' Criminal Appeal No, 290 of 1987 and Criminal Revision No,363 of 1987 are directed against the same judgment of learned Additional Sessions Judge, Gujranwala dated 15-3-1987, whereby the appellant has been convicted for the murder of Khalil Ahmad deceased and sentenced under section 302, P.P.C. To imprisonment for life with fine of Rs,2,000 in default to undergo one year's R.I.
Further to pay Rs,10,000 as compensation to the legal heirs of the deceased or in default to serve another term of one year's R.I.
2. Muhammad Ashraf A.S.I. Of Police Station Saddar, Gujranwala on 27-10-1985 at the instance of Allah Ditta P.W.7, father of Khalil Ahmad deceased (20 years) at 11-15 a.m., recorded complaint Exh.P.C., at Theri Sansi Canal Bridge, on the basis whereof formal F.I.R. Exh.P.C./1 was recorded at the police station by Talib Mehdi, A.S.I., at 11-45 a.m. Initially under section 307/324, P.P.C. Which, consequent upon demise of the deceased, was altered to section 302, P.P.C., alleging that a day preceding the occurrence he had gone from Lahore to see his brother-in-law Ghulam Rasool P.W.8 for consultation in connection with fixation of the deceased's date of marriage, with whom the latter was living in Mumtaz Colony, Gujranwala, and was employed in a factory on SheikhupuraGhujranwala Road, and during the course of return journey, at about 6-00 p.m.
Stopped by the deceased for a departing chat in front of Muhammad Sadiq's shop near the mosque alongwith Ghulam Rasul P.W.8 and Akbar Ali resident of the colony who had accompanied him for seeing off, where the appellant equipped with Chhuri, emerged on the scene and inflicted two blows on the left flank and back of the deceased, as a consequence whereof he collapsed on the ground, while the appellant shouting that he has avenged the slap, vanished away. As to motive it was revealed that 3/4 days prior to the occurrence the appellant insisted for return of six rupees having been borrowed by the deceased, which led to altercation on which count the latter slapped the appellant, for which he was done to death. The deceased in injured condition was taken to District Headquarters Hospital, Gujranwala where he was medically examined at 7-00 p.m.
By Dr. Saeed Iqbal P.W.1, whose medico-legal report is Exh.P.A., whereafter in view of the precarious condition, he was shifted to Mayo Hospital, Lahore, where he was operated upon by Dr. Khalid Javed Abid P.W.15, who found large amount of blood in the peritonial cavity, left kidney completely shettered with stab wounds and profousely bleeding, for preventing the same it was removed, and upon exploration of the abdomen no other injury was found. The operational notes Exh.P.W.15/1 were prepared by Dr. Manzoor Khokhar. Replying a question, on the basis of the record, he stated that the patient was reoperated because the wound had gone septic. Later on, on 24-11-1985 the deceased expired in Mayo Hospital whereupon autopsy was conducted by Dr. Syed Shoaib Shah P.W.13, of which the post-mortem report is Exh.P.K. He found the following injuries:--
(1) There was evidence of two wounds 5 x 2 c.m. And 3 x 1/5 c.m. Present at the left lumber region on the back of chest 7 c.m. Away from the mid line and 3 c.m. Below 12th rib. There was evidence of treatment with suture marks present. Both the wounds showed repair phenomena with grenulation tissue due to healing of supperficial layers. The depth of the wound could not be commented upon.
The site of these injuries corresponded with the statement of injuries described in M.L.R. Report dated 26-10-1985.
' There was a vertical stitched wound 20 c.m. Long with 8 intact silk sutures present at the left side of abdomen 3 c.m. Away from midline. Two openings of surgical drain were present on the anterior abdominal wall. The pus was pouring out from the openings.
' The peritonail cavity was amered with greenish yellow paste like pus. All the internal structures were foul smelling with pus formation. The left kidney was not present. Nephrectomy was done.
' On opening of the thorasic cavity, all the structure was found healthy, while in the abdominal cavity, the diaphram was contaminated with pus, small and large intestines were greenish, yellow, liver capsule was conteminated with pus. Left kidney was not present. The right kidney was healthy.
' In his opinion the injuries were ante-mortem and their seat corresponded with the injuries mentioned in medico-legal report Exh.P.A. The cause of death in his opinion was peritonitis caused by the complications of the injuries and the probable time between death and the post-mortem was within 36 hours. In cross-examination he stated that the possibility of peritonitis by cross- infection in the ward from other patients is rare and so is due to wrong blood grouping, however, it could be caused by defective sterlization of the instrument and sutures. He showed inability to ascertain probable time between injuries and death, whereas Muhammad Hussain P.W.14 Record Keeper of the Mayo Hospital, Lahore on the basis of the record vouched the deceased's admission in the hospital as well as the death.
