MUHAMMAD YUSUF Versus STATE

Javed Iqbal, J.-- Muhammad Yousuf s/o Khalifa Muhammad Anwar aged 17/18 years has been convicted under section 302, P.P.C. for the murder of Fayyaz Ahmad aged 18 years, and vide judgment dated 30th October, 1976 of the Additional Sessions Judge III, Sahiwal, was sentenced to death plus fine of Rs. 1,000 or in default to undergo two months simple imprisonment, and if the fine was realized from him it was directed to be paid to the legal heirs of the deceased. The appeal of the convict as well as Reference for the confirmation of death sentence awarded to him are being taken up and disposed of together by this judgment.

The occurrence took place on 12-8-1974 at 10-00 a.m. near Mission Chowk Sahiwal, at a distance of two furlongs from Police Station A-Division, Sahiwal. Statement Exh. P.A was made by Arif Ali (given up as won over) on the same day at 11-45 p.m. at Civil Hospital, Sahiwal, where it was recorded by Mushtaq Hussain A.S.I. P.W.11, who arrived there in response to a message from Dr. Abdul Rauf P.W.2. On the basis of the foresaid statement formal F.I.R. Exh. P.A/1 was registered at Police Station A-Division Sahiwal on the same day by Muhammad Lateef, A.S.I., P.W.4 at 1-05 p.m. It may be noticed at this stage that the first informant, namely, Arif Ali, was given up as won over and, therefore, the F.I.R. in the instant case could not be proved by him. In any case, F.I.R. is not a substantive piece of evidence.

3. The motive for crime as stated by the prosecution, is that a day before the occurrence at Shama Cinema Sahiwal, the appellant is said to have induced the deceased to allow the appellant to commit sodomy on him, but the deceased became angry and started abusing him. The appellant gave abuses in return and tried to beat the deceased but they were separated by Muhammad Sadiq (not produced) and Munir Ahmad P.W.6. The appellant threatened the deceased that he would teach him a lesson for the abuses and disgrace.

4. The eye-witness produced is Muhammad Siddiq, P.W.9 distant relative of the deceased. But Arif Ali, who had been cited as an eye-witness and was also the first informant, was given up as having been won over. It may be pointed out at this stage that Mushtaq Hussain A.S.I., P.W.11, recorded the statement of the deceased while he was still alive in the hospital the original of which is Exh. P.W.11/5-A in the record and the opy of the same printed in the Paper Book is Exh. P.W.11/5 at page 74. There is some overwriting done on the original of the same by Mushtaq Hussain A.S.I. P.W. respecting the names of the eye-witnesses, i.e. Arif Ali and Muhammad Siddiq Arain. However, some time thereafter, Mr. Ahmad Raza, Magistrate. P.W.12 recorded the dying statement of the deceased while he was still alive, at 1-31 p.m. on 12-8-1974 and this is Exh. P.M. at page 71 of the Paper Book. The statement is very brief. It is stated therein that on the fateful day Yousuf alias Kaka son of unknown attacked the deceased with a dagger and injured him while the deceased was going to the hospital in order to inquire about the health of one patient named Akhtar. The appellant had insisted on the deceased to do evil act (sodomy) with him for which the deceased was not prepared. This statement was recorded in the presence of the doctor who had certified that during the recording of the statement the patient remained in full consciousness and had made the statement voluntarily.

5. The appellant was arrested by Mushtaq Hussain A.S.I. P.W. on 19-8-1974 i.e. 7 days after the occurrence. At the instance of the appellant blood-stained dagger P.3 was recovered and taken into possession vide memo. Exh. P.G, dated 20-8-1974. The attesting witnesses are Nafees-ur-Rehman P.W.7,. Muhammad Akram (given up as won over) and Mushtaq Hussain A.S.I. P.W. The report of the Serologist (Exh. P.W. at page 21 of the Paper Book) is to the effect that the above-mentioned article was found to be stained with human blood.

