AMJAD ALI, J.- This judgment will dispose of Criminal Appeal No. 522/95 (entitled Allah Ditta v. The State), Criminal Appeal No. 553/95 (entitled Muhammad Saleem alias Thag v. The State) and Criminal Revision No. 358 of 1995 (entitled Muhammad Ashraf v. Allah Ditta and others) which arise out of the judgment of the Sessions Judge, Kasur, dated the 24th July, 1995, and involve common questions of law and facts.
2. Briefly, the facts leading to these matters as were narrated by Muhammad Ashraf, the complainant, to the police culminating into registration of a case under Section 302 of the Pakistan Penal Code vide FIR No. 46, dated the 23rd February, 1994, at Police Station Raja Jang, District Kasur, are that on 23.2.1994, he alongwith his brother Akhtar Ali alias Jan were going from Raja Jang to Kasur on a bus to see their relations. In the way, tor the purpose of Iftar of their fast, they alighted from the bus at Rao Khanwala bus stop. For the purpose, while the complainant was purchasing fruit from the adjoining shop, Allah Ditta (appellant in Criminal Appeal No. 522 of 1995) and Thag (appellant in Criminal Appeal No. 553 of 1995) also residents of Raja Jang who were present at the Rao Khanwala bus stand came there. Allah Ditta appellant caught hold of Akhtar Ali from his collar and hit him with his head at the chest of Akhtar Ali. At the same time Thag appellant similarly hit Akhtar Ali from the back near the neck with his head. Akhtar Ali on receipt of these head blows fell down. The occurrence was also witnessed by Muhammad Aslam son of Nazir Ahmad and Haji Muhammad son of Muhammad Sadiq PWs. They tried to catch hold the assailants but they ran away from the spot. Akhtar Ali was taken to the District Hospital, Kasur, but he succumbed to his injuries immediately on reaching the hospital.
3. The motive for the alleged attack stated to be that a few days back, the appellants and Akhtar Ali deceased had an altercation at the Raja Jang Railway Station over the payment of certain money.
On the basis of this report of the complainant FIR numbering 46/96 under Section 302 P.P.C, was recorded on the 23rd February, 1994, at 8 p.m. At Police Station Raja Jang, District Kasur.
Muhammad Naeem, Sub-Inspector to whom the complainant had reported the incident reached at the place of occurrence completed the formalities and sent the dead-body for autopsy Consequently, both the appellants were apprehended and charged under Section 302 P.P.C, for causing death of Akhtar Ali, the brother of the complainant.
4. In support of its case, the prosecution produced as many as nine witnesses. PW-1 Shabhir Ahmad, Head Constable, who at the time of occurrence was posted as Moharrir at Police Station Raja Jang deposed about recording of F.I.R. (Exh.PA/1) on the basis of complaint Exh.PA.
Muhammad Nasarullah, Draftsman, who appeared as PW-2 stated that on 25.2.1994, he had under the directions of the police, taken rough notes of the place of occurrence and on the following day, he prepared site plans Exh. PB and Exh.PB/1 which also contained his notes. PW-3, Muhammad Afzal Constable, .Only deposed that on 23.2.1994 he alongwith Nisar Ahmad, Constable, was posted to guard the dead-body of the deceased Akhtar Ali. PW-4 Nisar Ahmad, Constable had, on 23.2.1994, taken the dead body of Akhtar Ali deceased from Police Station Raja Jang to D.H.Q. Hospital, Kasur for post-mortem examination. After the autopsy Doctor 'Handed him over Shalwar P.I. Shirt P.2 and Pullover P.3 which were delivered by him to the Investigating Officer vide recovery memo. Exh.PC.
5. Dr. Mumtaz Ahmad, Medical Officer, D.H.Q. Hospital, Kasur (PW- 3), submitted report of post- mortem examination (Exh.PD} of Akhtar Ali conducted by him and also produced Exh.PD/1, a diagram showing the location of injuries received by the deceased. He stated that there was a bluish-black spot 3x2 c.m. On front side in the middle of the neck of the deceased. On dissection of neck muscles accumulation of clotted and unclotted blood was found underneath. Likewise, meninges and brain were found congested and hyoid bone was found fractured. Both lungs, chambers of heart and neck veins were found congested. According to PW-5, the cause of death was shock due to asphyxia caused by throttling.
