FAZAL KARIM J.- This is an appeal from the judgment of the learned Additional Sessions Judge, lahore, dated 4.4.1988, whereby the appellant, Muhammad Aslam alias Chan, was convicted under section 302 of the Pakistan Penal Code and sentenced to death, a fine of Rs. 5000/- and in default one year's R.I.3/4th of the fine, if recovered, was directed to be paid to the heirs of the deceased man, Shaukat alias Phulla.
2. The deceased man Shaukat alias Phulla was brutally done to death at about 4.30 a.m. On 11.9.1986 at his sweet meat shop situate at Chowk Ara Hassan Shah, Bilal Ganj, Lahore. As it appears from the evidence of Dr. Saleh Yusaf (P.W.9) who had performed the forensic postmortem examination of the deadbody of the deceased at 12.45 p.m. On 11.9.1986, the deceased had suffered two injuries namely, 22 cm long boldly cut wound at the base of front of neck starting from 4 cm behind and 7 cm below the left ear passing 8 cm below right ear. Cutting through skin, fiscia, muscles, strap muscle of neck, trachea, oesophagus, neuro vascular bundles on both sides of the neck, down to the body of 6th cervical vertebral body and 6 x 0.5 cm incised wound horizentally placed on the front of left shoulder at the level of the first injury. The first injury had cleanly cut all the structures. Death in the opinion of the Doctor was caused by injury No.1 damaging major blood vessels of neck leading to profuse haemorrhage and shock. Probable time between injuries and death was immediate and between death and postmortem examination 6 to l2 hours. Ex.PJ is the carbon copy of the postmortem report and EX.PJ/1 is the diagram of the injuries.
3. The first information of the incident was laid before Muhammad Hanif, SI (PW8) at police station Lower Mall, Lahore at 5.00 a.m. On 11.9.1986 by Muhammad Ali (P.W.5), a brother of the deceased.
The FIR is Ex.PC. The distance between the place of occurrence and the police station was 1h kilometers.
4. The prosecution, case as laid in the FIR was as follows. The appellant ran the business of Roti Chhola in the neighbourhood of sweet meat shop of the deceased Shaukat alias Phulla. Some three months before this incident, the appellant converted his shop into a sweat meat shop. He would allure away the employees of the deceased and this would lead to quarrels between the appellant and the deceased. A day before the occurrence, in the evening, the appellant was able to allure away another worker of the deceased named Muhammad Ashraf. This had led to an exchange of abuses between the appellant and the deceased.
5. At his shop the deceased sold milk and curd besides selling sweetmeats. He would often sleep, at his shop. Muhammad Ali, PW, used to supply milk to the deceased at his shop from village Kot Haji Kala Khatai. On the morning of the day of occurrence as usual, Muhammad Ali PW, accompanied by his brother Muhammad Ashiq (given up at the trial) and his cousin Muhammad Arif, PW.6, reached the shop of the deceased at about 4.30 a.m. For supplying him milk. They saw that the appellant was slaughtering Shaukat deceased. On seeing them the appellant started running. Muhammad Ali, Muhammad Ashiq and Muhammad Arif, PWs, gave him a chase and raised alarm. When they reached Chowk Ganjay Kalan, they were able to get hold of the appellant alongwith the weapon of offence, chhurri. P.I, with the help of Muhammad Ashiq son of Barkat Ali, P.W.7. They brought the appellant back to the place of occurrence, where they found Shaukat deceased already dead.
6. After recording the FIR, Muhammad Hanif SI, PW.8, reached the spot, prepared the site plan, Ex.PH and arrested the appellant "alongwith the weapon of offence chhurri, P.I" and made the chhurri, P.I, into a parcel vide memo Ex.PE. He prepared the inquest report, Ex.PG and despatched the deadbody to the mortuary. He collected blood stained earth vide memo Ex.PD, took into possession the cot on which the deceased was done to death vide memo Ex.PF. He also had the site plans Ex.PA. And its copy Ex.PA/1 from Ch. Hameed- ud-Din, PW.2.
