SHARIF Versus THE STATE

ABDUL JABBAR KHAN, J.‑ Sharif son of Bakha aged 18 years, caste Christian, was tried alongwith his father Bakha son of Dulla, by the learned Additional Sessions Judge, Kasur, under section 302/34, P. P. C. for the murder of Barkat son of Fazal. caste Christian, resident of Mohallah Pacca Qila, Kasur. The learned trial Judge vide his judgment dated 15‑11‑1973 acquitted Bakha accused of all the charges but convicted and sentenced Sharif accused to death under section 302, P. P. C. along with a fine of Rs. 500 or in default of fine to undergo one year's R. I. with the direction that the fine if realized half of the same would be paid to the heirs of Barkat deceased as compensation under section 544‑A, Cr. P. C.

Sharif has come up in appeal against his conviction and sentence passed against him by the learned trial Court and there is also a Murder Reference before us for the confirmation) of his death sentence under section 374, Cr. P. C. We will dispose of both, the appeal as well as the Murder Refer ence by a single judgment.

2. The occurrence took place on 4th April 1971, at evening time in Mohallah Eisayan, Kot Pacca Qila, Kasur situated at a distance of two furlongs from Police Station Kasur City. Statement Exh. P. A. was recorded at the dictation of Nawab P. W. 7, an uncle (if tine deceased on the same day at 6‑45 p.m. at the spot by Amanat Ali P. W. 4 who happened to be on patrol duty at the relevant time. Formal F. I. R. Exh. P. A./1 was recorded at 7‑20 p.m. at Police Station City Kasur, on the same day, which was recorded by Bashir Ahmad A. S. I. P. W. 5.

3. The motive as set up by the prosecution is two‑fold as given in the F. I. R. as well as before the trial Court. The first motive stated lay Nawab P. W. in his statement Exh. P. A. was that some three years ago Mahanda Christian P. W. 6 was Chaudhry of Christian community and Bakha co -accused had claimed that he should be made Chaudhry of that brother hood and Mahanda P. W. should be removed from this place of importance. This led to party faction in the community whereby the supporters of Bakha cc‑accused acknowledged Bakha as Chaudhry and on the other hand Nawab P. W. and his brother Fazal declined to accept Bakha as such. The learned trial Court has disbelieved this motive as it was not sufficiently established by the prosecution. We have gone through the reasoning and find that it has been correctly kept out of consideration.

The second motive relates to the fight which occurred between Javed son of Nawab P. W. and Latif, the brattier of the appellant which took place at 4‑30 p.m. and few hours prior to the occurrence. Latif, the brother of the appellant threw stones on Javed and was given a sound beating in return by Laloo son of Nawab P. W. with dundas. Latif came and informed his father Bakha co‑accused whereupon the appellant and Bakha co‑accused went to the house of Nawab P. W. and started abusing him. According to the prosecution Nawab P. W. and his son Mahanda did not pick up gauntlet and instead beseeched them to give up the matter. But this ultimately led to the murder of Barkat deceased who had intervened between the parties.

4. 'The narration as given regarding the occurrence in Exh. P. A. by Nawab P. W. is as follows:‑‑

According to his statement while he was following the appellant and his father Bakha co‑accused so as to refrain them from bringing any harm to their children, Barkat deceased who happened to be nephew of Nawab P. W. came out from his house and reached the scene of occurrence, a bucket of water in his hand. As soon as he passed near the house of Mahanda he saw Bakha co‑accused and Sharif appellant giving foul abuses. The deceased tried to stop him in doing so whereupon Bakha co‑accused exhorted his son Sharif appellant to get hold of Barkat deceased as he was siding with Nawab P. W. Bakha co‑accused. After exhorting his son to do away with Barkat, Bakha fell upon Barkat deceased himself. Taking advant age of the situation Sharif appellant took out a chhuri from his dub (fold of his cheddar), gave two blows with it on the back of Barkat deceased who fell down on the ground. The occurrence was witnessed by Mahna, another son of Nawab P. W. 12, Nawab P. W. 7 and one Boota (not produced). All the three witnesses tried to apprehend Sharif appellant but he threatened them with dire consequences and made good his escape. Nawab P. W. tried to pour some water in the mouth of the deceased but he could not gulp as he was spitting. Mood. Seeing his precarious condition he made Barkat deceased lie on a charpoi in order to take him to the hospital but he died immediately.

