Zahoor Ahmed alias Maki son of Shah Muhammad, caste Gujjar, aged 14 years, was convicted under section 302, P. P. C. For the murder of Muhammad Ashfaq his Mohallandar by the learned Sessions Judge, Gujran. Wala, who sentenced him to life imprisonment and a fine of Rs. 2,000 or in default to suffer further rigorous imprisonment for one year vide his judgment dated 30th August 1915 forming the subject-matter of this appeal.
2. This incident took place on the 9th of September 1973 at about 3.30 p.m. In front of the milk shop of Muhammad Ishaq (P. W. 7), the father of the deceased, near Mandir Mayanwala situate in Street No. 1 of Aram Bassi, Gujranwala, as shown in site plan Exh. P. A.
3. A report about it was drawn on the statement Exh. P. B. Of Mubammnd Muhl P. W. Recorded by A.
S I. Muhammad Yaqub (P. W. 10) at 7-15 p.m. On the same evening in District Headquarters Hospital, Gujranwala.
4. Mushtaq (deceased) was a minor student of about 14 years of age like Zahoor Ahmad appellant, both of whom studied in the same school and lived in the same Mohallah.
Muhammad Ashfaq (deceased) after his return from the school quite often attended to the shop of his father and Zahoor Ahmad appellant used to extort a small amount from him on occasions about which Muhammad Ashfaq (deceased) had complained to his father as well.
5. On the eventful day Muhammad Ishaq (P. W. 7) had gone to his house to take his meals leaving Muhammad Ashfaq (deceased) on the shop. On his way ha* he was joined by Muhammad Rafique (P. W. 8) who was also proceeding to the City and on reaching the corner of this lane (Gall No. 1) their attention was attracted by a commotion and saw Zahoor Ahmad appellant pulling down Muhammad Ashfaq from his shop by holding him from the collar of his shirt. Muhammad Isbaq P.
W. Shouted from there asking the appellant to leave his son who within their view stabbed Muhammad Ashfaq with a knife in his abdomen and felled him to the ground. Muhammad Ishaq P.
W. Rushing to his shop found his son bleeding profusely from his wound. Muhammad Rafique P. W.
Gave a chase to Zahoor Ahmad appellant, but the latter succeeded in making good his escape.
The occurrence was also witnessed by Malik Muhammad Naeem (not produced). All three of them putting him on a cot carried him to Husain Hospital, Satellite Town and from there they brought him to District Headquarters Hospital in Civil Lines Gujranwala, where Dr. Muhammad Nawaz Bajwa (P.
W. 1) examined his injuries and informed the police through his letter Exh. P. F. Which brought A. S. I.
Muhammad Yaqub (P. W. 10) to the hospital at about 7-00 p.m.
On reaching the hospital the A. S. I. Made a query from the doctor vide &h. P. G. About the fitness of the injured person to make a statement. He endorsed his opinion in the negative at Exh. P. 0/1. He thereupon recorded the statement of his father Muhammad Ishaq (P. W. 7) which forms part of this record as F. I. R. The Medical Officer produced before him blood-stained shirt (P. 1) which he had removed from the body of the injured person and it was taken into possession vide Exh P. C.
The A. S. I. Then proceeded to the spot and prepared a rough sketch of the place of the occurrence and also searched for the appellant. On the next day the A. S. I. Again went to the District Headquarters Hospital and on enquiry was told by the Medical Officer that the injured person was still unfit to make a statement vide his note Bah. P. G/2.
On 11th September 1973, at about 1-00 a.m., the A. S. I. Received intimation that Muhammad Ashfaq had succumbed to his injuries. He. Accordingly went to the hospital and despatched his dead body to the mortuary along with his inquest report Exh. P. Li Inspector Muhammad Sadiq (P. W. 11) relieved him of the investigation of this case on that very day who arrested Zahoor Ahmed appellant from a petrol pump on Sialkot-Gujranwala Road. In the course of his interrogation the appellant led to the recovery of blood-stained knife (P. 2) after digging it out from near the compound wall of District Jail, Gujranwala. It was sealed irAto a parcel vide Exh. P. D in the pretence of Abdur Rashid (P. W. 9). He deposited this sealed parcel with Moharrir A. S. I. Amanat All Khan on the same day, who forwarded it to the office of the Chemical Examiner in due course for analysis of the blood found on this knife which was traced out 88 that of human origin vide report Exh. P. N. Of the Chemical Examiner and Exh. P. O. That of the Serologist.
6. On the 9th of September 1973. At 4-20 p.m., Dr. Muhaeurad Nawes Bajwa (P, W. 1) examined Muhammad Ashfaq (then alive) and found au incised wound on ambilicus oblique in nature 1' x r going deep cutting the omentum. Injury was kept under observation.
On 11th September 1973, at 8-45 a.m., the same doctor held autopsy on his dead body and found the same injury. Mesentric blood vessels were injured and so were the small intestines. Injury was ante-mortem and caused by sharp-edged pointed weapon. It was grievous and dangerous to life.
Death in his opinion was cue to shock and haemorrhage as a result of injury to intestine and blood vessel of mesentry. It was sufficient to cause death in the ordinary course of nature. Probable time between injury and death was 35 hours, between death end post-mortm 12 hours.