7. At the trial the prosecution called nine witnesses including Muhammad Hanif, SI (P.W.8) and Dr. Saleh Yusaf (P.W.9).
8. The prosecution case mainly rested upon the testimony of Muhammad Ashraf, Pw.I, Muhammad Ali, Pw.5, Muhammad Arif, PW.6 and Muhammad Ashiq, PW.7. The evidence of the remaining PWs was of a formal character. It can be shortly dealt with as follows. Hameed-ud-Din, PW.2, had prepared the site plan Ex.PA. And its copy Ex.PA/1 in the scale of 32 feet equal to one inch on 13.9.1986. Ghulam Rasool, AS1 (P.W.3) was given two sealed parcels, one containing blood stained earth and the other containing the blood stained chhurri, for safe custody by Muhammad Hanif, SI, on 11.9.1986. He kept the parcel containing the blood stained earth till 28.9.1986 when he gave it to Jamil Ahmad Constable and the parcel containing the blood stained chhurri till 4.12.1986 when he gave it to the same Constable for delivery at the office of the Chemical Examiner, Lahore. Jamil Ahmad Constable (P.W.4) had escorted the deadbody from the place of occurrence to the mortuary on 11.9.1986. On 28.9.1986 he had delivered the parcel containing the blood stained earth and on 4.12.1986 he had delivered the parcel containing the blood stained chhurri at the office of the Chemical Examiner, Lahore.
9. Muhammad Ashraf, PW.1, stated that he had been employed at the shop of the deceased for two years before the occurrence. The appellant used to sell Nan Chholav in his shop adjoining the shop of the deceased. Some months before the occurrence, the appellant started selling sweetmeats at his shop. He allured away one or two workers from the shop of the decease^. A day before the occurrence, the appellant asked him (Muhammad Ashraf, PW) to join him offering to pay him Rs.30/- per day as compared to Rs. 25/- which Shaukat deceased was paying him. He went over to the appellant. The deceased inquired from him as to why he had gone to the shop of the appellant and there was an exchange of abuses and hot words between the appellant and the deceased.
They were separated by some passers-by and one Shah Sahib. In cross-examination he admitted that the brothers of the deceased "used to bring milk from village Kala Khatai daily. Brothers of the deceased used to reach there alongwith- the milk about one hour before my arrival at the shop. I used to report daily on the shop between 5.30 and 6.00 a.m." His job at the shop of the deceased, he added, was to "fry Purian etc. Alongwith my master". In answer to another question he said that he reached the spot on the day of occurrence "at that time the deadbody was lying there, the accused was also present and the police Officers were also present."
10. Muhammad Ali, PW.5 and Muhammad Arif, P.W.6, narrated the eyewitness account of the incident; it was substantially in the same terms as in the F. I.R. Muhammad Ashiq, P.W.7, also ran a milk selling shop at Chowk Ganjay Kalan. He testified that he was asleep at his shop when at about 4.00 or 4.30 a.m. On the day of occurrence, he heard an alarm. He saw that a man was coming running holding a Chhurri in his hand from the side of Chowk Ara Hasasan Shah followed by three persons. The man so running was the appellant. He challenged the appellant telling him not to move. When the appellant tried to look back, he "caught hold of his wrist in which he was holding the chhurri. The other three persons who were following him were Muhammad Ali, Muhammad Ashiq and Muhammad Arif, PWs. "They all brought him to the shop of the deceased.
11. Muhammad Ashiq, PW-7, had also witnessed the taking into possession of the blood stained chhuri, P.I from the appellant at the spot by the police vide memo Ex.P.E. And blood stained cot vide memo Ex.PF.
12. In his statement under section 342 of the Cr.P.C, the appellant admitted that he ran sweet meat shop near the shop of the deceased. He however denied that he had employed Muhammad Ashraf, PW, an employee of the .Deceased, at his shop by promising to pay Rs.30/- per day as compared to Rs.25/- which the deceased was paying him and that on that account there was a dispute between him and the deceased. He denied that he was apprehended by the P. W.s in the manner stated by them or that the Chhurri, P.I had been used by him in killing the deceased or that he had produced it before the police. He added that the deceased had business jealousy with him.
