' This judgment will dispose of Criminal Appeal No,49-J of 1998 filed by Shahzad Ahmad through Jail. Appellant was convicted and sentenced by learned Additional Sessions Judge, Gujranwala on 5-7-1998 to undergo 14 years R.I. Under section 306 read with section 308, P.P.C. For the murder of Mian Ijaz Ahamd and also to pay "Diyat" amount to the tune of Rs,2,29,000 (two lac twenty nine thousands) Benefit of section 382-B, Cr.P.C. Was also granted to the appellant.
2. This is a Jail appeal. I appoint Malik Abdul Islam, Advocate to defend the appellant at State expense.
3. The occurrence in this case took place on 27-1-1995 at 8.00 a.m. In the Factory of deceased Mian ljaz Ahmad situated in the street of Mian Bashir Ahmad, Ferozepur Road, Gujranwala. Complaint Exh. P.E was got recorded by Mian Muhammad Saeed, brother in law of the deceased Mian ljaz Ahmad examined as P.W.3 at 9.30 a.m. While the formal F.I.R. Exh. P.E/1 was recorded in Police Station, Peoples Colony, Gujranwala.
4. Briefly stated the facts of the prosecution case as disclosed in the F.I.R. And report under section 173, Cr.P.C. Are that Muhammad Saeed P.W. On 27-1-1995 got recorded his statement before S.H.O., Police Station, Peoples Colony, Gujranwala that he was owner of Saeed Silky Factory Gujranwala.
On 27-1-1995 at about 6.30 a.m. He had gone to Aslam Silk Factory of his brother in law namely Muhammad Ijaz alias Manna to fly kites on the occasion of "Basant". There Ijaz and two employees of this factory namely Ahmad Ali and Abdul Hameed P.Ws. Were also present. They all were flying kites on the roof of said factory. At about 8.00 a.m. Shahzad alias Kala accused, ex-employee of Muhammad ljaz also came there and joined them. In the meantime Muhammad ljaz came down from the roof-top to his office. He was followed by Shahzad accused, in his office. After some time, they heard laud conversation/altercation between Muhammad Ijaz (deceased) and Shahzad accused. Shahzad accused was saying to Muhammad Ijaz that he would not leave without receiving his arrears. Whereas, Muhammad Ijaz was saying that nothing was due against him.
Thereafter, they heard alarm being raised by Muhammad Ijaz that he was being killed and he should be saved. The complainant and the above named P.Ws. Packed up their kites and thread and came down stairs. They saw that Shahzad accused brandishing the blood-stained churri in his hand, extending threats fled away from the back door of the factory. They reached in the office and found Muhammad Ijaz seriously injured and lying on the ground. They were still making arrangements to shift Muhammad Ijaz to a hospital when Muhammad ljaz succumbed to the injuries. Shahzad accused committed the murder of Muhammad Ijaz due to a dispute of some amount. After investigation of the case, the accused was challaned .
5. The Investigating Officer after sending the complaint to the police station for the registration of case came to the spot took into possession blood-stained earth vide memo. Exh. P.D. Lie arrested the appellant on 28-3-1995. The appellant got recovered Churri P.4 on 1-4-1995, which was taken into possession vide memo. Exh. P.B. Blood-stained clothes, Shalwar P.5, Shirt P.6 of the appellant was also recovered on the same day, which were also taken into possession vide memo. Exh. P.C.
6. Prosecution in order to prove its case produced 14 witnesses in all. Thereafter, statement of the appellant was recorded under section 342, Cr.P.C. Who claimed innocence and false implication.
The reports of Chemical Examiner regarding rough cotton thread blood-stained churri and clothes are Exh. P.N. And Exh. P.O. And that of Serologist is Exh. P.Q.
