MUHAMMAD SHARIF Versus THE STATE MUHAMMAD SHARIF , Syed Zulfiqar Haider for A.-G.

Sharif son of Umar Din, aged 28 years, was tried by the Additional Sessions Judge, Faisalabad, for having murdered Muhammad Sharif son of Rehmat Ullah, his neighbour, on 2‑6‑1986, at 6‑30 p.m., in Abadi of Chak No. 188/RB, at a distance of 1 , miles from Police Station Chak Jhumra, District Faisalabad.

2. The learned trial Judge vide judgment, dated 30‑4‑1987, held him guilty, convicted him accordingly and sentenced him to undergo imprisonment for life, plus to pay a fine of Rs,5,000 in default where of to suffer R.I. for one year. He has also been directed to pay a sum of Rs.5,000 as compensation to the heirs of the deceased, in default whereof to undergo further R.I. for six months.

The convict has filed appeal through jail.

3. F. I. R. (Exh.P.B.) was registered at Police Station Chak Jhumra on 2‑6‑1986, at 8‑15 p.m. by Mehdi Khan, A.S.I. (P.W.1) on receipt of statement (Exh.P.A.) of Mst. Rajo (P.W.8), mother of the deceased, recorded by Sardar Muhammad, S.I. (P.W.10), in Chak No. 188/R.B. at 8 p.m. on the same day.

According to the F.I.R., the appellant was serving as a constable in the Border Police. His house was adjacent to the house of the complainant. During the days of occurrence, he had come on vacation. He had kept some pigeons, which he used to fly while going up the roof of his Kotha.

On the day of occurrence at 6‑30 p.m., Muhammad Sharif deceased son of the complainant asked the appellant not to go up the roof for flying pigeons as the privacy of their house is affected. On this the appellant abused the deceased and asked him as to who he was to stop him. The deceased also returned the abuses. Whereupon, the appellant entered the house of the deceased by scaling over the wall, armed with a Chhuri, raising Lalkaras and gave two Chhuri blows to the deceased, on the left side of the face and on the left side of neck. The complainant baseached the appellant and raised cries, as a result of which, P.Ws. Chiragh and Abdur Razzaq, neighbours, reached the spot. They also witnessed the occurrence. The appellant ran away. Muhammad Sharif son of the complainant died at the spot.

4. Sardar Muhammad, S.I. after recording the statement (Exh.P.A.), examined the dead body and sent the same for post‑mortem examination, after preparing injury statement (Exh.P.G./A) and inquest report (Exh.P.H./A). Blood‑stained earth was taken into possession by him during the spot inspection.

The appellant was arrested by him on 7‑6‑1986. On interrogation, he led to the recovery of blood‑stained Chhuri (P.4) from ceiling of his residential room. It was taken into possession vide memo. Exh.P.F.

After completion of necessary investigation, challan was put to Court.

5. Statements of ten prosecution witnesses were recorded at the trial. Positive reports (Exhs. P.G. and P.H.) from the offices of the Chemical Examiner and the Serologist, were also tendered in evidence.

6. Dr. Mahmood Ahmad, who had performed autopsy on the dead body of Muhammad Sharif deceased, was not available. Statement of Dr. Iqbal Ahmad Javid was recorded as C.W.1, to prove the post‑mortem report by way of secondary evidence. Dr. Iqbal Ahmad Javid stated that Dr. Mahmood Ahmad had been working as his subordinate for one year and so he was conversant with his writing and signatures. He stated that post‑mortem report (Exh.C.W.‑1/A) was prepared by Dr. Mahmood Ahmad and bears his signatures. He stated that Dr. Mahmood Ahmad had noted following injuries on the body of the deceased:‑

(1) A scratch mark 3 " x 1 " on the left cheek extending from the left eye upto the middle of mandible.

(2) An incised wound on the left side of the root of the neck. Blood was oozing from the wound.

According to him, it was found at the time of autopsy that right side of brancho pleura was cut through and through, as a result of injury No.2. All other organs were found healthy.

Death, according to him, had been opined by Dr. Mahmood Ahmad, due to shock and haemorrhage, resulting from injury No.2.

7. Mst. Rajo complainant, mother of the deceased, who had lodged the F.I.R., appeared as P.W.8. She stated that after the occurrence she had started towards police station to report the matter, but the S.I. had met her just outside the village on the road and she had made statement to him. She re‑narrated the facts given by her in the F.I.R. with some minor improvements. During cross‑examination she stated that the deceased was unmarried and that the height of the wall between their house and the house of the appellant was 5/6 feet. She admitted that P.Ws. Chiragh and Razzaq used to sell cloth as paddlers, but denied the suggestion that they used to return home late in the evening. She admitted that the appellant was serving in the Border Police, but denied the suggestion that her deceased son used to make indecent overtures to his wife, during his absence. She also denied the suggestion that on the day of occurrence, the appellant had approached her deceased son to mend his ways and stop from teasing his wife, that they had grapplled with each other on that account and that the deceased had overpowered the appellant and threw him down and had tried to strangulate him. She also denied the suggestion that the appellant fearing harm had picked up the Chhuri lying nearby and had given blows with that to her son in exercise of right of private defence. She denied the suggestion that she had not witnessed the occurrence and that the F.I.R. was lodged after preliminary investigations by concocting a false story.

