MUHAMMAD MUNIR KHAN, J.--- This Criminal Appeal No.107 of 1987/BWP and connected Murder Reference No.18 of 1987/BWP arise from the judgment of learned Additional Sessions Judge, Bahawalpur, whereby he on 15-7-1987 convicted Baboo Din (26/27) (appellant) for the murder of Shabbir Ahmad (28/29) and sentenced him to death and a fine of Rs.10,000 or in default thereof to undergo 6 months' R.I. He was directed to pay Rs.10,000 as compensation to the legal heirs of the deceased or in default thereof to undergo 6 months' R.I. He was also convicted under section 354, P.P.C. And sentenced to 2 years' R.I., and a fine of Rs.500 or in default thereof to further undergo 2 months' R.I.
2. The occurrence took place on 31-8-1986 at 6 p.m. In Chowk Mohalla Abbasian near Fauji Hotel, Ahmedpur East at a distance of 3 furlongs from Police Station Ahmedpur East. On the same day at 6-30 p.m., S.I. Sher Muhammad (P.W.6) recorded statement (Exh. P.G.) of Abdul Waheed (P.W.11), brother of the deceased, near Old Post Office Ahmedpur East. Formal F.I.R. (Exh.P.G./1) was drawn on the same day at 6-45 p.m. By S.I. Muhammad Ayyub (P.W.14).
3. There was no previous enmity between the parties. The prosecution case is that on the fateful day at 4 p.m., the appellant gave a ten-rupee currency note to Rubina, aged 8 years, took her in the street and tried to outrage her. Modesty. On reaching home she narrated the occurrence to her paternal uncle, namely, Abdul Waheed (P.W.11). Shabbir Ahmad (deceased) was not present in the house at that time. After some time he returned home. Abdul Waheed (complainant) apprised him of the misbehaviour of the appellant. On this Abdul Waheed and Shabir Ahmad both went to the appellant for complaining against his action. The appellant met them at Fauji Hotel. Shabbir Ahmad admonished him whereon the Appellant threatened that he will take revenge of his insult and went away. The complainant and the deceased took tea in the hotel and left for their house.
The appellant meanwhile reached there with a dagger in his hands. He raised Lalkara, launched attack and caused injuries to Shabbir Ahmad. Abdul Waheed took Soti lying nearby and inflicted blows with that on the appellant. The occurrence was seen by Ejaz Ahmad and Muhammad Madni P.W. After receiving injuries Shabbir Ahmad fell on the ground. Shabbir Ahmad was removed to Civil Hospital Ahmedpur East where he was examined by Dr. Shabbir Ahmad (P.W.6) who found following injuries on his person:-- (1)A stab wound over left side of abdomen below costal margin 5 c.m. x 2 c.m. x abdominal cavity deep. Omenteum and intestine were coming out from the wound.
(2)An incised wound over back of upper part of chest 5 c.m. x 1 c.m. x 1 c.m.
(3)An incised wound over back of left index finger 4 c.m. x 1 c.m. x 1 c.m.
(4)An incised wound over back of left middle finger 3 c.m. x 1 c.m. x l. c.m.
(5)An incised wound over back of left ring finger 3 c.m. x 1 c.m. x 1 c.m.
The patient was in shock and his condition was serious. Injury No.1 was grievous and dangerous to life. Other injuries were simple. All the injuries were caused with sharp-edged weapon. He was not able to make statement. He died on 1-9-1986. .
4. Dr. Javaid Hassan Ajmi (P.W.15) conducted post-mortem examination on the dead body of Shabbir Ahmad. He found the same injuries, which were found by Dr. Shabbir Ahmad. On internal examination he found that walls of abdomen and paritonium were cut at the site of injury No.1 and the paritonium cavity was full of `blood clots. The small intestine on the left side was also punctured and cut through and through. Spleen and left kidney were also cut. The blood vessels at the site of injury were cut. In his opinion the cause of death was shock and excessive bleeding as a result of injury No.1 which was sufficient to cause death in the ordinary course of life. All the injuries were ante-mortem. The time between injuries and death was 5-6 hours and time between death and post-mortem examination was about 8 hours.
5. At the time of arrest Baboo Din was found injured. He was examined by Dr. Shabbir Ahmad (P.W.6) on the day of occurrence at 9 p.m. Following injuries were found on his person:-- (1)A lacerated wound over left side of skull vertically 3 c.m. x 1 c.m. x 1 c.m.
(2)A bruise with swelling over right wrist joint 3 c.m. x 1 c.m. x 1 c.m.
(3)An incised wound over left little finger on inner side 0.5 c.m. x 0.5 c.m.
(4)Complaint of pain over left side of chest.
The injuries were simple in nature. Injury No.3 was caused with sharp-edged weapon and the others with blunt weapon. The doctor opined that injury No.3 of Baboo Din might be self-inflicted.