He was a man of bad character; he would quarrel with his neighbours, he would also quarrel with his customers. Due to his bad behaviour he had many enemies and foes and somebody might have, in the darkness of night, murdered him. He went so far as to say that "there was no such servant known as Muhammad Ashraf with the deceased" and he had never attempted to allure the servants of the deceased.
13. He gave evidence on oath which was to the following effect. On the day of occurrence he went to his shop early in the morning and learnt that the deceased had been killed. Muhammad Ali, complainant, arrived. A servant whose name he did not know was sleeping at the shop.
Muhammad Ali, PW, slapped the servant and "said that during his sleep some one had murdered the deceased and he remained unaware." Samad Shah, Inspector Police arrived at the spot and recorded the FIR. Some six months before this occurrence, the police had come inquiring about Shaukat deceased. He had told the police that the "person who had defied them was in fact Shaukat." He had told the police that one of the enemies of the deceased was Maula Bakhsh Gujjar "whom the deceased had tied with turban around his neck. Also, the deceased used to bring milk from Raiwind. There were inter-se disputes. They had slapped on the face of the deceased." After inquiry the police allowed him to go. Again at about 2.00 p.m. They called him and had him sent to the jail.
14. The appellant did not call any evidence in his defence.
15. The learned trial Judge believed the testimony of the eye-witnesses Muhammad Ali and Muhammad Arif. In his opinion however the whole story relating to the arrest of the appellant was doubtful. In reaching that conclusion the learned trial Judge noticed that according to Muhammad Ashiq, PW, he had caught hold of the appellant by wrist in which he was holding the chhurri, when he had tried to look back; in his cross-examination, however Muhammad Ashiq, P.W. Had "given another version, when he has deposed that he heard the alarm when there were at a distance of 5/7 steps from him. He warned the accused not to come forward. In the meanwhile Muhammad Ali, PW, caught the accused in Japha from behind." In his statement , so observed the learned trial Judge, he had not mentioned the fact that "three persons Muhammad Ali, Muhammad Ashiq and Muhammad Arif surrounded the person armed with chhurri and caught him." In his view, therefore, there were three versions of the P.W. Namely, one stated in the examination-in-chief, the second in cross-examination and the third before the police. He thought that "one's state of mind at the time of murder cannot be assumed as that of a docile person who would offer himself to the persons following him after the murder so easily." It appeared to the learned trial Judge, therefore, that the appellant armed with a chhurri as he was, soon after the commission of the murder, "cannot be assumed to be in senses and he is supposed to struggle and resist his arrest, particularly, in the circumstances when he started running on seeing the P.Ws." The learned trial Judge was also not prepared to. Believe the motive part of the prosecution case. In his view the statement of Muhammad Ashraf, PW, "was not corroborated by any independent evidence" and was also inconsistent with the statement of Muhammad Ali, PW-5, according to whom "there was dispute between the accused and the deceased. We came to know and arranged conciliation between the accused and the deceased 3 days before the occurrence. But afterwards the accused murdered my brother." He did not rely upon the recovery of chhurri from the appellant on the ground that the chhurri, P.I, was sent to the office of the Chemical Examiner on 4.12.1986, for "ordinarily sealed parcels containing blood stained earth and chhurri should have been sent on the same date, in as much as no special caution and care is required in transmitting the sealed parcel containing chhurri."
16. Learned counsel for the appellant adopted the reasoning of the learned trial Judge in disbelieving the motive evidence, evidence relating to the arrest of the appellant and the recovery evidence; he also argued that the eyewitnesses, Muhammad Ali and Muhammad Arif, PWs, were chance witnesses and that as they had been disbelieved by the learned trial Court, in one. Material respect, namely the arrest of the appellant, their evidence, so far as the eyewitness account was concerned, could not be acted upon without corroboration.
