MUHAMMAD AKRAM Versus THE STATE
M. NAEEM ULLAH KHAN SHERWANI, J.--- Muhammad Akram son of Muhammad Sharif was tried by a learned Additional Sessions Judge at Shorkot, District Jhang for committing murder of Sanaullah son of Mst. Naziran Bibi-complainant. The learned trial judge by virtue of his judgment dated 11-4-1997, found him guilty of the said charge, convicted him under section 302, P.P.C. and punished him with death as Ta'zir. He was also directed to pay Rs.20,000 to legal heirs of the deceased by way of compensation as envisaged by the relevant provisions of section 544-A, Cr.P.C. or in default thereof to undergo simple imprisonment for four months.
2. Murder Reference No.181 of 1997 seeks confirmation of the said sentence of death awarded to Muhammad Akram-convict, whereas he has approached this Court by filing Criminal Appeal No.179 of 1997, to call in question conviction and sentence passed against him. We propose to dispose of both these matters together through this single judgment.
3. The alleged incident had taken place on 25-7-1995 at 7-00 p.m. in the area of Muhallah Qureshan Wala, falling within the territorial jurisdiction of Police Station City Shorkot, District Jhang. Distance between place of occurrence and the police station is one kilometer. The occurrence was reported by Mst. Naziran Bibi complainant (P.W.8), mother of Sanaullah deceased, to Muhammad Ramzan, S.I. (P.W.10), who was available at Darbar Pir Ghayban, Shorkot City. The said Sub-Inspector reduced into writing her statement (Exh.P.D/1) at 7-30 p.m. on the same day and dispatched the same to the police station for registration of formal F.I.R. through some constable. Consequent upon receipt thereof at the Police Station, Shafqat Abbas, MHC (P.W.4) drew up F.I.R. (Exh.P.D) on the same day at 8-00 p.m. without any addition on substraction on his part.
4. Mst. Naziran Bibi, complainant (P.W.8) gives her version of the occurrence as under: -
Sanaullah, Habibullah, Nasrullah, Kamalullah are her sons, Mst. Shahnaz and Mst. Mehnaz are her daughters. Umar Din, her husband, is an old person. Her residential house is adjacent to the house of one Muhammad Akram son of Muhammad Sharif Jat. On the fateful day, it was 7-00 a.m., when Muhammad Akram was available on the roof top of his house, while whistling his partridge. By so doing, he had disturbed privacy of her family. She alongwith her son Sanaullah dissuaded Muhammad Akram from so doing, who did not abstain himself. Sanaullah and Muhammad Akram altercated with each other and then started throwing brickbats on each other. Mohallahdars patched up the matter. Muhammad Akram extended threats and pronounced that he will avenge his insult. On that very day, Sanaullah went out to graze his goats. He was coming back in the evening with his goats. Sanaullah reached near mosque known as Hattianwali Masjid near the shrine of Mai Bap. It was then 7-00 p.m. Muhammad Akram appellant was standing in the street while armed with a dagger. Complainant alongwith her son Habibullah were walking at some distance from Sanaullah. In their view appellant delivered two dagger blow's landing on right side of chest and abdominal region of Sanaullah, who could not survive and died then and there. On commotion raised by her and her son. Abdul Majid son of Allah Ditta and Muhammad Saleem son of Muhammad Yousaf, who were passing nearby, were also attracted to the spot. They too witnessed the occurrence Muhammad Akram appellant left towards shrine of Mai Bap while brandishing his dagger.
Muhammad Akram was in the habit of whistling his partridge by standing on the rooftop of his house, which caused tremendous disturbance to the privacy of family of the deceased. Sanaullah had forbidden him for his activities on a number of occasions, but of no avail. He started nourishing grudge. Over all this, he ultimately dispatched him to the next world by plunging dagger into his chest and abdomen. Mst. Naziran Bibi, in this way laid a strong foundation for trial of the accused on the murder charge of her son Sanaullah.
