MANZOOR Versus THE STATE Riazuddin Ahmad Khan , Nazir Ahmad Bhatti,G.M. Bodla for A.A.-G.

MUHAMMAD SHARIF, J. ‑‑ This appeal has sought to quash the conviction and the sentence awarded to the appellant by the learned Additional Sessions Judge, Bahawalnagar by means of his judgment, dated 25‑8‑1980. He has convicted the appellant under section 302, P.P.C. and had awarded him imprisonment for life. The appellant was fined Rs.2,000 and in default of the payment of this fine, he was directed to suffer further R.I. for one year. A moiety of this fine, if recovered, was ordered to be paid to the heirs of Mst. Began deceased as envisaged under section 544‑A of the Cr.P.C. The Revision Petition No.85‑80 has also been filed for the enhancement of the sentence. Since both the appeal and revision arise out of the impugned judgment, they are being disposed of by means of this consolidated judgment.

2. The facts of this case as gleaned from the F.I.R. Exh. P.H. in brief are that Mat. Began widow of Major caste Kanaira resident of village Megha Mukhian, Tehsil and District Bahawalnagar lived in her house. Manzoor, the appellant, who happens to be her nephew, used to have financial assistance from her. Manzoor, the appellant had entertained an erroneous impression in his mind that Mst. Began was fabulously a rich lady. In order to slake his instinct of greed and avarice, he sneaked his entry in the house of Mst. Began on the night intervening 23/24‑6‑1978. She was alone in her house and her sons namely Shaukat Ali, Abdul Shakoor and Khan Muhammad had gone to village Sonda, P S. Doonga Boonga to participate in the wedding ceremony of one of their relatives. The appellant is stated to have awakened Mst. Began and demanded money and ornaments from her. On the terse and flat refusal of Mst. Began, the appellant whipped out a knife from his pocket and gave her multiple injuries. The outcries of Mst. Began attracted Barkat Ali, Faiz Ahmad, Sabir Ali and Hanif who lived in the proximity of her house At their sight, Manzoor ran away.

3. Mst. Began was taken to the police station by her son Abdul Shakoor who was called from village Sonda. He was assisted by his co‑villagers. Mst. Began dictated the F. I. R. Exh. P. H. on 24‑6‑1978 at 3‑00 p.m., which was recorded by Muhammad Abdullah H.C., P.S. Takhat Mahal. Mst. Began was then taken to the hospital where she was medically examined by Miss Shamim Firdous, Lady Doctor of the D.H.Q., Hospital, Bahawalnagar. She had observed the following injuries on her person:

(1) ??????? An incised wound 1" x ?? x muscle deep on right side of abdomen 5" from the umblicus. There is large swelling around the wound.

(2) ??????? An incised wound 2" x 1?? x muscle deep on left side of abdomen 4" from umbilicus.

(3) ??????? An incised wound ?? x ?? x skin deep on right side of abdomen 5" from injury No.1.

(4) ??????? An incised wound ?? x 1/6" x skin deep on left side of abdomen 4" from injury No.2.

(5) ??????? An incised wound 1?? x ?? x bone deep on the lateral side of right leg 6" from ankel joint.

(6) ??????? An incised wound 1" x 1/6" x muscle deep on the medial side of right leg, 6" from ankel joint and opposite to injury No.5.

(7) ??????? An incised wound on lateral side of leg 5" from ankle joint 1" x l" x muscle deep.

(8) ??????? An incised wound ?? x 1" x muscle deep on medial side of left leg opposite injury No.7.

Subsequently Mst. Began breathed her last in the said hospital on 25‑6‑1978 at 7‑00 p.m. and the autopsy on her dead body was conducted on the next day at about noon by Dr. W.B. Ali Bhatti who had found the following injuries on her dead body:

(1) ??????? An incised wound ?? x ?? x abdominal cavity deep close to the right side of the umblicus.

(2) ??????? An incised wound 3/4" x ?? x peritoneal cavity deep on the lower quadrant of abdomen.

(3) ??????? An incised wound 1" x ?? on the inner side of right leg.

4. After the demise of Mst. Began, the offence against the appellant under section 307, P.P.C. was converted into one under section 302, P.P.C. Muhammad Abdullah H.C. prepared the inquest report before sending the dead body for autopsy. The statements of the witnesses were recorded.