7. In addition to this medical evidence and that of the recovery of the blood-stained knife (P.'2) at the instance of Zahoor Abated appellant, the prosecution had relied on the testimony of Muhammad !Shag and Muhammad Rafique P. Ws. Who had lent unstinted support to it.
8. The appellant in his turn denied all the allegations made against him by these P. Ws. And set up a plea of substitution which is reproduced in verbatim from his statement um= section 342, Cs. P.
C. As under : -- "The deceased was injured with a knife by a nephew of P, W. Rafique while playing and he misinformed Isaaq P. W. As a result of which I have le, en falsely implicated on mere suspicion."
He, however, led no evidence in support of this defence version.
9. Learned trial Judge rejected this plea and accepting the evidence of the above-named prosecution witnesses as true and correct account of the occurrence held him guilty of this charge.
10 This finding has been assailed before me as erroneous being based on a be'ated report, incredible evidence of two close relations of the deceased and fi-ke recovery cif knife (P. 2) which was planted at a very late stsge to strengthen an otherwise weak case, but on going through the recerd with care I am not persuaded to agree with this contention.
11. It is no doubt correct that Muhammad Isbaq (P. W. 7) was the father of Muhammad Ashfaq (deceased) while Muhammad Rafique (P. W. 8) was his maternal uncle, but their evidence could not be dis:arded merely on account of this relationship, especially when they are not shown to have any motive of their own to falsely implicate the appellant in this case.
12. The occurrence had taken place in broad daylight in an open place which was witnessed by them from close quarters without any doubt abont his identity who deposed so consistently that there was no material discrepancy to discredit their statements about it.
13. In fact the presence of Muhammad Rafiqua P. W. Was ad9sitted by the appellant while sponsoring his .Defence version in their cross-examination and finally ' in his statement at the trial.
Even the time, place-of occurrence and the type of weapon (knife) used therein was conceded by the deferce with the assertion that the actual offender was a nephew of Muhammad Rafique la W.
But substitution of the ' assailant is a thing of rare occurrence and cannot be assumed and he who sets up such' a plea has to lay foundation for the same. In the present case the defence version was apoarentiy an afterthought as the case of the appellant at the close of prosecution evidence before the Committing Magistrate was of bare denial and false implication due to party faction and enmity about which there was not an iota of evidence on the record. Even not the slightest suggestion was made in the cross.Ezamination of these witnesses about any prior patty faction or enmity between the parties. They could not be termed as interested witnesses is judged in accordance with the dictum of their Lordships in Nazir's case and when the presence of one of them was admitted aleeni with the time and place of occurrence as., also the type of the weapon of offence, there was no reason to doubt the veracity of either of them B and the rule of prudence about corroboration of such testimony is no more being insisted won by the Supreme Court as done in Muhammad Sharif's case dispensing with the evidence of motive and even recovery if direct evidence had a ring of truth about it.
In the present case, however, there I ,the unimpeachable evidence af Abdul Rashid (a. W. 9) in support of the recovery of knife (P. 2) at the instance of the appellant which wail thund stained with human blood. He was in no manner connected with " the deceased or pitched against the appellant or even hand-in-glove with the police. At least no such assertion was made against him.
The only objection raised against his evidence was that before the Committing Magistrate he bad not mentioned that the knife was stained with blood which to my mind Was not necessary after it had been immediately sealed into a parcel at the spot for the Chemical analysis of whatever could be found on its blade. The relevant memo. Signed by him, however, finds a mention about it which bears the attestation of this witness.
' Another attack made on this witness was that he was not summoned from that locality to witness this recovery but was brought from the place of occurrence where the Inspector had been investigating the case since 8/9 a.m. On that day but it was also without any eubstance as held by their Lordships of the Supreme Court in a very recent ease reportedate Farid v. Aslam and others .
14, Lastly it Watt urged that the report (Bah. P. ,p.) was eecorded after four hours of the occurrence although' the police station was only at two furlongs from that place but it would fade away in the face of the most important factor Ott the ,kattged person was JFmoved to the haspilal with all prof ptit'ude by the witnesses of Or concern &Alt the We of thOinjured person was uppermost in their mind at that duty of the doctor to inform the police about it which he faithfully performed after the1 2 3 examination of the injured person and providing him the necessary first-aid. The delay caused by the Moharrir in deputing a police officer to the hospital was no fault of the complainant. See Nur Muhammad's case .
15. It is true that no other neighbour or resident of the vicinity of the crime had been produced to corroborate their testimony as some of them were admittedly present at the spot when this deadly assault was initiated, but it may be due to tragedy of general apathy or cowardice incurring the risk of the animosity of the assassin or lack of civic sense and responsibility on the part of the people around to act for the benefit of the society and in aid of the Authorities charged with the duty of maintaining Law and Order as lamented by their Lordships of the Supreme Court in Yaqoob Shah v. State and Muhammad Iqbal v. The State .
16. As a result of this discussion there is no merit in this appeal and even the sentence calls for no interference in view of the wanton manner in which the knife (P. 2) was plunged into the most vital part of the body causing extensive danger thereunder, while he had already been given due benefit of his age at the time of the occurrence in awarding the lesser penalty to him.
17. This appeal is accordingly dismissed. PLD 1962 SC 269 PLD 1976 SC 452 PLD 1977 SC 4 1968 SCMR 325 PLD 1976 SC 53 PLD 1976 SC 291