5. After registration of the above said crime report, Muhammad Ramzan, . S.I. (P.W.10) took over the uphill task of investigation and immediately rushed to the spot. He prepared injury statement (Exh.P.C), inquest report (Exh.P.B) of Sanaullah deceased and dispatched his dead body to the mortuary under the escort of Muhammad Anwar, constable (P. W.6) for the purpose of autopsy. He inspected the spot, during the course of which he collected blood-stained soil, made it into a sealed parcel and took the same into possession through memo. Exh.P.H, duly attested by Muhammad Saleem (P.W.9) and Abdul Majid P.W. (not produced).. On 26-7-1995, after post-mortem examination, Muhammad Anwar, constable (P.W.6) produced before him blood-stained last worn clothes, shirt (P.1), and Shalwar (P.2), of the deceased, which were taken into possession by him through memo. Exh.P.F, duly attested by the same set of witnesses. He recorded statements of the relevant witnesses under section 161, Cr. P. C. He got prepared siteplans in duplicate (Exhs.P.G and P.G/1) of the place of occurrence from Jan Muhammad, Draftsman (P.W.7) Muhammad Akram accused could be arrested by him on 2-8-1995. He was subjected to interrogation, during the course of which he while in police custody got recovered dagger (P.3) from Ghazi Pir graveyard, which was taken into possession through memo. Exh.P.E. duly attested by Sajid Hussain, constable (P.W.5) and Zafar Iqbal P.W.(not produced) A case under section 13 of West Pakistan Arms Ordinance No.XX of 1965 also stood registered against him. He recorded statements of the relevant witnesses under section 161, Cr. P. C After completion of investigation, he prepared report under section 173, Cr.P.C. and submitted the challan against the accused before the Court for his trial in accordance with law.
6. The trial Court after completing all the legal formalities proceeded to frame charge against the accused, which was explained and read over to him. He pleaded not guilty to the same and claimed to be tried as such.
7. It was in these circumstances that the prosecution was called upon to adduce evidence to establish charge against the appellant. In compliance of said direction, the prosecution ventured to produced as many as ten witnesses in all.
8. Out of the whole lot, evidence of Dr. Muhammad Ali (P.W.4) Sajid Hussain, constable (P.W.5), Mst. Naziran Bibi -complainant (P.W.8), and Muhammad Saleem (P.W.9) is of most significance, whereas that of remaining witnesses is of formal nature and need not be discussed.
Dr. Muhammad Ali, M. O. (P.W.1) had conducted post-mortem examination on dead body of Sanaullah and observed four injuries on his person. According to him, Sanaullah died due to haemorrhage and shock resulting from injury No.1 to the vital organ (lung), which was declared sufficient to cause death in the ordinary course of nature. He prepared post-mortem examination report (Exh.P.A) and pictorial diagram (Exh.P.A/1).
Sajid Hussain, constable (P.W.5) appeared to prove the factum of recovery of dagger (P.3) at the instance of the appellant.
Mst. Naziran Bibi, complainant (P.W.8) and Muhammad Saleem (P.W.9) are eye witnesses of the occurrence. They furnished ocular account. They both implicated fully the appellant and confirmed the parts played by him during the course of incident.
9. Learned prosecutor gave up remaining witnesses being unnecessary and after tendering in evidence report Of the Chemical Examinar (Exh.P.I) and that Serologist (Exh.P.J) declared the prosecution case close.
10. The appellant was then examined, under section 342, Cr.P.C. to enable him to offer handsome explanation with regard to his involvement in the case. He proclaimed his profound innocence in the matter and alleged his false involvement in the case due to animosity. In answer to Question No.8 "Hay you anything else to say?" he deposed that the police has given his age incorrectly. In fact his age was 16/17 years at the time of occurrence. In order to prove this act he has produced in his defence evidence attested copies of Register Dakhil Kharij (Exhs.D.D. D.E and D.F), Matric Certificate (Exh.D.G) and Result Card of Intermediate Examination (Exh.D.D). He opted not to make statement in disproof of the allegations brought against him as envisaged by the relevant provisions of section 340(2), Cr.P.C.
Thereafter, learned Public Prosecutor brought on record certified copy of Birth; Register (Exh.P.K) regarding age of the appellant as additional evidence.
