NAZIR AHMAD Versus STATE

JAVID IQBAL; J Nazir Ahmad son of Munshi Khan aged 30 years, and Niaz Rasul son of Qadir Bahksh, aged 40 years have been convicted under section 302/34, P. P. C. for the murder of Muhammad Ismail Shah and both were sentenced to death plus fine of Rs. 2,000 each or in default to undergo two years' R. I. each, and if the fine was recovered from them half of the same was to be paid to the heirs of the deceased they were also convicted under section 319/34, P. P. C. and were sentenced to two years' R.I. each for having maize cobs from the field of the deceased, vide judgment dated the 1974, of the Additional Sessions Judge, Lyallpur. The appeal of the convicts as well as reference for the confirmation of death sentence awarded to them are being taken up and disposed of together by this judgment.

2. The occurrence took place at midnight between, 3/4th November 1972, in the field oft the deceased situated in Chaff. No 467/G. B., at a distance of one mile from Police Station Samundari, District Lyallpur. F. I. R. (Exh. P. A.) was lodged by Muhammad Tufail Shah (P. W. 10) real brother of the deceased at 10‑00 a. m. on the following morning i. e. the 4th of November, 1972, at the Police Station and it was recorded by Muhammad Hanif Khan A. S. I. (P. W. 12).

3. The motive for crime as set up by the prosecution is that the deceased had come to know that since the past 3/4 days, his maize cobs were being stolen every night from his crop. He, therefore, decided to keep a watch over the field along with his brother Muhammad Tufail Shah (P. W. 10) and Muhammad Yaqub (P. W. 11). It is stated that they discovered the appellants stealing the maize cobs and this resulted in the occurrence.

4. The prosecution has produced two eye‑witnesses of the occurrence, namely, Muhammad Tufail Shah (P. W. 10) brother of the deceased, and Muhammad Yaqub (P. W: 11). One waj‑takkar witness has been produced, namely, Manzoor Ahmad (P. W. 8) who is unconnected. Abdul Hamid (P. W. 9) came immediately after the occurrence and he was told by Muhammad Tufail Shah and Muhammad Yaqub P. Ws. that the appellants had committed the murder of the deceased. He is also an unconnected witness.

5. Nazir Ahmad appellant was chased by Muhammad Yaqub P. W. He was apprehended at some distance from the scene of crime by Muhammad Yaqub P. W when Muhammad Yaqub P. W. had given him a lathi blow on the right arm and thereby disabled him. He was brought to the spot, his hands were bound and thereafter he was locked in one of the kothas of the deceased. He was formally arrested by Muhammad Hanif Khan A. S. I. (P. W. 12) on the following day, namely, the 4th of November, 1972, Niaz Rasul appellant was arrested by the same Police Officer on the 5th of November 1972. Lathi P. 2 belonging to Muhammad Nazir appellant was snatched from him by Muhammad Yaqub P. W. who produced the same before the police and it was taken into possession vide memo. Exh. P. C., dated the 4th of November 1972. The attesting witnesses are Manzoor Ahmad (P. W. 8), Muhammad Yaqub (P. W. 11) and Muhammad Hanif Khan A. S. I. (P. W. 12). Another lathi P. 6 was produced by Niaz Rasaul appellant and taken into possession vide memo. Exh. P. G., dated the 5 th November 1972. The attesting witnesses are Manzur Ahmad (P. W. 8), and the investigating officer. These lathis were not blood‑stained and therefore, were not sent for chemical examination. The recoveries therefore, are not of much consequence in this case.

6. The appellants totally denied having participated in the occurrence. They stated that they had been falsely implicated due to party faction and suspicion. Nazir Ahmad appellant stated that he had received injury on his arm at the hands of the police when he was tortured by them.

7. In the F. i. R the occurrence is reported to have taken place in the following manner. When Muhammad Tufail Shah P. W. along with Muhammad Yaqub P. W. and the deceased were keeping a watch in the field armed with sotas, at about midnight they heard noise in the maize crop. They heard a voice of a person saying Niaz Rasul come to this side as the maize cobs were better here. On hearing noise, three of them rushed to the spot and in the light of the torch they saw the appellants armed with lathi and identified them. The deceased was the first to arrive near them. On seeing him the appellants gave him lathi blows one after the other on h his head and as a result he fell down, and became unconscious. He also I sustained one injury on his left hand. Then the two appellants started running away. Muhammad Tufail Shah P. W. chased Niaz Rasul appellant but be succeeded in escaping. However Muhammad Yaqub P. W. chased Nazir Ahmad appellant and after covering a distance of about killa he managed to secure him after having given to him a sofa blow. On their alarm, Yasin Shah (not produced), Abdul Hamid (P. W. 9) and many other residents of the village arrived at the scene of crime. The deceased was' taken in an injured condition on a cot to the village. The hands of Nazir Ahmad appellant were bound and he was also brought to the village. As the condition of we deceased was precarious he was taken to the Civil Hospital. Lyallpur. Thereafter, obtaining his medico‑legal report Muhammad Tufail Shah P. W. returned in order to lodge the report at police Station, Samundari. It eras further stated in the FAR. R. that Nazir Ahmad appellant was locked up in one of the kothas of the deceased in the village and he was being guarded by Yasin Shah (not produced). The stolen maize cobs were also lying on the spot.

