MANZOOR AHMAD Versus STATE

IJAZ NISAR, J. ---Manzoor Ahmad son of Allah Ditta (25) was tried alongwith his brother Moeen-ud-Din (28) and Ghulam Farid (30), his cousin Fateh Ali (30) and maternal-uncles Ghulam Farid (40) and Wali Muhammad (25) for the murder of Zulfiqar deceased (25) with a chhuri, in the area of Mohallah Miranshah Dhaki; Pakpattan Sharif on 5th September, 1978 at 11-30 a.m. The learned Additional Sessions Judge, Sahiwal vide order dated 30th September, 1980 convicted Manzoor Ahmad under section 302, P. P.C. and sentenced him to death and a fine of Rs. 5,000 or in default to undergo 6 months' R. I. The other co-accused of Manzoor Ahmad were, however, given the benefit of doubt and acquitted.

2. We have before us the appeal filed by Manzoor Ahmad and the connected murder reference.

3. The prosecution case is that on 5th September, 1978 at about 9/10 a. m. Manzoor Ahmad appellant and Zulfiqar deceased had quarrelled with each other. The deceased gave fist blows to the appellant. They were separated by Muhammad Rajan Shah P. W.

7. The appellant while leaving that place threatened the deceased with dire consequences. About an hour thereafter the appellant accompanied by the aforementioned acquitted accused came to the spot and raised a lalkara whereupon the deceased ran away. The accused chased him. Ghulam Farid and Wali Muhammad sons of Hassu the acquitted accused overtook the deceased and caught hold of him by arms while Ghulam Farid and Moeen-ud-Din sons of Allah Ditta and Fateh Ali son of Pir Bakhsh acquitted accused raised a lalkara that the deceased should be killed. Manzoor Ahmad appellant took out a chhuri P. 4 and caused injuries to the deceased on his chest, shoulder and other parts of the body. The deceased fell injured. The occurrence was witnessed by Manzoor Ahmad P. W. 10, Jam Muhammad P. W. 11, Sharif and Riaz Ahmad Khan (not produced). The deceased died on the spot. Manzoor Ahmad P. W. 10 informed Muhammad Sadiq P. W. 8 father of the deceased who reported the matter to the police on the same day at 12-30 p. m. by making the report Exh. P. E. at P. S. Pakpattan. The distance between the spot and the Police Station, being 3 furlongs.

3-A. After recording the F. I. R. Malik Ahmad Saeed S. I. P. W. 15 reached the spot. He prepared the inquest report Exh. P. H. of the deceased and sent the dead body to the mortuary for the post-mortem examination. He arrested the appellant on 6th September, 1978 from his house and got removed his blood-stained shirt P. 1, Vest P. 2 and shalwar P. 3 from his person and made them into a sealed parcel. The other accused were also arrested on the same day.

Muhammad Bakhsh S. I. P. W. 9 also partly investigated the case. On 16th September, 1978 he recovered blood-stained chhuri at the instance of the appellant from his house from behind an iron box through memo. Exh. P. C. attested by Shamas Din P. W. 5 and Faqir Hussain (not produced). The chhuri and the clothes recovered from the appellant were sent to the Chemical Examiner and according to the Serologist's report Exh. P. K. those were stained with human blood.

4. Dr. M. A. Jalil S. M. O. Government T. B. Clinic, Pakpattan P. W. 12 conducted the post-mortem examination on the dead body of Zulfiqar deceased on 5th September, 1978 at 3 p. m. and found the follow ing injuries thereon:-

(1) An incised wound 1 " x " going deeply inwards on the front of left chest 3 " inner to the left nipple and below it.

(2) An incised wound " x " going deeply on the right chest 4 " below an inner to right nipple.

(3) An incised wound 2" x " going deeply on the upper part and back of left shoulder joint.

(4) An incised wound 2" x " going deeply inwards on the left side of back of chest in the posterior axillary line.

(5) A lacerated wound " x " skin deep on the right side of back of head, 2 " above and behind the right ear.

6th and 7th ribs were cut through and through. The right ventricle of heart was punctured on its outer aspect. The death was due to shock and haemorrhage due to puncture of heart as a result of injury No. 1 which was sufficient to cause death. All the injuries were ante-mortem and caused by sharp-edged weapon. The probable duration between the injuries and death was a few minutes and that between death and post- mortem examination 5 to 6 hours. Exh. P. F. is the post-mortem report while Exh. P. F./1 is the diagram of the injuries.

