ABDUL JABBAR KHAN, J.-----Khalid Jahangir son of Muhammad Khan aged about 21 years, has been sentenced to death under section 302, P. P. C. For the murder of Muhammad Afzal aged 19 years, by the learned Sessions Judge, Sialkot, vide his judgment dated 18 December 1973. An appeal has been filed by him against the said judgment regarding his conviction and sentence.
There is also a murder reference before us for the confirmation of his death sentence. We will dispose of both, the appeal as well as the murder reference, by this single judgment.
2. The occurrence took place near Talab Sheikh Maula Bakhsh at degarwela (4-00 p .m.) in Sialkot City on 12th November 1972, at a distance of 3/4 miles from Police Station City Sialkot. Muhammad Afzaal who was still alive was rushed to Civil Hospital Sialkot on a tonga, by Muhammad Anwar P.
W. 2 and Suleman Khan P. W.
3. He was admitted in the hospital and an information regarding his admission was conveyed to Khadim Hussain A. S. I. (P. W. 12) at 5-15 p.m. From the hospital, who entered a report in his daily diary regarding the message received vide Exh. P. L. And then proceeded to the hospital. On reaching the hospital, he enquired from the doctor vide Exh. P. G.
Whether Muhammad Afzaal injured was in a fit condition to make a statement but was told vide Exh. P. G./1 that he was not so. Thereupon he recorded the statement of Muhammad Anwar P. W. 2 Exh. P. A. He forwarded the same to the Police Station City for formal registration of the case which was duly registered vide F.
1. R. Exh. P. A/l, at 6 p.m. On the same day.
3. The facts of the case as revealed from the statement of Muhammad Anwar P. W. 2, are as follows:- On 12th November, 1972 at about degarwela Muhammad Anwar P. W. 2 alongwith Muhammad Afzaal alias Jallu son of Abdul Latif case Jat resident of Mohallah Dharowal, were standing togetherth near Talab Sheikh Maula Bakhsh, in order to witness a wrestling match. While two of them were there, Muhammad Suleman P. W. 3, came and joined them. All three of them started talking about the prospective wrestling match. After a short while Khalid Jahangir appellant came from behind and getting closs to them, he abused Muhammad Afzaal deceased and threw out a challenge to him that he would kill him, as well as recover Rs. 100 from him. Muhammad Afzaal deceased had hardly taken a turn to face the appellant that he was stabbed twice by the appellant by a dagger which he had taken out from his dub. Muhammad Afzaal deceased was hit by the appellant in his abdomen on the left side and on his left thigh with the dagger. Both Muhammad Anwar and Muhammad Suleman P. Ws. Tried to catch hold of the appellant but be succeeded in making good his escape by threatening them with dire consequences. It was stated by Muhammad Anwar P. W.
2 that 4/5 days earlier to this occurrence the appellant had demanded Rs. 100 from Muhammad Afzaal deceased to celebrate his Eid and this demand from Muhammad Afzaal was in fact nothing but a display of desperado by the appellant who actually wanted to extort money from him. When Muhammad Afzaal deceased did not oblige the appellant he threatened him to teach him a lesson for this defiance.
4. Khadim Hussain A. S. I. (P. W. 12) took into possession blood--stained shirt P. 6, blood-stained shalwar P. 7 and blood-stained vest P. 8 which were handed over to him by the doctor. The case was registered under section 307, P. P. C. The Investigating Officer then proceeded to the spot and took into possession blood-stained earth vide memo. Exh. P. B. He tried to trace out the appellant but could not succeed in apprehending him. He again returned to the hospital and made queries on 13/14-11-1972 from the doctor vide applications Exh. P. G./2 and Exh. P. G./4 about the fitness of the victim to make a statement but the answer of these queries was in negative. Ch. Sardar A.I S. N.
O. (P. W. 13), took charge of toe investigation and arrested the appellant on 14th November 1972, from near the railway crossing close to Jinnah Park and recovered from his person blood-stained dagger P. 1 covered in a cover P.
2. He took the dagger P. 1 into possession vide memo. Exh. P. D. This dagger was sent to Chemical Examiner and to Serologist for examination and report. The Serologist to the Government of Pakistan vide his report Exh. P. F. Expressed his inability to determine the origin of the blood stains as these were in disinteg--rated form and thus he could not declare them as stains of human blood. On 16th November 1972, the S. H. O. Again made a query Exh. P. G/6 about the condition of Muhammad Afzaal deceased as to whether he could make a statement or not, and to this the doctor certified vide Exh. P. G./7 that Muhammad Afzaal was in a fit condition to make a statement. Upon this, Ch. Sardar A.I S. H. O. (P. W. 13), recorded the statement Exh. P. N. Of Muhammad Afzaal deceased under section 161, Cr. P. C. On 19th November 1972, Muhammad Afzaal deceased died in the Civil Hospital. On receiving this information about his death, the S. I.