6. The appellant, in his statement before the trial Court, denied having participated in the occurrence. He disowned the recovery. He further stated that deceased had named one Muhammad Yousuf as his assailant whose father's name he did not know nor did he tell anything about his place of residence. He stated that he was not the assailant of the deceased and the deceased had not referred to him or named him. He also stated that Mushtaq Hussain A.S. I. P. W., called four Muhammad Yousuf from different Mohallahs of Sahiwal and suspected that one of them might have caused injuries to the deceased. He gave a merciless beating to the appellant as well as to the other three Muhammad Yousuf. He was the only son of his father and his father had told the Investigating Officer that he was innocent and should not be beaten. But the police officer paid no heed. Then his father submitted petitions against the police officer on 13-8-1974 and 17-8-1974 in which he complained against the A.S.I. to the Illaqa Magistrate. The A.S.I., therefore, felt offended and falsely implicated him in this case. The P.Ws. were all related to or connected with the deceased in some way or the other and were under the influence of the A.S.I. Consequently, they made false statements against him. He produced two D.Ws. out of which one was Riaz Ahmad D.W.1, who happens to be the father of the deceased. This Riaz Ahmad D.W. was cited as a witness for the purpose of identification of the dead body of the deceased but was not produced by the prosecution. However, he had been produced in defence in order to show that it was he who had taken the deceased in an injured condition to the hospital and not Arif Ali and that even Muhammad Siddiq P.W.9 had arrived at the hospital much later. The reason why he has been produced is to prove that there was no eye-witness present at the time of occurrence or the occurrence was an unwitnessed one. Abdul Ghafoor D.W.2 was clerk of the Office of the Deputy Commissioner, Record Room Branch, Sahiwal. He was produced to show that the father of the appellant had made petitions against the A.S.I. to the Illaqa Magistrate.

7. In the F.I.R. the occurrence is reported to have taken place in the following manner: On the fateful day Arif Ali (given up as having been won over) and Muhammad Siddiq P.W. 9 were present at the bicycle shop in Mission Chowk Sahiwal for getting the puncture of the tyre of the bicycle fixed. In the meantime some person came on a bicycle, whose name was subsequently learnt as Fayyaz Ahmad deceased, and while he was proceeding, the appellant came running after him and got hold of the bicycle. The appellant told Fayyaz Ahmad deceased that he would not spare him. The deceased got down from the bicycle and thereupon the appellant took out a dagger and started giving successive blows therewith on the chest of the deceased. The deceased raised his arms in order to ward off the blows but he fell on the ground. The appellant then gave him dagger blow in the abdomen. The deceased was still raising alarm and he took a turn whereupon the appellant gave him another blow with the dagger. The appellant went on raising a Lalkara to the effect that he would murder the deceased in order to teach him a lesson for the abuses hurled at him. By this time Arif Ali and Muhammad Siddiq P.W. arrived at the spot and rescued the deceased. The appellant ran away. Both of them put Fayyaz Ahmad deceased in an injured condition in a tonga and took him to the Civil Hospital. On the way, the deceased, who was still alive, informed them that on the previous evening at Shama Cinema Sahiwal the appellant had insisted to commit sodomy on him but he abused him. The appellant also abused him in return and tried to attack him. However, Muhammad Sadiq (not produced) and Munir Ahmad P.W.6 separated them. The deceased became unconscious when he arrived at the hospital.

It has already been pointed out that this F.I.R. could not be got proved as Arif Ali had been given up as won over. In any case, at the hospital the statement of the deceased was recorded by Mushtaq Hussain, A.S.I., P.W.11, while he was still alive and a few minutes thereafter the Magistrate arrived, who likewise recorded the dying statement of the deceased as has been stated already.

8. Dr. M. A. Rauf P.W.2 medically examined the deceased while he was still alive at 10-30 a.m. on 12-8-1974 and found on his person incised wound on the back of left elbow, incised wound on the left forearm, another incised wound on the left forearm, a third incised wound on the left forearm, an incised wound on the front part of forearm, a stab wound on the right groin, and an incised wound on the upper part of left buttock. The patient was in a shock. Injury on the right groin was dangerous to life. The second and third injuries were kept under observation and the rest were simple in nature. All the injuries had been caused with a sharp-edged weapon and were fresh. Eventually, all the injuries were declared as simple except the one on the groin (sixth injury). The patient died ten days after i.e. on 22-8-1974 at 2-20 a.m. Dr. Muhammad Hussain P.W.1 conducted post-mortem examination on the dead body of the deceased on 22-8-1974 at 11-20 a.m. and noted on his person the same injuries alongwith an operation wound seven inches long on the belly. In his cross-examination he stated that the dangerous injury in the belly region of the deceased was operated upon. He stated that although the patient was in a state of shock and was not in a good shape, but he gradually improved until 17-8-1974. Thereafter, the Medical Officer noted that he required the giving of blood and arrangement for obtaining blood should be made. But until 20-8-1974 this arrangement could not be made. On 21-8-1974 the doctor again asked for three bottles of blood but these were not arranged. On 20-8-1974 the blood pressure and the pulse of the patient was normal but on 21-8-1974 at about 1-00 p.m. the condition of the patient took suddenly a serious turn. He died the following day at 2-20 a.m. He further stated that 500 cc. blood was given to him at 7-15 p.m. on 21-8-1974 in which were mixed some other medicines. But he could not say as to whether or not the condition of the patient took a serious turn because of the giving of blood. He was not on duty at that time and he had no knowledge as to from where the blood had been secured which was given to the patient. He also stated that it was possible that the patient might have been saved if he had been provided blood or medical aid at the appropriate time. He also stated-that the operation was performed because his intestine was cut.

