KHAN RIAZ-UD-DIN AHMAD, J.-Muhammad Iqbal son of Ahman, aged about 18 years, the appellant was tried by the learned Additional Sessions Judge Faisalabad alongwith Mohabbat and Ahmad Ali co-accused, for offence under Section 302/34 P.P.C, for having committed the murder of Muhammad Mansha, aged about 45 years, brother of Sakhawat complainant, Vide judgment dated 24-7-1989 the learned trial Judge found the appellant guilty of the aforesaid charge and accordingly convicted and sentence him thereunder to imprisonment for life and a fine of Rs.10,000/-half of which, in the event of its realisation, was to be paid to the legal heirs of the deceased. In default of payment of fine, the appellant was to suffer R.1, for one year.
2. The to co-accused of the appellant namely Mohabbat and Ahmad Ali were, however, given benefit of doubt and were acquitted. Aggrieved by this judgment the: appellant has filed the instant appeal which is being disposed of through this judgment.
3. The facts of the case as narrated in the FIR Exh.PD/I Lodged by Sakhawat complainant P.W.8 with SI Inayat Ali, since dead, in brief are. That on the night of occurrence the complainant Sakhawat alongwith Basarey Khan P.W.9. Muhammad Khan given up P.W. And Muhammad Mansha deceased were sleeping in, the court-yard of their house when at about 3 a.m. The complainant woke-up after hearing the barking of dogs and saw in the light of bulb. Iqbal appellant accompanied by Mohabhat and Ahmad Ah co-accused standing in their court-yard. Iqbal was armed with Toka Exh P.5, and the two others were empty handed, it was within the sight of the complainant that Mohabbat and Ahmad Ali accused caught hold of Muhammad Mansha deceased while Iqbal inflicted Toka blow on the left side of his neck. Alarm raised by the complainant attracted Basarey Khan P.W.9 and Muhammad Khan given up P.W. At the spot but the accused made good their escape.
4. Muhammad Mansha in an injured condition was being taken to the hospital in a tractor-trolley hut he succumbed to his injuries at Jagatan bridge where from his dead body was brought back to his house.
5. The complainant then left for reporting the matter to the police. He met SI Inniyat Ali. Since dead, at Jhuggi Watoan who recorded the statement Exh.P.D, of the complainant and sent the same to the Police Station for formal registration of the case where FIR Exh.PD I was prepared by Moharrar HC Muhammad Iqbal PW5. The motive for the alleged occurrence was that Mohabbat and one Liaquat Ah w ere carry ing on illicit liaison with to sisters of Ahmad Ali accused who was living in the same Ihata, where Muhammad Mansha was putting up alongwith his family. The complainant and the deceased had objected to the visit of the accused which had estranged the. Relations of the parties, in consequence whereof Mohabbat and Ahmad Ali had fired at Muhammad Mansha deceased and a case of attempt to commit the murder was registered against them Mohabbat was, however, allowed bail by the learned Additional Sessions judge, but Muhammad Mansha deceased had moved tor its cancellation.
6. SI Inayat Ali resumed the Investigation at the spot. He prepared the injury statement Exh.P.H., inquest report Exh.PH/1 of the dead body of Muhammad Mansha deceased and secured the blood stained earth vide memo Exh PE. The dead body was then sent for post mortem examination under the escort of FC Muhammad Rafiq PW.2. The investigation was then taken over by SI Mukhtar Ali PW.1 1 who arrested Iqbal accused on 12-7-1988 and got recovered the blood stained Toka Exh. P.5, at his instance from his Dhari on 17-7-1988 which was sealed into parcel and taken into possession vide memo Exh.P.F. The Toka Exh. P5, was then scut to the Chemical Examiner, through FC'
Muhammad Latif PW4 for analysis where-from positive reports Exh.P.I. & P.J. Of the Chemical Examiner and Exh.P.K. & P.L..From Serologist were received. On 2-6-1988 I O' SI Inayat Ali got prepared the site plan of the place of occurrence in duplicate Exh.PA/1 from Draftsman Aurangzeb PW.1, and after the completion of the investigation all the three accused were challaned to Court to face their trial.
7. On 14-6-1988 at 12-30 p.m. (noon) Dr. Muhammad Akra,.P.W.4 conducted post mortem examination and found the following injury on the dead body of Muhammad Mansha deceased:- An incised wound measuring 10 x 6 cm on left side of neck. The underneath bone was also cut.
External'-and internal Jugular veins and carotid artery of left side were cut. The first and second cirvical vertibrae were cut. All the remaining organs were healthy.
