW.8) and his partner in the business of earth-filling Abdul Qayyum (PW.9) was present near an under-construction road in the area of village Gulabpura, the appellant came there on a cycle and after parking it, took out his dagger, which he had lied up with his shin, and attacked Muhammad Arif(dcccascd), causing him three injuries, one on the left side of chest and two on the left upper arm. Muhammad Aslam and Abdul Qayyum PWs advanced towards the place of occurrence in order to rescue the victim but the appellant ran away with the blood-stained dagger. He, however, in haste left behind his shoes as also his cycle. The injured was removed to the hospital but he died soon after. The matter was reported to the police by Muhammad Aslam PW on whose statement a case was registered against the appellant under Section 302 PPC.
3. The motive for the crime was that 5 or 6 days prior to the day of occurrence, Aftab, a 9th class student in Government High School, Rahwali, had quarrelled with his class-fellow Shakeel. The former reported this incident to his relation Muhammad Arif (deceased) who gave beating to Shakeel, a cousin of the appellant. A day earlier to the occurrence, the appellant in sympathy with his cousin Shakeel, contacted Muhammad Arif (deceased) and protested against his mis- behaviour with his relation which led to an aItercation between them but they were separated by Mahmood Haider and Rehmat Ullah of village Rahwali. The appellant, however, left the place of incident with a threat.
4. After the registration of the ease, S. I. Saadat Ali of Police Station Cantonemcnt, Gujranwala, took up its investigation and after completing the same, submitted the challan to the court concerned.
The appellant was sent up by the Ilaqa Magistrate to the Court of Session at Gujranwala. The case was assigned to the learned Additional Sessions Judge, Gujranwala, who on the commencement of the trial charged the appellant under section 302 PPC. On his pleading not guiIty, the prosecution led evidence against him by producing as many as 11 witnesses. To be a little more precise, H. C.
Muhammad Ashraf (PW. 2), F. C. Riaz Ahmad (PW. 3), H.C. Tahir Mahmood (PWA) and Arif Hussain draftsman (PW. 6) are formal witnesses and their statements need no detailed discussion.
5. Dr. Haji Ataul Mustafa, Medical Officer, Civil Hospital, Gujranwala (PW. 1) had medically examined Muhammad Arif on 16.2.1986 at 8.00 A.M. In the hospital, where he was taken by Mahmood Haider in an injured condition, and found him in an unconscious state having incised wound 2 1/2 x 1 c.m. x going deep on left side of chest 6 c.m. From left nipple with correspondent cuts on Kameez and Sweater and two muscle-deep incised wounds on the left upper arm each having the dimension of 2 c.m. x 1 c.m. According to the witness,all the injuries were caused by a sharp-edged weapon within a short duration. He kept injury No. 1 under observation, while declared injuries No. 2 and 3 as simple vide his medico legal report (Ex. PA) which he proved as such.
6. The injured died in the hospital after about half an hour of his arrival and autopsy on the dead body was conducted by Dr. Naseer Rana, Medical Officer, Civil Hospital, Gujranwala (PW.5). On external examination, he found the same injuries on the dead body which were noticed by his colleague Dr. Haji Ataul Mustafa (PW.l) at the time of medico-legal examination. He, however, found injuries Nos. 2 and 3 as perforating wound. On dissection, he found third rib close to medial junction with carllidgc and sternum, besides plura and right lung, cut under injury No.1, with chest cavity full of blood. Death, in his opinion, occurred due to haemorrhage and shock as a resuIt of injury No.1 which was sufficient in the ordinary course of nature to cause it. He proved his post-mortem report (Ex.PB) and sketch of injuries (Ex. PB/1).
7. Muhammad Asghar (PW.7) had witnessed the recovery of blood-stained dagger P.l at the instance of the appellant, and Rehmat Ullah (PW.10) was a witness of motive. Both of them deposed accordingly.
8. Muhammad Aslam (PW.8)and Abdul Qayyum (PW.9) gave the eye-witness account which finds reflection in the above narration of the prosecution story. It shall be subjeted to detailed appraisal in due course, where necessary.