Proceeded to the spot and prepared inquest report Exh. P. O. And sent the dead body to the mortuary for post-mortem examination. In view of the fact that Muhammad Afzaal deceased had succumbed to his injuries, the case under s6ction 307, P. P. C. Was converted to section 302, P. P. C.
5. Dr. Muhammad Nawaz Chaudhry P. W. 14, was the first to examine the deceased on 12th November 1972, who found the following injuries on his person,:------
(1) An incised wound 2--' x 1--' on the outer aspect of left inguinal region 2' below the anterior superior iliac spine. Wound oblique in direction going to abdominal cavity. Omentum and sigmoid colon protruding through the wound. Cut present on the corresponding part of shirt and bunyan.
(2) Incised wound 1--'x --' muscle deep on the outer and middle of left thigh. Cut present on the corresponding part of the shalwar.
Injury No. 1 was declared grievous but the doctor could not give result about injury No. 2 which he kept under observation because he was trans--feered from this district. In his opinion, the injury was caused by a sharp-edged weapon. He stated that general condition of the patient was very serious as he was in a state of severe shock. Pulse was not perceptible. Blood pressure could not be recorded because it was not record able. Skin was cold. The probable duration of injuries according to him was one to two hours.
6. On 19th November 1972, Dr. M. Zia-ud-Din (P. W. 3), conducted post-mortem examination on the dead body of Muhammad Afzaal deceased and found the following injuries on his person:----
(1) Stitched wound 5--' the original wound is extended for operation. The loop of sigmoid colon is out through the wound. On the outer aspect of left inguinal region and extended towards the midline of abdomen.
(2) Stitched wound If on the outer and middle part of left thigh.
7. The case of the appellant before the learned committing Court was that of bare denial and he attributed his implication in this case due to enmity with Muhammad Sideman P. W. While making his statement under section 342, Cr. P. C. Before the trial Court, the appellant professed his innocence but added that he was not present in the city at the time of occurrence and was in fact hunting in Sub-Division of Narowal in a Rakh known as 'China Estate' near Baddomalhi. He also volunteered to produce challan Exh. D. B. This document Exh. D. B. Revealed that the appellant was apprehended by a Game Watcher on the day of occurrence at a distance of about 50 miles near about 2-30 p.m. While hunting hares without a valid licence. The appellant has also led his defence by producing Muhammad Yousaf D. W. 3, the Officiating Game Inspector, to prove Exh. D. B. He has produced Muhammad Rafiq D. W. 1 (Foot Constable) and Ch. Sardar A.I S. I. (D. W. 2).
8. We have heard the learned counsel for the defence as well as the learned State counsel and have perused the entire record of the case very carefully with their assistance. The case of the prosecution mainly rests on the evidence of motive, the ocular evidence and the medical evidence.
The recovery of dagger P. I from the appellant in this case is of no con--sequence in view of the report of the Serologist Exh. P. F. Which does not show that it was stained with human blood.
9. The learned counsel for the defence has submitted that motive set up by the prosecution does not show that the appellant had sufficient cause to kill the deceased. In order to assess the strength of this argument it would be advantageous to refer to report Exh. P. K. Which was lodged with the Police Post, Rangpur on 7th November 1972, just five days prior to this occurrence by Muhammad Afzaal deceased himself. The learned trial Court has reproduced this report in verbatim in vernacular in its judgment, to show that the appellant did demand Rs. 100 by way of extortion from the deceased and as well as threatened to kill him--- On reading the contents of this report, one is fully convinced that the appellant was a dare-devil type who was out to harass peaceful citizens and wanted to enjoy at the expenses of others. It is a matter of common knowledge that such like characters are not wanting in our society and desperados of this type can go to any extent in their arrogance to overawe their fellow citizens. The learned counsel for the defence while commenting on report Exh. P. K. Has contended that this report was in fact an attempt on the part of the deceased to put up a false story to the detriment of the appellant, in case he was attacked by him in near future, so as to provide motive against him for this prospective assault. The argument of this kind can at the best be termed as fantasy which can hardly impress a rational mind. We consider it devoid of force and have got no hesitation to repel it.