5. The appellant pleaded not guilty to the charge and denied the prosecution allegations. Explaining the case against him he made the following statement:-

Zulfiqar Ali deceased was murdered on Eid day. At 9 a. m. On the same day I was coming back after offering my Eid Prayer. Zulfiqar Ali deceased caught hold of me when I was so retiring to my house. He abused me filthily and also attacked me. I could not control myself. I was already in possession of a kitchen knife. I, there fore, when in the instinct of self-preservation injured the deceased in self-defence and out of grave and sudden provocation initiated by the deceased. The rest of the co-accused were no way present at the place of occurrence. I have been falsely implicated in this case."

No evidence was called in defence

6. At the trial, Allah Ditta P. W. 4 deposed about the removal of blood-stained clothes from the person of the appellant. Muhammad Rajan Shah P. W. 7 proved the quarrel preceding the occurrence between the deceased and the appellant. Muhammad Sadiq P. W. 8 is father of the deceased. He is a complainant in the case. He did not see the occurrence himself but on learning about it from Manzoor Ahmad P. W. 10 lodged the F. I. R. Exh. P. E. Muhammad Bakhsh S. I. P. W. 9 proved the recovery of chhuri P. 4 at the instance of the appellant. Shamas Din P. W. 5 an attesting witness of this recovery turned hostile and stated that nothing was recovered from the possession of the appellant in his presence. Manzoor Ahmad P. W. 10 and Jan Muhammad P. W. 11 furnished the ocular account. Malik Ahmad Saeed S. I. P. W. 15 arrested the appellant and recovered blood-stained clothes from his person and investigated the case.

7. The learned trial Court, relying upon the motive, the ocular testimony, the recoveries of blood-stained clothes and chhuri from the appellant, convicted and sentenced the appellant as stated above.

8. Learned counsel for the appellant has assailed the judgment on the grounds that the evidence does not justify the conviction of the appellant and further that the recovery of chhuri from the appellant does not stand established because except A. S. I. no public witness has proved the same.

9. The prosecution case mainly rests on the evidence of Manzoor P. W. 10 and Jan Muhammad P. W.

11. The former admitted that Mst. Sakina, his sister-in-law was abducted for which a case was got registered against Moeen-ud-Din (acquitted accused) brother of the appellant who was subsequently acquitted but since he had no direct enmity with the appellant there is no reason to doubt him. Likewise Jan Muhammad P. W. 11 is also an independent witness having no reason to falsely implicate the appellant. Both Manzoor and Jan Muhammad were put searching questions in the cross-examination but they stood the same. They are corroborated by the medical evidence. Since they lived near the place of occurrence, therefore, they are natural witnesses. They would not have faced any difficulty in identifying the appellant because the occurrence bad taken place in broad daylight. They stand further corroborated by the removal of blood-stained clothes from the person of the accused. Allah Ditta P. W. 4 who deposed about the same is completely an independent P. W. having no connection with the complainant party or animus against the appellant.

10. The appellant has himself not denied the occurrence but has set up a counter-version stating that when he was returning after Eid Prayer he was caught hold of by the deceased, abused and attacked and in the beat of passion took out a kitchen knife which was already in his possession and acted in the exercise of his right of self-defence. None of the eye-witnesses said anything about the origin of the fight. Muhammad Rajan Shah P. W. 7 who was examined to prove the earlier occurrence stated that he saw the deceased and the appellant abusing each other and he separated them. In cross-examination he expressed his ignorance as to the cause of the quarrel between them. The prosecution case from the initial stage of the F. I. R was that a quarrel had taken place between the appellant and the deceased in which the latter had given a beating to the former. The plea set up by the appellant finds corroboration from the prosecution evidence itself. In all probability there were not two incidents as stated by the prosecution but there was only one incident resulting from a quarrel between the appellant and the deceased. Since the latter was empty-handed the appellant was not justified to inflict knife injuries on the vital parts of his body leading to his instantaneous death.

However, since the genesis of the occurrence is shrouded in mystery, we consider it as a mitigating circumstance and alter the death penalty to imprisonment for life and a fine of Rs. 5,000 (Five thousand) or in default to undergo 5 months' R. I. He is further ordered to pay Rs. 5,000 (Five thousand) as compensation to the legal heirs of the deceased sander section 544-A, Cr. P. C. or in default to undergo six months' R. I. The amount of fine, if recovered, shall also be paid to the legal heirs of the deceased.

The death sentence is not confirmed.

M. Z. M. Death sentence not confirmed.