On opening the abdomen the stomach was found healthy and it .Was half filled with food. The small intestine was empty. Urinary bladder was full of urine.
Death in his opinion was due to injury described above which caused haemorrhage and shock leading towards the death. The injury was antemortem and was sufficient to cause death in the ordinary course of nature.
The probable time that elapsed between injury and death was about 10 To 15 minutes and between death and post-mortem was about 6-1/2 hours. After the post-mortem examination Dr. Muhammad Akram PW4 handed over the Chadar and Patka to the escorting constable. He also handed over the original papers and P.M.R, No. 26/88 to the said constable. Exh.PC, was the correct carban copy of the post mortem report which was in his had and bear his signatures. Exh. PC/1 was the jury which was also in his had and signed by him.
8. To substantiate its version at the trial the prosecution examined-as many as 11 witnesses.
Sakhawat PW.8 and Basarey Khan PW.9 furnished the ocular account and have also deposed about the recovery of the alleged weapon of offence from Iqbal appellant. Dr. Muhammad Akram PWA furnished the medical evidence - as he had conducted the post-mortem examination on the dead body of the deceased. Aurangzeb Draftsman PW.1 had prepared the site plan Exh.PA and Exh.PA/1 in duplicate while SI Mukhtar Ali appeared as PW. Ll who deposed about the arrest of Iqbal accused and recovery of weapon of offence at his instance. He also gave the secondary evidence and proved the documents prepared by SI Inayat Ali. Since dead, by stating that he had been working with him and was fully conversant with his had writing and signatures. The rest of the evidence was of formal in nature. The prosecution also tendered in evidence the reports of the Chemical Examiner Exh.P.I, and P.J. And the Serologist Exh.P.K. & P.L.
9. In their statements under Section 342 Cr.P.C, the appellant as well as his co-accused denied the prosecution case and had attributed their involvement in the case due to enmity. The appellant as well as his co-accused neither appeared as witnesses of their on nor have produced any D.W. In their defence. Iqbal appellant, however, tendered in defence Copy of Jamabandi of Chak No. 273 GB Tehsil Jaranwala Exh.D.A..Copy of Khasra Girdawari of Chak No. 273 G.B. Exh.D.B.. Copy of Zari Jamabandi of Chak No 273 G.B. Exh,D. C., copy of Jamabandi Abadi of chak No. 273 GB Exh.D.D.
Copy of order canceling the bail dated 23-7-1988 Exh.D.E. And had closed his defence evidence.
10. On the basis of the above said evidence learned trial Judge convicted and sentenced the appellant as stated above and acquitted the to co-accused by giving them the benefit of the doubt.
11. Learned counsel for the appellant has vehemently argued that there was a delay of three hours in lodging the FIR, which has not been reasonably explained by the prosecution: that the said inordinate delay had been caused due to the fact, that the occurrence had gone un-witnessed, and the matter was reported after procuring the presence of Sakhawat PW8 and Basaray Khan PW9 from chak No. 273/GB; that the said to eye-witnesses being brother and cousin of Mansha decessed were interested witnesses as they were closely, related to the deceased and were inimical towards the accused; that Basarey Khan PW.9 was a chance witness as well, as he was resident of Chak No. 273/GB situate at a distance of about 15/16 miles away from the place of occurrence and he had no specific purpose to visit the spot a day earlier to the occurrence; as such, his statement was to be scrutinized cautiously before placing reliance on it; that the version put forth by the above said to witnesses stand believed by tire learned Trial Court as to co- accused of the appellant have been acquitted by the said court by giving them the benefit of doubt; that the same tainted evidence was believed by the learned Trial Court to convict the appellant without seeking any other corroboratory piece of evidence, which was against the interest of justice; that the ocular evidence furnished by the to eye witnesses, being in conflict with the medical evidence, the same was not worth reliance; that the alleged recover) of Toka P.5., the weapon of offence., cannot be considered as a corroboratory place of evidence to convict the appellant as the same was also effected in the presence of above said to interested eye- witnesses. Reliance in this respect was placed on Irshad etc. v. The Stare (1982 P.Cr.L.J, 1204; that the motive of the occurrence was also dis-believed by the learned Trial Court, as the to co-accused of the appellant were acquitted from the charge alleged against them; that the appellant had no previous enmity with the deceased nor any motive was attributed to him by the prosecution.
Learned counsel further contended that the appellant had allegedly given a single Toka blow on the person of the deceased and has not repeated it. Although he had an opportunity to do the same, therefore, it would be at the most a case of culpable homicide not amounting to murder and the offence would fall in the purview of Section 304 Part-11-PPC. Reliance in this respect was placed on Ijaz Ali alias Jajji The State (1991 P.Cr.L.J. 2233), Lastly it was. Submitted that the appellant was not allowed the benefit of Section 382-B -Cr.P.C, by the learned trial court which was required by law to have been awarded to the appellant as a matter of right.
