This Criminal appeal filed by Waqar Ahmad appellant (13) against his conviction and the connected revision for the enhancement of the sentence of the appellant filed by Muhammad Akbar, arise from the judgment of learned Sessions Judge, Sargodha, whereby he on 12-12-1987 convicted Waqar Ahmad appellant under section 302, P.P.C. For the murder of Aamar Naz (15) and sentenced him to imprisonment for life and a line of Rs.15,000, in default thereof further R.I. For 3 years, with the direction that the fine if recovered be paid to the parents of the deceased as compensation. I propose to dispose of them through single judgment.
2. The occurrence took place on 10-6-1986 at 10.15 a.m. Near post office, Bhalwal, at a distance of one furlong from Police Station Bhalwal. The F.I.R. Exh. P.D was, lodged on the same day at 11.00 a.m.
By Muhammad Akbar P.W.6, uncle of the deceased and was recorded by Haq Nawaz, S.I., P.W.10.
3. Three/four days before the occurrence, while playing cricket, there arose a dispute between the appellant and the deceased upon which the latter gave fist blows to the former. To teach him a lesson for this insult, the appellant has allegedly killed the deceased.
4. As for the main occurrence, it has been stated that on the fateful day, Muhammad Akbar P.W.6 alongwith Aamar Naz were going to the Clinic of Dr. Muhammad Rafiq. When they were at the corner of the street near post office, Waqar Ahmad appellant carrying knife came shouting that he would teach him a lesson for giving him, fist blows and gave a knife blow on the chest of Aamar Naz, who fell down bleeding profusely. The alarm raised by Muhammad Akbar P.W.6 attracted Ghulam Rasool P.W.7 and A.I Nawaz to the place of occurrence. They tried to apprehend the appellant but he made good his escape taking knife with him. The deceased was removed to the hospital but he succumbed to the injury on the way.
5. On .10-6-1986, Dr. Najamul Hassan P.W.1 conducted post-mortem examination on the dead body of Aamar Naz and found following injury on his person:-- "One stab wound; a wound of entrance with inverted edges 1-1/2 x 1/a c.m. x going deep into the chest cavity on the front and left side of chest at anterior axillary line 8 c.m. Obliquely below the left nipple 11 c.m below left armpit. "
On dissection under injury No.1, the knife was found to have entered through 6th and 7th intercostal space ' and having punctured left pleaurea, left lung, pericardium and left ventricle of the heart at its base, resulting in congestion of the blood in the left chest cavity in full.
6. On 11-6-1986, the appellant was arrested by Ha q Nawaz S.I. P.W.10. On 21-6-1986, he led to the recovery of blood- stained knife Exh.P.4 from his residential kotha, which was taken into possession vide memo. Exh.PF attested by Muhammad Akbar P.W.6 and Abdul Sattar (not produced). Abdul Hameed, Inspector/S.H.O., P.W.9 had effected the recovery and prepared the memo. The Serologist's report Exh. P.M revealed that knife was stained with blood.
7. To prove its case, prosecution produced as many as 10 witnesses. Muhammad Akbar P.W.6 and Ghulam Rasool P.W.7 have given the ocular account of the occurrence. They claim to have seen the appellant causing fatal injury with his knife on the chest of the deceased. Muhammad Akbar P.W.6 stated that on the day of occurrence, he alongwith Aamar Naz deceased had gone to the house of Kh. Muhammad Aslam to set his (Kh. Muhammad Aslam's) son namely Babar. From there they were going to the clinic of Dr 'Muhammad Rafiq when they reached near the corner of the street near Post Office, Waqar Ahmad appellant came armed with a knife. Declaring that he would teach him a lesson for giving him fist blows, he inflicted knife injury on the left side of the chest of Aamar Naz, who fell down. The appellant then ran away. Ghulam Rasool P.W.7 stated that at the eventful time, he was going to see his cousin who lives in Block No.4, Bhalwal. When he reached near the letter box, he heard the appellant shouting that he would teach Aamar Naz a lesson for giving him slaps. The appellant then gave knife blow on left side of the chest of Aamar Naz, who fell down on the ground. The appellant ran away from the spot taking knife with him, Muhammad Akbar P.W.6 also deposed about the alleged motive and the recovery of blood-stained knife Exh.P4 at the instance of the appellant. Dr. Najmul Hassan P.W.1 has proved the post-mortem examination report of the deceased. Abdul Hameed, Inspector/S.H.O., P.W.9 and Haq Nawaz, S.I. P.W.10 had investigated the case. Haq Nawaz S.I. P.W.10 had recorded the F.I.R. And arrested the appellant. Abdul Hameed Inspector, P.W.9 had recovered blood-stained knife Exh.P.4 from the appellant. The rest of the evidence is more or less of formal nature.
8. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. He raised plea of false implication on account of enmity. In defence, he tendered Part Nikah Exh.D.F in evidence. He did not produce any witness. He closed his defence on 12-10-1987.
9. Believing the ocular evidence, the recovery of blood-stained knife from the appellant and the medical evidence the trial Court has convicted and sentenced him as stated above.
