Saeed Akbar (24) son of Nur Akbar, Muhammad Nasir (15) son of Ghulam Muhammad and Muhammad Aslam (24) son of Muhammad Zaman, residents of Bhakkar were tried by the Sessions Judge, Bhakkar, under section 302/34 P.P.C. On the allegation that on 9th January 1983 at 11/12 noon they committed the murder of Muhammad Ashraf son of Muhammad Akram near Government High School, Bhakkar, in furtherance of their common intention. By judgment dated 5-6-1984, they were convicted on the said charge and sentenced to imprisonment for life. They were also ordered to pay Rs. 7,000 each or in default in the payment thereof to undergo further R.I. For five years. The amount, if recovered, was ordered to be paid to the legal heirs of the deceased as compensation.
The convicts have challenged their conviction and sentence through separate appeals and Zia Ullah P.W. Has filed Criminal Revision No. 785 of 1984 for enhancement of their sentence to death.
The appeals and the revision petition shall be disposed of through this judgment.
2. The brief facts of the prosecution case are that on 9-1-1983 Muhammad Ashraf deceased was present at the house of Abdur Rauf near Government High School, Bhakkar, when Muhammad Aslam accused armed with a .12 bore pistol, Nasir accused armed with a Chhuri and Saeed Akbar empty-handed came there. Muhammad Aslam accused took out his pistol and raised a Lalkara that Muhammad Ashral would not be spared, Saeed Akbar accused held his hands and Nasir accused inflicted a Chhuri blow on his abdomen, as a result of which he fell down. The accused persons then ran away from the spot. The occurrence was witnessed by Abdur Rauf, Muhammad Zia Ullah PWs and Abdur Rehman (not produced).
It is alleged that two days earlier Muhammad Ashraf deceased had abused Nasir accused and for that reason the accused persons attacked and injured him.
Muhammad Ashraf deceased reported the occurrence to Muhammad Zaman Khan, A.S.I., P.S. City Bhakkar, at the Civil Hospital at 12.12 noon vide his statement Ex. PC, incorporating the above facts.
On the basis of this statement, formal F.I.R. (Ex. PC/1) was recorded at Police Station Sadar Bhakkar at 12.22 p.m.
3. After recording the statement Ex. PC, Muhammad Zaman ASI prepared injury-statement (Ex.PK) of Muhammad Ashraf injured. He contacted D.C. Office, Bhakkar, on telephone for "arranging the dying declaration." Thereafter, a Magistrate came to the hospital and he made application Ex. PD before him for recording the dying declaration. The Magistrate recorded the dying declaration Ex.
PD/3. The A.S.I. Then reached the spot and secured some blood-stained earth vide memo. Ex. PE.
Muhammad Ashraf succumbed to his injuries at 2 a.m. On 10-1-1983. On receipt of Ruqqa (Ex. PK) from the doctor, the A.S.I. Reached the hospital and prepared injury-statement (Ex.PL) and inquest- report (Ex. PM) of the dead body and despatched it to the mortuary for post-mortem examination.
The accused were arrested on 12-1-1983. On 14-1-1983 Nasir accused, while in custody, led to the recovery of blood-stained Chhuri (Ex.P4) which was made into a sealed parcel vide memo. Ex. PF.
On 18-1-1983 Aslam accused, while in custody, led to the recovery of pistol (Ex. P5) with two cartridges (Ex. P6/1-2) vide memo. Ex. PG. After the investigation, the accused persons were challaned.
4. On 9-1-1983 Dr. S.M.Rafi Ullah, Senior Medical Officer, Civil Hospital, Bhakkar, examined Muhammad Ashraf deceased, when alive, and prepared the medico-legal report (Ex. PH) showing a stab wound over the left side of the abdomen, 4-1/2 cm to the left of midline, 6 cm above and lateral to the umbilicus with omentum and intestines coming out. Injury was dangerous to life.
On the next day, the same doctor conducted the autopsy on the dead body of Ashraf deceased and found the injury, referred to above, on it. There was also an operation wound on the left flank. In the opinion of the doctor, death was due to shock and haemorrhage resulting from the said injury which was sufficient to cause death in the ordinary course of nature.
5. In support of its case the prosecution examined two eye-witnesses, namely, Zia Ullah Khan and Abdur Rauf. It also relied on the evidence relating to recovery and motive.
6. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. Saeed Akbar appellant when asked why this case against him, made the following statement:-- "I have been falsely involved in this case thinking that I may not render help to my co-accused Nasir."
Muhammad Aslam appellant also trade a similar statement. Muhammad Nasir appellant, however, gave a counter-version of the occurrence as under:-- "I am innocent in this case. On the day of occurrence the deceased was sitting in the door of the house of his friend Abdur Rauf P.W. And I passed that way. My house is contiguous to the house of Abdur Rauf. The deceased made amorous advances towards me but I did not take notice of them.
After some time when I returned the deceased verbally pressed me to submit to him for sodomy.
