FAROOQ AZAM Versus THE STATE Mian Aftab Farrukh , Kh. Shaukat Ali

MUHAMMAD MUNIR KHAN, J.‑‑ This Criminal Appeal No. 192 of 1983 and the connected Murder Reference No. 62 of 1983 arise from the judgment of learned Sessions Judge, Sialkot whereby he or. 31‑3‑1983 convicted Farooq Azam (18/19) under section 302, P.P.C. for causing death of Sajjad Ahmad (16/17) and sentenced him to death and a fine of Rs. 10,000 in default thereof two years R.I. It was directed that the fine if realized half of it be paid to the legal heirs of the deceased as compensation under section 544‑A, Cr.P.C.

2. The occurrence took place on 21‑6‑1982 at 7‑00 p.m. in the ground of middle School Sambrial. The distance between the place of occurrence and the Police Station Sambrial is one mile. F .I. R. Exh. P.A. was lodged at the Police Station by Amir Ali P.W.1 the father of the deceased on the same day at 7‑45 p.m. which was recorded by Zulfiqar Ali, A.S.I. P.W.10.

3. The motive as set up by the prosecution was that Sajjad Ahmad deceased worked as tailor at a shop known as "London Tailoring Shop". Farooq Azam appellant used to get his clothes stitched from the deceased. On the morning of the day of occurrence there was exchange of abuses between the deceased and the appellant over the demand of stitching charges by the deceased. People intervened and the matter ended for the time being. Farooq Azam appellant left the spot holding out threats of dire consequences hence this occurrence.

4. As far the main occurrence it has been stated in the F.I.R. that at about 7‑00 p.m. Sajjad Ahmad deceased was proceeding to his house. When he reached ground of the Middle School, Farooq Azam appellant who was sitting there rose up on seeing him, took out dagger from the folds of his Shalwar and gave a blow on the left side of the chest of Sajjad Ahmad who fell down. He was about to give second blow when Amir Ali P.W.1, Abdur Rashid P.W.2 and Shams‑ud‑Din (not produced) who were passing nearby raised alarm and Farooq Azam ran away taking dagger with him. Sajjad Ahmad in his injured condition was removed to Civil Hospital Sambrial. On reaching the hospital, he succumbed to the injuries. From hospital Amir Ali went to the Police Station for report.

5. Dr. Mumtaz Ahmad Bhatti P.W.8 conducted post‑mortem examination on the dead‑body of Sajjad Ahmad on 22‑6‑1982 at 9‑30 a.m. He found following injuries:‑-

(1) An incised wound 2 x 1 c.m. x chest cavity deep verticle midway between the left nipple and midline.

(2) An abrasion 4 x c.m. verticle on the back of left little finger.

(3) Superficial incised wound 1 x c.m. x skin deep on back of left hand inner part.

(4) Incised wound 2 x 1 c.m. x muscle deep transverse on the back of left forearm at lits lower part.

(5) An abrasion 2 x 2 c.m. on back of left elbow.

On internal examination the Doctor found that skin, muscle, costal cartilage of third rib, pleurae, upper lobe of left lung were cut through and through in between the second inter‑costal space. Pulmonary vein on the left side was cut through and through near its entry into the heart. Chest cavity was full of blood. Rest of the injuries were superficial and simple. Stomach contained two ounces of semi digested food.

In his opinion the cause of death was due to shock and haemorrhage as a result of injury No.1 which was sufficient to cause death in the ordinary course of nature. Injury No.1 was grievous and fatal. The rest of the injuries were superficial and simple. Injuries 1, 2 and 3 were caused by sharp edged weapon whereas injuries No. 2 and 5 by blunt weapon. Probable time between injuries and death was instantaneous. The time between death and post‑mortem was 12 to 16 hours.

In cross‑examination the Doctor stated that injuries No. 1, 3 and 4 were distinct and separate wounds and could not be caused with a single blow.

6. The appellant was arrested on 22‑6‑1982 by Muhammad Riaz, A.S.I. P.W.

12. On 4‑7‑1982 he led to the recovery of blood‑stained dagger P.I. from Baithack of his residential house which was taken into possession vide memo. Exh. P.B. attested by Mahmood Ahmad P.W.3 and Khalid Naseem (not produced). The recovery was effected by Muhammad Riaz A.S.I. P.W.12 Serologist report Exh. P.L. reveals that the dagger was stained with human blood.

