MUHAMMAD JAMIL Versus THE STATE
This Criminal Appeal No.457 of 1984 arises from the judgment of learned Additional Sessions Judge, Okara, whereby he on 24‑5‑1984 convicted Muhammad Jamil appellant under section 302, P.P.C. for causing the death of Muhammad Ayub and under section 307, P.P.C. for murderous assault on Nasir Ali P.W.2 and sentenced him as under:‑
(i) Under section 302, P. P. C. to imprisonment for life and a fine of Rs.5,000 in default thereof one year R.I.
(ii) Under section 307, P.P.C. to 10 years' R.I. and a fine of Rs.4,000 in default thereof one year R.I.
It was directed that the sentences shall run concurrently.
2. The occurrence took place on 21‑12‑1981 at 4 p.m. in the Ihata owned by Abdul Sattar father of Nasir Ali complainant, situated in Chak MAL of Police Station Renala Khurd. The distance between the place of occurrence and the Police Station is 13 miles. The F.I.R is statement Exh.P.B. of Nasir Ali, brother of the deceased recorded on the same day at 11‑10 p.m. by Muhammad Akram A.S.I. P.W.12, in Civil Hospital, Sahiwal. The formal F.I.R. Exh.P.B/1 was drawn up by Chaudhry Asghar Ali S.I. at 12 mid‑night between 21/22‑12‑1981.
3. The motive as alleged‑ by the prosecution was that Muhammad Jamil appellant and Muhammad Ayub deceased were paternal‑cousins inter se. They lived in the one and same Ihata in Chak No.4/lAL. There was a room in the Ihata occupied by Nasir Ali complainant the brother of the deceased and Abdul Aziz the father of Muhammad Jamil appellant. They used to tether cattle in that room. On the fateful day at 11 a.m. it so happened that Mst. Bilqees P.W., the mother of the appellant removed the peg from the said room and put the dung‑cakes there. Abdul Sattar father of the deceased threw out the dung‑cakes from that room. On this Mst. Bilqees abused Abdul Sattar, hence this occurrence.
As far the main occurrence it has been stated that at the eventful time Nasir Ali complainant and Muhammad Ayub deceased were busy cutting fodder on the machine. Nasir Ali was running the wheel and Muhammad Ayub was putting the fodder in the machine. Abdul Sattar, Muhammad Yasin were also sitting nearby. Muhammad Jamil appellant arrived there armed with a Chhuri. He raised Lalkara that Abdul Sattar father of the deceased had abused his mother therefore, he will not spare them. He stabbed Muhammad Ayub with Chhuri who fell down. Nasir Ali tried to intervene whereupon Muhammad Jamil gave injuries with his Chhuri to him. When Abdul Sattar and other threw the challenge, the appellant ran away taking the Chhuri with him. Muhammad Ayub and Nasir Ali in injured condition were removed to civil hospital. From where they were referred to D.H.Q. Hospital, Sahiwal. Muhammad Ayub succumbed to the injuries on his way to the D. H. Q. Hospital.
5. On 22‑12‑1981 at 4 p. m. Dr. Zulfiqar Baig P. W.4 conducted post‑mortem examination on the dead body of Muhammad Ayub He found:‑
(i) An incised wound 3 c.m. x 1 c.m. on the front middle part of left abdomen (portion of loops) intestines small about 2 feet hanging out of it.
On internal examination he found that the right chamber of heart was empty and left chamber was containing about 1 to 2 onus. Blood and stomach was containing 4 to 5 oz. of digested food and partitoneum was injured under injury No.1 and small intestines were injured at three places. There was a puncture through and through and the intestines contents were coming out through the injured wall. Mesentery was also injured. About 2 to 3 liters of blood was present in abdominal cavity and part of it was in clotted form.
In his opinion the cause of death was due to intra‑abdominal haemorrhage and shock due to injury No.1 which was sufficient to cause death in the ordinary course of nature. The injury was caused by sharp‑edged weapon. The duration between the injury and death was about 3 to 4 hours and between the death and post‑mortem was 18 to 24 hours.
