MANAK Versus STATE
The appellant Khalil Ahmad son of Ali Sher aged about 21 years was tried by the Sessions Judge, Toba Tek Singh, on the charge under section 302, P.P.C. for having committed the murder of Muhammad Aslam (deceased). Vide judgment dated 1‑12‑1980, the learned Sessions Judge found the appellant guilty on the said charge and thus the appellant was convicted and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000 or in default thereof to suffer another term of one year R.I. It was also directed that the appellant shall pay Rs.10,000 as compensation under section 544‑A Cr.P.C. to the legal heirs of the deceased, or in default thereof the appellant would suffer another term of simple imprisonment for six months.
2. Aggrieved by his conviction, the appellant has preferred this appeal (No.715 of 1986) while the complainant has also riled a Criminal Revision (No. 90 of 1987) praying that the sentence be enhanced from life imprisonment to death. This judgment shall dispose of both the appeals as well as the revision.
3. The unfortunate occurrence resulting into the death of Muhammad Aslam took place on 27‑3‑1986 at 7‑30 p.m. in the Bazar of Mohallah Bakhshi Park, Toba Tek Singh. The occurrence was reported at the Police Station by Ghulam Rasool the father of the deceased vide F.I.R. Exh.P.E. recorded at 8‑30 p.m. by Muhammad Safdar, S.H.O. P.W.9.
4. In brief the prosecution case as disclosed in the FIR was thus on the fateful day at about 7‑30 p.m., the complainant Ghulam Rasool P.W.7 alongwith Dilber Hussain PW.8 and Muhammad Shafi and Muhammad Siddique (both not produced) were taking tea on the shop of Noor Muhammad Kumhar in front of Bilal Masjid, Toba Tek Singh. The complainant and the eye‑witnesses saw that the deceased Muhammad Aslam came running from the side of his house and was being chased by the appellant who was armed with a Chhuri. The deceased Muhammad Aslam saying that he should be saved entered in the shop of Noor Muhammad Kumhar and in the sight of the complainant and the other eye witnesses, the appellant Khalil Ahmad inflicted a Chhuri blow on the left side of the chest of the deceased as a result of which, the deceased fell down. The appellant inflicted further blows with the Chhuri on the hands, legs and thigh of the deceased. The complainant and the other witnesses raised an alarm on which the appellant ran away from the scene of occurrence. The deceased was being taken on a donkey cart to the District Headquarter Hospital, T.T. Singh when on his way, he was succumbed to the injuries. The complainant Ghulam Rasool P.W.7, leaving his son Abdul Khaliq to guard the dead body proceeded to Police Station, Toba Tek Singh where as stated above, the F.I.R. was lodged and a case was registered against the appellant.
5. The motive for the commission of crime as stated in the F.I.R. was that 15 days before the occurrence, the appellant was allegedly playing cards in the street where the appellant and the deceased were living. The deceased forbade the appellant from playing cards near his house which resulted into exchange of abuses. It was thus stated that on account of said grievance, the appellant had killed the deceased.
6. On 28‑3‑1986 at 9‑00 a.m. Dr. Khalid Mehmood, PW.1, conducted the post‑mortem examination on the dead body of Muhammad Aslam, deceased and noted the following injuries:‑
(1) A stab wound 3.2 cm x 1.5 cm vertically oblique on front of left side of chest 4 cm above and outside of nipple; going through third inter costal space cutting the 3rd and 4th ribs through and through and reaching chest cavity going medially from outside.
(2) A stab wound 3.2 cm x 1.5 cm vertical on the back of left hand between 4th and 5th meta carpal bones going through and through in front of palm making incised wound 3.2 cm x 1.5 cm.
(3) An incised wound 2 cm x .5 cm superficial on the front of right middle finger at middle phalanx vertically oblique.
(4) A superficial incised wound 3.2 cm x. 5,cm on the front of middle of right fore‑arm horizontal.
(5) A stab wound I cm x 0.5 cm x muscle deep on back of middle part of left thigh. Horizontal vertically oblique.
(6) An incised wound 2 cm x I cm x 0.3 cm deep on back of left knee. Horizontal.
There was cut on the left side of pleurae.
A cut was present through and through in the lungs with left cavity full of blood. A cut was present on the paricardium and heart at left ventricle. In the opinion of the doctor, the death had occurred due to shock and haemorrhage on account of injury No.l which was sufficient to cause death in the ordinary course of nature. All the injuries were opined to have been caused with a sharp‑edged weapon.
7. On 28‑3‑1986, the appellant was arrested and while in police custody, he led the police to his residential house from where he got the blood‑stained Chhuri P.6 recovered which was taken into possession vide memo Exh.PH. attested by Dilber Hussain P.W.8 and Muhammad Siddique (not produced) besides the Investigating Officer Muhammad Safdar SI, PW 9. The Chhuri was sent to the Chemical Examiner and Serologist and according to their report, it was found to have stains of human blood.