17. Muhammad Ali (PW5) was a real brother of the deceased and Muhammad Arif (PW6) was his cousin. They had, however, no reason to falsely implicate the appellant on a capital charge. It is true that there was some business rivalry between' the appellant and the deceased, for the reason that the appellant had also started the business of sweat meats in his shop. This rivalry was, however, not of such a nature as to make Muhammad Ali and Muhammad Arif PWs so interested against the appellant as to falsely implicate him in this case. We are also unable to characterise them as chance witnesses. Muhammad Ali PW was a milk vendor; Muhammad Arif was also a milk vendor and had his shop hardly at a distance of I0O yeards from the place of occurrence. It was brought out clearly in the evidence of Muhammad Ali and Muhammad Arif PWs as also in the evidence of Muhammad Ashraf PW that Muhammad Ali used to supply the milk to the deceased and that for that purpose, they used to arrive at his shop an hour or so before 5.30 A.M. Their evidence received corroboration, if corroboration was necessary, from the evidence of Ashiq (PW7), who was a completely disinterested witness. We cannot agree with the learned trial Judge that the evidence as to the arrest of the appellant suffered from any inconsistency. The learned trial Judge held, and in our view rightly, that Muhammad Ali and Muhammad Arif PWs had seen the appellant killing the deceased. There is no reason to doubt the verity of their statement that on seeing them, the appellant had started running and that they had given him a chase. If they had given him a chase, naturally they must have raised an alarm and that must have attracted Ashiq (PW7), who was sleeping in front of his shop. We cannot think that there can be any doubt as to these broad facts. Muhammad Ali, Muhammad Arif and Ashiq PWs were also unanimous that they had caught hold of the appellant with Chhurri P.I in his hand. What Ashiq PW, stated in cross-examination was in answer to questions put to him by the learned defence counsel. As to Ashiq's statement, before the police that Muhammad Ali, Ashiq (given up PW) and Muhammad Arif had surrounded the appellant and caught him, it is sufficient to say that at the trial also, Ashiq, PW, stated that the above-named three persons were following the appellant and that after the Selfeffacing had been caught with the Chhurri P. I,,he had been taken to the spot of occurrence. In any case, even if this can be regarded as a discrepancy, it is, in our view, a discrepancy of a minor nature and should not affect the credibility of these PWs. Nor do we think that the fact that the appellant did not put up any struggle to resist his arrest should weigh in rejecting their testimony. He had accomplished the killing of the deceased. In any case, it may well be that he did not resist because the futility of so doing was apparent to him. The learned trial Judge was, in our view, also wrong in disbelieving the motive part of the prosecution story. Muhammad Ashraf, PW, had left the service of the deceased and accepted that of the appellant a day before the occurrence. This had led to an exchange of abuses between the appellant and the deceased in the previous evening.
Muhammad Ashraf PW too was an independent person and no reason appears to regard him as an interested witness. Kis testimony, therefore, did not require corroboration. What Muhammad Ali (PW5) said was: "There was dispute between the accused and the deceased. We came to know and arranged conciliation between the accused and the deceased 3 days before the occurrence."
It appears that he was not asked to clarify if that dispute over Muhammad . Ashraf PW had occurred because Muhammad Ashraf had gone over to the appellant three days before the occurrence. Muhammad Ashraf PW was the person directly concerried; he was positive that he had left the service of the deceased a day before the occurrence.
18. We have, therefore, no doubt that the appellant had been seen by Muhammad Ali and Muhammad Arif PWs, killing the deceased and had been caught with the weapon .Of offence Churri PI shortly thereafter. The appellant was present at the spot when the Investigating Officer, Muhammad Hanif S.I., went there. As the appellant was caught almost red-handed, the evidence of the witnesses, Muhammad Ali, Muhammad Arif and Ashiq must be accepted that it was staned with blood. As there is no doubt about the Chhurri PI having been taken from the appellant immediately after the killing of Shaukat deceased, it follows naturally that the Chhurri was besmeared with human blood. In the circumstances of the case, we are not disposed to attach any importance to the fact that the Churri was not despatched to the office of the Chemical Examiner till 4.12.1986.
For these reasons, we see no merit in the appeal and dismiss it The appellant's death sentence is confirmed.