11. After fullest evaluation of facts and circumstance revolving around the matter, the learned trial Judge pronounced verdict of guilt against the appellant as aforementioned.
12. Learned counsel for the appellant after taking us through the relevant species of evidence highlighted following points to claim acquittal of the appellant from the murder charge:--
(i) That motive stood disbelieved by the trial Court. There was a large number of discrepancies and contradictions in statements of the eye-witnesses, which rendered their testimony unbelievable, even otherwise their presence of the spot was extremely doubtful.
(ii) That the witnesses being relations or party men of the complainant side had furnished false evidence in the case.
(iii) That the occurrence took place on 25-7-1995, whereas dagger was recovered on 5-8-1995 from an open place accessible to all. It was not stained with blood, so it cannot be used as a corroborative piece of evidence.
(iv) That prosecution has failed to establish its case beyond any shadow of doubt against the appellant.
(v) That in any case the sentence awarded to the appellant is severe and his conviction under section 302, P.P.C was not called for.
(vi) That the appellant was minor at the time of occurrence, so his conviction under section 302, P.P.C was absolutely illegal and he could be convicted under section 308, P.P.C. being below the age of eighteen years. The question of age has not been dealt with legally by the learned trial Judge.
13. On the contrary, learned counsel for the State submits that presence of Muhammad Saleem (P.W.9), who is an independent witness, having no enmity with the appellant, was natural, that presence of eye-witness cannot be doubted by any stretch imagination; that ocular account is supported by the medical evidence and recovery, and that it is a daytime occurrence and question substitution did not arise at all. He supports judgment of the trial Court.
14. We have courteously heard soberly considered respective arguments learned counsel for both the sides and per used the record with their able assistance.
15. Now we set at the most difficult task of weightment of evidence. Occurrence the alleged incident took place on 25-7-1995 at about 7-00 p.m., whereas Mst. Nazir Bibi (P.W.8), mother of Sanaullah deceased set the police machinery into motion dictating her statement (Exh. P. D/ 1) to Muhammad Ramzan, S.I. (P.W.10) on the same day at about 7-30 p.m. In this way, prosecution has amply proved that the F.I.R. stood lodged with great promptitude. The appellant is alleged to have delivered two dagger blows on person of the deceased, which resulted into his instantaneous death. Dagger (P.3) also stood recovered instance.
16. Motive behind this episode was that house of the complainant is, contiguous to house of the appellant. On the day occurrence at about 7-00 a.m., the appellant was whistling to his partridge by standing the roof top of his house. This act of the appellant disturbed privacy of the complainant. Not only the complainant but also her son Sanaullah resented over it but the appellant did not desist himself from so d Muhammad Akram appellant and Sanaullah deceased indulged into an altercation and exchanged brick bats. Muhallahdars intervened and patched up the matter. Muhammad Akram issued threats to Sanaullah that he would avenge his insult.
Thereafter, in the evening the deceased came back with his herd of goats, the appellant pounced upon him and delivered two dagger blows, which proved fatal. Abdul Majid and Muhammad Saleem had also seen the occurrence. Muhammad Saleem has been produced as P.W.9. We have gone through statements of Mst. Naziran Bibi (P.W.8) and Muhammad saleem (P.W.9). As regards factum of infliction of injuries by the appellant, it has been sufficiently proved through their statements. We do not find any reason to disbelieve them. The learned trial Judge has discarded the motive piece of evidence. The fact remains that killing by the appellant is proved beyond any shadow of doubt.
17. The learned trial Judge did not consider age of the appellant in its true perspective, which resulted in grave miscarriage of justice. We find that according to attested copy of Register Dakhil Kharij (Exh.D.D), the appellant was admitted to Government Elementary School, Shorkot City on 10-5-1983 in class one and his date of birth was given as 25-12-1978. In another attested copy of Register Dakhil Kharij (Exh.D.E) of the said school relating to 8th class, date of birth of the appellant, was also mentioned as 25-12-1978. Exh.D.F is also an attested copy of Register Dakhil Kharij of Government High School, Shorkot relating to 9th and 10th Class, in which his date of birth is furnished as 25-12-1978. Likewise his age is exactly the same in attested copy of Matriculation Certificate (Exh.D.G), issued by Board of Intermediate and Secondary Education, Faisalabad on 21-7-1994. Overwhelming consistency in the matter of age is well-reflected from all these documents. No doubt can be entertained about the genuineness of these documents. No one ever knew that a murder incident will take place on 25-7-1995, in which the appellant will be implicated, and so less age be got recorded at the time of his admission in class one.