6. On 21‑12‑1981 at 8‑15 p.m. Dr. had medically examined Nasir Ali. He found three incised wounds on his person. Nasir Ali was unconscious. His blood pressure was 105/80 M.H.H.G. and his pupils were normal and pulse was weak and rapid. The injuries were caused by sharp‑edged weapon within 4 to 6 hours of the examination. Muhammad Jamil appellant was also medically examined with regard to his injuries on 23‑12‑1981 at 11 p.m. There were multiple abrasion on the back and base of right thumb and base of right index finger. There was also an abrasion c.m. x c.m. on the back and left side of head. The injuries were simple caused by blunt weapon within 36 to 42 hours of the examination.
7. The appellant was arrested on 21‑12‑1981. He led to the recovery of blood‑stained Chhuri P.5 from his house which was taken into possession vide memo. P.H. attested by Muhammad Nasir P.W.8 and Asghar Ali P.W.11 and Irshad (not produced). The Serologist report Exh.P.R. reveals that the Chhuri was stained with human blood.
8. When examined under section 342, Cr.P.C. the appellant denied all incriminating circumstances. In repy to the question as to why the case against him, he stated:‑
"I have been falsely implicated in this case. There was some dispute between my mother and Abdus Sattar P.W. at about 4 p.m. in the house commonly owned by us. We and Abdus Sattar P.W. and Nasir P.W. reside in one house. The dispute narrated above took place and my mother, who is younger to Abdus Sattar P.W. abused him. Nasir, Ayub deceased and Abdus Sattar P.W. trespassed into the portion occupied and owned by us. Abdus Sattar P.W. caught hold my mother Mst. Bilqees from her hairs and I went forward to save my mother and caught hold of the shirt of Abdus Sattar. Ayub deceased picked up a Thapa and caused injuries with the Thapa on my head. Nasir P.W. picked up a Chhuri and in order to release his father from my hand aimed blow at me. I got aside and that Chhuri in the hands of Nasir P.W. hit Ayub deceased in his abdomen. Nasir P.W. then aimed a blow which I tried to ward off with my hand and I received a scrap on my hand. I apprehended danger to my life and life of my mother picked up a knife which is used for vegetable cutting and dealt blows with that to Nasir Ali in own and my mother's defence.
In defence he produced Muhammad Yasin as D.W., who was originally a prosecution witness. He supported the version of the occurrence given by the appellant.
9. To prove its case prosecution examined 12 witnesses. Nasir Ali P.W.2 and Abdul Sattar P.W.3 have given the ocular account of the occurrence. They claim to have seen the appellant causing injuries to the complainant and the deceased. Dr. Zulfiqar Baig P.W.4 has proved the post‑mortem examination report. He conducted post‑mortem examination on the dead body of Muhammad Ayub deceased. Dr. Naeem Ahmad P.W.7 has deposed about the injuries found on the person of Nasir Ali and Muhammad Jamil appellant. Jaffar P.W.8 and Chaudhry Asghar Ali S.H.O. have proved the recoveries effected in the case. The rest of the evidence is of formal nature. The trial Court while disbelieving the recovery of blood‑stained Chhuri from the appellant as well as the defence version given by the appellant in his statement recorded under section 342, Cr.P.C., has convicted and sentenced the appellant on the strength of ocular evidence and the attending circumstances.
10. The learned counsel for the appellant contends that prosecution has failed to prove its case beyond reasonable doubt inasmuch as there is inordinate delay in lodging the F.I.R. and that in fact the same was lodged after preliminary investigation; that the eye‑witnesses are not dependable and that there is a reasonable possibility of the defence plea being true. Conversely the learned counsel for the State has supported the judgment of the trial Court.
