SADAR MUHAMMAD DOGAR, J.- Muhammad Tahir (PW6) resident of village Hamoli, at a distance of 12 miles from Police Station Piplan made statement to Altaf Hussain M.H.C.(PW2) at the Police Station on 20-5-85, on the basis of which FIR Ex. PC was recorded at 7-35 a.m.
According to FIR Muhammad Tahir was returning home along with his son Muhammad Riaz (deceased) after saying Isha prayer in the mosque on 20-5-85. Muhammad Tahir stopped on way and started talking to Manzur. Muhammad Riaz reached near his house at 9-30 p.m. Muhammad Iqbal and Muhammad Jamil real brothers appeared there suddenly, armed with shuras. They gave lalkara to Muhammad Riaz that they will teach him a lesson. Muhammad Iqbal gave a blow with Chhura to Muhammad Riaz on the back of left side of shoulder. Second injury was caused by Jamil on the back of left upper arm. Third injury was caused by Muhammad Iqbal on back of left upper arm. 4th injury was caused by Muhammad Jamil on back of left upper arm. Muhammad Riaz fell down and raised noise. The complainant and Manzur who were witnessing the occurrence ran to the spot. The accused entered their house raising lalkaras.
2. Muhammad Iqbal had set up a baithak near the house of the complainant where he used to play indecent records on the tape-recorder. Muhammad Riaz deceased has estopped him from doing so whereupon they had exchanged abuses a few days before the occurrence. Muhammad Riaz was attacked by Muhammad Iqbal and Jamil on account of that.
3. Muhammad Riaz was removed to Rural Dispensary Hamoli. The doctor after medical examination referred him to Civil Hospital Mianwali. Muhammad Tahir after having got him admitted at Mianwali went to Police Station to lodge report.
4. Habib Ullah Khan, ASI (CW1) who was entrusted the investigation of the case, reached the spot.
He collected bloodstained earth from there vide memo Ex. PF and recorded statements of the witnesses. He made application Ex.PH to the Medical Officer, DHQ Hospital, Mianwali to solicit opinion if Muhammad Riaz was fit to make a statement. Vide Ex. PH/1 the doctor opined that he was fit to make a statement. Thereafter the statement of Muhammad Riaz was recorded under Sec. 161 Cr.P.C. The same was tendered in evidence during trial as dying declaration, and was exhibited as P.O.
Muhammad Iqbal was arrested by him on 24-5-85. Bloodstained chhuri P.5 got recovered by Muhammad Iqbal from his house on 29-5-85 was taken into possession by the A.S.I, vide memo Ex.PG.
5. On being informed on 7-6-85 that Muhammad Riaz had died and his dead body was lying in his house in village Hamoli, the ASI reached there and prepared injury statement Ex.CW1/C. He also prepared inquest report Ex. PK and despatched the dead body for post-mortem examination.
6. Muhammad Jamil accused was produced before the ASI on 24-5-85. He has pleaded innocence. The ASI postponed his arrest. He was not arrested by the Police on coming to the conclusion that he had not participated in the occurrence and was innocent. Challan was submitted to Court against Muhammad Iqbal only.
7. Not feeling satisfied with the result of the investigation, Muhammad Tahir filed a complaint direct to the Court against Muhammad Iqbal and Muhammad Jamil. Both the accused, i.e. Muhammad Iqbal and Muhammad Jamil named in the complaint were summoned by the Sessions Judge to face trial.
Learned Addl. Sessions Judge to whom the case was entrusted for trial took up the complaint first for trial.
After recording statements of eight P.Ws., two C.Ws, statements of the accused under Sec. 342 Cr.P.C, and statements of two D. Ws and on requiring in evidence positive report Ex.PK,PL from the office of the Chemical Examiner Ex. PM & PN from the office of the Serologist and Ex. PO Statement of the deceased under Sec. 161 Cr.P.C recorded by Habib Ullah Khan, ASI (CW1), learned trial Judge vide judgment dated 5-10-89 convicted Muhammad Iqbal under Section 302 PPC and sentenced him to death plus to pay a fine of Rs. 20,000/-in default whereof to undergo R.I. For six months.