9. The last witness was S. I. Saadat Ali Khan (PW.Ll) who gave details of the investigation.
10. The learned prosecutor gave up Muhammad Aslam PW son of Amir Khan as having been won over and MaInnood Haider, Amjad Hamayun, Shabhir Ahmad, Haji Muhammad Rafiq and Abdur Rehman as unnecessary. He tendered in evidence the report of chemical examiner (Ex. PK) and that of Serologist (Ex. PL) and closed the prosecution case.
11. The appellant, in his statement recorded under section 342 as also under section 340 Cr. P.C, denied all the incriminating circumstances figuring against him in the prosecution evidence and professed innocence on the plea of self-defence. Explaining his participation in the occurrence, he stated that a day prior to the occurrence his cousin Shakcel and Aftab, a relation of the deceased, both school boys, quarrelled in the school and on the receipt of this information he went to the school and gave beating to Aftab aforesaid. According to him, on the following day when he was going on cycle to the office of M.E.S. In Gujranwala Cantt. To perform his official duty, he was accosted by Muhammad Arif(deceased) and one other near the grave-yard of village Gulabpura and protested to him for giving beating to his relation Aftab. He added that he explained his position to the deceased and his companion but they started abusing him and felling him on the ground, Muhammad Arif(deceased) pressed his throat with his hands shouting at the same time that he shall kill him and he (appellant) in order to save his life took out the knife from his pocket and used it in self-defence which loosened the grip of his assailant on his throat and disentangling himself he ran away towards the village, leaving behind his belongings, including the cycle and his shoes on the spot. He further stated that none of the eye-witnesses produced by the prosecution was present at the time of occurrence and on the death of Muhammad Arif, his relations concocted a false story. He produced his duty certificate (Ex. DA) and closed his defence.
12. On the conclusion of his trial he was convicted and sentenced in the manner aforesaid, against which he has preferred this appeal.
13. It is argued on behalf of the appellant that there are two versions of the incident in this case and the court is to find out as which of them is plausible. According to the learned counsel, the appellant never knew that Muhammad Arif(deceascd) would be present at a particular time and place and since the former was going to his office to attend to his duty, there could be more possibility of latter's being on the look out for his opponent and on his arrival at the place of occurrence, taking up quarrel with him for the incident of boys' fighting in the school a day earlier which is an admitted fact. He submits that if the occurrence had taken place in the manner narrated by the prosecution, then there was sufficient time and opportunity available to Muhammad Arif (deceased) to have run away from the spot when the appellant was advancing towards him in a threatening posture after parking his cycle and taking out dagger straped to his shin and in that event he would not have suffered injuries on the front part of his body or at least he would have moved his hands and arms in order to ward off the knife blows being inflicted by his assailant but the absence of his injuries on the hands and arms indicate that he was not attacked in the manner alleged by the prosecution. It is urged that the appellant being hardly 18 or 19 years old, would not have dared to attack the deceased if the latter was accompanied by his brother Muhammad Aslam complainant,his cousin Abdul Qayyum PW and Amjad Humayun (given up PW)but if all these witnesses, who posed themselves as eye-witnesses, were not present at the time of occurrence, then the prosecution story to that extent had been concocted. Elaborating his arguments on this point he submits that if these three persons were present at the time of occurrence they would have taken the injured to the hospital for treatment but, as it appears from the medico-legal rcport(Ex.PA), it was Mahmood Haider who took him to the hospital. Commenting on another aspect of the matter, he contends that if the appellant had attacked the deceased and ran away after hurriedly inflicting 2 or 3 injuries on his person, there could be no posibility of his taking off his shoes but his shoes were admittedly found lying on the spot and this fact by itself indicates that there was a grappling between the appellant and the deceased and in this process his shoes had fallen off his feet and, after disentangling himself, he had to run away without his shoes.
14. With regard to the medical evidence he argues that Dr. Haji Atta-Ul-Mustafa(PW.l) who medically examined Muhammad Arif(dcccased), did not correctly describe his injuries on the left upper arm because he indicated two separate injuries while in fact it was one injury through and through as, according to Dr. Muhammad Naseer Rana (PW.5), it was a perforating wound wheih could be caused by a single blow. This fact, as per learned counsel, also shows that the eye- witnesses, namely, Muhammad Aslam and Abdul Qayyum PWs were not present at the time of occurrence as they had stated that the appellant had given two blows on the left upper arm of the deceased, while in fact it was only one knife blow which pierced through. With reference to the statement of Abdul Qayyum PW, he submits that this witness, while giving the eye-witness account, stated that the appellant had given 2 or 3 dagger blows to Muhammad Arif(deceased) falling at his chest and back but in fact there was no injury on his back and this inconsistency between his statement and medical evidence also proves his absence from the spot at the time of occurrence.