6. The appellant was arrested on 31-8-1986 by S.I. Sher Muhammad (P.W.16). On 3-9-1986, he led to the recovery of blood-stained dagger (P.4) from his house which was taken into possession vide memo. Exh. P.F. Attested by Malik Ghulam Muhammad (P.W.9) and Allah Bakhsh (P.W., not produced). This recovery was effected by Khadim Hussain, Inspector (P.W.17). The Serologist's report Exh. P.N. Reveals that the dagger was stained with human blood.
7. To prove its case the prosecution produced 17 witnesses. Abdul Waheed (P.W.11), Muhammad Madni (P.W.12) and Ejaz (P.W.13) Lave given the ocular account of the occurrence. They claim to have seen the appellant causing injuries with dagger on the person of Shabbir Ahmad (deceased).
Abdul Waheed stated that he had injured the appellant with Soti after he (appellant) had attacked his brother, the deceased. Muhammad Madni and Ejaz P.Ws. Have supported him on this point.
Abdul Waheed has also deposed about the incident of assault by the appellant on Mst. Rubina (P.W.10). Dr. Shabbir Ahmad (P.W.6) has proved the medico-legal report of the injuries of the deceased when he was alive and also the medico-legal report of the injuries of the appellant. Dr. Javaid Hassan Ajmi (P.W.15) has proved the post-mortem examination report. Malik Ghulam Muhammad (P.W.9) and Khadim Hussain, Inspector (P.W.17) have supported the recovery of blood- stained dagger (P.4) from the appellant. Mst. Rubina appeared as P.W.10. She stated that the appellant gave her ten-rupee currency note, kissed her, teased her and asked to accompany him to his house and she narrated the occurrence to her uncle Abdul Waheed. The rest of the evidence is of formal nature.
8. When examined under section 342, Cr.P.C., the appellant admitting to have caused the death of the deceased raised the plea of self-defence. He stated that:-- "I was taking tea in Fouji Hotel. When I came out of the hotel, Shabbir Ahmad deceased and Abdul Waheed complainant reached there. Shabbir was armed with dagger and Abdul Waheed was armed with Soti. Both of them attacked me. Abdul Waheed inflicted Soti blow-which hit me and Shabbir Ahmed attacked with dagger. I snatched dagger from Shabbir and injured him in my self- defence."
While admitting to have used dagger (P.4) in the occurrence he stated that the same was not recovered from him as stated by the prosecution but in fact he himself had produced the dagger before the police on the day of occurrence. He also admitted to have given Rs.10 to Mst. Rubina. His plea was that he gave this note to her as a gesture of affection as he was on visiting terms with her family. He stated that he had caught hold of her hands and left her in the second lane of Mohalla.
He did not produce any witness in defence nor did he give evidence on oath in disproof of the charge against him.
9. Believing the prosecution version and disbelieving the plea of self---defence raised by the appellant 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 motive; that Abdul Waheed (P.W.11) is the brother of the deceased; that Muhammad Madni and Ejaz P.Ws.
Are chance witnesses; that no witness from the locality was produced by the prosecution; that no person from the hotel was produced by the prosecution; that had Muhammad Madni and Ejaz been present on the spot they would have apprehended the appellant on the spot, This will show that they were not present there; that the eye-witnesses have suppressed the injuries of the appellant; that since Shabbir Ahmad (deceased) and Abdul Waheed (complainant) were told that the appellant had misbehaved with Mst. Rubina, so the motive lay with them to attack the appellant; that in fact they had opened the attack, caused injuries to the appellant and the appellant after snatching dagger from the deceased had killed him in exercise of his right of self- defence. Learned counsel for the State has supported the judgment of the trial Court
11. We have carefully attended to the arguments addressed by learned counsel for the parties and have reviewed the entire evidence produced by the prosecution statement made by the appellant under section 342, Cr.P.C. And the circumstances appearing in the case.
12. There is do dispute with regard to the time of occurrence, place of occurrence and the identity of the person causing the death of the deceased. The prosecution case is that the deceased and the complainant had approached the appellant to admonish him for his misconduct with his daughter. The appellant felt annoyed, extended threats and after some time came armed with a dagger and killed the deceased in the presence of the three eye-witnesses. On the other hand, the defence plea is that the deceased and the complainant both armed came to the place of occurrence, launched attack on the appellant, caused him injuries who after snatching the dagger from the deceased injured him in self---defence. So it is a case of two versions. According to the principles laid by the superior Courts for the appreciation of evidence in such like cases we have examined the prosecution case and the evidence produced by it first in order to find out its truth and falsity. We find that the occurrence took place at 6 p.m. And the F.I.R. Was lodged at 6-30 p.m. i.e. After half an hour on the same day, at a distance of 3 furlongs from the place of occurrence. The manner in which the occurrence took place, the names of the eye-witnesses are mentioned therein. In the F.I.R. The fact that the appellant had received injury during the occurrence has not been suppressed. There is nothing in evidence to show that the F.I.R. Was not a genuine document or it was not written at the time and place as it purports. Muhammad Madni and Ejaz, the two eye- witnesses, are neither closely related to the deceased nor they are inimical towards the appellant.