9. We have heard learned counsel for both the parties and carefully perused the record. Learned counsel for the appellant, is mainly raising the question of the identity of the appellant. His case is that it was not the appellant who had caused injuries to the deceased but some other Muhammad Yousuf. The reasoning of learned counsel was that the motive, in the instant case, could not be proved and that it was planted subse quently. It was stated that Munir Ahmad P.W.6, who was produced as witness of motive, was an interested witness in the sense that he was a Munshi of Haji Ghulam Hussain and that the father of the deceased was the sister's son of the aforesaid Haji Ghulam Hussain. Thus, according to learned counsel the addition of the motive was an afterthought and Munir Ahmad P.W. should not be relied upon. It was also submitted that the F.I.R. in this case was not proved because Arif Ali did not come forward to support the prosecution version. It was stated that both Arif Ali and Muhammad Siddiq P.W. were not present at the time of occurrence, nor they took the deceased in an injured condition to the hospital. The defence version is that Muhammad Siddiq P.W. was related to the deceased and, therefore, he had a motive to falsely implicate the appellant, being an interested party, although according to learned counsel both Arif Ali and, Muhammad Siddiq P.W. were not present at the spot. About the statement of the deceased as recorded by Mushtaq Hussain, A.S.I. P.W. it was contended that Mushtaq Hussain A.S.I. P.W. was dismissed because of corruption and, therefore, he was not a reliable witness. It was also submitted that in the original statement purported to have been recorded by him, namely, Exh. P.W. 11/5-A, he admitted having made overwriting by the addition of the names of Arif Ali and incorporation of incorrect name of Muhammad Siddiq P.W. as an Arain. It was also submitted that the statement was not taken in the presence of the doctor and there is no certificate of the doctor to the effect that the patient was in a fit condition to make the said statement. The reasoning of learned counsel is that this statement was altogether faked and had never been made by the deceased while he was still alive. It was then submitted that the deceased was taken to the hospital in an injured condition by his father, namely, Riaz Ahmad D.W. Since Mushtaq Hussain A.S.I. P.W. wanted to add two eye-witnesses of the occurrence namely, Arif Ali and Muhammad Siddiq P.W. who had in fact not seen the occurrence but who were made to state that they had taken the deceased to the hospital, subsequently Riaz Ahmad D.W. who had been cited as a witness to identify the dead body of the deceased was deleted and instead some other relative of the deceased was made to identify his dead body. It was vehemently argued that it was a case of false implication of the appellant particularly by Mushtaq Hussain, A.S.I. P.W. who had rounded up four Muhammad Yousuf in this case as suspects and gave them beating. In this connection it was submitted that Abdul Ghafoor D.W. was produced in order to show that the father of the appellant had made petitions before the Illaqa Magistrate of the high-handedness of the Investigating Officer but to no avail. It was then argued that the deceased, while still alive, in his dying statement recorded by the Magistrate mentioned only the name of Muhammad Yousuf alias Kaka as his assailant and did neither give parentage nor address of his assailant, that it was a brief statement which left the identity of the assailant an open question and that, therefore, no importance should be attached to the same. It was submitted that the Investigating Officer, in the instant case, was dismissed because of corruption although in some other case, but he had framed the appellant despite his innocence. Respecting the recovery evidence it was submitted that the attesting witnesses of the same dagger P.3 were Mushtaq Hussain A.S.I. P.W. and Nafees-ur-Rehman P.W.7, who was related to Riaz Ahmad, father of the deceased. The relationship is that father-in-law of the father of the deceased has a son named Fateh Muhammad who is the real Phuphar of this witness.