10. Learned counsel for the appellant contended that the prosecution has failed to prove its case beyond reasonable doubt, inasmuch as, Muhammad Akbar P.W.6 and Ghulam Rasool P.W.7 had not seen the occurrence; that they are closely related to the deceased; that they are chance witnesses. Had they been present on the spot then the accused/appellant, who is a boy of 13 years in age would have been apprehended on the spot. The recovery of blood-stained knife was effected on the last day of police remand. Haq Nawaz Khan, S.I. P.W.10 stated that the first version given by the appellant before him was that Aamar Naz wanted to commit sodomy with him, so he had given him injury under grave and sudden provocation. Muhammad Kaka, the grand-father of the deceased had submitted an application Exh. D.E before the police alleging therein that Akbar, Athar, Shaukat and Toorani were also involved in the murder of the deceased. Abdul Hameed Khan, Inspector, P.W.9 had joined them in the investigation and that during investigation, the aforesaid four persons had admitted their presence with the deceased in the baithak of Babar immediately before the occurrence. In the alternative, the learned counsel submitted that the conviction of the appellant under section 302, P.P.C. Cannot be sustained as the act of causing one knife blow on the deceased, in the circumstances of the case, tantamount to culpable homicide not amounting to murder punishable under section 304, Part-II, P.P.C. Learned counsel for the State assisted by the learned counsel for the complainant has supported the judgment of the trial Court. Learned counsel for the complainant also prayed for the enhancement of the sentence of the appellant from imprisonment for life to death.
11. I have anxiously attended to the arguments addressed by the learned counsel for the parties and have reviewed the entire evidence that has been introduced by the prosecution, the statement of the appellant recorded under section 342, Cr.P.C., Part Nikah tendered by the appellant and the circumstances appearing in the case. I find that it is a case of promptly lodged F.I.R. Containing the names of the eye-witnesses, name of the appellant and the weapon used by him in the occurrence. The occurrence took place at 10.15 a.m. The F.I.R. Was lodged at 11.00 a.m. The post-mortem examination was conducted on the same day at 11.45 a.m. The making of the F.I.R.
And conducting post-mortem examination with this promptitude give rise to the conclusion that the complainant and the eye-witnesses mentioned in the F.I.R, could not have been procured and induced to become eye-witnesses within such a short interval. There' is nothing in evidence to show that the F.I.R. Was really recorded on the spot after investigation.
12. Muhammad Akbar P.W.6 and Ghulam Rasool P.W.7 have given plausible cause of their presence on the spot. The occurrence having taken place near the road, Ghulam Rasool, P.W., a passerby, was the natural witness of the occurrence. Muhammad Akbar had accompanied his nephew, the deceased, to the house of Kh. Aslam and therefrom was going with him to the Clinic of Dr. Muhammad Rafiq. This conduct does not run counter to the natural probabilities. The witnesses have successfully faced the test of cross-examination. The statements made by them are in consonance with probabilities and materially fit in with the rest of the evidence. The statements made by them do not suffer from material contra-dictions/major discrepancies and dishonest improvements. No doubt, the eye-witnesses are related to the deceased but their statements cannot be discarded for this reason. They had no enmity against the appellant to involve him falsely. 1t is a case of single accused and dad-light occurrence. The appellant has not been able to lay down any foundation for his substitution in place of some other culprit. The recovery also stands proved by the reliable evidence of Muhammad Akbar P.W.6 and Abdul Hameed, Inspector, P.W.9. The statement of the Inspector cannot be disbelieved on account of the office he holds. He has withstood the test of cross-examination. The Serologist's Report shows that the knife was stained with blood. In view of the reliable evidence produced by the prosecution, the circumstance of the recovery cannot be discarded on the ground that, the knife was recovered on the last day of remand obtained by the police. It may be noted here that the recovery was effected on the 11th day of arrest of appellant and the police could again request for further police remand for -- days.
13. There is no direct evidence of the motive incident' which allegedly took place while playing cricket 3/4 days before the occurrence. Muhammad Akbar, and Ghulam Rasool P.Ws. Have, however stated that before inflicting injury, the appellant had declared that he would teach a lesson to be deceased for giving him fist blows. I have already found them as truthful persons. If they can be believed as to what they saw, there will be no reason to disbelieve as to what they heard at the time of occurrence. The appellant when examined under section 342, Cr.P.C. Had not raised the plea of self-defence or grave and sudden provocation. Although on his arrest he had told Haq Nawaz S.I., P.W.10 that the deceased wanted to commit sodomy, yet he had not stated so in the Court. Therefore, his statement before the police does not take his case any further. The admission made by Abdul Hameed Khan, Inspector, P.W.9 to the effect that Muhammad Kaka had made application Exh. D.E involving four other persons in the crime, is of no help to the prosecution.
The statements of Athar and others before the police officials are not admissible in evidence at all under the provisions of Qanun-e-Shahadat and do not rebut the prosecution case or the ocular evidence produced by it. The submissions made by the learned counsel are, therefore, devoid, of force and substance. For all these reasons, I am of the view that the trial Court has rightly believed the prosecution case and the evidence produced by it.
14. Taking up the alternative plea of the learned counsel for the appellant, I rind that the appellant came to the spot duly armed with knife; he inflicted knife 4ow on the left side of the front of the chest of the unarmed victim with full force entering through 6th and 7th intercostal space and puncturing left pleasure, left lung, pericardium and left ventricle of the heart at its base. This shows that he had no intention other than that of causing death of the deceased. A person is presumed to intend the natural consequences of his act. So the, appellant has committed the murder of Waqar Ahmad, punishable under suction 302, P.P.C. And not culpable homicide not amounting to murder falling under section 304 Part II P.P.C.
15. As for the prayer for the enhancement of the sentence, by the learned counsel for the complainant, the learned trial Court has carefully considered the of sentence and has given cogent reasons for not awarding normal 13 years in age at the time of occurrence. He fist blows 3/4 days, appellant and. The revision filed by Muhammad Akbar complainant, both are dismissed.
N.H.Q./W-56/L