' Muhammad Nazir appellant was tried along with Khalid Pervaiz on a charge under section 302/34 of the Pakistan Penal Code by Mian Ghulam Ahmad, then Additional Sessions Judge, Rawalpindi, who acquitted his co-accused and convicting the appellant sentenced him to life imprisonment with a fine of Rs, 500 or to suffer further rigorous imprisonment for six months vide his judgment dated 15th February 1975 which forms the subject-matter of this appeal.
2. The incident involving the murder of Muhammad Younis (deceased) took place on the 12th of April ;971, at about 7-20 a.m. Near Octroi Post No, 22 as reported by Major Zafarullah (P. W. 10) to Sub-Inspector Muhammad Arshad (P. W. 12) who recorded his statement Exh. P. A. At 7-55 a.m., the same morning in Police Station Rawalpindi Cantt. About it.
3. The prosecution case in brief is that Major Zafarullah (P. W. 10) and Major Mahboob Elahi Toor (P.
W. 11) were proceeding to Dhamial Camp in a jeep and as they reached the crossing near Octroi Post No, 22 they noticed one person (Muhammad Younis deceased) in the grips of another while the third was inflicting knife injuries in his chest. Their driver stopped the jeep and on this both these Army Officers jumping down from the same advanced towords them. Major Zafarullah secured the assailant (Muhammad Nazirj and snatched the knife from him, while Major Toor apprehended the other (Khalid Pervaiz). He stopped a taxi and putting the injured person and his two assailants in the same rushed towards the police station. On the way the injured was entrusted to a Foot Constable for taking him to the nearby C. M H. For first aid and carrying the two assailants to the police station he handed them over to Sub-Inspector Muhammad Arshad (P. W. 12) along with the knife (P. 1).
4. After the registration of the case this knife was made into a parcel vide Exb. P. B. Muhammad Nazir appellant and his companion Khalid Pervaiz were taken into police custody. Muhammad Nazir appellant had some injuries on his person so the Sub-Inspector drew his injury statement Exh.
P. D. And sent him for medical examination after taking into possession his blood-stained shirt (P.
2) vide Bah. P. E. In the meanwhile a telephonic information was received from the C. M. H. That the injured person had expired. The Sub-Inspector thereupon went to the hospital and despatched the dead body of Muhammad Younis to the mortuary after preparing his injury statement Exh. P. F. And the inquest report Exh. P. G.
5. The doctor recovered a broken piece (Exh. P. W. 12/1) of the knife from the dead body during its post-mortem examination which he sent to the Investigating Officer through Foot Constable Ghulam Rasul (P. W. 4) in a sealed parcel vide fib. P. K.
' The site plan prepared by Muhammad Akram Draftsman (P. W. 5) is Exb. P. L. With its duplicates Exhs. P. L./1 and P. L/2 which bear the notes and signatures of the Sub-Inspector as well.
6. On 12th of April 1971, at 5-00 p.m., Dr. Muhammad Aslam Arshad (P. W. 1) held autopsy on the dead body of Muhammad Younis (deceased) and found the following injuries vide Exh. P. M.-
(1) An incised stabbed wound 1' x 3/4' on the front of upper part of left chest, just below the outer 1/3rd of clavicle. There was another incised wound 1-2 x 1-4 skin deep above the clavicle, 1/3' from the first wound.
(2) An incised wound 8'x 1/6' skin deep on front of left chest extending from midline to the space between shoulder and neck.
(3) Two superficial scratches 3" long on the front of right chest, near nipple and three small scratches on the left side, near midline.
' First rib was cut under injury No, 1 on the left side, while pleura and upper lobo of left lung were punctured. In his opinion the death had occurred due to shock and haemorrhage caused by injury No, 1, which was sufficient to cause death in the ordinary course of nature. All injuries were ante- mortem and had been caused by sharp-edged weapon. Time between injuries and death was about half an hour and death and post-mortem 12 hours.
7. On the same day at 11-30 a.m., Dr. Abdul Majid (P. W. 2) examined Muhammad Nazir appellant and found the following injuries on his person vide Exh. P. N. :--
(1) A contused wound on left cheek 1' above the left angle of mouth 1-2 x 1-4.
(2) A contused wound on the left cheek 1' below the left angle of mouth 1-2 x 1-4 x 1-4.
(3) An abrasion 1-2 x 1/8 on the left cheek 1" below the left eye.
(4) A contused wound below right lower lid x 4' X skin deep. All the injuries were simple and were caused by blunt weapon.