Abdur Razzaq (P.W.9) stated that he had gone to the house of the deceased on hearing cries of Mst. Rajo alongwith Chiragh P.W. and had seen the appellant giving Chhuri blows to the deceased on the left cheek and on the left shoulder of the deceased. He stated that a number of other persons had also arrived there. During cross‑examination, he was not found to have stated in his statement before the police that he was attracted to the scene of occurrence on hearing shrieks of Mst. Rajo. He admitted that he used to sell cloth on Phairi on a cycle, but denied the suggestion that he used to return home after sunset. He stated that in summer he used to return home before noon. He stated that his house was at a distance of five houses from the spot. He gave the names of the owners of the houses intervening his house and the spot. He expressed inability to say as to what had happened prior to hue and cry, on which he was attracted to the spot. He denied that Mst. Rajo was paternal‑aunt of his father. He denied the suggestion that he had not witnessed the occurrence and had made a false statement. He denied the suggestion that the deceased used to make indecent overtures to the wife of the appellant, or that appellant had gone to the house of the deceased to lodge a protest where the deceased quarrelled with him, threw him on the ground and tried to strangulate him and that the appellant in order to save himself gave injuries to the deceased with the Chhuri, which he picked up from nearby kitchen.

Sardar Muhammad S.I., who had investigated the case after recording statement (Exh.P.A.) appeared as P.W.10. He gave the account of investigation and deposed about the arrest of the appellant and recovery of Chhuri at the instance of the appellant. During cross‑examination he denied the suggestion that he had first visited the spot and had recorded the statement thereafter, after deliberations. The suggestion that he had set up Chiragh and Razzaq P.Ws. was denied by him. He also denied that he had planted the recovery of Chhuri.

The statement of the S.I. regarding recovery of Chhuri at the instance of the appellant has been corroborated by Abdul Haq, who appeared as P.W.7. During cross‑examination, P.W.7 admitted that he was neither a member of the Union Council nor Lambardar of the Chak. He admitted that the Investigating Officer had not sent for any member of the Union Council nor Lambardar at the time of recovery of Chhuri. He denied that he had made a false statement.

8. The appellant during his statement under section 342, Cr.P.C. denied the prosecution case as a whole. He denied to have led to the recovery of Chhuri. In answer to the question, 'Have you anything else to say', he stated as follows:‑

"I am innocent. I was employed in the border police and I would be allowed to visit my house after few months with difficulty. I had come to my village only on that day and in the afternoon my wife informed me that the deceased was making indecent overtures to her. After sometime at about 5 p. m. I went to his house and asked him to mend his ways and not to tease my wife. Thereupon the deceased got infuriated, abused me and quarrelled with me and he threw me down on the ground near the kitchen. He strangulated me very harshly. At that time I struggled hard and got a reasonable apprehension of danger to my life. I was able to lay my hand upon a kitchen Chhuri lying nearby and I acted in the right of self‑defence. I never intended to commit the murder."

He did not lead any evidence in defence, nor made statement under section 340(2), Cr.P.C.

9. The appeal has been filed through jail, as such nobody represents the appellant. The appeal is, therefore, being decided with the assistance of the counsel appearing for the State.

10. The killing in this case has not been denied by the appellant. The appellant also admits the time, date and place of occurrence. The only question that needs consideration and adjudication is, whether the appellant had murdered the deceased after launching a deliberate murderous assault or he had caused injuries to the deceased which resulted ‑in the death of the latter, in defence while rescuing himself?

11. The complainant was not inimical to the appellant in any manner prior to the day of occurrence. She had not even protested to the flying of pigeons by the appellant by going up the roof. It was the deceased, her son, who had objected to that. There is nothing on record to consider that such objections had ever been made on earlier occasions also. The presence of Mist. Rajo in her house at the time of occurrence, which was the time for breaking fast, can also not be doubted for any reason. The suggestion put to her that she had gone out of the house was denied by her. Her statement, therefore, cannot be thrown away for any reason.

12. Abdur Razzaq P.W. was also not inimical to the appellant in any manner. Not even a suggestion was put to him about of his having differences with the appellant. He is not related to the deceased. Although he was not residing in the adjacent house, but he was living in the neighbourhood. The statement made by him also, therefore, cannot be brushed aside for any cogent reason.

13. The stance taken by the appellant that the deceased used to make indecent overtures to his wife, does not find support from anything on record. A suggestion in this regard was put to Mst. Rajo and Abdur Razzaq P.Ws. Both of them denied that categorically.

His version that he had gone to the house of the deceased to tell him not to behave in that manner seems to be unbelievable. If he had any such grievance, he would not have approached the deceased directly and that too by going over to him in his house. He would have naturally approached some of the elders of the deceased or respectables of the village.

The stance taken by him that the deceased had fallen him down and had started strangulating him, also stands negatived from the fact that no injury was found on his person at the time of his arrest. He was not caught at the spot. His arrest was effected five days after the occurrence. He could have got himself medically examined during this period easily.

His version that he had picked up Chhuri from the kitchen of the house of the deceased also is not believable. If he had been fallen down and was being strangulated, how could he have reached the kitchen of the deceased. Had he inflicted the injuries with the Chhuri picked up from there, he would not have taken that Chhuri to his house. The recovery of Chhuri at his pointing out from the ceiling of room of his house further negatives the stand taken by him.

14. No doubt the accused is not bound to produce evidence in defence about his innocence, still if he puts up a version, he is expected to bring on record something in support of his version, which he can do without any special efforts. In the case in hand, the appellant could have easily produced his wife in support of his version because even according to him, it was she who had informed him that the deceased had been making indecent overtures to her.

15. After having carefully considered the stance taken by the appellant, I am convinced that there is no wink of truthfulness in the statement made by the appellant. The prosecution appears to have proved the case against him on the strength of ocular account, evidence of recovery of weapon of offence and the medical evidence, without reasonable shadows of doubt.

There is no merit in this appeal. The same is dismissed.

M.Y.H./M‑629/L Appeal dismissed.