Muhammad Jamil was acquitted.
8. The reference made by learned trial Judge and the appeal filed by the convict are being disposed of together.
9. Dr. Muhammad Tahir who had medically examined the deceased whilst alive at 12-30 a.m. On 21-5-85 appeared as PW1. He had noted following injuries:-
1. An incised wound 12 x 6 cm bone deep with cut muscles with profused bleeding and air bubbles coming out with resperation on the back side of the chest on outer part below left axilla.
2. An incised wound 10 cm x 6 cm bone deep with bleeding and cut muscles behind the left upper arm in the upper and middle one third part.
3. An incised wound 4 cm x 1/2 cm skin deep above injury No.2.
4. An incised wound 6 cm x 1/4 cm below injury No. 2.
All the injuries were opined to have been caused by a sharp-edged weapon within about one hour.
Injury No. 1 was declared dangerous, No. 2 was kept under observation while No. 3 and No. 4 were declared simple.
During cross-examination he stated that the duration of infliction of injuries could vary from one to two hours.
10. Dr. Ijaz Mansoor who had performed autopsy on 7-5-85 at 11.00 AM appeared as PW8. He had noted following injuries on the body of the deceased:-
1. A stitched wound 12 x 1 cm long on the back of left upper chest 11 cm below the shoulder joint and 4 cm lateral to the inner border of the scapula.
2. A stitched wound 10 x 1 cm long on the outer aspect of left upper arm 12 cm below the shoulder joint.
3. A stitched wound 4 x 1-1/2 cm in size on the left outer side of the chest 12 cm below the axilla.
4. A stitched wound 2 cm x 1 cm on the left side of chest 2 cm medical to the left nipple.
5. A stitched wound 15 cm, x 1/2 cm long on the front of the abdomen.
6. A stitched wound 2 x 1/4 cm on the left side of the abdomen.
Injuries No. 5 and 6 were wounds of the operation.
On opening, he had found the chest wall perforated, corresponding to injuries No. 1 and 3 left pleura, and left lung were found punctured. Death was opined to have occurred due to the complication of injury No. 1 which was sufficient to cause death in the ordinary course of nature.
Probable time between the injuries and death was opined to be about 18 days, while the time between death and post-mortem was opined to be within 24 hours.
The doctor had stated that the patient had been received in the hospital on reference by the Medical Officer, Civil Dispensary Hamoli on 21-5-85. He had verified that he had recorded opinion Ex. PH/1 on application Ex. PH that Muhammad Riaz was fit to make a statement. He also stated that Muhammad Riaz was referred to Nishtar Hospital, Multan for further treatment on 6-6-85 and was removed from the hospital for being taken there. During cross-examination he stated that except injury No. 1 rest of the injuries were repaired and stood healed. He stated that the deceased had been operated upon by Dr. Bashir, Surgical Specialist.
11. Ocular account was deposed to by Muhammad Tahir (PW6) and Manzur (PW7).
Muhammad Tahir After repeating the facts given by him in the FIR, also claimed to have witnessed the collection of bloodstained earth from the spot as well as the recovery of dagger P.5 at the instance of Iqbal from his baithak.
He stated that D.H.Q. Hospital, Mianwali had referred his son after 16 days for treatment at Nishtar Hospital, Multan and his son had breathed his lost near Muzaffargarh while being taken to Multan.