We have carefully considered the arguments of learned counsel. In the instant case the first informant was given up as having been won over and, therefore, the F.I.R. could not be proved. However, F.I.R. is not a substantive place of evidence and an accused-person can be convicted or sentenced if there is other evidence on the record. It is evidence that in this case the dying statement of the deceased was recorded by a Magistrate while the deceased was a patient in the hospital. In this statement he had named Muhammad Yousuf alias Kaka as his assailant although he did not know the name of the father or address of his assailant. In the same statement he has also given the motive for the commission of crime. The motive version, in our view is supported by the testimony of Munir Ahmad P.W. In our considered opinion Munir Ahmad P.W. had no motive to falsely implicate the appellant, although he may have some connection with the father of the deceased. The same is the position respecting Muhammad Siddiq P.W. who is an eye-witness of the occurrence. He is distantly related to the deceased and his mere relationship with the deceased would not be a sufficient reason for discarding his testimony, particularly when there is nothing on the record to show that he had a motive to falsely implicate the appellant. In other words, the dying statement of the deceased recorded by the Magistrate finds corroboration in the ocular testimony of Muhammad Siddiq P.W. just as the motive stated by the deceased finds support in the statement of Munir Ahmad P.W. Furthermore, in our considered opinion, the dying statement is corroborated by the recovery evidence in the instant case. In our view, there is no reason to doubt the recovery because Nafees ur Rehman P.W. one of the attesting witnesses as happens to be distantly related to the father of the deceased. This witness had no motive to falsely implicate the appellant. In the same way, if the Investigating Officer was dismissed, it was two years after the present occurrence and he had been dismissed in connection with some other case. He had completed the investigation in this case two years before his dismissal. In our view, the filing of the applications by the father of the appellant against the Investigating Officer has no bearing on the conduct of the investigation particularly when no evidence was brought on the record to show that the Investigating Officer had rounded up four Muhammad Yousuf as suspects in this case and he gave them beating. In our considered view, it is not a case of mistaken identity and, therefore, it cannot be said that some other Muhammad Yousuf had caused injuries to the deceased and not the appellant. We are convinced in our mind that in the dying statement of the deceased it was the appellant who was mentioned as his assailant and the dying statement not only finds support in the evidence of motive but is corroborated by the ocular testimony of Muhammad Siddiq P.W. as well as the recovery evidence. It is further supported by the medical evidence.

At this stage it was argued that if it was the appellant, who had committed the crime, then, in the circumstances he could at the most be convicted and sentenced under section 326, P.P.C. Learned counsel while placing reliance on Muhammad Rahim v. Najeebullah 1969 P Cr. L J 18 submitted that in that case there was an abdomen injury but the deceased died some days after and it was not certain as to whether or not the poisoning of the wound had taken place due to injury or neglect of the doctor and that, therefore, the accused-person was convicted under section 326, P.P.C. and sentenced thereunder. It was argued that in the instant case, as was evident from the cross-examination of the Medical Officer, the deceased had died ten days after the receipt of the injury in the abdomen and that his condition had improved. Had he been provided medical aid and given blood at the proper time he might have been saved. The reasoning of learned counsel, therefore, was that the appellant should be convicted under section 326, P.P.C. and sentenced thereunder and not under section 302, P.P.C. We have carefully examined this aspect of the case. The deceased received numerous injuries which were incised but the fatal injury was in the belly region which had been given with sufficient force and it had cut his intestine. No doubt the deceased died ten days after and there is some indication in the cross- examination of the Medical Officer that had he been given blood and medical aid at the proper time, he might have been saved. But this was just a possibility which may tie present in some case. It is clearly stated by the Medical Officer in the post-mortem report that the death resulted because of the belly injury and even at that time when the deceased was examined as a patient, this injury had been found dangerous. In our considered view, therefore, the facts of the instant case are distinguishable from the one referred to by learned counsel and, in the circumstances, no case is made out for the altering of his conviction from section 302, P.P.C. to section 326, P.P.C.

It was then argued that in any case lesser penalty be awarded to the appellant because at the time of occurrence be was 15/16 years old. On the other hand learned counsel for the State while placing reliance on P L D 1966 Pesh. 97, P L D 1960 Lah. 739 and P L D 1972 Pesh. 27, argued that youth by itself, was not sufficient to withhold the death penalty. In the cases referred to by learned counsel for the State young accused-persons were sentenced to death irrespective of their youth. We note that out of the three cases referred to by learned counsel, in two, fire-arms had been used and in one there was the allegation of rape plus murder. In the instant case, the appellant is stated to be 15/16 years old at the time of occurrence whereas the deceased was 18 years old. Apparently, the appellant had attempted to induce the deceased so that he could commit sodomy on him. The deceased reprimanded him or abused him due to which the appellant became infuriated. He is stated to have caused several injuries on the person of the deceased out of which only one was dangerous and fatal whereas all the others were simple. As to the fatal injury also as explained by the Medical Officer, there was a reasonable possibility that if the deceased had been given proper medical attention, he might have been saved. Taking into consideration all these factors, we are of the considered view that although the conviction of the appellant under section 302, P.P.C., in the circumstances of the case, was quite proper and well-deserved and is accordingly maintained, the sentence of death awarded to him be altered to that of imprisonment for life. It is accordingly so ordered. The sentence of fine is maintained. With this modification the appeal is dismissed.

The death sentence awarded to the appellant is not confirmed.

M. Y. M. Death sentence altered.