' Muhammad Saeed alias Pupoo, aged 23 years and his brother Muhammad Rashid alias Munna aged 20 years were tried and convicted by Additional Sessions Judge, Sialkot, under section 302/34, P.P.C. Vide judgment, dated 25-6-1987 and sentenced to imprisonment for life and a fine of Rs, 10,000 each or in default to undergo 6 months' rigorous imprisonment with the direction that half of the fine, if realized, shall be paid to the heirs of Muhammad Sharif (deceased) by way of compensation under section 544-A, Cr.P.C. Both the convicts have filed instant joint appeal (Criminal Appeal No,536 of 1987) challenging their conviction and sentence.
2. The occurrence took place on 24-4-1986 at 2-20 p.m. In front of the shop of Rashid Khan in Bazar Pansarian situate about 2 furlongs away from Police Station City Sialkot. Muhammad Pervaiz complainant (P.W. 9) made statement Exh.PA. Before S.I. Muhammad Hanif (P.W.12) at Civil Hospital Sialkot, the same day at 4 p.m. Who reached there learning about the occurrence.
3. Motive for the offence was stated to be that about 8 days prior to the incident, Muhammad Sharif (deceased) advanced a sum of Rs,100 by way of loan to Muhammad Saeed (appellant). On the day of occurrence the deceased went to the house of Muhammad Saeed appellant for realizing the debt. Muhammad Saeed appellant was not found there, therefore, he complained to his mother about it and came back. Muhammad Saeed when came home was informed about the visit of the deceased by his mother. Muhammad Saeed appellant feeling annoyed over it went to the deceased and abused him saying as to why had he complained to his mother. The deceased abused him in return. Muhammad Pervaiz complainant and 3/4 other Mohalladars intervened and separated them. Muhammad Saeed appellant went away threatening the deceased that he would teach him a lesson.
4. At the fateful time (at about 2-30 p.m.) Muhammad Pervaiz complainant (P.W.9) alongwith Javed (both brothers of the deceased) were selling imitation jewellery in front of clinic of Dr. Feroz Din in Bazar Pansarian. Muhammad Sharif deceased came at the shop of Rashid for making certain purchases. The deceased was standing at that shop when both the appellants, namely, Muhammad Saeed alias Pupoo and Muhammad Rashid alias Munna armed with Chhuris came there raising Lalkaras and attacked him. Muhammad Saeed appellant inflicted a Chhuri blow on the abdomen of the deceased while Muhammad Rashid appellant inflicted a blow on his left arm.
The deceased, having received the injuries, fell down. As a result of the alarm raised by the P.Ws.
Muhammad Iqbal (P.W.10) and Gul Sher also reached there and witnessed the occurrence. Both the appellants then fled away raising Lalkaras. Muhammad Sharif was removed in injured condition, to the hospital in a Rikshaw by Muhammad Pervaiz with the help of other P.W.s for treatment where Dr. Arif Sheikh, Medical Officer, of Allama Iqbal Memorial Hospital, Sialkot (P.W.8) examined him at 2-55 p.m. The same day and found two incised wounds one on the abdomen measuring about 6 c.m. x 3 c.m. x depth not probed in the epigestrium with profuse bleeding and the other on the left upper arm measuring 6 c.m. x 2-1/2 c.m. x bone deep, caused with sharp-edged weapon within a duration of about 30 minutes. Corresponding cuts on the Kameez and Bunian of the injured were present. The patient at the time of examination was unconscious, so was admitted in the hospital but he succumbed to his injuries within 10 to 15 minutes.
5. S.I. Muhammad Hanif (P.W.12) having recorded Muhammad Pervaiz complainant's statement Ex.P.A. Sent it to the P.S. For registering F.I.R., prepared injury statement Exh.P.F. And inquest report Ex.
PH of the deceased and despatched the dead body to the mortuary for post-mortem examination.
Thereafter he reached the spot, collected and seized blood-stained earth under memo. Exh.P.D. On 28-4-1986, he arrested both the appellants. On 30-4-1986 Muhammad Saeed, appellant while in custody led to the recovery of bloodstained Chhuri (P.6) from underneath a sofa-set lying in his house which was secured under memo. Exh.P.G. Attested by Muhammad Naeem (P.W.11). Chemical Examiner in his report Ex.PK opined that earth collected from the spot and the Chhuri recovered from Muhammad Saeed appellant were stained with blood. The report of Serologist has not been brought on record by the prosecution.
6. On 25-4-1986 at 10 a.m. Dr. Muhammad Arif Sheikh (P.W.8) conducted post-mortem examination on the dead body of Muhammad Sharif, deceased and having noted the aforementioned injures in the post-mortem report observed that abdominal injury (No,1) was fatal and sufficient to cause death in the ordinary course of nature as a major part of the stomach, liver, the pleura and the lower part of the right lung were cut. The other injury was found simple in nature. The probable time that elapsed between injuries and death was about one hour and 10 minutes and between injuries and death was about 18 hours and 20 minutes,
7. At the trial, 12 Witnesses were examined in support of the case. From prosecution point of view the important evidence comprises the evidence of recovery of blood-stained Chhuri (P.6) provided by S.I. (P.W.12) and Muhammad Naeem (P.W.11); the medical evidence furnished by Dr. Arif Sheikh (P.W.8); and the ocular account deposed to by Muhammad Pervaiz complainant (P.W.9) and Muhammad Iqbal (P.W.10). Resume of their evidence is given below.