5. The appellant was arrested on 1‑7‑1978 and on the same day the appellant, while in police custody, revealed that he could lead to the recovery of the blood‑stained knife and consequently he led the police party to a reed bush which had grown in the field of his father and got recovered the blood‑stained knife which was made into sealed parcel and was sent to the chemical examiner who submitted a positive report that it was stained with human blood. After the completion of the investigation, the challao of the appellant was submitted. He pleaded to be innocent and stated in his statement recorded under section 342, Cr. P. C. that he had falsely been roped in this case on account of enmity. As a sequel to the trial of the case the appellant was convicted and sentenced as stated supra.

6. In this case, the learned Additional Sessions Judge, Bahawalnagar has relied upon the F. I. R. Exh. P. H., which has been treated as the dying declaration of Mst. Began, the ocular testimony of Sabir Ali, Barkat Ali and Faiz Ahmad, the recovery of the blood‑stained knife and the medical evidence.

7. Miss Shamim Firdous, the Lady Doctor was not available and her medical report was proved by Dr. W. B. Ali Bhatti P.W.14 who was acquainted with her handwriting. This medical expert has opined that injuries Nos.1 and 2 were grievous in nature whereas injury No.3 was simple. According to him the death of Mst. Began was caused due to shock and haemorrhage on account of injuries Nos.1 and 2 which were sufficient to cause death in the ordinary course of nature. When subjected to the cross‑examination, he proved his report Exh.P.C/2, dated 25‑6‑1978 wherein he had opined that the patient was not fit to make a statement. This Doctor could not state the exact time when he made the report Exh.P.C/2 or when Mst. Began was brought to him for a report of her fitness to make a statement.

8. Miss Shamim Firdous, the Lady Doctor who examined Mst. Began in the hospital on 24‑6‑1978, was of the opinion that the condition of the patient was serious. It has been so stated by Dr. W. B. Ali Bhatti P.W.14 who had proved the certificate Exh. P. J. Mst. Began was injured at night and she was not attended to by any doctor or Hakim till she was brought to the D.H.Q. Hospital after about more than 12 hours. No body went to the police station in order to lodge the F.I.R. Her serious condition is reflective of the fact that she was not fit to make a statement at the time when she was taken to the police station. The cardial fact that the ridges of the thumb‑impression of Mst. Began on the original F.I.R. overlap certain words noted by its scribe as the proceedings of the police cannot be lost sight of. Muhammad Abdullah P.W.12 had deposed that he had recorded the F.I.R. Exh. P. H. as dictated by Mst. Began and it has covered one or two words of the proceedings under the heading Karwai Police. Khalid Ahmad S. I., P.W.11 who had partly investigated this case, is also of the view that the thumb‑impression of Mst. Began has covered some of the writing of the F.I.R. Even a cursory glance on the F.I.R. would make out that the thumb‑impression was obtained after scribing the police proceedings. Then there is another abnormality in the F.I.R. that it contains the thumb‑impression of Mst. Began on its margin. Muhammad Abdullah P.W.12 has stated that he never obtained a thumb‑impression on the marginal side of the F.I.R. as he had done in this particular case. The very fact that the thumb‑impression of Mst. Began is on certain words of the F.I.R. and Karwai Police is enough to vindicate the plea that it was recorded after due deliberations. A space for affixing the thumb‑impression of Mst. Began should have been left and the concluding part of the police proceedings could be written on the other side of the paper on which the F.I.R. had been scribed. It shows that Mst. Began did not dictated the actual F.I.R. and it cannot be treated as her dying declaration.

9. In accordance with the F.I.R. the shrieks of Mst. Began had attracted her neighbours like Sabir Ali, Faiz Ahmad and Rarkat Ali. When the appellant had inflicted injuries. Sabir Ali appeared as P.W.6 and has testified that he was asleep at this house at about Sehri time when he heard an alarm and rushed to the house of Mst. began where he saw the appellant demanding money from Mst. Began and inflicting knife blows to her. lie has stated that the sobs of Mst. Began had gone out for manual labour. This fact is inconsistent with the contents of the F.I.R. because in the F.I.R. it has been stated that they had gone to take part in the marriage ceremony in village Sonda. Sabir Ali has admitted that Ghulam Haider, the paternal grandfather of the appellant got a case registered against him under section 326, P.P.C. and Mehr Din, the paternal‑uncle of this witness brought a case against the appellant under section 325, P.P.C. In this manner, Sabir Ali is inimically disposed towards the appellant and his statement lacks reliability.