During cross-examination he admitted that Manzur PW7 was from his brotherhood but denied that he was his cousin or was related to him in any manner. He denied the suggestion that Fateh Muhammad and Muhammad Nawaz were the actual eye-witnesses of the occurrence. However, he admitted that they were residing in the same street. He denied the suggestion that Muhammad Nawaz had suffered injuries during the occurrence and both of them had appeared before the Police at the spot. On confrontation with his statement Ex. DA (recorded during investigation) he was found to have stated that Fateh Muhammad and Muhammad Nawaz present at the spot and that they had separated them. He denied the suggestion that there was load-shedding and as such there was no electric light. He admitted that the occurrence had taken place at a distance of 2 karams from the door of the baithak of the accused. He denied the suggestion that Muhammad Iqbal was crying in front of his baithak that some persons had removed his jug and glass and was hurling abuses. He denied the suggestion that the deceased on hearing cries and abuses had gone there and was told by Muhammad Iqbal that he was abusing the person who had removed his jug and glass. The suggestion that the deceased had thrown away the cot lying in front of the baithak of the accused, whereupon they had grappled with each other and that his son had run to his haveli and had returned to the spot armed with a burning wooden stick accompanied by his brother Muhammad Aslam armed with vahaula and launched attack on Muhammad Iqbal, was denied by him. He denied the suggestion that Nawaz and Fateh Muhammad PWs had tried to intervene during which Muhammad Nawaz had suffered injuries. The suggestion that Muhammad Iqbal had given injuries to the deceased in self-defence, was also denied by him.
He denied the suggestion that Ex. P5 got recovered by the appellant was in fact a chhuri and Its blade----------- was bearing signs of material of tomatoes. He admitted that many persons were present nearby when the recovery had been effected. He denied the suggestion that Muhammad Iqbal had voluntarily appeared before the Police on the following day of the occurrence. He denied the suggestion that he had nominated five persons for giving oath about innocence-of Jamil accused and that in pursuance of that Muhammad Tufail son of Fateh Muhammad had taken oath of innocence of Jamil on 3-6-85 & that the said fact was verified by the A.S.P., Sadar on 4-6-85. He denied the suggestion that he had made a false statement.
12. Manzur PW7 corroborated the testimony of Muhammad Tahir PW insofar as it pertained to the actual occurrence and the motive for the occurrence. During cross-examination he gave out that Bharu was his great grand-father as well as that of the complainant. He gave the distance of his house from the spot as one furlong. He admitted that he had not witnessed the incident of quarrel on playing of tape-recorder. He stated that the deceased had told him, about that. While expressing ignorance about the operation of schedule of load-shedding, he denied the suggestion that there was no light at the time of occurrence. He denied the suggestion that he had not witnessed the occurrence.
13. Habib Ullah Khan, ASI who had investigated the case, had arrested ' the appellant and taken into possession chhuri P.5 got recovered by him, was examined as CW1. During crosa-examination he stated that he had recorded statement Ex.PO of the deceased whilst alive in the hospital on 23-5- 85 after obtaining opinion from the doctor about his fitness. He stated that Feteh Muhammad and Muhammad Nawaz had also appeared before him and claimed to have witnessed the occurrence.
He stated that Jamil who had appeared before him on 24-5-85 and continued joining the investigation was found innocent by him and that the said fact was verified by Masud Afridi, ASP.
He denied the suggestion that he had conducted the investigation in a partial manner.
14. Masud Khan Afridi, ASP who had verified the investigation in the case, was examined as CW2. He verified the fact that Muhammad Jamil had been found innocent during the investigation. The statements of the remaining P.Ws are more or less of a formal nature.
15. The appellant during his statement under Section 342 Cr.P.C, denied the prosecution case and pleaded innocence. He denied that he had led to the recovery of dagger. He stated that in fact he had produced a kitchen chhuri with which he was cutting tomatoes at the time of occurrence. He stated as follows in answer to the question, 'have you anything else to say?:- I am innocent. On the evening of occurrence at 9 p.m. I was sitting on a charpai having my dinner, before that a jug and a glass was put on the Charpai when my meals was sent from the women folk somebody had removed the jug and the glass in my absence when I started my meals I noticed the absence of jug and glass and out of frustration I started abusing and crying that who had taken my jug and glass in my absence. I started cutting tomatoes with my chhuri when the deceased came out of his house and asked me why was I abusing and shouting. I told him that somebody had taken my jug and glass and I had the right to do so whereupon the deceased threw my Charpai and told me that I would not sit here whereupon we grappled with each other. The deceased then ran to his house and after a short-while brought his brother Muhammad Aslam armed with wahola and deceased armed with a burning wood stick came out and attacked me. In the meanwhile Muhammad Nawaz and Fateh Muhammad our neighboured reached there and they tried to intervene and stop the assailants but they attacked upon me and I to save my own life caused injuries to the deceased in self-defence. We were separated by the said two persons and the deceased returned to his havaile in injured condition . My brother co-accused was not present at the time of occurrence. During the investigation he was declared innocent. The motive alleged by the prosecution is false and after thought. I acted in my self-defence otherwise the deceased and his brother would have murdered me."