8. Muhammad Pervaiz complainant (P.W.9), the first informant is real brother of the deceased. He narrated the prosecution story as mentioned in paragraphs 3 and 4 above. In cross-examination he stated that Muhammad Iqbal P.W. Was known to him for the last 7/8 years; that Rashid Khan was absent but his brother Kaka Khan was present at the shop but he was sitting at such a place that the occurrence was not visible to him; that his house was 40/45 feet from the place of occurrence; that the shops, situate around the place of occurrence were open and that many customers were present there. He admitted that he had not sent any body to the police station for lodging the report for he was mentally upset and worried about the health of his deceased brother.
He repelled the suggestion that the delay in lodging the F.I.R. Was occasioned for they remained busy in fabricating a false story and procuring false witnesses. He admitted that he was convicted in a case under Arms Ordinance in District Gujrat. He conceded that he was challaned for possessing heroin and also in a hurt case under section 324 P.P.C. But was acquitted in both the cases from the Court as they were false. He admitted that on the day of occurrence at 11 a.m. He had seen Muhammad Saeed, appellant, selling fire works in the Bazar. He conceded that he had not stated in the F.I.R. (P.E.) that on the day of occurrence he and his brother Javed were selling imitation jewellery in front of the clinic of Feroz Din. He further admitted that he did not tell the Thanedar that he was present when abuses were exchanged between deceased and Muhammad Saeed appellant and that he alongwith others had separated them prior to the occurrence.
' Muhammad Iqbal (P.W.10) stated that at the relevant time he had gone to Pak Kuriana Store for purchasing certain articles and saw both the appellants coming to the spot armed with Chhuris.
Pupoo (Muhammad Saeed) appellant dealt a knife blow in the abdomen of the deceased while Munna (Muhammad Rashid) appellant dealt Chhuri blow on the arm of the deceased. As a result of the injuries he (deceased) fell down inside the shop of Rashid Khan. He admitted that a case under section 3/4 Prohibition (Enforcement of Hadd) Order, 1979 was pending decision against him.
He was confronted with his statement Exh.D.A. Wherein the fact of his coming to Pak Kuriana Store for making purchases was not found recorded. He stated that his statement was recorded on the 3rd day of occurrence on the spot; that his clothes were besmeared with blood but he did not produce those clothes before the investigating officer and that he had not seen Rashid Khan, owner of the shop (where occurrence had taken place) present at the time of occurrence. He admitted that he was known to the complainant party for the last 15/16 years as he had been living in their Mohallah.
' S.I. Muhammad Hanif (P.W.12) admitted that Rashid Khan had told him that he was present at his shop (place of occurrence) at the relevant time; that he saw the appellant selling fireworks in the bazar who were prohibited by the deceased from selling fireworks and had abused them; and that Muhammad Rashid, appellant, at that time was carrying a Sariya. He stated that he had not cited Rashid Khan (shopkeeper) as witness. He conceded that Muhammad Rashid appellant pleaded innocence during investigation but asserted that the statement of Muhammad Iqbal (P.W.10) was recorded by him on 24-4-1986 on the spot at 6-15 p.m.
9. The appellants when examined under section 342, Cr.P.C. Denied the allegations and offered no evidence in defence. Learned trial Court on consideration of material on recorded disbelieved recovery of blood-stained Chhuri (P.6) allegedly made from Muhammad Saeed appellant, and it convicted and sentenced the appellants on the murder charge relying on the ocular testimony and the motive. Hence this appeal.
10. Learned counsel appearing on behalf of the appellants contended that the evidence of the eye- witnesses does not inspire confidence as they made material improvements upon their statements recorded by the police during investigation; that an important witness, namely, Rashid Khan shopkeeper, near whose shop the incident had taken place, had been with-held and that no disinterested and independent witness has come forward to support the prosecution story although according to prosecution many persons were present in the Bazar at the relevant time, therefore, testimony of Muhammad Pervaiz complainant (P.W. 9) and Muhammad fqbal (P.W. 10) who are accused in criminal cases and are connected with the deceased is not worth reliance. He further submitted that, according to investigating officer, the incident took place over the sale of fire-works by the appellants, therefore, the motive part of the story set up by the posecution is belied, which makes the entire prosecution case doubtful. It is next contended that both injuries of the deceased appear to have been caused with one weapon. Rashid Khan shopkeeper during the investigation deposed that Muhammad Rashid, appellant, was carrying Sariya at the time of occurrence and the doctor noted no blunt weapon injury on the person of the deceased, therefore, the participation of Muhammad Rashid appellant, is out of question. Lastly, learned counsel submitted that the prosecution story itself discloses that the occurrence flared up all of a sudden without premeditation, therefore, offence committed would squarely fall within mischief of section 304 and not 302 P.P.C. Replying, learned State counsel has defended the conviction and sentence awarded to the appellants under section 302/34, P.P.C.
