Munir Ahmad (19/20 years) appellant was convicted vide judgment, dated 22-5-1990 by learned Additional Sessions Judge, Okara for the murder of Saeed Ahmad (20 years) the nephew of Zubair Ahmad complainant (P.W.4), under section 302, P.P.C. And sentenced to imprisonment for life and a fine of Rs.5,000 or in default thereof one year's R.I. Benefit of the provisions of section 382-B, Cr.P.C.
Was also extended to him. He has appealed.
2. The occurrence took place at about 4-00 p.m. On 16-11-1987 in the village Abadi at a distance of 3 kilometres from Police Station Sadar Okara. Malik Muhammad Yousaf Inspector (P.W.11) reached the spot and there recorded the statement of Zubair Ahmad complainant (Exh.P.C.) at 5-45 p.m. It was sent to the police station where formal F.I.R. (Exh.P.C./1) was registered by Noor Ahmad A.S.I.
(P.W.5) at 6-10 p.m. The version given in the F.I.R. Was that Saeed Ahmad deceased, the nephew of the complainant, a resident of Kamalia, District Toba Tek Singh, had come to the complainant about 3 months before the occurrence. On 14-11-1987 at about 4-00 p.m. He went to the primary school ground of the village to play cricket. There he had a dispute with Munir Ahmad appellant but they were separated by Shabbir Ahmad (P.W.6) and Abu Bakr (given up P.W.).
3. The version proceeds that on the day of occurrence at about 3-45 p.m. The deceased was going to his, friend Muhammad Afzal (P.W.8). When he reached in the street near the house of Haji Abdul Sattar, from the front Munir Ahmad appellant confronted him armed with a knife. Sohail Ahmad, Muhammad Afzal (P.Ws.7 and 8) and Abdul Ghafoor (given up) were present at the shop of Sardar Khan (given up) who reached the spot on the alarm. At one the appellant gave a blow in the left side of the chest of the deceased and started running away. The deceased also ran after him but fell at a distance of 10 Karams in front of the shop of Sardar Khan. He expired at the spot.
4. Dr. Syed Jarrar Haider (P.W.13) performed the post-mortem examination on the dead body of the deceased on 17-11-1987 at 10-30 a.m. It was the dead body of a young man of normal built aged about 18 years, eyes and mouth closed, clad in white blood-stained shirt, vest, Shalwar and Peshaweri cap. Rigor mortis and post-mortem staining were present. It was having a stab wound 2-1/4 c.m. x 1/2 c.m. In the 3rd interspace on the left side of the chest in front 6-1/2 c.m. From the mid-line and 4-1/2 c.m. From the left nipple with a corresponding cut in-the shirt and vest. The injury had resulted in cut to all the layers of the wall of the chest, 3rd rib cartilage, parietal pleurae and paricardium having incision 2-1/3 c.m. Through and through in the upper part and front wall of the right ventricle: Chest cavity was full of coagulated liquid blood. Stomach was having 4 ounces of semi-digested food small intestines were empty and large intestines having faecal matter.
Bladder was also empty.
In the opinion of the doctor the death was due to shock and haemorrhage due to the injury which was sufficient to cause death in the ordinary course of nature. It was ante-mortem and by a sharp-edged weapon. The duration between injury and death was 5 to 10 minutes and that between death and post-mortem within 18 to 24 hours. The doctor proved his post-mortem report and diagram of injury (Exhs.P.K. And P.K./1).
5. Muhammad Yousaf Sub-Inspector (P.W.11) investigated .The case. After recording the statement (Exh.P.C.) he inspected the spot. He prepared injury statement and inquest report (Exhs.P.E. And P.F.) and sent the dead body to the mortuary for post-mortem examination. He recovered blood-- stained earth from the spot vide memo. (Exh.P.B.) and sealed it into a parcel. He prepared rough site plan of the place of occurrence (Exh.P.H.) and also got prepared site plans to scale (Exhs.P.D.
And P.D./1) from Abaidullah Khan Draftsman (P.W.10) and gave his red notes thereon. He searched for the accused who had obtained bail before arrest from a Court which was rejected on 10-12-1987 and was arrested on the same day. On 18-12-1987 the accused led to the recovery of blood-stained knife (P.1) from the courtyard of his house and it was taken into possession vide memo. (Exh.P.A.) and sealed into a parcel.
6. The prosecution produced Zubair Ahmad complainant (P .W,4) to state about the motive, Sohaib and Muhammad Afzal (P.Ws.7 and 8) to give the eye-witness account of the occurrence, Muhammad Latif and Malik Muhammad Yousaf S.I. (P.Ws.2 and 11) to depose about the recovery of blood-stained knife as well as Dr. Syed Jarar Haider (P.W.13) to give medical evidence and Malik Muhammad Yousaf, the investigator, to prove the charge against the accused.