3. Muhammad Ashraf P.W.10 after despatching complaint Exh.P.C. To the police station, went to the spot collected blood-stained earth vide memo. Exh.P.E. Attested by Ghulam Rasul P.W.8, Nadim Iqbal (given up as unnecessary), prepared rough site plan Exh.P.G., and also took into possession last worn blood stained clothes of the deceased, tendered by the complainant, shirt P.1 and Shalwar P.2 vide memo. Exh.P.D. Attested by Allah Ditta P.W.7, Ghulam Rasul P.W.8, Nadim Iqbal (given up). Subsequently, he went to Mayo Hospital and solicited doctor's opinion vide Exh.P.H. Qua physical condition of the deceased with a view to recording his statement, and on positive response recorded the same. He arrested the appellant on 6-11-1985, who a day later, i,e, on 8-11- 1989, , led to the recovery of crime weapon Chhuri P.3 from his house vide Exh.P.F. Attested by Ghulam Rasul P.W.8, Nadim Iqbal (given up). In cross-examination he explained that on 27-10-1985 he left the police station at 8-50 a.m. Vide departure report No,7 for patrol and met the complainant at Thheri Sansi Canal bridge at about 11-15 a.m., at a distance of about 3 miles from the police station who was by himself on foot where he recorded his statement Exh.P.C. He denied the suggestion that Nadim Iqbal P.W. Was a police tout who met him the next day, whereafter the complainant was summoned from Lahore and after deliberations the F.I.R. Was lodged. He affirmed that. Gist of the F.I.R. Was recorded in the Roznamcha vide Exh.P.C. And that statement of the deceased was recorded in Mayo Hospital, in the presence of Ghulam Rasul and Nadim Iqbal P.W.
Unattested by the doctor. Rana Muhammad Sadiq S.I. P.W.9 got the site plan Exh.P.B. Prepared from Akhtar Naqqash, Building Designer P.W.2 at the pointation of the witnesses.
' Banaras Khan A.S.I. P.W.11 partly investigated the case, prepared inquest report Exh.P.J. In the Mayo Hospital and despatched the dead body to mortuary for post-mortem examination. Parcels containing blood-stained earth and crime weapon were sent to the Chemical Examiner, who, vide report Ddi.P.L. Reported the same to be blood-stained, origin whereof was affirmed by the Serologist vide Exh.P.K.
4. At the trial, prosecution furnished ocular account through the testimony of Allah Ditta P.W.7 who (before migrating to Lahore 1-1/2 years ago, had resided in the colony for two decades) reiterating contents of the F.I.R. Stated that the deceased after the occurrence in an injured condition was taken to District Headquarters Hospital, from where, after the medical examination conducted at 7- 00 p.m. On the same night, on doctor's advice, was shifted to Mayo Hospital, Lahore (where he was operated upon and after struggling for life for 28 days breathed his last) and the next day i,e, 27- 10-1985 he returned to Gujranwala by a wagon and lodged the complaint, with the Investigating Officer to whom he met near the Canal bridge. In cross-examination he stated that the deceased's marriage was proposed to his brother's daughter at Lahore, that Ghulam Rasul P.W.8 is his Humzulf, whose house is situated at a distance of 250 feet from the place of occurrence which is a thoroughfare, from where house of the appellant is situated at a distance of about one canal. He further stated that the deceased was standing in front of the closed shop of Sadiq while shops of general merchants and of a milk seller were opened and the latter was being manned by Sadiq. He also affirmed that Ghulam Rasul P.W.8 and Akbar (given up P.W.) were standing at a distance of 2/3 feet from him, that the appellant was initially noticed at a distance of 4 paces at which point of time he was not holding Chhuri which he drew out after he was at a distance of 3/4 feet from the deceased, that the deceased collapsed on the ground after infliction of the second blow, blade of the Chhuri was about 10-1/4", and whole of it was pierced into the deceased's body. He affirmed that other persons also witnessed the occurrence and that the appellant was not chased by him.
He further stated that the deceased was taken to hospital in a pick-up by the complainant, Ghulam Rasul P.W.8 and Nadim Iqbal. He admitted that Police Station Sadar Gujranwala falls enroute to the District Headquarters from the place of occurrence but since the deceased was in a serious condition, therefore, he did not stop at the police station and straightaway rushed to the hospital. That at 8-00 p.m. He was advised by the doctor to shift the deceased to Mayo Hospital, where he was carried in a wagon and reached there at 10-15 p.m., where he was operated on the same night, his kidney was removed and was reoperated after 16 days, He categorically denied the suggestion of having not witnessed the occurrence rather was subsequently summoned from Lahore and after due deliberations the case was registered. He also denied the suggestion that the deceased was a desparado, used to extort Jagga tax and at the time of occurrence he insisted upon the appellant to serve him with milk which he himself was then consuming and upon his refusal he picked up quarrel, took out Chhuri from his Shalwar and tried to injure the appellant, who in self-defence caught hold of his hand and twisted it and during this sucffle it struck the deceased at the back. His testimony was corroborated on material particulars by Ghulam Rasul P.W.8, who in cross-examination stated that Sadiq's shop was open where he was present. He also deposed as to recovery of Chhuri P.3 from the appellant's house which the latter took out beneath the safe lying in his residential room. The medical evidence was furnished by doctors Saeed Iqbal P.W.1, Syed Shoaib Shah P.W.13 and Khalid Javed Abid P.W.15. Muhammad Ashraf P.W.10 deposed as to the investigation, arrest and recoveries. Akbar Ali and Nadim Iqbal were given up as unnecessary, while rest of the evidence was of formal nature.