Had they not seen the occurrence then it would not have been possible to introduce them to become a false witness of the occurrence of a murder within a 30 minutes of the occurrence i.e. In- between the time of occurrence and the lodging of the F.I.R. They have successfully faced the test of cross-examination. The occurrence having taken place on the road near a hotel, the - two eye- witnesses being the passersby were the natural witnesses of the occurrence. In their statements at the trial they have explained the injury of the appellant. Mst. Rubina, aged about S years, has stated that the appellant gave her ten-rupee note, kissed her, teased her and asked her to accompany her to his house. She has stood the test of cross-examination so much so that she stated that when she told the mischief of the appellant, her father and uncle felt annoyed. They abused the appellant and they went to his house duly armed. Since there is no legal infirmity warranting the rejection of the version of the occurrence given by the eye-witnesses, so it is not possible to exclude the statements made by the eye-witnesses or the prosecution case stated by them.
13. We have considered the defence version with utmost care on our part. We find that neither the appellant has been able to establish the defence plea on facts or in law nor there is reasonable possibility of defence version being true. Except his statement under section 342, Cr.P.C. There is nothing in evidence to show that Shabbir Ahmad (deceased) armed with dagger and Abdul Waheed (complainant) armed with Dang had opened the attack on him. Had they launched a determined attack on the appellant on account of the mischief committed by him with Mst. Rubina, their daughter/niece then the number and the nature of the injuries found on the person of the appellant and the harm caused to him must have been much more. The sharp-edged injury No.3 of the appellant was over little ringer on inner side 0.5 c.m. x 0.5 c.m. He admits to have used dagger for inflicting injuries on the person of the deceased so it is very much obvious that he had received injury No.3 at the time of stabbing or pulling out the dagger from the locale of the injury of the deceased. Injury No.2 is also a bruise on wrist joint. There was no injury on the left side of chest.
He simply complained of pain. In view of the nature, number and location of injuries Nos.2, 3 and 4 it can be said with certainty that the same were not caused by the enemy hand or by the deceased or the complainant in the background of the incident of Mst. Rubina. However, injury No.1 seems to have been inflicted with blunt weapon on the appellant. This injury has not only been explained in the F.I.R. But has also been explained in evidence. In view of the provision of section 340(2), Cr.P.C.
The appellant who was the best witness of his plea and of the apprehension of harm at the hands of the opposite-party could give evidence in disproof of the prosecution version and in proof of his plea of self-defence but he did not dare and care to appear as a witness in his defence. He also did not produce any other person from the locality to substantiate his plea of self-defence.
Furthermore, there is no possibility of the defence version being true. There is nothing in evidence to show that he had appeared before the police after the occurrence and produced blood--stained dagger at the police station, as stated by him. The Investigating Officer has denied the suggestion.
The appellant has not led any evidence to show that he was not arrested from the place as alleged by the prosecution or that he had appeared in the police station and produced the blood-stained dagger P.4 there. There is nothing in evidence to show that he had disclosed this plea to the Investigating officer immediately after his arrest. If for the sake of arguments it is assumed that the appellant had successfully snatched dagger P.4 from the deceased and had injured the deceased in the manner stated by him, he had no right of self-defence for the reasons, firstly that on his own showing Shabbir Ahmad was disarmed; and that injury No.2 was inflicted on the back of the chest of the deceased. The location of injury No.2 indicates that the deceased was not even face to face, and as such there was no reasonable apprehension from him to kill or cause grievous injury to the appellant or that he was lying on the ground when injury No.2 was inflicted at his back. No one after having stabbed in the back of the chest can claim to cause injury on the back of a person in right of self---defence. The trial Court has appreciated the evidence and the case in accordance with the principles laid down by the superior Courts. The submission made by the learned counsel foe the appellant are devoid of force and substance.
14. This brings us to the question of sentence. We have considered this question carefully. We do not see any mitigating/extenuating circumstance in favour of the appellant for lesser penalty. He misbehaved with Mst. Rubina, aged 8 years, the daughter of the deceased and when they admonished him he became annoyed and killed the father of the girl. He does not deserve any leniency.
15. The upshot of the above discussion is that there being sound basis to uphold the conviction and sentence of the appellant, the appeal is dismissed and the sentence of death awarded to the appellant by the trial Court for the murder of Shabbir Ahmad is confirmed.