7. Learned counsel for the appellant has read before me the prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And makes the following submissions. He submits that both the eyewitnesses are very well-connected with the deceased i,e, sister of complainant Mian Muhammad Saeed P.W.3 was married to the deceased while Ahmad Ali was employee in the Factory Of the deceased. They have been examined as P.W.3 and P.W.5 respectively. He further submits that their presence at the spot is doubtful because it was a holiday being Friday. He also submits to say that it was a "Basant" day is totally incorrect because the same fell in month of February. He further submits that conduct of the eyewitnesses is most unnatural and improbable because they never tried to apprehend the appellant, who was aged about 17 years. He submits that recovery of weapon churri and blood-stained clothes has been planted on the appellant.
Lastly, he submits that maximum sentence which is provided under section 308, P.P.C. Has been awarded to the appellant which is a very harsh in the circumstances of the case because appellant was minor at the time of occurrence.
8. On the other hand, learned counsel for State submits that appellant was named in the F.I.R., that he was the only accused in his case, that it was a broad daylight occurrence, that it was not a case of mistaken identity, that question of substitution is not there. He submits that ocular account in this case is corroborated by medical evidence, and recovery of blood-stained churri coupled with recovery of blood-stained clothes of the appellants.
9. I have heard the learned counsel for the parties and have also gone through the prosecution evidence with their assistance. The occurrence in this case had taken place in the broad daylight.
Appellant was known to the 'eye-witnesses. It was a case of proniptly lodged F.I.R., that question of substitution in this case does not arise. I may also mention here, the statement of Dr. Muhammad Ayut. Ansari, S.M.O. Who conducted the postmortem examination on the dead body of the deceased Muhammad ljaz and found the following injuries which is reproduced below:--- INJURIES:
(1) An incised wound 2 c.m. x 1 c.m. On epigastrium going deep more on right side.
(2) An incised wound 3 c.m. x 1.5 c.m. Going deep on left side of abdomen 9 c.m. From umblicus.
(3) Incised wound 1 5 c.m. Going deep on left axilla.
(4) Incised wound 3 x 5 c.m. Going deep on left side chest at lower part 4 c.m. From mid line 13 c.m.
From left breast.
(5) Incised wound 3 x 5 c.m. Skin deep on back of left arm at lower part.
(6) Incised wound 1 x 5 c.m. On left arm at lateral aspect 3 c.m. Above injury No .5 .
(7) Incised wound 1 x 1 c.m. On outer aspect of left upper arm just above injury No,6.
(8) Incised wound 1 x 1 c.m. Going deep on left upper arm at top.
(9) Incised wound 5 x 5 c.m. On back of left arm 2 c.m. Above elbow.
(10) Incised wound 5 x 5 c.m. Going deep on right side chest at middle 10 c.m. From right breast.
(11) Incised wound 1 x 5 c.m. Going deep on left upper arm at medial aspect.
(12) Incised wound 1 x 1 c.m. On left palmer surface skin deep.
(13) Incised wound 1 x 1 c.m. On left forearm at lower part skin deep.
(14) Abrasion 8 x 2 c.m. On left upper arm at back.
(15) Abrasion 9 x 2 c.m. On left upper arm.
(16) Incised wound 2.5 c.m. x 1 c.m. On back of left upper arm at upper part.
(17) Incised wound 1 x 1 c.m. Going deep on back of left chest upper part 15 c.m. From axilary line.
(18) Incised wound 2 x 5 c.m. Going deep on back of left side of chest 10 c.m. Below injury No,17.
(19) Incised wound 5 x 5 c.m. On left loin.
(20) Incised wound 2 x 1 c.m. Going deep on back of left sides chest at middle 10 c.m. From mid line.
(21) Incised wound 1 x 5 c.m. On back of right chest at middle part on mid line.
(22) An incised wound 5 x 5 c.m. On top of right shoulder.
(23) Incised wound 4 x 1 c.m. On front of right lower leg.
(24) Multiple abrasion in an area 12 x 15 c.m. On front of right knee and right upper leg.
(25) Incised wound 4 x 1 c.m. Going deep on left pinna.