5. The appellant in his statement both under section 342, Cr.P.C. As well as on oath denying the prosecution version, stated that the deceased was a desparado, used to extort Jagga tax from inhabitants of the locality, and on the day of occurrence he was taking milk at Sadiq's shop where the deceased came over and insisted that he should also be served with the same. Upon refusal he got infuriated and abused, which was likewise responded and taking offence thereto he took out Chhuri from Naifa of his Shalwar and attacked him, at which point of time he caught hold of his forearm and twisted it in self-defence with a view to releasing his grip on the Chhuri, during which scuffle the deceased got injured. He further stated that soon after the occurrence he voluntarily surrendered himself to the police and was arrested the next day with the connivance of Nadim Iqbal (given up P.W.) and that the Chhuri has been planted on him; whereupon he was found guilty by the learned trial Court, and was convicted and sentenced in the terms referred to above.
6. Learned counsel for the appellant contended that not only the eye- wtinesses are closely related to the deceased but also their presence at the scene of occurrence is highly doubtful, no independent witness from the locality has been produced despite the fact that admittedly number of other persons were present at,the time of occurrence, recoveries are fake thus cannot be used as a corroborative piece of evidence specially when it is witnessed by one of the eyewitnesses, that the appellant surrendered to the police immediatley after the occurrence while he is shown to have been arrested on 6-11-1985, and 2 days thereafter recovery of crime weapon is alleged to have been effected, which was sent to the Chemical Examiner much later during which period blood is likely to disintegrate, no injury statement has been produced in evidence, that Nadim Iqbal P.W. Has not been produced, and lastly the version of self-defence put forth by the appellant is equally plausible thus deserves benefit of doubt. While on the other hand, learned counsel appearing on behalf of the State has supported the judgment.
7. Having gone through the record, I am not persuaded by the contentions urged by the learned counsel for the appellant. Ghulam Rasul P.W.8 with whom the deceased was living, resides at a distance of only 250 feet from the place of occurrence, thus his presence at the scene in the evening at about 6-00 p.m. Seems to be highly natural, who, admittedly, has no inimical disposition towards the appellant, a co-resident of the area, therefore, his mere relationship with the deceased will not discredit his testimony. Likewise, presence of the complainant at the spot has been logically explained, who being a former resident of the vicinity could have not entertained any doubt as to identity of the appellant, corroboration whereto is lent by the fact that he was medically examined by P.W.1 at D.H.Q. Hospital, Gujranwala within an hour's time. Likewise, delay in lodging of the F.I.R.
Stands equally rationally explained, furthermore, the ocular testimony is fully corroborated by the medical evidence qua the seat of the injuries as well as by the recovery of crime weapon, against the attesting witnesses whereof no mala fides has been brought on the record.
' The truthfulness of the prosecution evidence further inspires confidence for the reason that the appellant postulating the theory of self-defence has himself admitted the occurrence both in his statement under section 342, as well as 340(2) of the Cr.P.C. Which in the context of things does not sound to be plausible because according to Dr. Syed Shoaib Shah P.W.13, the deceased was undernourished and of a very weak physique, his checks were hallow and ribs were prominent, and man with such a condition, could not have offered much resistance to the appellant by his very composition, furthermore, this theory stands belied even by the nature of injures which were fairly deep as a consquence whereof the left kidney was completely shattered and had to be removed.
Above all had this version been true then the Chhuri would have remained on the scene of occurrence and should have been recovered from there.
8. The contention of the appellant having voluntarily surrendered to the police does not inspire confidence, because had that been so then soon after registration of the case, the police enthusiastically should have shown the arrest red handed with the crime weapon, especially when no advantage was to flow by deferring the same.
' Similarly, omission of injury statement is understandable because by the time the Investigating Officer reached the Mayo Hospital, the deceased had already been operated upon. Likewise belated receipt of the crime weapon by the chemical examiner stands explained, and has given a positive report whichb remained unquestioned. Non-production of Nadim Iqbal has not caused anyi prejudice to the appellant, since he was dubbed as a police tout.
9. In view of aforegoing, I am of the opinion that the case against appellant stands fully proved by the evidence on the record beyond any shadow of doubt;I consequently, his appeal fails and is accordingly dismissed.
' None has turned up to prosecute the revision, even otherwise, no case for enhancement of sentence is made out. The same is also dismissed.