11. I have carefully considered the facts and circumstances of the case in the light of the arguments addressed by the learned counsel for the parties.
12. Learned trial Court has not relied on the recovery of Chhuri (P.6) effected from Muhammad Saced appellant observing that if the recovery is believed even then it remains inconsequential in the absence of any report of the Serologist showing it to be stained with human blood. This finding is unexceptionable.
13. The prosecution case rests mainly on the ocular evidence supported by evidence of motive.
Before proceeding further it may he pointed out that the admissions made by the investigating officer to the effect that Rashid Khan, owner of the shop (the place of occurrence) brought it to his notice that incident took place over sale of fireworks by Muhammad Rashid appellant when the A deceased stopped him from selling it and that Rashid appellant at that time was carrying a `Sariya' and not Churi, cannot he legally read in evidence because Rashid shopkeeper has not entered the witness-box to state so and the aforesaid statement is hit by section 162, Cr.P.C. It is true that the prosecution has not cited Rashid shopkeeper as a witness obviously because he did not toe their line, therefore, the appellants could and should have produced him in defence if they wanted to rely on his version, but it was not done. In the circumstances, I am of the view that appellants cannot legally make use of the aforesaid version given by the investigating officer.
14. As for 'Main occurrence, Muhammad Pervaiz (P.W.9) and Muhammad Iqbal (P.W.10) stated that they had seen both the appellants inflicting injuries with Chhuris to the deceased. The former is the real brother of the deceased and the latter is his Mohalladar. Mere relationship does not render testimony of a witness incredible. It is the intrinsic value of statement of a witness which always matters. The reason for neighbouring shopkeepers and other persons roaming about in the bazar, not coming forward to support the prosecution is lamentable apathy on the part of citizens of the country who not only avoid to intervene and rescue a person under attack but also shirk their civic duty to offer themselves as a witness in Court in order to get the offender punished under the law. It cannot, C therefore, be said that prosecution deliberately withheld the neighbouring shopkeepers or customers hence no adverse inference against prosecution can be drawn. There did not exist or animosity between the appellants and the P.Ws. Prior to the occurrence. The eye witnesses have given reasonable explanation for their being present at the place of occurrence at relevant time.
House of Muhammad Pervaiz (P.W.9) is only 40/45 feet away from the place of occurrence. The deceased was removed to the hospital within minutes of the occurrence, medico-legal report (Exh.P.D.) drawn by Dr. Arif Sheikh (P.W.8) contains name of Muhammad Pervaiz, as the person accompanying the patient. It shows that he had seen the occurrence. Likewise testimony of Muhammad Iqbal (P.W.10) inspires confidence. He does not have enmity with the appellants or special relations with the deceased, therefore it is not expected that he would implicate them falsely. His admission that he was examined in the case on the third day does not damage his testimony in any manner, because if he was examined on third day, the witness is not to blame for inefficiency of the Investigating Officer and the prosecution cannot be made to suffer on that account. But here the Investigating Officer asserts that he examined him on the day of occurrence which is a matter of record. The defence had not shown him any statement of the witness, recorded on third day of the occurrence by the Investigating Officer. I, therefore, find that the witness had stated so by mistake due to lapse of time. The improvements said to have been made by the P.W.s at the trial particularly on the point as how they happened to be present at the time of occurrence appear to be explanatory of facts already mentioned in their previous statements.
They cannot be treated as deliberate and dishonest improvements. Needless to say that pendency of 1 or 2 criminal cases against them is not sufficient for impeaching their character. I, therefore, hold that learned trial Court rightly acted upon their evidence.
15. The contention of the learned counsel that offence committed, falls under section 304, P.P.C.
Because the incident sparked off suddenly when the deceased objected to the sale of fireworks by Muhammad Rashid appellant in the bazar, is without force. Assuming without conceding that the incident happened in this manner but the ingredients of Exception IV of section 300, P.P.C. Are not satisfied because the deceased was empty handed and the Chhuri blow was given on his abdomen taking undue advantage of the situation and the accused had acted in a cruel manner.
The offence committed thus clearly falls within mischief' of section 302, P.P.C. However, the similarity of dimension of both injuries found' caused by one weapon. Therefore despite believing the prosecution story and the ocular testimony I would allow benefit of doubt by way of abundant caution to Muhammad Rashid appellant who allegedly caused solitary simple injury on the arm of the deceased. Consequently conviction and sentence of Rashid appellant are set aside and he is acquitted whereas conviction and sentence of Muhammad Saeed appellant is maintained. The appeal is partly allowed in the terms indicated above. It was announced on 1-11-1989 and Rashid appellant was directed to be I released by short order on that date and abovementioned arc reasons for the same.