5. Sanaullah S. I. who conducted the investigation could not be pro duced before the trial Court as he was P. O. W. in India. In his place Amanat Ali A. S. I. P. W. 4 appeared to verify the signatures of the Investi gating Officer and also to prove exhibits made by him during the course of investigation of this case. This Sanaullah had taken over the investiga tion from Amanat Ali A. S. I. who had prepared the inquest report Exh. P. D. and also injury statement Exh. P. E. in respect of the dead body of Barkat deceased. 'This Amanat Ali A. S. I., also prepared Exh. P. F. relating to injuries on the person of Latif, the son of Bakha co‑accused. Blood‑stained earth was secured from the spot by Sanaullah vide memo. Exh. P. B. Both the accused were arrested on the same day and Sharif appellant while in police custody led to the recovery of blood‑stained chhuri P. 1 from the house of one Bagh son of Bhaga and the same as taken into possession vide memo. Exh. P. C. Site‑plan Exh. P. G. and Exh. P. G./1 and note in red ink were also given by the S. I. Sanaullah.

6. Dr. Anis Ahmad Qureshi P. Via. 14, on 5th April 1971, at 9 a.m. performed post‑mortem examination on the dead body of Barkat son of Fazal deceased and found the following injuries on his person:‑

(1) A stab wound on the back of chest 3 ' below the inferior angle of left scapula size ' x ' x penetrating the chest cavity. On dissection, the injury passed through the 9th inter costal space, pierced the left plura and entered the left lung at the posterior surface of its lower lobe for 1 f'. The plural cavity contained coagulated blood measuring 3 lbs.

(2) A stab wound on the back of left chest 3 ' to the left of mid line 2' below and to the medial side of injury No. 1 size 1/3' x ' x 1' obliquely. Shirt and Salooka had been cut corresponding to the injuries.

In his opinion the deceased's death occurred due to severe haemorrhage resulting from injury to the lung which was sufficient to cause death in the ordinary course of nature. The injuries were ante‑mortem and caused by sharp‑edged weapon. Probable time between injuries and death was about a few minutes and between death and post‑mortem was about 12 to 18 hours. In his cross‑examination the doctor stated that injury Nos. 1 and 2 on the dead body of Barkat deceased were two inches apart from each other; that it was incorrect to suggest that injury No. 2 on the dead body of the deceased could be result of injury No. 1. There was no communica tion between the two.

On 4th April 1971, at 11‑45 p.m. the same doctor medically examined Latif son of Bakha co‑accused aged 13 years and found the following injuries on his person:‑

(1) A contusion on the right lumber region size 2 ' x '.

(2) He complained of pain in right scapular region.

(3) A large contused area on the abdomen below the umbilicus size 8' x 3'.

(4) Abrasion of circular shape on front of left thigh at its upper one‑third size 1' x 1'.

Injury Nos. 1, 2 and 4 were simple in nature and were caused with a blunt weapon. Injury No. 4 was kept under observation. The duration was about 3 to 6 hours.

7. The case of the defence was that of bare denial. Sharif appellant also denied the recoveries made at his instance and attributed his false implication due to party faction and enmity.

8. The case of the prosecution rests on the following categories of evidence--‑

(i) the evidence of motive;

(ii) the ocular evidence;

(iii) the evidence of recovery of chhuri P. 1 from the appellant; and

(iv) the medical evidence.

As mentioned above the learned trial Court after discussing the first motive regarding the animosity over Chaudhry‑ship between Nawab P. W. and Bakha co‑accused, the father of tee appellant, has rejected it to be insufficient and has refused to believe it as a motive for the offence, Regard ing the fight between the children it is an admitted fact that Latif son of Bakha co‑accused received as many as 4 injuries on hip person which were of course given by Laloo, the son of complainant, against an act of petty ,tone‑throwing by Latif on his brother Javed. This by itself would be sufficient to provoke the appellant who also being a young boy of 17/18 years, would not contain this wanton attack on his child brother. Therefore the learned trial Court by its well‑reasoned observation in paragraph No. 8 of its judgment, has rightly considered it as a proved motive, for the state ment of Laloo P. W. stood corroborated by the statement of Dr. Anis Ahmad Qureshi P. W. 14, regarding the quarrel between the two parties.

9. As far as the ocular evidence is concerned, the prosecution has relied on the evidence of Nawab P. W. 7, Ilam Din P. W. 11 and Mahna P. W.