7. The appellant in his statement at the close of the trial pleaded that it was a blind murder, the deceased received injury when it was dark, the witnesses were not present, the case was registered after preliminary investigation and he was falsely involved due to suspicion and election differences.
8. Learned counsel for the appellant contended that the F.I.R. Was recorded after preliminary investigation, the motive was not proved at all and so the eye-witnesses could not be' believed.
The first two limbs of the contention carry force.
9. Shabbir Ahmad (P.W.6) is, the brother of the deceased. He was only examined on the motive part of the version and reiterated the one given in. The F.I.R. In cross-examination he, however, admitted that his statement was recorded by the police after 4 months of the occurrence. He was present at Kamalia where he learnt about the occurrence and reached the village of occurrence at `Asar' prayers time and after a stay of two days returned to Kamalia. He also admitted that during these two days the police had been visiting the spot and still he did not make any statement to the police. The complainant of course was not present when the deceased and the appellant quarrelled in the cricket ground. Thus the motive is not proved.
10. Muhammad Yousaf Inspector (P.W.I1) admitted in cross-examination that he received the information of the murder near village Meerakh through an unknown person when he was going on cycle, when he was on patrol duty. The complainant met him outside the village at a distance of 2/3 furlongs from the Abadi, did not record his statement at that very place though the complainant had given him the details of the murder. He recorded the statement on reaching the spot. Zubair complainant (P.W.4) deposed that on learning about the occurrence he reached the spot where eye-witnesses were present. The dead body was lying at the spot. He searched for a cycle to go to the police station, spent about 1/2 hour in the search and in the meantime the police arrived at the spot where his statement was recorded. Statements of the complainant and the investigator are contradictory. The contention of the learned counsel seems to be correct that the statement of the complainant was recorded at the spot after preliminary investigation.
10-A. However the contention that the eye-witnesses cannot be believed, must be rejected Sohaib (P.W.7) is the brother of the complainant. Muhammad Afzal (P.W.8) is stated to be a friend of the deceased. Both are independent and disinterested witnesses. Before the occurrence no enmity, illwill or any grudge between the witnesses and the appellant or their families is even suggested what to say of being brought out in cross-examination. The deceased was a resident of Kamalia and had come to see his maternal-uncle, the complainant. The version seems to have been correctly given otherwise the complainant could have claimed to have been present near the spot and to have witnessed the occurrence. The place of occurrence is admittedly in the Bazar and near the shop of Sardar Khan (given lip P.W.). The presence of Sohaib and Afzal at the shop at about 4- 00 p.m. Also cannot be open to much criticism. It was a daylight occurrence and in the Bazar of the village. The witnesses are, therefore, natural. It has not been suggested to any of the eye-- witnesses or even the Investigator that the deceased had enmity with any other person in the village or that the appellant was falsely substituted. His plea that the occurrence took place in the darkness must be rejected in view of the medical evidence. The doctor has clearly stated that the death occurred within 18 to 24 hours of his post-mortem examination which was done at 10-00 a.m. I, therefore, believe the eye-witnesses and reject the contention. Learned counsel vehemently contended that the motive part of the story having been not proved, the witnesses could not be believed. It cannot be accepted. Even if their motive is not proved which of course was of a very trivial nature, the witnesses being independent, there is no reason not to place reliance on them.
11. Learned counsel lastly contended that even if the eye-witnesses were believed the appellant could not be said to have intended the murder. According to him, he could only be convicted under section 304, Part I and not under section 302, P.P.C. There is force in the argument. As concluded above, the motive part of the story is not proved. The occurrence took place in the village street and at about 4-00 p.m. Only one blow was given with a knife and as per the eye-witnesses-the appellant started running away. It is not the claim of the eye-witnesses that they had physically intervened or the deceased was more powerful than the appellant. In the circumstances it can be well---entertained that over some remarks by the deceased or just on sighting each other over some previous matter the appellant felt tempted to give the solitary blow. It is also to be noted that both the appellant and the deceased were of the same age i.e. In their teens.
12. The upshot is that the conviction under section 302, P.P.C. Cannot be maintained. The appeal is accepted and the conviction thereunder is set aside. The appellant is convicted under section 304, Part I, P.P.C. And sentenced to 10 years' R.I. And a fine of Rs.10,000 or in default thereof one year's R.I.
He is also ordered to pay a compensation of Rs.5,000 to the heirs of the deceased under section 544-A, Cr.P.C. Or to undergo 6 months S.I. He is granted the benefit of the provisions of section 382- B, Cr.P.C.
N.H.Q./M-468/L