12. Learned counsel for the State on the other had has strenuously defended the impugned judgment by submitting that the FIR Ex.PO/1 was prompt in the given circumstances of the case; that the appellant was named in the said FIR and was attributed the major role of infliction of a Toka blow on the person of the deceased, who was un-armed and was sleeping in his Ihata; that the to eyewitnesses produced by the prosecution namely Sakhawat PW.8 and Basarey Khan PW.9 were also named in this promptly lodged FIR and their testimony stand corroborated. By the recovery of blood stained Toka P.S, the weapon of offence, which has not been seriously challenged by the defence; that the said to eyewitnesses were not interested witnesses as they had no enmity with Iqbal appellant, although they were close relatives of Mansha deceased. According to the learned State counsel Basarey Khan PW.9 was on a normal visit to see his relatives a day eat her to the occurrence and was sleeping in the Ihata alongwith Sakhawat PW and Mansha deceased when the occurrence had taken place, as such he cannot be dubbed as a chance witness. He further contended that the appellant had inflicted a fatal Toka blow on a sleeping person who was un-armed, therefore, the offence committed by the appellant would be culpable homicide amounting to murder, punishable under Section 302 PPC,. According to the learned counsel Section 304 Part I or II P.P.C, would have been attracted only, if there would have been a fight or exchange of abuses and hot words between the accused appellant and the deceased, prior to the infliction of Toka blow. Reliance in this respect was placed on Qurban Ali ys Sheru Maclthi (1991 SCM R 2339).
13. I have heard the learned counsel for the appellant as well as the State and have gone through the record carefully with their assistance.
14. The prosecution in this case has mainly placed reliance on the testimony of Sakhawat PW.8, the brother, and Basarey Khan PW.9, the cousin of Mansha deceased coupled with the evidence of recovery of blood stained Toka P.5, at the instance of the appellant from his Dhari, which was also witnessed and attested by these PWs. Besides, the medical evidence furnished by Dr Muhammad Akram PW4 and the positive reports of the Chemical Examiner and Serologist tendered in evidence were also made basis for warranting the conviction of the appellant.
15. Sakhawat PW.8, the complainant, has reiterated the version given by him in the FIR and had further deposed that he had joined the investigation of this case after about one month of the occurrence. Appellant while in custody led the police party to his residential Dharifrom where he got recovered blood stained Toka P.5 which was made into a sealed parcel and was taken into possession vide memo Exh.PF. Signed by him.
16. Basarey Khan PW.9 stated that on the fateful night he was sleeping in the Ihata of Mansha deceased alongwith Sakhawat PW.8 and Muhammad s/o Khar., given up PW At about 3 a.m. Iqbal.
Ahmad Ali and Muhabbat accused were seen standing in the said Ihata. Iqbal accused was having a Toka, white remaining to co-accused were empty handed it was within has sight that to co- accused caught hold of Mansha deceased, while Iqbal accused infliced Toka blow on the left side of neck of Mansha deceased, who succumbed to his injury at Jagatan bridge, when he was being shifted to the hospital. He further stated that the accused were identified in the light of the bulb which was at the time of occurrence. He also staled that he was present when Iqbal accused had produced Toka P.5, before the Police which was taken in possession vide memo Exh.PF. The said Toka was got recovered from the accused from his house at the Dhari. Both these witnesses were cross-examined at length, but nothing favourable to the appellant could be elicited from the said statements. It would not be out of place to mention here, that the learned defence counsel, before the learned Trial Court. had totally omitted to cross-examine the above said to eye witnesses on the point of recovery of the blood stained Toka at the instance of the accused appellant, meaning thereby that their testimony to that effect was accepted as truthful. This asertion of mine gets support from the observations made in case of Muhammad Iqbal VT The Slate (PLJ 1988 Crockard.
39) wherein it was held that "Evidence not challenged in cross- examination on a certain point raised in examination-in-chief, the same was to be accepted as true".
17. Strangely enough that factum of the blood stained Toka P.5, was not seriously challenged by the defence, when the Investigating Officer SI Mukhtar AH PW. 11 was under cross-examination, who was put the only question regarding this recovery and his reply was, that "all the members of the family of Iqbal accused were living in that house, where from the recovery was effected". This admission of the PW does not absolve the appellant from the incriminating effects of the recovery of the weapon of offence as he had led the police party to his house and got the same recovered from the place which was exclusively in his on knowledge. It could hardly be assumed that the presence of the members of the family of the accused would also include the presence of this who would have been burdened with the knowledge of a concealment of. The said weapon of offence. 1.