On the other hand, in view of the report Exh. P.K., we are led to irresistible conclusion that the appellant was looking forward for the opportunity to make good his threat to prove that he was not a mere man of words but in fact a real man of deeds. We are thus in full agreement with the learned trial Court that the prosecution has established sufficient motive for the appellant to come forward to commit this heinous crime. Furthermore the type of the weapon used and the part of the body selected by the appellant clearly indicates that his intention was nothing else but to kill. If he just wanted to chastise the deceased he could have selected non-vital part of his anatomy and not his abdomen.
10. The learned counsel for the defence has further contended that both of the eye-witnesses are admittedly friends of the deceased and also have not given hundred per cent true account of the incident. He has submitted that their testimony thus may be categorised as interested and partial.
To strengthen his point of view he has also criticised the character and unclean life of these two witnesses by showing from the record that they have participated in various criminal acts from time to time and has conclud--ed that it would not be safe to place implicit reliance on their evidence. He has also come forward with an argument that the prosecution has failed to produce a single independent witness to support its case although the occur--rence took place in a congested locality and lot of persons must have been there to witness the alleged crime.
We have given our anxious thought to all these contentions but do not find any force in them, for the reason that it was more natural for, the deceased to be in the company of his friends while going to see a wrestling match or event of that kind and thus presence of Muhammad Anwar and Suleman Khan P. Ws. Would be considered a most natural phenomenon. Moreover mere friendship of the witnesses with the deceased would not cause any aspersion on their credence unless and until it was brought on the record by the defence that these witnesses were either inimical towards the appellant or had ulterior motives to falsely implicate him. We have gone through the strenuous and lengthy cross-examination made by a senior counsel on these witnesses but find that nowhere it has been shown that the witnesses had any strong reason to go to the extent of committing perjury for the involvement of the appellant in this case. Similarly, we do clot find anything on the record to find that these witnesses wanted to satisfy their personal vendetta or had some sort of animus against the appellant. What we have found is that they have came out as truthful v witnesses and have been fully corroborated by the deceased in his statement Exh. P. N., the motive, and medical evidence has also fully supported their narration. No doubt, it is on the record that these witnesses have been involved at certain times in criminal cases but this involvement will not make them untruthful witnesses of this case and, therefore, we hardly see any reason to consider them unworthy of credit on this account. As far the argument that no independent person had come forward to support the prosecution version although such evidence could be made available easily it is sufficient to observe that a very few persons would like to stick their neck into the affairs of others, particularly, when persons of appellant's character are involved.
It will be only those who will have substantive interest to pursue the prosecution case to its logical end that they will come forward, unmindful of the consequences. We are of the considered opinion that the learned trial Court was fully justified to place full reliance on the testimony of these eye- witnesses which finds full support from the medical evidence and is corroborated on all material points by the statement of the deceased mcord9d under section 161, Cr.P.C. May be we may not treat it as a dying declaration as it cannot be given that status in view of many objections, but its intrinsic value under section 161, Cr. P. C. Will remain unaffected. The very perusal of this statement inspires confidence and to us it rings true as its narrative is straightforward and it finds support from the earlier incident which was duly reported as Exh. P. R.
11. We are not obliged to discuss the defence led by the appellant as the learned counsel for the defence has not adverted to it and has also placed no reliance on the plea of alibi. We are of the considered opinion that the learned trial Court has rightly rejected it as unworthy of any credit. The learned counsel has also not subscribed to the theory of substitution but has only urged that the appellant may be awarded lesser penalty and the capital punishment imposed upon him by the learned trial Court was not justified. In support of his contention, he has made the following submissions:-
(i) that the youth of the appellant coupled with the fact that he is a student, does not call for capital punishment in his case;
(ii) that the witnesses have not come out with the real account and have rather kept something to themselves ;
(iii) that in fact the appellant was forced into this act as a result of some sarcastic remark or some challenge was thrown to his vanity which goaded him in attacking the deceased;
(iv) that the deceased did not die immediately as a result of the injuries but in fact expired eight days after the incident in the hospital;
(v) that the doctor has stated that mouth, pharynx, diaphragm, stomach, pancreas, small intestine, liver, spleen, kidneys, bladder, organs of generation were all found in healthy condition and in fact death was accelerated by peritonitis due to injury No. 1 ;
(vi) Lastly, that the deceased might have survived if peritonitis would not have set in.
12. In view of the above discussion, we are of the firm opinion that the appellant has committed the murder of Muhammad Afzaal deceased in the manner as narrated by the P. Ws. And there are no extenuating circumstances in his favour for the award of lesser punishment. He has been rightly punished for his destardy act, by the learned trial Court. Consequently, we dismiss his appeal; maintain his conviction and sentence. The sentence of death is confirmed.