16. He examined in defence Muhammad Tufail and Fateh Muhammad as DW1 and DW2.
Muhammad Tufail DW1 stated that he had joined the investigation and taken oath of innocence of Jamil.
Fateh Muhammad DW2 claimed to have witnessed the occurrence alongwith his son Muhammad Nawaz. He corroborated the version putforth by the appellant in answer to the question why this case against you?'.During cross-examination he stated that he was a moeen and the accused owned 3 squares of land in the village. He denied the suggestion that he had made a false statement in support of the appellant for being a moeen. He declared that he himself owned 15 acres of land.
17. We have considered the contentions raised by learned counsel for the parties after having gone through the evidence with the assistance of learned counsel for the appellant.
18. The appellant and the complainants were immediate neighboured. Except the differences mentioned in the FIR due to playing of indecent records by the appellant, there was no other enmity or differences amongst them In fact the appellant denied that there was annoyance Qn that account as well.
Although Muhammad Tahir was father of the deceased yet Manzur PW was an independent witness. The mere fact that he was related to the complainant in the 4th degree is no ground to hold that he was an interested witness. Both of them made corroboratory statements. In the circumstances the argument of learned counsel for the appellant that none of them had witnessed the occurrence, does not hold good at all.
19 The defence version putforth by the appellant appears to. Be a fabricated story. Had the deceased, armed with burning wood stick, and his brother Muhammad Aslam, armed with a vahaula, launched attack on the appellant, they would not have failed to cause injuries to him nor could he have so easily succeeded in inflicting 4 injuries to the deceased, one of which proved fatal with an ordinary kitchen knife, as he claimed. In fact, if two persons armed with long-arm weapons had launched attack on the appellant they would not have allowed him, to teach any of them, without causing significant injuries. The appellant was not found to have suffered any injury. His stance that Muhammad Nawaz son of Fateh Muhammad DW had suffered injuries during the occurrence also appears to be a cooked up story because if Muhammad Nawaz had suffered injuries he would have been got examined by his father. In fact his father might have even reported the matter to the police against the persons at whose hands his son had suffered injuries. The statement made by DW2 does not inspire confidence. A person who could not prove that his son had suffered injuries in the same occurrence, cannot be accepted as a truthful witness, about details of the occurrence.
20. The stance that the chhuri recovered from the appellant bore remains of cut tomatoes, is absolutely unbelievable. If that chhuri had been used for inflicting four injuries, it could not have continued bearing remains of cut tomatoes. Moreover, the appellant was not sitting at any vegetable shop, nor was sitting in the kitchen. He could not have been cutting tomatoes while sitting in the street. The version putforth by the appellant therefore, examined in juxta-position with the prosecution version of the occurrence, appears to be absolutely unbelievable and not worth acting upon.
21. The ocular account which includes the testimony of an independent witness, finds support from the evidence of recovery of blood-stained chhuri at the instance of the appellant. The non-inimical posture between the parties also lends support to the argument that the complainant would not have chosen the appellant to be the murderer of his son falsely.
22 In the circumstances the conviction of the appellant under Section 302 PPC is maintained.
However, we are not inclined to confirm the sentence of death as the evidence of motive for the occurrence is not convincing in that, we are of the view that the appellant could not have been playing indecent songs sitting in or outside his baithak which was part of his residential house. After all, women folk of his family must be living there. The stance of the prosecution that the deceased had quarrelled with the appellant on that account, is, not very much convincing. Learned trial Judge also had not believed that part of the prosecution story. The sentence of death awarded to the appellant is, therefore, altered to imprisonment for life. The sentence of fine is maintained.
However, whole of the fine on recovery shall be paid as compensation to the heirs of the deceased.
Benefit of the provisions of Sec. 382-B Cr.P.C shall also be given to the appellant.
Death sentence not confirmed.