10. Barkat Ali P.W.7 has stated that at the alarm of Mst. Began he went to her house and he heard the appellant saying that Mst. Began should either give money or he would kill her and within their view he gave 3/4 knife blows to Mst. Began and when they challenged the appellant, he scaled over the western wall of the courtyard and ran away with the knife. Like Sabir Ali, his fellow deponent, he has stated that the sons of Mst. Began had gone out to Sonda for labour. He has stated that Mst. Began was conscious to some extent when she was brought to the hospital. He denied the suggestion that any case of theft was registered against him. He has, however, stated that he was a witness in a case against Mehr. Mehr happens to be the paternal‑uncle of the appellant and in this manner he is a partisan witness.

11. Faiz Ahmad P.W.7 has also corroborated the statements of the other ocular witnesses Sabir Ali and Barkat Ali. He has explained that as soon as they entered the house of Mst. Began, they heard Mst. Began raising alarm that Manzoor was injuring her and they could not apprehend the appellant because the latter had held out threats and had abruptly run away. According to this witness about four knife blows were given to the deceased in his presence.

12. The eye‑witness account given by Sabir Ali, Barkat Ali and Faiz Ahmad, does not appeal to reason because they are not the immediate neighbours of Mst. Began. Sabir Ali lives at a distance of four lhatas from the house of Mst. Began and houses intervening between the venue of the crime and the houses of Barkat Ali and Faiz Ahmad P.Ws. They heard the shrieks of Mst. Began necessarily when she was being injured. The assailant could have inflicted these injuries within seconds and it is not probable that these so‑called ocular witnesses had seen 3/4 injuries being inflicted by the appellant on the person of Mst. Began nor they were expected to hear the demand of the assailant to have money and the valuables from Mst. Began. The F.I.R. suggests that they reached afterwards and in their presence, the assailant ran away. Their statements that they had seen the appellant actually injuring Mst. Began with a knife appear to be an exaggeration. These witnesses have indulged in rhetoric for reasons best known to them and their statements cannot be believed.

13. The F.I.R. has been delayed by about 12 hours although the police station is five miles away from the spot. It is not credible that the villagers left Mst. Began unattended and waited for the return of Abdul Shakoor her son in order to take her to the police station. There must have been headmen and the members of the Union Council in the village upon whom it was imperative to go to the police station to lodge the report. But their services were not utilized nor did they come forward to take the injured lady to the police station or at least lodge a prompt report themselves. The thumb‑impression of Mst. Began which appears on the contents of Karwai Police and on the marginal side of the F.I.A. has exploded the myth that it is not a genuine document and has been fabricated to the detriment of the appellant. The inordinate delay which occurred in the lodging of the F.I.R. has not satisfactorily been explained.

14. The appellant was arrested on 1‑7‑1978. The prosecution has not brought forth the circumstances as to why he was arrested on the 7th day of this incident. It has not been explained that the appellant had absconded or had left the village or that they had been searching for the appellant during this time. The blood‑stained knife is stated to have been recovered from him on the date of his arrest. It was not expected of a culprit to bury the weapon of offence in a blood‑stained condition. He could have destroyed that weapon or should have at least washed the blood‑stains within a long span of seven days and this recovery seems to be a fake affair. It may be noted that the investigation of this case does not seem to be fair and the reasons for so doing do not appear to be innocent.

15. The medical evidence is indicative of the fact that sharp‑edged weapon was used in injuring Mst. Began. Miss Shamim Firdous, the Lady Doctor has listed eight injuries on the person of Mst. Began but Dr. W. B. Ali Bhatti P.W.14 has observed only three injuries on the dead body of Mst. Began. He has stated that he examined the entire body of Mst. Began to find out any other injury but did not observe any injury on the dead body except those mentioned in the autopsy report. The inconsistency in the number of injuries listed by two doctors has not been reconciled.

16. The F.I.R. lodged in this case is of doubtful authenticity. The statements of ocular witnesses run counter to the natural course oi7 events. The F.I.R. cannot be treated as the dying declaration of Mst. Began. The arrest of the appellant on the 7th day manifests that the A name of the accused was not previously known. The recovery of the blood‑stained knife is not worthy of any credence. The motive for the commission of this crime also lacks proof. In the circumstances, we extend the benefit of doubt to the appellant, accept his appeal and acquit him of the charge framed against him under section 302, P.P.C. The appellant was released on bail. He stands discharged of his bail bond. In the light of the above findings the Revision Petition No.85‑80/BWP. fails and stands dismissed.

S. G. D. ?????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.