15. The learned State counsel, on the contrary, is of the view that the occurrence took place in the manner alleged by the prosecution and there could be no possibility of the appellant's having given so forceful knife blows to Muhammad Arif (deceased) while lying prostrate undcr-neath him, particularly when the latter had pressed his throat with his hands, so rigidly because in that event, the appellant must have lost his grip of the handle of the knife. According to him, the fact of appellant's leaving behind his shoes by itself indicated that after the infliction of dagger blows on the victim he was in an extreme haste to disappear from the scene of occurrence and since he wanted to run faster, he purposely took off his shoes while taking to his heels.
16. There is hardly any case in which the prosecution and the defence might not have resorted to exaggeration and suppression of real facts with a view to steal a march over each other. This case is also no exception to this general practice prevalent in our law courts. Where I am inclined to agree with the views of the learned counsel for the appellant that the presence of Muhammad Aslam complainant (PW.8) at the time of occurrence was doubtful for various reasons given by him, I am also not impressed by the version of the occurrence given by him with reference to the statement of the appellant. Had Muhammad Arif (deceased) strangulated the appellant with his hands after felling him down, as stated by the latter, due to lesser space and limited manoeuvrability of his arm and hand in which he was holding the dagger or knife, there could be lesser possibility of his inflicting so forceful blows on the victim as the same were noticed by the medical expert conducting the post-mortem examination.
Neither the chest of the victim could be punctured to that extent nor his right upper arm could be pierced through. These injuries were obviously the resuIt of forceful knife or dagger blows inflicted by the hand having full grip of its handle and the arm having maximum space and manoeuvrability which could only be possible if the appellant had caused these injuries while standing face to face with his victim. This conclusion goes in favour of the prosecution whose version of the occurrence acquires greater plausibility. All the three eye-witnesses, as alleged by the prosecution, might not be present at the time of occurrence but the presence of one of them is admitted impliedly even by the appellant himself in his statement recorded under section 342 and 340 Cr. P.C.
17. The motive as alleged by the prosecution is almost the same as stated by the defence. The only difference between the two versions is that after the admitted quarrel between two school boys, the deceased is alleged to have given beating to the boy related to the appellant a day prior to the day of occurrence, while the appellant claims to have given beating to the boy related to the deceased. In any case, the quarrel between the boys related to the deceased and the appellant gave rise to an annoyance between them which uItimately resuIted in the unfortunate occurrccne.
It is difficuIt to believe that the appellant was going innocently to his office in order to perform his official duty and the deceased intercepting him, triggered off the fight. If he was going to his office in routine then why he was carrying a formidable weapon like a dagger or a big knife and if the deceased was lying in wait for the arrival of his opponent at the place of occurrence with a view to take revenge of the incident of verbal wrangling and grappling taking place a day earlier, then why he was empty-handed. To may mind, what seems to have actually happened was that the deceased was present near the place of occurrence, may be in connection with the earth-filling activity of his relation near the under-construction road, and the appellant, who was proceeding to some destination on his cycle, may be place of duty, also happened to pass that way and seeing each other, they happened to again fell out in the acrimonious back-ground emanating from the incident taking place a day or so earlier and since the appellant was mentally prepared and fully armed, he happened to take undue advantage over his adversary who was empty-handed and was not mentally ready to face such an ugly situation. In that process the appellant did not suffer even a scratch on his body.
18. In these circumstances, the appellant committed murder of Mohammad Arif(dcccascd) and he was rightly convicted and sentenced by the trial court. There is, therefore, no substance in the appeal and the same is dismissed only with this modification that in defauIt of payment of compensation to the legal heirs of the deceased he shall undergo six months R.I, the maximum provided for by section 544-A Cr. P.C, instead of one year R. I.