Therefore, feel convinced that the recovery of the blood stained Toka P.5 was proved to the hilt and the same shall be considered as corroboratory piece of evidence for the ocular testimony furnished by the above said to eye-witnesses namely Sakhawat PW.8 and Basarey Khan PW.9 'whose statements are being scrutinised cautiously so as to evaluate the intrinsic worth of the same. Admittedly troth the PWs. Were the close relames of the deceased, one being real brother and the other as first cousin respectively. The question which arisen at the moment, was. relatives they were the interested and chance witnesses of the occurrence, or they had not seen the occurrence at all and were subsequently procured -from Chak No. 273/GB. So as to be the eye- witnesses of the crime, or they were the natural witnesses of the occurrence. I have considered the aspect of the matter by going through the statements of the said PWs for a number of times, but nothing unusual, consistent or against the interest of the prosecution was found therein. Sakhawat Ali PW.8 has made a consistent and coherent statement by giving the details of the occurrence and has explained the alleged delay of 3 hours in lodging the FIR by suiting that Mansha deceased in an injury condition was being shifted to hospital on a tractor trolley but he succumbed to his injury at Jagatan Bridge where from the dead body was brought back to his house. It was then that he left for police station to lodge the report, which was recorded at Jhugy Waitoan at 6 a.m. By SI Inayat Ali. Since dead. He has also clarified in his statement that die was permanently residing in the Kotha of his on which was adjacent to the Kotha of the deceased in Otak No. 857/GB, shown by the draftsman Aurang/.Eb, .PW. 1 in the site plan Ian PA and PA/1. Besides this.-his presence and residence in Chak No,. 857/GB, was also proved from the fact that on a previous occasion, when Mansha deceased w;ts fired-at by Mohabbat and Liaquat Ali, he was also injured in the said incident and was a prosecution witness. These facts joined together, would eliminate the apprehension that the presence of this witness was procured from Chak No. 273/GB after the occurrence. Moreover he has given the details of the occurrence in such a straight forward mariner, that ail the doubts regarding his presence at the scene of occurrence stand washed away. He being the inhabitant of the place of occurrence was a natural witness of the occurrence, and thus his testimony was 'worth reliance.
18. So far the testimony of Basarey Khan PW.9 was concerned, the same has been considered with great care and caution. Admittedly he was a close relative of Mansha deceased, being first cousin, and was resident of Chak No. 273/GB situate at a distance of 1215 miles from the place of occurrence. His visit to the Chak of the deceased was not for any specific purpose but the same was- a routine visit so as to see his relatives a day prior to the occurrence. The presence of this witness at the spot and his witnessing the occurrence or. The fateful night, therefore, wits a sheer chance and it can conveniently be said that he was a chance witness but his statement cannot be brushed aside simply on this point alone. If a chance witness r reasonably explains his presence at the spot and renders narration of the 'occurrence in such a way that the same inspires confidence and it was further supported by the evidence, which materially corroborates stich version, then the same can be considered alongwith other incriminating evidence. While giving the detail of occurrence Basurey Khan PW.9 has categorically stated that Iqbal appellant was armed with Toka P.5 and had inflicted fatal blow on the left side of neck ot Mansha deceased while Ins to co- accused Mohabbat and Ahmed Ali had caught hold of him. He has also given the details of the presence of inhabitants of the Ehata of the deceased and their mode of witnessing the occurrence, without creating any major discrepancy with the statement of Sakhawat PW. Despite the 'lengthy cross examination, he was subjected to his statement therefore. murinscillay rings true and can be considered alongwith the above said testimony of the complainant PW8, whose statement had already been relied upon as a natural witness of the crime. It may also be pointed out at this juncture that the statement of this witness regarding the recovery of blood stained Toka P5 has also gone unchallenged by the defence as he was not cross-examined at all on the said point, presuming thereby that his statement to that effect was found to be correct and truthful. Moreover, there is nothing on record to suggest as to why this witness who has absolutely no animus with Iqbal appellant would assign a major role to him for inflicting a fatal blow on the person of the deceased, without having witnessed the . Same. In this view of the matter I fed constrained to put reliance on the testimony of this witness as well.