8. In addition to this medical evidence the prosecution had relied for its case on the testimony of Lt.-Col. Zafar Uilah (formely Major) (P. W. 10) and Major Mehboob Elahi Tour (P. W. 11) for the ocular account of the occurrence, who had lent due support to the above narration including the recovery of knife (P. 1) and shirt (P. 2) from Muhammad Nazir appellant which were found stained with blood of human origin vide Exh. Of the Chemical Examiner and Exh. P. Q. That of the Serologist. Matloob Husain (P. W. 7) had deposed about the motive of Muhammad Nazir appellant for this deadly assault on Muhammad Younis (deceased).
9. In their turn Khaiid Pervaiz (acquitted accused) and Muhammad Nazir appellant had denied all the allegations made against them by these witnesses. The latter had at the same time admitted his participation in this occurrence setting up a plea of self-defence which is reproduced below in verbatim from his statement under action 342 of the Criminal Procedure Code :- "At the relevant time I was proceeding to my place of duty when the deceased jumped out from the wall (adjacent) armed with a danda and started causing blows to me. On hue and cry raised by me public at large collected tied someone out of them snatched the Ganda from the deceased, but he pulled out a knife from his dab and in an attempt to open the same it fell down. The deceased tried to pick up the same again and thereupon I resorted to self-defence. I produce my detailed statement EMI. D. A."
10. Learned trial Judge gave benefit of doubt to Khalid Pervaiz and rejecting the plea raised by Muhammad Nazir appellant held him guilty of the charge.
11. The finding has been assailed before me as erroneous on the following grounds :-
(1) That the appellant bad no motive to attack Muhammad Younis (deceased) ;
(ii) that no resident of the vicinity of this crime had entered the witness-box ;
(iii) that none of the prosecution witnesses had deposed about the origin of the alleged assault on Muhammad Younis (deceased) ;
(iv) that the prosecution had failed to explain the injuries suffered by Nazir appellant during this occurrence ;
(v) that Lt.-Col. Zafarullah and Major Mahboob Elahi Toor P. Ws. Had chanced to witness only the closing round of the alleged attack on Muhammad Younis (deceased) ;
(vi) that the evidence of the former was contradicted in its material aspects by the latter ; and
(vii) that the detection of a clasped knife near Muhammad Younis (deceased) after his fall on the ground coupled with the absence of any evidence about the origin of this occurrence and explanation of the injuries found on the person of Muhammad Nazir appellant would give rise to a reasonable possibility that the defence version might be true.
12. Ongoing through the record with caution and care necessitated by the above-quoted admissions of Muhammad Nazir appellant I am not persuaded to agree with these contentions.
13. It is not itrefutable that non-production of the witnesses from the locality, the absence of the evidence about the origin of the attack as also the explanation of the injuries suffered by the alleged assailant are material factors for the decision of a criminal matter, but the importance of these missing links would fade away in this case in view of the fact that Muhammad Nazir appellant was caught red-handed in his attempt to escape from near the injured person with stains of blood on knife (P. 1) carried in his hand as also the shirt (P. 2) worn by him at the time of this occurrence followed by his immediate production at the police station with this brief allegation against him as incorporated in report Exh. A. Without any embroidery about the origin or motive or manner of this assault on Muhammad Younis (deceased) or introduction of any fictitious witness from the locality to support the same. This accusation was made by no less than a person enjoying the status of a Commissioned Officer with the rank of a Major in the Aviation Corp of the Pakistan Army, namely, Major Zafarullah (P. W. 10 and corroborated in its material aspects by another senior officer of the same rank Major Mehboob Elahi Toor (P. W. 11). Both of them were proceeding in their official jeep along with other officers to the place of their duty, the air-base at Dhamial through their usual route when their sudden appearance on the scene brought this tragedy to an abrupt clove. They could thus witness only its closing phase and reported the same to the police without any embellishment from their side.
14. The injured person (Muhammad Younis deceased) had been dropped on the way near the C. M.
El. For medical aid while Major Zafarullah proceeded to the police station with Muhammad Nazir appellant and his acquitted co-accused for bringing them to book. Before Sub-Inspector Muhammad Arshad (P. W. 12) could complete the initial report a telephonic message was received from C. M. H. About the death of the injured person. This carried the Sub-Inspector to the hospital to complete the necessary inquest and other formalities for despatching his dead body to the mortuary. There was a compelling urgency in the removal of the deed body from C. M. H. As Muhammad Younis (deceased) was not an Army Personnel and it had to be transferred to the mortuary of civil hospital for autopsy over it which caused unavoidable delay in the arrival of the Sub-Inspector at the spot when nobody was present there to supply the necessary evidence about it.