11. I have considered the arguments advanced by the learned counsel for the parties with care. I have not been able to persuade myself to agree with the learned counsel for the appellant. I find that in the circumstances of the case the delay of about 7 hours is not an inordinate delay inasmuch as after the occurrence the deceased and Nasir Ali P.W. both in injured condition were removed to Civil Hospital Renala Khurd and then to District Headquarter Hospital, Sahiwal. Muhammad Ayub expired on his way to the District Headquarter Hospital, Nasir Ali was examined by Dr. Riaz Ahmad at 8‑15 p.m. He was conscious. It was at 9 p. m. that Rukka P. H. was sent by the doctor to the Police. The Police Officer came in the hospital, made query at 11 p.m. as to whether Nasir Ali was fit to make statement. Doctor Gulzar Ahmad (not produced) opined that Nasir Ali was fit to make statement. On this Muhammad Akram A.S.I. P.W.12 recorded statement Exh.P.B. of Nasir Ali on the same day at 11‑10 p.m. The conduct of the complainant party of taking the two injured persons to the hospital for medical treatment does not run counter to the natural probabilities. The delay of seven hours stands fully explained and as such it is not a case of unexplained delay. There is nothing to show that F.I.R. was recorded after preliminary investigation. The ocular account has been furnished a by Nasir Ali P.W.2 and Abdul Sattar P.W.3. By the fact of injuries on his person, presence of Nasir Ali P.W.2 is an established fact. The presence of Abdus Sattar at the time of the occurrence has not been denied by the appellant. The occurrence having taken place in their Ihata, they had a probable cause of presence on the spot at the time of occurrence. They had no serious enmity with the appellant prior to the occurrence. The incident which took place at 11 a.m. on the same day, had led to the occurrence otherwise they had no previous enmity. They have named single accused. The number of the injuries found on the deceased and Nasir Ali P.W.2, commensurates with the number of accused person named by the eye‑witnesses. The number of the injuries received by the deceased and Nasir Ali P.W. being four, the eye‑witnesses could exaggerate the number of the culprits but they have not done so. I have been very much impressed by the manner in which the two eye‑witnesses have given evidence at trial stage. They did not suppress anything at trial stage. Except for minor discrepancies and immaterial contradictions here and there, I do not see any inherent infirmity in their evidence. For all these reasons, I do not feel inclined to disbelieve them or to exclude their statements from consideration.
12. This brings me to the plea taken by the appellant in his statement under section 342, Cr.P.C. and the defence evidence given by Muhammad Yasin D.W.1. From the state of affairs given above, it is very much clear that the time of occurrence, the presence of the appellant, the deceased the presence of Nasir Ali P.W. and Muhammad Jamil appellant are the admitted as well as proved facts of the case. The material questions for determination therefore, are:
(1) Is the plea of the appellant satisfactorily established by evidence and circumstances appearing in the case?
(2) If the answer be in the negative, is there yet a reasonable possibility that the plea raised by the accused might be true so as to cast a reasonable doubt upon the prosecution case.
After having placed the two rival cases in juxtaposition I have reviewed the entire evidence and the attending circumstances at the close for arriving at a conclusion regarding the truth or falsehood of defence plea in relation to the two aforesaid questions. I find that the plea raised by the appellant has not been satisfactorily established. Ghulam Yasin was originally a prosecution witness. He was given up as having been won over. There 'are infirmities such as material contradictions in his statement and the statement made by the appellant under section 342, Cr.P.C. For example, the appellant stated that he had picked up a knife which was used for vegetable cutting and dealt blow to Nasir Ali P.W. whereas Ghulam Yasin stated that Muhammad Jamil came forward to snatch Chhuri from Nasir Ali P.W. which fell on the ground or somehow it was snatched by Jamil who gave 2/3 blows on the person of Nasir P.W. The learned trial Court has disbelieved Ghulam Yasin D.W.1 for good, reasons. In this view of the matter, my answer to question at No.1 is in the negative. Adverting to question at No.II, I find that the occurrence having taken place in daylight and Nasir Ali being the real brother of Ayub deceased, the defence plea that Nisar Ali P.W. aimed a blow on Muhammad Jamil but the later got aside and the blow struck to Ayub appears, not only improbable but also highly unreasonable. It is rather ridiculous. The statement of the accused /appellant that he picked up a knife which is used for vegetable cutting and dealt blows with that to Nasir Ali has not been supported by Ghulam Yasin D.W. The statement of the appellant, that Nasir Ali P.W. aimed a blow at him with Chhuri which he tried to ward off with his hand and in that process he received injury on his hand, stands falsified by the medical evidence which shows that no sharp‑edged injury was found on his hands. For all these reasons, I am of the view that there is no reasonable possibility of the defence version being true and that the same was introduced to save the skin.
12. The upshot of the above discussion is that there being satisfactory basis to uphold the conviction of the appellant under section 302/307, P.P.C. for causing death of Muhammad Ayub and murderous assault on E Nasir Ali P.W., the same is hereby upheld. The sentence awarded to the appellant is legal as well as proper. The appeal is therefore dismissed.
M. Y. H.
Appeal dismissed.