SCALP SKULL AND VERTIBRAE ' All were healthy. Membrains, brain spinal card all were healthy. THORAX ' Third fourth ribs were fractured on left side. Left and right plurae were injured. Right lung was injured due to injury No,10. Left lung was injured due to injuries Nos.17 and 20. Paricardium and heart were injured. Other parts were healthy.
ABDOMEN ' Walls of abdomen and peritonium were injured.
' Stomach was empty and healthy. Small intestines contained fluids and was injured. Large intestine was healthy and contains gass and fluid. Liver, spleens, kidney and organs of generation were healthy. Bladder was empty and healthy. Abdominal corta was found injured.
' All the injuries were antimortem. Injuries Nos.1 to 10,11, 12, 13 and 16 to 13 and 25 were caused by sharp-edged weapon. Injuries Nos. 14, 15 and 24 were caused by blunt weapon. Death in my opinion had occured due to injury to both lungs, heart leading to intrathoracis haemorrhage. Injury to abdominal aorta leading to interra abdominal haemorrhage leading to hypovelemic shock leading to death. It was sufficient to cause death in ordinary course of nature. Time between injuries and death was immediate and between death and postmortem was about 24 hours. After postmortem examination dead body, alongwith clothes of the dead body and post-mortem papers were handed over to the police. Exh. P.F. Is the correct carbon copy of postmortem report and Exh. F/1 is the diagram showing the location of injuries which are in my hand and signed by me.
' By defence counsel.
' I have recorded that the death was caused immediately after sustaining injuries. By this expression, mean to say that the death was caused within 15 minutes of the receipt of injuries. Rigor mortis starts appearing after 4 hours of death and are completed by 24 hours. Thereafter, rigor mortis start disappearing. At the time of post-mortem examination rigor mortis was fully developed. However, I have not mentioned in my report that the rigor mortis was fully developed. It is incorrect that more than one weapon was used for causing injuries. It is incorrect that I am making false statement in -collusions of complainant party. A doctor of Emergency Ward on duty can perform postmortem examination. It is correct that a doctor is available in Emergency Ward round the clock. On 28-1-1995 at 9.20 a.m. Dead body was handed over to me for post-mortem examination. Column No,1 of the death of post-mortem examination report is filled according to the police papers. Stomach was empty which shows that the deceased had not taken break fast.
10. According to his statement there were 25 injuries on the person of the deceased. Amongst them, 22 injuries were caused with sharp-edged weapon. This is not a case of substitution or false implication. The two eye-witnesses produced by the prosecution, although one of them is a close relation of the deceased and other is employee of factory of the deceased but their presence at the spot is natural one. They have got no enmity whatsoever with the appellant, so there is no question of false implication in this case. The reports of Chemical Examiner and that of Serologist regarding the bloodstained Churri and blood-stained clothes of the appellant recovered from the appellant are positive in nature. The occurrence in this case took place on 27-1-1995, appellant remained fugitive from law and was arrested on 28-3-1995. This fact also supports the prosecution story. In my view, prosecution has proved its case against the appellant beyond any shadow of doubt, through ocular testimonies, corroborated by medical evidence; recoveries of blood-stained churri and blood-stained clothes of the appellant and he being remained fugitive from law.
11. The upshot of my above discussion is that appeal of the appellant is dismissed. However, as the appellant was minor at the time of occurrence, I reduce his sentence from 14 years to 10 years' R.I.
Benefit of section 382-B, Cr.P.C. Is also maintained. However, appellant would pay the amount of Rs,2,29,000 (two lacs twenty nine thousands) i,e, "Diyat" amount which is a mandatory provision, the same he can pay either in lump sum or in three instalments. In case he does not pay the above said amount, he will remain in Jail and then would undergo simple Imprisonment till he pays the "Diyat" amount but the said sentence would start after the expiry of his sentence of 10 years R.I. With thse observations, this appeal stands disposed of.