8. Dr. Bashir Hussain Kahloon (P. W. 3) medically examined the deceased while be was still alive at D. H. Q. Hospital, Lyallpur at 8‑30 a. m. on the 4th of November, 1972 and found on his person two lacerated wounds on the right and left sides of the head and an abrasion on the back of left thumb. The patient was unconscious and his condition was serious. The injuries had been caused by blunt weapon within eight hours. The head injuries were kept under observation and the thumb injury was found simple. On the 6th of November, 1972, on the basis of X‑ray report the head injuries were declared' dangerous. The patient remained unconscious throughout and expired in the hospital on the 13th of November, 1972. On this day, his post‑mortem examination was conducted by the same medical officer who noted the same injuries on his person except that the head injuries were stitched. Death in his opinion had occurred due to shock and haemorrhage as a result of the head injuries which were sufficient to cause death in the ordinary course of nature. They had fractured parietal and occipital bones of the skull.

Dr. Muhammad Suleman (P. W 1) medical]y examined Nazir Ahmad appellant at 12‑30 p. m. on the 4th of November, 1972, and found on, his person contused wound on the right arm. The injury was caused by a blunt weapon within 24 hours. On the basis of the X‑ray report it was declared grievous as it had fractured his arm.

9. We have heard learned counsel for both the sides and carefully perused the record. Learned counsel for the appellants argued firstly that although the police station was only at a distance of one mile from the spot, the F. I. R. was lodged after a considerable delay. He further stated that the possibility of the registration of the F. I. R. on the spot could not be ruled out as Muhammad Yaqub P. W. had stated in his cross‑examination that the S. I. recorded the statement of Muhammad Tufail Shah P. W. in the chak and then secured his thumb‑impression. This argument of learned counsel does not appeal to us because the delay in recording the F. I. R. has been explained. The deceased was attacked in his field at midnight and by this time he had not died. He was taken to his house in the village but he remained unconscious throughout. It appears that early in the morning when he could not regain consciousness, he as taken to the hospital at Lyallpur. Then after obtaining the medico‑legal report respecting his injuries, the F. I. R., was got recorded. It makes no difference if the F. I. R. bad been recorded on the spot because although it is not an approved practice, F. I. R., not being a substantive piece of evidence, the recording of the same on the spot does not mean that the entire case of the prosecution should be thrown aside. It was next argued by learned counsel that the eye‑witnesses were interested and that they could have not possibly seen the occurrence. It was argued that they had made improvements in their version at the trial stage. The theory of learned counsel is that the deceased was done to death by an unknown assailant in his field un-wit nessed by any one. According to the learned counsel the P. Ws. might have been attracted to the scene of crime due to alarm and they chased the culprit assailant in the dark night in vain. It was submitted that Nazir Ahmad appellant was apprehended on suspicion and received the injury on his arm because he was beaten up by the Police. According to learned counsel Niaz Rasool appellant was also implicated due to suspicion. These arguments of learned counsel also do not appeal to us. The eye‑witnesses in this case had no motive to falsely implicate the appellant. There is no history of any previous enmity between the parties. It is reasonably probable that Muhammad Tufail Shah and Muhammad Yaqub P. Ws. went to the field of the deceased along with him in order to keep a watch and when they heard some noise in the crop, of thieves, they rushed to the spot. It is further reasonably probable that the deceased arrived on the spot first. He was, therefore, given blows by the appellants on the head with their lathis and thereafter the appellants tried to escape so that they might not be caught. They were however chased by Muhammad Tufail Shah and Muhammad Yaqub P. Ws. and one of them namely, Nazir Ahmad appellant was apprehended by Muhammad Yaqub P. W. at some distance from the spot after he had received a lathi blow which fractured his arm and thereby disabled him. Nazir Ahmad appellant: was thereafter secured, his hands were tied, he was brought to the village and confined in a kotha until the police arrived on the following day and he was formally arrested. We have no reason to disbelieve the testimony of the eye‑witnesses or of Abdul Hamid P. W. who arrived on the spot immediately after the occurrence and was told about the same by the eye‑witnesses as well as he saw Nazir Ahmad appellant being caught, bound and confined. Manzoor Ahmad P. W. was not mentioned in the F. I. R., but he is a waj‑takkar witness whose statement was recorded by the police on the following day and who deposed that he saw both the appellants going shortly before the occurrence. He asked them as to where they were going but he did not get any satisfactory answer. Thereafter, he heard hue and cry from the field of the deceased which was contiguous to his land and discovered that the deceased had been attacked. None of these witnesses have any enmity with the appellants. There is no evidence on the record to indicate that there were any party factions in the village. These witnesses have no motive to falsely implicate the appellants, and consequently we have no reason why they should be disbelieved. In our view, the so‑called improvements made by them in their statements are not material as in substance their version is consistent. In was finally argued that the appellants had no intention to murder the deceased, that even if it be assumed that they had gone with the intention of stealing the maize cobs, they in fact were surprised by the deceased, and since their object then was to run away, they caused injuries to the deceased so that they may not be caught. According to learned counsel, therefore, their intention was only to cause hurt to the deceased and not to murder him. This argument is without any substance. The appellants had come armed with lathis with the intention to steal maize cobs in the field of the deceased. The deceased surprised them and as they were caught red‑handed, they attacked him in order to escape and the injuries caused by them to the deceased led to his death. However, they were chased and one of them was apprehended. In the circumstances it cannot be said that they had no intention to murder the deceased. In our considered opinion, the prosecution has succeeded in establishing its case as against the appellants. They were rightly convicted and sentenced and I therefore, their conviction and sentence are accordingly maintained. This' appeal is dismissed.

10. The death sentence awarded to both the appellants is hereby confirmed.

Appal dismissed.