18. The appellant was examined under section 342, Cr.P.C. on 17-2-1997, in which he furnished his age as 17 years and in order to prove his standpoint, he produced Exhs.D.D to D. H in his defence on 19-2-1997. It was , thereafter that a manoeuvre was made by the complainant side to produce Birth Certificate (Exh.P.K). It is not very difficult to get this type of certificate these days. This certificate was tendered in evidence by the Public Prosecution in the form of additional evidence. It could not treated like report of the Chemical Examiner report of the Serologist and also that of Forensic Science Laboratory to be tendered a by him in evidence. If at all the learned trial Judge had accorded permission to produce this document by way of additional evidence: then why it was not put to the accused afterwards by recording his statement to enable him to furnish his explanation or to contest it. If age of the appellant mention in Exh.P.K is presumed to be correct, then would mean that he was admitted to be school in class one, when he was aged about nine years. This circumstance creates doubt on the authenticity of the birth certificate Exh.P.K. We do not accept it as genuine. Father of the appellant is living in the City and it was not expected from him that he would send his child to school at the age of nine. We know it for certain that children of the age of 4 to 6 years are normally sent to the school. The appellant while lodged in the jail had cleared higher secondary examination on 25-11-1996 from Board of Intermediate and Secondary Education, Faisalabad, which also shoves that he was a studious chap and did not afford to make any break in his educational career.
19. Since two views are available on the surface of evidence, so keeping in view the cardinal principles regarding appreciation of evidence, one view favourable to the accused has to be adopted. We are of the firm view that age of the appellant mentioned in certificates issued by the Educational Institutions was correct one. So, definitely, the appellant was below the age of eighteen years at the relevant time of occurrence. Birth Certificate (Exh.P.K) was not admissible per se because there was evidence to the contrary.
20. Provisions of section 308, P.P.C. are reproduced as under:--
"S. 308 -- Punishment in Qatl-i-Amd not liable to Qisas, etc.-- (1) Where an offender guilty of Qatl- i-Amd is not liable to Qisas under section 306 or the Qisas is not enforceable under clause (c) of section 307, he shall be liable to Diyat:
Provided that, where the offender is minor or insane, Diyat shall be payable either from his property or by such person as may be determined by the Court;
Provided further that where at the time of committing Qatl-i-Amd the offender being a minor, had attained sufficient maturity or being insane, had a lucid interval, so as to be able to realize the consequences of his act, he may also be punished with imprisonment of either description for term which may extend fourteen years as Ta'zir:
Provided further that where the Qisas is not enforceable under clause (c) of section 307 the offender shall be liable to Diyat only if there is any Wali other than offender and if there is no Wali other than the offender, he shall be punished with imprisonment of either description for a term which may extend to fourteen years as Ta'zir.
(2) Notwithstanding anything contained in subsection (1), the Court having regard to the facts and circumstances of the case in addition to the punishment of Diyat, may punish the offender with imprisonment of either description for a term which may extend to fourteen years, as Taz'ir." have been ignored by the learned trial Judge. Death sentence could not have been passed by him against the appellant, who was then minor and had attained sufficient maturity at the time of committing Qatl-i-Amd. We set aside his conviction under section 302, P.P.C. and convict him under section 308, P.P.C. He is accordingly punished with imprisonment for fourteen years as Ta'zir and shall also be liable to pay Diyat. Benefit of section 382, Cr.P.C. is accorded to him.
21. With the above modification in the sentence of the appellant, this appeal is dismissed. Death sentence is not confirmed and Murder Reference is answered in the negative.
H.B.T./M-923/L Order accordingly