6. Nazir Ahmad (PW-6) had identified the dead-body of Akhtar Ali deceased at the time of autopsy and thereafter, the last worn clothes of the deceased (P.I, P.2 and P.3) were handed over to the Investigating Officer through recovery memo. Exh.PC which contained his thumb impression.
Muhammad Ashraf, the complainant, who appeared as PW-1 reiterated his assertions as contained in the FIR that on the day of occurrence, while he alongwith his brother was going to Kasur from Raja Jang, they alighted from the bus at Adda Rao Khanwala for the purpose of iftari. He was about to purchase fruit from the nearby shop that both the appellants came there. They grappled .With the deceased. Allah Ditta appellant caught hold the deceased from his collar, pressed his throat and started giving head blows to Akhtar Ali, while Saleem alias Thag appellant caught hold the deceased from the upper arm and gave head blows to him at the back side of his neck. When the complainant tried to rescue his brother, the appellants ran away. In the meanwhile, the deceased fell down and was removed to the D.H.Q. Hospital, Kasur alongwith Aslam and Haji Muhammad PWs but died immediately on reaching the hospital.
7. Haji Muhammad (PW-8) deposed that on the day of occurrence, he alomgwith Muhammad Aslam PW were going to Raja Jang from Kasur in a car. Near Rao Khanwala, they got down from the car to purchase some fruit for iftari. Akhtar Ali deceased was already present at the Adda Rao Khanwala. All of a sudden both the appellants grappled with Akhtar Ali. Appellant Allah Ditta caught hold the collar of the deceased and pressed his throat and gave head blows to him.
Saleem alias Thag similarly hit the deceased at the back of his neck. The witness alongwith Ashraf (PW-7) and Aslam tried to catch hold the appellant but both of them ran away. Akhtar Ali fell down and they took him in the car to D.H.Q. Hospital, Kasur, where he expired.
8. Muhammad Naeem, Sub-Inspector (PW-1) who investigated the case as S.H.O. Police Station Raja Jang, stated that on receipt of application PA made by Muhammad Ashraf complainant he despatched it to Police Station and on the basis thereof under his directions FIR (Exh.PA/1) was recorded. He then proceeded to the D.H.Q. Hospital, Kasur, prepared the inquest report (Exh.PE) and sent the dead-body of Akhtar Ali for autopsy through Nisar Ahmad and Muhammad Afzal, Constables, got the site plans Exh.PB and Exh.PB/1 prepared from the Draftsman and caused the arrest of the appellants. During cross-examination, he stated that there was no visible mark of violence or injury on the body of the deceased, therefore, he did not got the injury statement prepared.
9. Statements of the accused were also recorded without oath under Section 342 of the Code of Criminal Procedure whereby both the appellants denied" the occurrence and their participation in the alleged crime. The learned Sessions Judge. Kasur, who tried the case did not agree with the not guilty plea of the appellants and accordingly by his judgment, dated the 24th July. 1995, convicted them under Section 302 of the Pakistan Penal Code. In consequence thereof. Allah Ditta appellant was sentenced to imprisonment for life and compensation of Rs.25,000/-. In default in payment of compensation, the appellant was required to undergo rigorous imprisonment for two years'.
Likewise, Saleem appellant being a minor but having a sufficient maturity was sentenced to seven years' rigorous imprisonment and diyat at the rate of value of 30630 grams of silver. It was further ordered that in case the appellant did not possess any property his Wali shall be liable to pay the divcit to the legal heirs of the deceased. Likewise the compensation on realization was payable to the legal heirs of the deceased. They were, however, given benefit in imprisonment in accordance with Section 382-B Cr.P.C. Both the convicts/appellants have assailed their convictions and sentences primarily on the ground that the medical' evidence was in conflict with the ocular evidence. Muhammad Ashraf, complainant, on the other hand through Criminal Revision No. 358/95 has objected to the findings of the learned Trial Court claiming enhancement of sentences awarded to the appellants.