When I desisted he caught hold of me and wanted to drag me inside the Baithak of Abdur Rauf. I resisted arid brought out my pen-knife and in the struggle the deceased received one injury and fell down and his grip became loose and I ran away. My co-accused were never with me. As the deceased later on died, I was involved in the case forgetting in what circumstances the deceased received the injury."
He produced documents Exs. DE, DF, DG, DH, DJ, DK, DL, DM and DN in his defence.
7. After examining the evidence on the record, the learned trial Judge rejected the defence version and, relying on the prosecution evidence, convicted and sentenced the appellants, as mentioned above.
8. Learned counsel for the appellants vehemently contended that the motive alleged by the prosecution was not proved, the dying declaration and recoveries were fake, the ocular account was untrustworthy and the circumstances were consistent with the assumption that Nasir accused alone had caused injury to Ashraf deceased when he tried to drag him to the Baithak of Abdur Rauf PW in order to commit sodomy with him.
Learned counsel for the complainant, On the other hand submitted that the plea raised by Nasir accused was absolutely false, the eye-witnesses had no motive for false implication, the dying declaration does not suffer from my infirmity and the ocular account finds corroboration from the medical evidence and the recoveries, therefore, the appellants have been rightly convicted. He further submitted that in the circumstances of the case the sentence awarded to the appellants is inadequate and should be enhanced to death. The learned State counsel, however, supported the judgment of the trial Court.
9. The prosecution version about the motive, as narrated by Zia Ullah PW at the trial, was that Muhammad Nasir appellant had taken Rs. 100 as loan from Ashraf deceased about a month prior to the occurrence; two days before the occurrence the deceased made a demand but Nasir accused declined to pay, resulting in exchange of abuses between them; the deceased also slapped Nasir appellant but he (Zia Ullah complainant) intervened and separated them; later on he approached the father of Nasir accused who was his relation and asked him to persuade the said accused to return the amount. No motive for this occurrence, however, finds mention in the 'dying declaration (Ex. PD/3), recorded by the Magistrate First Class, Bhakkar. In the statement (Ex.
PC) of the deceased, recorded by A.S.I., Police Station Bhakkar, it is alleged that two days prior to the occurrence the deceased had abused Nasir. To loan-business and exchange of abuses/slapping finds no mention in the said statement. In cross---examination Zia Ullah PW admitted that the alleged loan was not advanced in his presence and that in his statement before the police he had not stated that father of Nasir accused was his relative. In the circumstances, the evidence relating to motive is unsatisfactory.
10. At the trial Zia Ullah and Abdur Rauf, P.Ws., furnished the ocular account of the occurrence. The prosecution also relied on the dying declarations (Exs. PC and PD/3). Ex. PC is the statement of the deceased recorded by Muhammad Zaman, A.S.I., Police Station City Bhakkar, on the day of occurrence at 12.12 noon, on the basis of which formal F.I.R. (Ex. PC/1) was recorded at the police station at 12.22 noon. Ex. PD/3 was recorded by Magistrate First Class, Bhakkar, in the hospital at 1.45 p.m. The injured was examined in the hospital at 12.10 noon. The stab-wound found on his abdomen was dangerous to life, the omentum and intestines had come out of the wound. The injured was having repeated vomitting. He was pale, cold and clammy. In cross-examination the doctor stated that he was under grave shock and a person in this condition would not normally be able to give a coherent statement. The note of the A.S.I. Under the statement Ex. PC (Karwai Police) also shows that the injured made the statement falteringly. In view of the very serious condition of the injured, as deposed to by the doctor, it is doubtful that he was in a position to make A statements like Ex.PC and Ex.PD/3. The Magistrate stated that he did not remember whether application (Ex.PD) for recording dying declaration was presented to him in his Court or at his residence. He further stated that the application was presented to him at about 12.00 noon or sometime thereafter and he had reached the hospital at 1.30 p.m. He admitted that he took one and a half hours to reach the hospital and kept the application with him during this period. He further stated that he might be busy with some other work during that period of one and a half hours. Muhammad Zaman Khan, A.S.I. (PW 11), on the other hand, stated that he contacted D.C.
Office on the telephone "for arranging the dying declaration"; the Magistrate then came to the hospital and he made application Ex.PD to him for recording the dying declaration. If that is true, then it is for the prosecution to explain why the dying declaration was not recorded on the very arrival of the Magistrate and what had been going on during the period of one and a half hours.
The evidence on the record further shows that a number of persons were present with the injured when his statements were recorded. According to the. Prosecution, the injured made both the statements before he was operated upon. The doctor stated that the attendants of the injured were with him from the time of admission till the time of his operation. In reply to a Court question he clarified that the relations of the injured remained with him "even during the statement of the injured by the Magistrate". The A.S.I., admitted that when he reached the hospital Zia Ullah, Khuda Bakhsh, Zafar Iqbal and Inayat Ullah were present with the injured. In the circumstances, it will be unsafe to place reliance on the alleged dying declaration.