7. To prove its case, prosecution examined 12 witnesses. Dr. Mumtaz Ahmad Bhatti P.W.8 has proved the post‑mortem report of the deceased. Amir Ali P.W.1 and Abdur Rashid P.W.2 have given the ocular account of the occurrence. They claim to have seen Farooq Azam appellant causing dagger blow to Sajjad Ahmad resulting in his death. Amir Ali P.W.1 and Abdur Rashid P.W.2 have also deposed about the background of the occurrence. Mahmood Ahmad P.W.3 and Muhammad Riaz A.S.I. P.W.12 have supported the recovery of blood‑stained dagger P.I. at the instance of the appellant. The rest of the evidence is more or less of formal nature.

8. When examined under section 342, Cr. P.C. the appellant denied all incriminating circumstance. While raising plea of false implication, he stated;

"I am innocent. Sajjad Ahmad deceased one side and Iftikhar and Arshad on the other side were simultaneously claiming illicit intimacy with the daughter of Bashir Telephone Operator, who was my neighbour. On that account they were at loggerheads. On the day of occurrence Sajjad Ahmad deceased and Arshad son of Ismat Ullah Malik had quarrelled with each other. As a matter of fact, said Iftikhar and Arshad were suspected of the murder of Sajjad Ahmad deceased on the day of occurrence on the spot, but the police falsely roped me in and let them off by securing huge amount of illegal gratification from them".

In defence he produced three witnesses. Dr. Riaz Cheema D.W.1 stated that on 21‑6‑1982 he was incharge of Civil Hospital, Sambrial. A dead body was received in the hospital at 8‑00 p.m. on that date. There were 5 to 7 persons who brought the dead body in the hospital. He inquired from them about their relations with the deceased but nobody came forward to tell him that he was related to the deceased. He sent information in writing to the police station Sambrial at 8‑15 p.m. with respect to the dead body. Nasir Ahmad Moharrar Head Constable had signed the relevant entry in the receipt register of the hospital. Exh. D.B. is the copy of the entries in the receipt register. It may be noted that the original letter of information has not been produced and that in Exh. D.B. under column relatable to the subject it has been stated:‑

"Information about unknown person dead body".

In cross‑examination the Doctor stated that five or six persons were carrying the dead body and one of them was carrying it physically. He further stated that he did not know that who brought the dead body to the hospital and it was for that reason that he used the word "dead body of unknown person" in his docket sent to the police. Nasim Ullah D. W.2 stated that the ground of Middle School where the occurrence took place is 70/80 yards from his house. Two persons namely Iqbal and Dilshad of his Mohallah came to him on 21‑6‑1982 at 7‑45 p.m and told him that Sajjad Ahmad was lying injured on the spot. He went there and found five/six persons including Maqsood Ahmad Qureshi IInd Officer, National Bank and Chaudhry Akbar Ali were already present there and that Amir Ali complainant, Abdur Rashid and Shams‑ud‑Din P.Ws. were not seen by him on the spot et that time. He further stated that civil hospital Sambrial was at a distance of one furlong from the spot. They reached the hospital within 8 minutes. Dr. Riaz Ahmad Cheema D.W.1 examined Sajjad Ahmad and declared him dead, so he went to house of Amir Ali and informed him of the death of his son. He further stated that Amir Ali P.W. has married to the daughter of Ghulam Nabi the uterine brother of Abdur Rashid P.W. Abdur Rashid P.W. is maternal grand‑father of the deceased. In cross‑examination he stated that he did not tell Dr. Riaz Ahamd the name of Sajjad Ahmad and that the doctor had also not asked the name of the deceased from them. Contradicting Dr. Riaz Ahmad Cheema D.W.1 this witness stated that no person was physically carrying the deceased. The witness stated that although Sajjad Ahmad was previously known to him yet he did not tell his name to the persons who had accompanied to the hospital. Muhammad Iqbal D.W.3 is Dispenser of Civil Hospital, Sambrial. He simply produced register of civil hospital in the Court. The appellant also tendered copy Exh.D.C. of Nikahnama of one Latif‑ur‑Rehman son of Sh. Ghulam Nabi.

9. The learned trial Court has believed motive ocular evidence and the recovery of blood‑stained dagger P.I. from the appellant and has convicted and sentenced him as stated above.

10. The learned counsel for the appellant contended that prosecution has failed to prove its case beyond reasonable doubt inasmuch as no witness of the incident of morning wherein the abuses were exchanged and the appellant had allegedly threatened the deceased with dire consequences, has been produced; that eye‑witnesses are related; that the eye‑witnesses in fact did not see the occurrence; that the eye‑witnesses are the chance witnesses; that there is conflict between the medical evidence and the ocular testimony; that from the statement of Dr. Riaz Cheema it appears that body of unknown person was brought to the hospital by some persons other than the eye‑witnesses which shows that it was" an unseen murder. In the alternative the learned counsel for the appellant has requested for leniency in sentence. On the other hand the learned counsel for the State has supported the judgment of the trial Court.