10. Mr. Asif Saeed Khan Khosa, Barrister-at-Law, the learned counsel representing Allah Ditta appellant, very vehemently urged that the prosecution evidence was not worthy of any credit and that there were so many discrepancies in the evidence which do not bring h#me the alleged guilt of the appellants. It was contended by the learned counsel that at the alleged place of occurrence, as admitted by the Investigating Officer and Muhammad Nasrullah (PW-2), there were several Shops around the place of occurrence but surprisingly no shop-keeper was examined by the prosecution. Likewise, according to the statement of Muhammad Ashraf, the complainant (PW-7) and Haji Muhammad (PW-8) an eye-witness, the deceased and the complainant had alighted from the bus at Adda Rao Khanwala. Meaning thereby that the bus had made a stop at the said Adda and the passengers of the bus, if the incident had actually happened, must have seen the occurrence but again no passenger of the bus was examined as a witness of the incident. The learned counsel also contended that distance between Raja Jang and Kasur was 7/8 k.m. But the statement (Exh.PA) made by the complainant was prepared at Adda Rao Khanwala instead of the Police Station which was not far-of. In view thereof, it was contended by the learned counsel that the very place of occurrence as claimed by the prosecution appears to be doubtful.
11. Mr. Asif Saeed Khan Khosa, Advocate, learned counsel for the appellants further contended that the eye-witnesses were unnatural and interested witnesses and were closely related to the deceased. PW-7 Muhammad Ashraf was the brother of the deceased while Haji Muhammad PW-8 was a friend of the deceased. On the other hand, Muhammad Aslam in whose car Haji Muhammad PW-8 was travelling was not produced nor any explanation for not producing an important witness was given by the prosecution. Learned counsel was also of the view that at the time of iftari people generally go to their homes and do not visit places, while the complainant and Haji Muhammad PW-8 had claimed that they were going to Kasur at the time of Iftari. He also referred to the statement of Dr. Mumtaz Ahmad, Medical Officer (PW-5) who had opined that at autopsy semi- digested food particulars were found in the stomach of the deceased. It was thus claimed that the prosecution story that complainant and the deceased had got down Iron the bus at Adda Rao Khanwala for the purpose of iftari seems to be concocted.
12. Learned counsel for the appellant also stressed that there was a clear conflict between the allegations of cause of death raised by the complainant and eye-witness and the medical evidence. In FIR, the complainant had alleged that Allah Ditta appellant caught hold the deceased from the collar and gave an head blow at his chest while Muhammad Saleem alias Thag appellant hit at the back of neck of the deceased with his head. During cross-examination Muhammad Ashraf PW-7 had claimed that the accused had given 2/3 head blows on the chest of the deceased while similar number of blows were given by Saleem alias Thag at the back of neck of the deceased. It is the claim of the learned counsel for the petitioner that the complainant and the other eye-witnesses had clearly improved their statements by raising the number of head blows to the deceased and also claiming that Allah Ditta appellant had pressed the throat of the deceased and that Saleem alias Thag had caught hold that deceased from upper arm and gave head blows.
Haji Muhammad PW-8 had also stated that the appellant Allah Ditta had pressed the throat of the deceased by catching through his collar. According to the learned counsel the factum of pressing of throat was a clear improvement made after seeing the post-mortem report as it was not so stated by the complainant in the FIR. According to the report of the doctor there was a bluish-black spot (3x2 cm) in front of the neck in the middle. It was thus urged that the eye-witnesses have improved their statements on lines of the medical report. It was also very forcibly argued that as admitted by the Investigating Officer there was no bruise redness, mark or any injury on the chest or face of the deceased and for that reason no injury statement was prepared by the Investigating Officer. Therefore, the allegations of the complainant and the other eye-witnesses that several head blows were made by the appellants appear to be totally false and concocted and since these allegations are contrary to the medical report they should be totally ignored.