19. The statement of both the above said eye-witnesses got further corroboration from the medical evidence furnished by Dr. Muhammad Akram PW4, who has given the details of injury attributed to the appellant and has stated that the said injury was sufficient to cause death in ordinary course of nature. The said statements get further corroboration from the positive reports of the Chemical Examiner and that of the Serologist which reveal that Toka P5, the weapon of offence was stained with human blood, The assertion of the learned counsel for the appellant that the ocular testimony was in conflict with the medical evidence has also been considered with anxiety but the same was found to be without any substance. Learned counsel had also pointed out the material in- consistency between the time of death given by Dr. Muhammad Akram PW4 as 6 a.m. In his postmortem report and the contents of the stomach which was found to be half filled with food, revealing thereby that the deceased had taken his last meals about 2 'hours before his death which will take the time of occurrence to 9.30 or 10 p.m. And the time of death would be about 11 p.m. Learned counsel in this context has referred to the statement of Sakhawat PW who had clearly admitted that the deceased had taken his meals at Maghrib prayer time and had gone io sleep.
According to the learned counsel this fact alone was sufficient to dis-eard the testimony of the eye witnesses who had categorically stated that the occurrence had taken place at 3 a.m. In the morning. This in-consistency/controversy although very material yet it could conveniently be resolved by saying that the contents of the stomach cannot be made the. Basis for coming to any conclusion regarding the time of death, as the digestive system varies from person to person by the quality and quantity of food which was taken by the deceased, but all these factors were dormant in this case as the same was not inquired from the PWs. Moreover, digestive system of a sleeping person would work slow as compared to an awakened and active person. Therefore, it cannot be said that the statement of Sakhawat PW was in conflict with the medical evidence as he had clearly stated in his statement that after taking his evening meals the deceased had-gone to sleep. It may be for, this reason that the stomach of the deceased was found to have been half filled with food at the time of occurrence.
20. Learned counsel for the appellant in the alternate had laid a great emphase on the point that the appellant who had no motive, ill-will or any previous enmity with the deceased had been attributed a solitary blow on the person of the deceased and the same was not repeated although he had an opportunity to do the same, as such his case would fall within the purview of section 304 Part-II PPC, as per observation made in case of Ijaz Alt alias Jajji Ys The State (supra) which was on all fours with the facts and circumstances of this case: It was, therefore, prayed that the offence be converted to section 304 Part-II PPC and the appellant be sentenced to undergo. R1 for the period already undergone by him. I have given my anxious consideration to the submission made by the learned counsel and have also gone through the case law cited at the Bar. I do not feel any hesitation to observe that the case law cited by the defence was not applicable to the. Facts of the case in had as the appellant had been attributed a solitary Toka blow on the neck of the deceased who was un-armed and was sleeping. There is nothing on record to suggest that there was any fight or exchange of hot words between the appellant and the deceased prior to the infliction of the said injury which is sin-qua-non for attracting the provision of Sec. 304 PPC. It would be relevant to quote at this stage the observation of the Supreme Court in case of Qurban Ali vs Sheroo Machhi and an other (1991 SCM R 2339) in which the judgment of the High Court converting the offence from Section 302 to 304 Part II PPC was reversed by observing, "We are unable to appreciate as to how without recording any finding that the case of the respondent fell under one of the. Exceptions prescribed by Section 300 PPC, it could be held that the offence committed fell within Part II of Sec.
304 PPC. We cannot agree that merely because the culprit choose to inflict just one injury to the deceased which proved fatal and did not inflict further injury, for the reasons best known to him or may he in order to escape from the scene which was on a public road.-it can he held that he had no intention to cause death of the deceased or to cause such bodily injury with the knowledge that it was likely to cause death or sufficient in the ordinary course of nature to cause death of the deceased." Having been fortified by the said observation. I am of the view that the appellant who was armed with Toka P.5, had given a fatal blow on the neck of the deceased, which was sufficient in the ordinary course- of nature to cause death, had the interim to commit the murder of the deceased as he has chosen such a vulnerable pan of the body,, as such his case would squarely fall within the ambit of clauses 3rdly and 4thly of Section 300 PPC and he would be liable to be convicted and sentenced under Section 302 PPC. The absence of the motive and previous enmity of the appellant with the deceased has already been considered as an extenuating circumstance by the learned Trial Court for awarding lesser punishment of life imprisonment to the appellant.
Hence no case for interference by this Court is made out.
21. The upshot of the above discussion is that the prosecution has proved its case against the appellant beyond any shadow of doubt. Therefore, the appeal merits dismissal, which is accordingly dismissed. The fine imposed by the learned Trial Court and sentence in default thereof and direction of payment of fine to the legal heirs of the deceased, are maintained. The appellant shall, however, be entitled to the benefit of Section 382-B C.r.P.C.