15. A glance on the site plan Exh. P. L. Would reveal that the occurrence had taken place on the road coming from the side of R. A. Bazar and at the point where it swells into a wide chowk-the place due to its junction with C. M. H. Road, Tunch Bhata Road and Harley Street before passing into Dhamial Air-Base. There is an open tract of land towards its west and M. E. S. Bungalow to its east with a small orchard in its south-east corner with no residential or commercial building around it except the power station. The wing of shops and restaurants starts after this road wends its way to Dhamial. There was apparently a sufficient distance between the place of occurrence and these shops etc. According to the site plan. Apparently the persons going their way on this road would have witnessed the origin of this tragic incident who would naturally have gone away on their own errands or duties by the time the Sub-Inspector reached the spot. The attendants on duty in the power station might not have been attracted by this occurrence due to the noise of the generating plant installed there or might not have come cut well in time to witness the same or avoided the police to save them from involvement in the affair. There is a lamentable lack of civic sense and responsibility on the part of the citizens to act for the benefit of the society or in aid of the authorities charged with the duty of maintaining law and order as observed by his Lordship Salahuddin, I. In Muhammad lqbal v. State (i). This would explain the non-production of the witnesses from the vicinity of the crime or some other wayfarers to depose about the origin of this incident and the circumstances under which Muhammad Nazir appellant had suffered the few minor injuries found on his person at the time of his arrest.
16. Learned counsel for the appellants in his attempt to magnify this omission of the prosecution argued that in the absence of any evidence about the origin and infliction of the injuries on the appellant the Court is bound to accept as a whole the version put forth by the appellant about it but this rule of evidence can apply only to those cases where there is no other evidence or credible account to establish the charge as held in Muzaffar Husain's case (2).
17. In the present case there is unimpeachable testimony of two high ranking Commissioned Officers one of whom had caught red-banced Muhammad Nazir appellant along with knife (P. 1) with blood trickling down from its broken blade and soiling the shirt (P. 2) worn by him. The cursory reading of his report (Exh. P.A.) would show that he had made no attempt to exaggerate or magnify the affair but contended himself with giving a brief account of only what he had actually seen or done about it. He even did not give the name of any one of the assailants or their victim in
(1) PLD 1976 SC 291 (2) AIR 1944 Lab. 97 ' his statement but only pointed out the person about whom he was talking while lodging this report. He rightly thought that it was the responsibility of the police to collect the evidence about the origin or the motive of the tight as also the names of the persons concerned with the sane or who bad witnessed this fight from the start to finish. He had adopted the same coarse during the trill deposing that at the time of his appearance on the seer e the victim (Muhammad Younis deceased) was still in the process of being given injuries and the last stab wound was inflicted when he was close by which he had vividly seen, that on somebody's shouting about their arrival the main culprit (Muhammad Nazir appellant) ran away and overtaking him at a short distance he snatched the knife from his hand with its broken blade. The narration being quite brief not even a slightest discrepancy could be brought out from his statement in spite of his lengthy cross- examination. The other officer Major Toot had lent unstinted support to his evidence in its material aspects except for the apprehension of Khalid Pervaiz (acquitted accused) by him but had made no difference as the latter was carried to the police station along with Muhammad Nazir appellant in the same transport and produced before Sub-Inspector Muhammad Arshad (P. W. 12) at the same time by Lt.-Col. Zafarullah (Pa W. 10). It is possible that when the latter was in the hot chase of Mutammad Nazir appellant to secure him someone else might have caught hold of the other accused and Major Toor had only put him in that vehicle which gave an impression to Lt.-Col. Zafarullah P. W. That he might have personally apprehended him. His case is, however, not before me as he has since been acquitted.
18. The production of knife (P. 1) by Lt.-Col. Zafar Ullah P. W. And removal of shirt (P. 2) from the person of Muhammad Nazir appellant was also proved by these officers and both these articles were according to the report of the Chemical Examiner Exh. P.
0. Found stained with blood. The blood on the shirt (P. 2) was traced as that of human origin by the Serologist ride his report Exh. P. Q. While the disintegration of the scrapping from knife (P. 1) did not permit of its analysis in this respect. It, however, did not reduce its evidentiary value in connecting the knife (P. 1) with the occurrence, especially when the piece of the knife blade (Exh. P. W. 12/1) removed by the doctor from the wound of Muhammad Younis (deceased) fitted with the broken end of the blade of knife (P. 1). It as thus established beyond any shadow of doubt that knife (P. 1) had been used by Muhammad Nazir appellant with shirt (P. 2) on his person in causing injuries to Muhammad Younis (deceased).
19. In short the apprehension of Muhammad Nazir appellant in his attempt to escape from near the injured person and his immediate production by Lt.-Col. Zafar Ullah at the police station with a brief report so promptly recorded about his implication in this affair by the Sub-Inspector and confirmed by both the Army Officers at the trial coupled with the detection of blood on knife (P. 1) and shirt (P.
2) as stated above was sufficient to bring home the charge against the appellant.