13. No doubt that in the FIR the complainant had not alleged that Allah Ditta appellant had pressed the neck of the deceased but it is clear therefrom that he had stated therein that Allah Ditta appellant had caught hold the deceased from his' collar. Hence, notwithstanding that the complainant had not clearly given the description of pressing the neck by Allah Ditta appellant it is not a discrepancy which may prove fatal for the prosecution assertions. Admittedly, he was standing at some distance from the 'deceased and thus could not very minutely observe that Allah Ditta appellant while he had caught the deceased from, his collar was also pressing the throat of the deceased. But in view of his statement that Allah Ditta appellant had caught hold the deceased from his collar, it is sufficient to indicate that throttling of neck was there. Dr. Mumtaz Ahmad had clearly stated that the death of the deceased Akhtar Ali was caused because of asphyxia caused by throttling of the neck. Further, on a Court question the Medical Officer had clearly admitted that even in the case of hitting with head around the neck the symptoms will be the same as were given 'in his report regarding congestion of lungs, chambers of the heart and neck veins. In view thereof, the complainant had not made any deviation from his statement on the 23rd February, 1994, which formed basis of the FIR in the case. Haji Muhammad PW-8 also appears to be an independent witness. Although he had admitted that he had friendship with the deceased but certainly it has not been proved on the record that he had any animosity with the appellants.
His presence at the place of occurrence also appears to be natural. In this regard, the non- production of shopkeepers or passengers of the bus is not very material as these days people do avoid to appear as witnesses in cases of heinous crimes. The testimony of a relation or a friend of the victim cannot be discarded being interested witness if otherwise such testimony inspires confidence. In this respect support is drawn to Muhammad Fazal v. The Stale (1988 P.Cr.L.J. 1049) and Aslam and another v. The State (1997 SCM R 1284). As stated above, it is admitted that Haji Muhammad (PW-8) had no enmity with the appellants nor simply because he was passing from the Adda Rao Khanwala and was present at the spot with his companion for the purpose of iftari, can be labelled as a chance witness. His deposition is clear and straightforward and does not, in any manner, seems to have been made to falsely implicate the appellants. It was also clear from the site plans of the place of occurrence Exh. PB and Exh.PB/1 prepared by Muhammad Nasrullah, Draftsman. The said draftsman had clearly identified the place-B indicating the place where Allah Ditta appellant had caught hold the deceased Akhtar Ali from his collar, gave him head blows and pressed his neck. No question, however, in this regard was put to him during cross-examination.
The entries of the plans which were verified by the Investigating Officer thus go unrebutted.
14. The complainant has also not alleged that the deceased was having a fast. He had only stated that he had alighted from the bus at Adda Rao Khanwala to make purchases for iftari. Such assertions do not mean that beside him deceased was also with fast. Hence, the presence of semi- digested food particulars in the stomach of the deceased do not belie the statement of the complainant that in the way he and deceased had alighted from the bus for iftari. Likewise, the objection regarding recording of statement Exh. PA at Adda Rao Khanwala and not at the Police Station Raja Jang is without any force. In particular, when recording of statement for the purpose of registration of case at the place of occurrence does not infringe any legal provision, not in the present case it renders any extra benefit to the prosecution.
15. Nevertheless, there is quite a force in the contentions of the appellants that the motive for causing death of Akhtar Ali deceased has not been^ proved beyond doubt. Muhammad Ashraf (PW-7) who is the only witness who expressed the view that a few days earlier dispute over payment of money between the deceased and the appellants had culminated into the murder of the former. He, however, did not give the details of the said dispute, nor produced the persons who had allegedly intervened and got the matter settled or those in whose presence the appellants had threatened the deceased of dire consequences. PW-7 claimed that he had reported the matter to the police but no case was registered by the police. Even such complaint was not made in writing nor any question thereto was. Asked from the Investigating Officer (PW-9) who was also the Officer-incharge of the Police Station, Raja Jang. It was suggested on behalf of rhe appellants that the deceased was a vagabond and used to tease the girls and some unknown person aggrieved of the behaviour of the deceased had killed him. But evidently, except the suggestions made to the eye-witnesses to this effect nothing substantial has been brought on the record in support of these assertions which were vehemently denied by the complainant and PW-8.
Similarly, there is no corroboration of the complainant's averments in respect of the motive of murder of his brother and thus the same remains shrouded in mystery.