8. At the trial to prove its case, the prosecution placed reliance upon the ocular testimony furnished by Ghulam Rasool P.W.7, father of the deceased and Dilber Hussain PW.8, a relation of the ‑deceased while Muhammad Shafi and Muhammad Siddique cited in the FIR were given up. In addition to the ocular testimony, the prosecution also placed reliance upon the recovery of Chhuri P.6 at the instance of the appellant which had stains of human blood and also the evidence as to the motive and the medical evidence. The appellant refused to enter the witness box to make a statement on oath under section 340(2) Cr.P.C. When examined under section 342 Cr.P.C. the appellant admitted the occurrence and pleaded that he had acted, under grave and sudden provocation because at that time he saw the deceased holding the hand of his sister namely Mst. Zahida Parveen whereupon he lost self control and inflicted a Chhuri blow which he was carrying in a bag with him.
9. I have heard the learned counsel for the parties at length and I have carefully perused the record of this case. It was strenuously argued by the learned counsel for the appellant that the learned Sessions Judge had erred in rejecting the plea of sudden and grave provocation raised by the appellant. It was further contended that since the motive was not believed, therefore, the plea of the appellant should have been accepted. It was also contended that the ocular testimony in this case consists of interested and related witnesses and therefore, the same should be rejected and the statement of the appellant under section 342 Cr.P.C. in its entirety should be believed.
10. It may be stated here that the families of the appellant and the deceased are the residents of the same Mohallah and the presence of the eye‑witnesses Ghulam Rasool P.W.7 the father of the deceased and Dilber Hussain PW.8 at about 7‑30 p.m. at the tea shop of Noor Muhammad Kumhar in the Mohallah cannot be doubted. They had seen the deceased running and being chased by the appellant. In all probability, when the deceased was being chased, he having seen his father would have naturally rushed to the shop of Noor Muhammad where the occurrence took place. No doubt, these witnesses had exaggerated about the motive and at the trial, they stated that after the receipt of injuries, file deceased was still in senses and had told the witnesses that 15 days before, he had forbidden the appellant from playing cards which resulted into the exchange of abuses. This vital aspect of the case was rightly disbelieved by the learned trial Judge because the same did not find mention in their previous statements made before the police under section 161 Cr.P.C. The question is that should the entire testimony of the witnesses be discarded on account of this exaggeration. After careful consideration of the statements of the witnesses, I am of the view, that such improvement alone cannot make the witnesses unworthy of belief. In this view of the matter, it is no doubt that the eye‑witnesses had seen the occurrence. No enmity worth the name was suggested either to the father of the deceased or Dilber Hussain PW.8 so as to infer that they had motive to falsely implicate the appellant.
11. The question falling for determination is whether the pica of the appellant is correct or not. In cross‑examination, suggestion was given to the witnesses that uncle of the appellant Muhammad Sharif was a Headmaster and the sister of the appellant Mst. Zahida Perveen was going to her house after having studied in the house of Muhammad Sharif when she was caught hold of by the deceased. It may be mentioned here that neither Muhammad Sharif, the Headmaster nor Mst. Zahida Parveen was produced in defence. The appellant had refused to make statement under section 340(2), Cr.P.C. It is not known what is the age of the sister of the appellant. It is further important to note that the house of the Headmaster is situated in the same area and the record also shows that there was no light at the said place. It is not possible to believe that at the said odd hour, the girl would be allowed to go and come alone from her house at 7‑30 p.m. in the month of March. The special pica which has been raised by the appellant has not been satisfactorily proved and, therefore, it cannot be believed.
12. Another important feature of the case taken note by the learned trial Judge to discard the plea of the appellant was the type of the weapon of offence.
The recovery has been believed and the weapon of offence was a brand newt Chhuri which the appellant on his own admission was carrying in his bag. Normally one would not wander with such a weapon of offence in his bag unless he has intended to commit some mischief or to cause damage to someone. The appellant has also failed to explain the circumstances in which he was possessing the Chhuri at the relevant time. In all probability, he was carrying it to find an opportunity, to kill the deceased. In this view of the matter, I would subscribe to the view of the learned trial Judge that the plea raised by the appellant is devoid of force. Since the origin of the fight and the motive is shrouded in mystery and. has been rightly disbelieved, therefore, the learned trial Judge, rightly convicted the appellant under section. 302, P.P.C. by awarding appellant the lesser penalty.
13. The upshot of the above discussion is that the prosecution has proved its' case beyond any reasonable doubt and, therefore, this appeal has no substance and is hereby rejected.
14. Adverting to the Revision Petition filed by the complainant, I am of the, view that it has no substance because no case is made out for the enhancement of sentence. It may be observed that the origin of the fight in this case is unknown) and the motive sought to be set up by the prosecution has been disbelieved. One' Khadim Hussain PW.6, examined by the prosecution, to depose about the motive but his testimony is of no avail to the prosecution. He was a chance witness and was a resident of a village three miles away from the place of occurrence. Furthermore, the wife of the witness is the real sister of the deceased, hence he cannot be relied upon to believe the motive as sought to be set up by the prosecution. Since the origin of the fight is in mystery, therefore, the learned trial Judge was justified to impose the lesser penalty. In this view of the matter, this revision petition is also dismissed.
M.Y.H./K‑116/L Appeal dismissed.