12. All the three witnesses have corroborated in substance the pro secution version and have unanimously stated that Barkat deceased did ask the appellant and his father not to abuse his uncle i.e. to say that he did intervene into the matter on the side of the complainant. The learned counsel for the defence has vehemently urged that Mahna and Imam Din P. Ws. as well as Boota, have emerged as eye‑witnesses in this case whereas they were never at the scene of occurrence. He has tried to establish their absence from a reading of Exh. D. A. at page 19, as well as from the statement of Nawab P. W. under section 164, Cr. P. C. He has also referred to his admission at page 35, line 35 of the Paper Book where he has admitted that he did not mention the name of Imam Din and Boota as eye‑witnesses before the C. M. Similarly, he has sub mitted that Mahna P. W. does not mention at the trial stage as well as in his examination‑in‑Chief the names of Boota and Imam Din in a specific manner. He has also pointed out at page 23 of the Paper Book where again tire names of these witnesses have not been given in an unequivocal manner as witnesses of the occurrence.

10. We have considered these omissions on the part of the P. Ws. but the fact remains that Mahna and Nawab P. Ws. who admittedly saw the incident, still would not loose their character as eye‑witnesses in this case unless and until it was made out against them that they had some earlier animosity with the appellant or had certain positive motive to falsely implicate him in this crime. Mere relationship with the deceased does not discredit their testimony, if it is otherwise true and supported by the circumstances. The ocular account given by these two eye‑witnesses fully tallies with the medical evidence regarding the seat of injuries. The element of substitution of false involvements is eliminated from their evidence for the simple reason that immediately after the occurrence without any delay the F. I. R. was recorded at 6‑45 p.m. and the entire investigation was completed by 11 p.m. the same night. There was hardly any time available for the complainant party to ponder and consult and this to rope in several persons for the murder of Barkat deceased. If they had evil intention and wanted to widen their net, they could easily attribute another chhuri blow to the father of the appellant because the deceased had received two injuries on his back with sharp‑edged weapon. Their straightforwardness in the matter clearly shows that they had given a truthful version of the occurrence as it took place. A little exaggeration and small discrepancies are always ignored in the matter of illiterate persons who many a times are persuaded by their personal zeal to exhibit their anxiety to make out a strong case against their opponents. The learned counsel for the appellant has laid lot of stress on the pint that although there were independent witnesses avail able in the locality the prosecution did not care to associate them in this investigation or to produce them to substantiate their version. It is a matter of common knowledge that even in places like towns and cities where persons are more conscientious of their civic rights people refrain to associate them selves in police investigation although they happen to be the actual witnesses, of the incident. This thinking on the part of citizens is equally shared in village community where likewise no body would like to poke his nose in the matters of others so as to earn life long enmity on this account which would be the natural result if they appear as witnesses either, from one side or the other. Therefore the failure to associate independent persons available during the course of investigation would not destroy the evidence of the witnesses who happen to be close to the deceased either through blood or community and thus would not destroy the case of the prosecution) on this score only.

11. There is ample evidence in the form of recovery of blood‑stained chhuri P. 1 recovered at the instance of the appellant who was immediately arrested and the same has been found to be stained with human blood. The attesting witnesses Ashiq P. W. 9 and Ramzan P. W. 10 had deposed D that blood‑stained chhuri P. 1 was got recovered from Sharif appellant from inside the abandoned house of Bagh son of Bhaga, at the instance of the appellant. We have no reason to disbelieve these two witnesses as the defence has failed to show that either they had contradicted each other on material points or they had some motive to falsely implicate the appellant.

12. The medical evidence clearly shows that Latif was beaten mercilessly by Laloo, the son of the complainant although the complainant has himself minimized the part of his son by saying that he only gave one stick blow to Latif, the injured child. Therefore, it is natural to conclude that Sharif appellant, a teenager, would definitely go to remonstrate and if possible to retaliate for this unjustified beating given to his brother. Barkat deceased, who though apparently, seems to be unconcerned person, in reality is no body else than a real nephew of the complainant and thus would naturally enter the arena on the side of his kith and kins. The appellant in this case already indignant and infuriated, went for Barkat deceased whom he found vocal and active on the side of the tormentors of his brother. Therefore although we feel that the learned trial Court has justifiably con victed him under section 302, P. P. C. yet the death sentence visited on him would not be a proper sentence, keeping in view the background and circumstances of this case and the youth of the appellant.

13. In the light of the above discussion, we dismiss the appeal maintain the conviction of the appellant under section 302, P. P. C. but alter his sentence from death to that of imprisonment for life. The sentence of death is not confirmed. Anyhow the sentence of fine imposed upon the appellant will remain undisturbed.

Order accordingly.