11. We have considered the arguments advanced by the learned counsel for the parties with care. Having appreciated the evidence in accordance with the guiding principles laid down by the superior Courts for the appreciation of the evidence in such like cases we have not been able to persuade ourselves to agree with the learned counsel for the appellant. We find that it is a case of prompt F.I.R. The occurrence took place at 7‑00 p.m. and the F.I.R. was lodged at 7‑40 p.m. oh the same day. The name of the witnesses, the name of the appellant, the weapon used by him and the manner of occurrence are detailed therein. There is nothing on record to doubt the genuineness of this valuable document which under the law can be used to corroborate its maker i.e. Amir Ali complainant. The prosecution has produced two eye‑witnesses. Amir Ali P.W.1 and Abdur Rashid P.W.2 have given probable cause of their presence at the time of occurrence. Their names are given in the F.I.R. which was lodged with great promptitude. They had no previous enmity with the appellant. They have successfully faced the cross‑examination. Their statements do not suffer from infirmities such as material contradictions/ major discrepancies or dishonest improvements. We do not see any inherent infirmity in their statements. Their evidence cannot be rejected on the ground of their relationship with the deceased. The occurrence having taken place in the ground of the School the two eye‑witnesses who were the passer‑by are the natural witnesses of the occurrence. The learned counsel has not been able to point out any material conflict between the medical evidence and the statements of the eye‑witnesses. The eye‑witnesses have named single accused. The occurrence having taken place at 7‑00 p.m. in the month of June, there could not have been any difficulty in the identification of the appellant who was previously known to the witnesses. As far the statement made by Dr. Riaz Ahmad Cheema that a dead body of unknown person was brought in the hospital that is not of much help to the defence inasmuch as the original docket sent by him to the Police is not available. In the receipt register Exh. D.B. the witness has clearly stated that this is the despatch photostat copy but the original police report sent by him was with the Police in which the full subject explained. This cannot be substituted for original report. The Doctor has given strange reasons for mentioning the words "dead body of unknown person" in that he stated that since he did not know who brought the dead body in the civil hospital so he used these words. From the statement of Nasim Ullah D.W.2 it is very much clear that it was the dead body of Sajjad Ahmad which was taken to the hospital and shown to Dr. Riaz Ahmad Cheema D.W.1. Nasim Ullah has categorically stated that he had not told the name of Sajjad Ahmad to the Doctor. Dr. Riaz Ahmad Cheema had also not asked the name of the dead person. In this view of the matter, the omission of the name of the dead person in column relatable to 'subject' of the receipt regis ter of the civil hospital would not show that it was an unseen affair. The blood‑stained dagger was recovered from the appellant on the next. day of the occurrence. The dagger was found stained with human blood. Mahmood Ahmad P.W.3 and Muhammad Riaz A.S.I. P.W.12 are quite in dependable witnesses. The learned counsel has not been able to impeach their credit. The recovery of dagger P.1 from the appellant connects him with the death of the deceased. He has failed to lay down any foundation for his substitution in place of the real culprit. He has not been able to establish that on the day of occurrence, the deceased and one Arshad had quarrelled with each other or that Sajjad Ahmad deceased was murdered by them. There is even no reasonable possibility of the defence version being true. For all these reasons, the submissions made by the learned counsel for the appellant do not carry any weight. We are convinced that the trial Court has rightly convicted the appellant under section 302, P.P.C. for the murder of Sajjad Ahmad.

12. This bring us to the question of sentence which demands the utmost care on the part of the Courts dealing with the life of the convict. Having attended to this question carefully, we find extenuating circumstances in favour of the appellant for lesser penalty in that the appellant was 17/18 years old at the time of occurrence; that he was a student of B.A; that there is no direct evidence of the alleged quarrel between the deceased and the appellant in the morning of the day of occurrence which led to the main occurrence in the evening. Muhammad Amir P.W. was not present in the morning incident and that Abdur Rashid P.W.2 has stated that he‑had learnt from general public that the deceased and the appellant had quarrelled in the morning about the payment of some wages for tailoring the clothes and as such the possibility that the act of the murder by the appellant might have been provoked to some extent by the deceased cannot be excluded. Giving him the benefit of doubt on the question of sentence, we alter his sentence of death to imprisonment for life. The fine awarded by the trial Court, sentence in default thereof and direction for payment of half of the fine to the legal heirs of the deceased as compensation are maintained.

The death sentence is not confirmed.

M.Y.H Appeal partly accepted