16. Allah Ditta, appellant in last contended that it was not a case of Qatl-e- and as there was no pre-meditation or pre-planning. In this connection he contended that there is nothing on the record to prove that the appellants were waiting for the deceased at Adda Rao Khanwala or sitting in ambush to attack him. Apparently something suddenly had cropped up which resulted into death of Akhtar Ali. According to the learned counsel, at maximum, it was a case of qatl-e-and as provided' under Sections 315 and 316 of the Pakistan Penal Code. In support of his contentions the learned counsel referred to Nabi Bakhsh v. The State (1988 SCM R 213), Abdul Huq v. The State (PLD 1996 SC 1) and Ali Muhammad r. Ali Muhammad and another (PLD 1996 SC 274).
17. No doubt that from the facts and circumstances of the case, in particular when the motive has not been proved beyond doubt, it is clear that something between the deceased and the appellants must have happened suddenly which motivated Allah Ditta appellant to take an extreme step of causing death of the deceased by breaking his neck. But it is clear that the action of Allah Ditta appellant was very brutal as he pressed the neck of the deceased with such a force that it not only broke the neck-bone but resulted into immediate death of Akhtar Ali. The place of injury and breaking of neck-bone are not kind of hurts which may create doubt in the mind of the assailant that no serious injury would be caused to the victim. The pressing of neck with force and breaking of neck-bone are hurts which are known to a person of average prudence that in the ordinary course of nature such injuries are likely to cause death of the victim or they are so imminently dangerous that these will in all probability result into the death of the person to whom such injuries are caused. Hence when Allah Ditta appellant pressed the neck of deceased Akhtar Ali with such a force that it broke his neck-bone it would be fully known to the appellant that his action was going to cause death of Akhtar Ali. This was thus a clear case covered under the provisions of Section 300 PPC dealing with qatl-i-and. In this respect, the authorities cited by the learned counsel for the appellant are of no help as they are not directly relevant to the present controversy. The learned Trial Court had thus rightly recorded the conviction under Section 302 of the Pakistan Penal Code against Allah Ditta appellant.
18. The case of Muhammad Saleem alias Thag appellant, however, is distinguishable. The allegation against him is that he hit' the deceased at the back of his neck with his head. The learned Trial Court had not brought anything on the record to prove that he had any common intention with Allah Ditta appellant to cause death of the deceased. The neck muscles at the back of a person are not of fragile nature to cause immediate death when struck with the head. Even otherwise to hit a person with head at the back of neck is not very easy. It is in the opinion of Medical Officer (P.W.4) that the bluish-black spot which caused the congestion of meninges, brain, lungs and heart was found in front of the neck of the deceased and not on the back. Similarly, except this injury, as admitted by the Investigating Officer, there was no other sign of injury caused to the deceased. It may be for that reason that the learned Trial Court had not recorded conviction against the appellant under the provisions of Section 34 of the Pakistan Penal Code. In the circumstances, it appears that Muhammad Saleem alias Thag appellant had no intention of causing death of Akhtar Ali deceased nor the head blows caused by him at the back of neck of the deceased were of a nature which would have resulted into the death of Akhtar Ali.
19. The upshot of the above discussion is that the murder of Akhtar Ali deceased was an individual act of Allah Ditta appellant and in the circumstances he was rightly convicted under Section 302 of the Pakistan Penal Code. It would, however, be difficult to hold Muhammad Saleem alias Thag who was also minor at the time of occurrence to be guilty of murder of the said Akhtar Ali. As regards the sentence, since the motive for the murder of Akhtar Ali deceased has not been fully established, the learned Trial Court had rightly awarded a lesser punishment to Allah Ditta appellant of imprisonment for life and a fine of Rs.25,000/- in the form of compensation payable to the legal heirs of the victim. In this respect, there appears no ground for enhancement of the sentence of Allah Ditta appellant.
20. In view thereof, the Criminal Appeal No. 522/95 find by Allah Ditta appellant is dismissed, while Muhammad Saleem alias Thag is acquitted of the charge by giving him benefit of doubt. The Criminal Appeal No. 553/95 find by him is accordingly accepted. Likewise, Criminal Revision No. 358/95 entitled as Muhammad Ashraf v. Allah Ditta being devoid of any merit is dismissed.