11. Zia Ullah and Abdur Rauf, P.Ws:, supported the prosecution version at the trial. The occurrence took place in front of the house of Abdur Rauf PW, therefore, he is a very natural witness of the occurrence. Zia Ullah PW claims to have seen the occurrence when he alongwith Abdur Rehman (not produced) was going from city to Chimni Mohallah. He is a chance witness of the occurrence.
He stated that he put the injured in the tonga and took him to the hospital and still his clothes did not besmear with blood. It is in evidence that the deceased had bled very profusely. If this witness had put him in the tonga when he was profusely bleeding, in all probability his clothes would have besmeared with blood. In the circumstances, his presence at the spot at the time of occurrence seems to be doubtful. On certain aspects he made incorrect statements with a view to strengthen the prosecution case and in that view of the matter even otherwise it will not be safe to place implicit reliance on his statement. For instance, in examination-in-chief he stated that father of Nasir accused was his relative. In cross-examination he admitted that he did not make such a statement before the police. He also could not connect himself with the father of Nasir accused. He could not tell the name of his brothers and children other than Nasir accused. He further stated that during the occurrence no neighbour came out and there was no passer-by to see the occurrence. The occurrence admittedly took place on a thoroughfare and it is not believable that none was attracted to the alarm. Abdur Rauf PW admitted that the place of occurrence was a thoroughfare and the people were coming and going.
12. The next eye-witness, namely, Abdur Rauf, as already stated, is a very natural witness of the occurrence. He supported the prosecution version as detailed in the earlier portion of this judgment. He admitted that he is a friend of the, deceased but this fact per se would not make him an interested witness. There was only one injury on the deceased and three persons have been implicated. Muhammad Aslam appellant was allegedly armed with a pistol while Saeed Akbar appellant was empty-handed. A Lalkara has been attributed to Muhammad Aslam, and Saeed Akbar is alleged to have held the deceased before he was given a Chhuri blow by Nasir appellant.
In examination-in-chief Abdur Rauf PW seated that "Adam made a Lalkara that he would not leave alive that person who came near Muhammad Ashraf. He was confronted with his statement before the police wherein the name of Muhammad Ashraf does not figure in that context. According to statements Exs. PC and PD/3 (dying declanations), Muhammad Aslam had challenged the deceased that he would not be spared that day whereas Abdur Rauf PW had stated that Lalkara raised by Muhammad Aslam accused was that whosoever came near Muhammad Ashraf would not be spared, meaning thereby that the Lalkara was directed against persons other than Muhammad Ashraf. Saeed Akbar was admittedly empty-handed. Ordinarily a person intending to join hands in the commission of a heinous crime like murder would not come to the spot empty- handed. Furthermore, prosecution has not attributed any motive to Muhammad Aslam and Saeed Akbar appellants. I am, therefore, of the view that the prosecution has not been able to prove its case against them beyond a reasonable doubt. Accordingly, I allow their appeals, set aside their conviction and sentence and acquit them of the charge by giving them the benefit of doubt. They are on bail. They shall be discharged from their bail bonds.
13. However, the case of Muhammad Nasir appellant stands on a different footing. Abdur Rauf PW has stated that he inflicted the solitary blow on the abdomen of the deceased. This witness has no motive to attribute the fatal blow to him. There is nothing on the record to suggest any ill-will or bad blood between him and this appellant which could prompt him for false implication. Plea of Nasir appellant was that the deceased wanted to drag him to the Bethak of Abdur Rauf m order to commit sodomy with him. He resisted and brought out his knife and the deceased received one injury in the struggle and fell down. After juxtaposing both the versions I feel inclined to the view that there is no possibility of this plea being true because the place of occurrence is a thoroughfare. According to Abdur Rauf PW, the "people were coming and going". It is unbelievable that in that situation the deceased would try to drag Nasir appellant to the Bethak for the purpose of committing unnatural offence.
14. Now, the only question that remains to be determined is as to what offence was committed by Muhammad Nasir appellant. In the impugned judgment the trial Judge has observed that by appearance he is not more than fifteen years. There was no previous enmity between the parties.
From the facts and circumstances of the case it appears that something happened all of a sudden F leading to a quarrel, during which the appellant caused a solitary injury to the deceased in the heat of passion. He did not act in a cruel or unusual manner. I would, therefore, alter his conviction from section 302 P.P.C. To section 304 (Part-- I) P.P.C. And sentence him to rigorous imprisonment for five years and a fine of Rs.20,000. In default of payment of fine he will undergo R.I. For two years.
This sentence has been awarded after considering the provisions of section 382-B Cr.P.C. Out of the fine, if recovered, a sum of Rs. 15,000 shall be paid to the heirs of the deceased as compensation.
With the above modification in the conviction and sentence, the appeal of Muhammad Nasir appellant is dismissed. He is on bail. He shall be re-arrested and re-committed to jail to serve out the un-expired portion of his sentence. Criminal Revision automatically fails and is dismissed.
SA./S-570/L