20. It was in fact due to this unassailable evidence against him that Muhammad Nazir appellant was constrained to admit his participation in this occurrence at the same time and place including the causing of injuries to Muhammad Younis (deceased) with a plea of self-defence. In fact the hallmark of injuries on his own person though unexplained from the prosecution side had left no scope for him to take any other stand. It was,however, so belated that it appeared to a clear afterthought. His before the Committing Magistrate was of a bare denial and in the course of Isis trial in Sessions Court he had not taken the risk of sponsoring this plea at all during the cross- examination of any prosecution witness. He had, therefore, failed to elicit any material circumstance from them which could lend any support to the version put forth by him, In spite of it his learned counsel had insisted that there was a reasonable possibility of the defence version being true. Reliance was placed on Safdar 411's case (1) and some other cases proceeding on the same principle. I have no reasons to disagree with this well-settled legal dictum provided be could have brought out some material from the record which when examined in juxtaposition with the version put forth in defence could have given some indication about the possibility of any truth in the same.
21. It was no doubt a case of two versions and whichever was more probable should have been given effect to as laid down in Sher Hassan v. State (2), Khushal v. State (3), and Talib Hu.Safn v.
Stare (4) provided its disclosure was not so much delayed as in this case and it flowed or could be spelt out from the prosecution evidence itself, which condition precedent was miserably lacking in this case.
22. In fact no foundation had been laid to justify any such conclusion and was thus a bare afterthought and even improbable in the natural course of events. The appellant had stated that Muhammad Younis (deceased) had laid in ambush for him which betrayed the existence of bad blood between them and confirmed the motive attributed to him by Matloob Husain (P. W 7). He had urged that the deceased had come out from behind an adjacent wall and suddenly attacked him with a danda which was snatched by someone from the public collected there on his hue and cry. This danda, however, found no mention in the record prior to the stage of his statement under section 342 of the Criminal Procedure Code as it was never recovered and taken into possession at any stage of the investigation nor put to any witness during the enquiry or trial.
23. The clasped knife had likewise not seen the light of the day. It no doubt found a mention in the statement of Major Mahboob Elahi Toor deposing that he had noticed one lying near the injured person after his fail on the ground which the acquitted accused was trying to pick up and that "some persons" present there had informed him that it belonged to the deceased. The appellant seems to have taken some inspiration from this irrelevant reference unwittingly made by this witness as no one from among "those persons" had been cited as a witness to corroborate the information given to him at the soot about its ownership. He himself appeared to have no knowledge about it as he had neither claimed to have seen Muhammad Younis (deceased) taking it out from his pocket or dub or attempting to open it or its falling down from his hand on his failure to do so. Anyhow the plea of the appellant was inconsistent with the statement of Major Toor. The stand of the appellant was that Muhammad Younis (deceased) tried to pick it (the knife) up again so he had resorted to self-defence while the statement made by Major Toor showed that it was Khalid Pervaiz (the acquitted accused) who was trying to lift it at that time. It, therefore, could not improve his case.
24. The bare detection of the knife near the injured person after his fall on the ground due to the injuries suffered by him at the hands of
(1) PLD 1953 C (2) PLD 1959 SC (Pak.) 480
(3) 1971 SCMR 357 (4) 1972 P Cr. L J 1270 ' Muhammad Nazir appellant could in no way lend any support to this plea unless it could be shown that this knife was connected with the injured person. Anyhow like the alleged dandy it was neither produced by any one nor recovered by the police during the investigation of the case.
25. Assuming for the sake of arguments that a danda was snatched from the hands of Muhammad Younis and he had thereafter pulled out a knife which fell from his hand in his attempt to open it there could be no further apprehension of any grievous hurt from rim and consequently no legal right of self-defence against such an unarmed or disarmed person.
26 The alleged failure of Muhammad Younis to open the knife rather painted him as a vanquished person who was left no stamina to open the clasped knife on being flabbergasted due to the sudden aggression of Muhammad Nazir appellant. It would be improbable as a well armed person taking an offensive after coming out of an ambush has in the common course of events an initial benefit and is capable of causing substantial damage to his adversary before the latter can recover from such a surprise and planned attack and think of resorting to self-defence but in the present case only a few minor ineffective injuries were found on the person of the appellant which as observed in case of Rabnawaz (I) could he the result of physical force used on either side. The Army Officers did notice them grappling with each other and Muhammad Younis in his struggle for survival might have given some forceful fist-blows to Muhammad Nazir appellant before they came on the scene. The impulse of self-preservation is upper most in the mind of the victim of aggression as well and some minor injuries re a natural outcome of any such scuffle between two unequally matched persons one being armed with a knife and the other caught up empty-handed and the failure of the prosecution to explain the same would be of no consequence in the light of the above discussion.
27. As a result this belated plea of the appellant could not prevail due to the utter lack of any premises for the same in the record of the case. This appeal has, therefore, no merit and is accordingly dismissed.
(1) PLD 1974 SC 87