' Abdur Rashid aged about 17 years has appealed against his conviction under section 302, P. P. C.
And sentence of imprisonment for life. He was also sentenced to pay a fine of Rs, 2,000 or in default of its payment to undergo further rigorous imprisonment for two years. In case the fine was realised a sum of Rs, 500 was to be givm as compensation to the heirs of the deceased.
2. The prosecution case, in brief, was that on 22nd of September, 1972, at kout noon, Fazal Muhammad deceased along with Taj Muhammad (P. W. 7) Shabhir, Aziz and Jaj Qasab, was playing cards in the fvlohallala of Nakoderian. The appellant came to pass that way and enquired from them why they were playing cards. The deceased questioned the authority of the appellant to call for their explanation or to prevent them from playing cards there. An altercation ensued in which grappling took place between the deceased and the appellant and the deceased who was about 18 years of age slapped the appellant. They were separated. A few hours later the same day when the deceased was passing in the lane the appellant accosted him from the front with a knife in his hand, and tried to inflict blows with it, but the deceased in the struggle caught hold of his hand and was able to run away. He had hardly moved a few steps when he was tumbled on striking a brick or stone and fell on the ground and in that position the appellant overtook him and inflicted the fatal knife blow on his thigh. Abdus Shakoor (P. W. 9) the father of the deceased, was sitting on the tea shop of Sanaullah and saw the occurrence and rushed to the side of his son.
Irshad (P. W. 14) and Muhammad Din (P. W. 15) also witnessed the occurrence. The injured was removed from the spot and taken to the hospital while Abdus Shakoor proceeded towards the police station f 1r lodging the report but was met on the way by Khushi Muhammad A. S. I. Who recorded the report under section 307 P. P. C. On the statement of Abdus Shakoor. When he along with Abdus Shakoor reached the hospital Fazal Muhammad had expired. He prepared the injury statement and the /inquest report and got the post-mortem examination conducted by Dr. Bashir Hussain (P. W. 1) at 5-30 p. m. On 22-9-72. Only two injuries were found on the person of Fazal Muhammad. One was a stab wound 1' x 4 on the back of left thigh, 5' above the left knee cutting femoral artery, Another stab wound was 3/4' x skin deep, on the right chin. According to the doctor death has resulted from injury No,1 which was sufficient in the ordinary course of nature to cause death.
3. The appellant was arrested on 25-9-72 and led to the recovery of blood-stained knife (Exh. P. 1) from a room in his house concealed in a bed lying on a cot which was found to be stained with human blood.
4. The plea of the appellant at the trial was that he was innocent and that he had been implicated in the case falsely due to enmity with the police as Khushi Muhammad felt aggrieved as he was denied illegal gratification.
5. The trial Judge disbelieved the evidence of recovery of the knife (Exh. P. 1) and also considered it unsafe to rely on the statement of Irshad (P. W. 14) who was not shown to be a natural witness to the occurrence but considered the evidence of motive and the eye-witness account given by Abdus Shakoor (P. W. 9) and Muhammad Din (P. W. 15) to be sufficient for arriving at the guilt of the appellant. The appellant being of tender age between 14 and 15 at the time of the occurrence according to the expert evidence, was sentenced to imprisonment for life.
6. It may also be pointed out at this stage that Abdus Shakoor the father of the deceased who was the complainant in the case and the main eye-witness was murdered during the pendency of this case and could not appear at the trial as witness and for this reason his statement recorded in the commitment Court was transferred to be read as evidence in the case. The murder allegedly was committed by the father of the appellant and others on the ground that he had not submitted to their influence in resiling from the statement against the appellant.
7. The learned counsel for the appellant has contended that Abdus Shakoor (P. W. 9) does not appear to be a witness of the occurrence at all and that actually the suspicion was against one Jajji Qassai and in his place the appellant had been falsely implicated in view of there being two factions in the Mohallah and the police being inimical to him.
8. So far as Abdus Shakoor; (P. W. 9) is concerned, he has explained his presence near the spot by stating that he was at the shop of Sanaullah. He stated that it being a Friday he was not getting much business or customers at his shop and had therefore come to the shop of Sanaullah for taking tea and was sitting there when the occurrence took place. He was a resident of the same Mohallah and had the shop in the vicinity and therefore such an explanation would not, appear to be unnatural. It is contended that if tills were so, Sanaullah should have been an equally competent witness. When a number of customers are were in the shop, it is unlikely that Sanaullah would be, a more competent witness than his customers as the shop-keeper would definitely be busy in attending to the customers while the customers may be free to watch what was going outside.
Muhammad Din (P. W. 15) is also a resident of the same locality and it being a Friday be was free.
He would also appear to be a natural witness to the occurrence. His presence has been doubted on the sole ground that being an eye-witness he could not remain at his house but should have accompanied the injured to the hospital. Not necessarily every eye-witness must join the party taking the injured to the hospital. In any case, that cannot be the tested of an eye-witness. It depends upon the degree of contact of such a witness with the injured irrespective of his residence in the same Mohallah, that one can expect his joining in and attending to the injured.
9. What is significant in the case is that though an attempt has been made to impute motive for false implication but none whatsoever has been established or consistently made out against Abdus Shakoor (P. W. 9) and Muhammad Din (P. W. IS), These are therefore not only natural witnesses but also disinterested witnesses. In order to dispute the intrinsic worth of their statement in it has been urged that Abdus Shakoor made improvement in his statement by accounting for the second injury of the deceased as well about which he had remained quiet earlier. There is no contradiction be cause from the very first he had given out the version that the appellant on approaching the deceased had started attempting blows on him and there was scuffle in which the deceased had ultimately succeeded in avoiding the appellant. In that process if a superficial injury had been caused and had not been reported, there does not appear any inconsistency or material omission. He 'explains it when subsequently the injury was known and also when it could be connected with the first round of assault by the appellant on the deceased. Another attempt has been made to discredit this witness by reference to Zafar (P. W. 8) who was produced as a witness for identification of the dead body. This witness, though a brother of the deceased, could not be a competent witness in respect the matters on which his statement has been obtained.
Without being at the spot at the time of occurrence he has stated that within two minutes of the occurrence the dead body was removed. Without being in the company of his father he has stated that his father while on way to police station met the A. S. I. Khushi Muhammad and lodged the report. Such an eye-witness who was at his house when the occurrence took place and came later could not provide the test of the veracity of the statement made by an eye-witness.
110. As regards the implication of Jajji Qasai reliance has been placed on the statement of the police officer that he was associated in the investigation and that he could not be found for some days after the occurrence couple with the fact that there was evidence that he bad some dispute with the deceased. Being an associate in the card game which was objected to by the appellant, he was a competent witness with regard to the motive and if the police had been looking for him for that purpose there is nothing surprising about it. Similarly, if he was not available to the Investigating Officer it does not mean that he was absconding for there is nothing to show that either as an accused or a suspect be was wanted.
11. As regards the false implication of the appellant there may. Be two parties or more but unless the nature of the difference or the enmity is 90 record, that by itself is not suffice to indicate the urge In the complainant or the witnesses to implicate or substitute an accused. The occurrence has taken place in the Bazar in the presence of a number of persons and if natural witnesses are introduced to depose about it a vague suggestion that there are factions would not lead to any such conclusion as is attempted by the learned counsel for the appellant. Similarly, earlier involvement of the police as early as 1967 would have no bearing on the matter in 1912 in which different police officers are concerned.
12. I find that the prosecution has succeeded in making out a case beyond reasonable doubt against the appellant and he was rightly convicted and sentenced. There is no merit in this appeal which is hereby dismissed and the conviction and the sentence are maintained.