MNNIR AHMAD Versus STATE
CH. GHULAM SARWAR, J. --- Munir Ahmad alias Munira was tried by the learned Additional Sessions Judge, Vehari for having committed the murder of Din Muhammad on 9-3-1986 at 3-10 p.m. in the area of Chak No.15/W.B. at a distance of seven miles from Police Station Saddar Vehari, District Vehari.
2. Vide judgment, dated 27-2-1990 Munir Ahmad was convicted under section 302, P.P.C. and was sentenced to death with a fine of Rs.10,000, in default whereof to undergo R.I. for two years. Fine, if realised was directed to be paid to the legal heirs of the deceased as compensation.
3. Being aggrieved the appellant has filed Criminal Appeal No.36 of 1990 against his conviction and sentence and the learned trial Judge referred this case for confirmation of death sentence under section 374, Cr.P.C. and both are being disposed of together through this single judgment.
4. F.I.R. Exh.P.G.1 was registered at the police station by Abdul Sattar, Moharrir P.W.6 on the basis of complaint Exh.P.G. which was recorded by Aftab Ahmad, S.I. P.W.10 upon the statement of Kamal Din, complainant P.W.8 on 9-3-1986 at 4-10 p.m.
5. According to the F.I.R. Kamal Din P.W.8 was present in his house at 3 p.m. alongwith his brother Din Muhammad, deceased when Maqsood Ahmad P.W.9 visited his house and took alongwith him Din Muhammad deceased. After a short while, as stated in Exh.P.G. at about 3-10 p.m. he alongwith Shah Muhammad (given up P.W.) was going to village mosque when they heard alarm from the Western side and ran towards the same. They found that near a watercourse Munir Ahmad appellant armed with hatchet was standing on the western side of the canal whereas Din Muhammad, deceased alongwith Maqsood Ahmad alias Sooda were standing on the Eastern side of the bank of the canal. Munir Ahmad appellant at once, crossed the Khaal and came to Eastern side while raising hatchet and gave a full blow with the same on the head of Din Muhammad deceased which landed on the left side of his head. Din Muhammad fell down. Kamal Din and Shah Muhammad P.Ws. allegedly challenged, the appellant but he ran away from the scene of occurrence with the hatchet. Kamal Din P.W. then took the deceased in an injured condition to the hospital who was still on his way when Aftab Ahmad S.I. P.W.10 met him on General Bus Stand, Vehari and he narrated the occurrence to him at 4-10 p.m. which was taken down by the S.I. as Exh.P.G. and sent the complaint to the police station for formal registration of the case.
The motive as given in Exh.P.G. was that there was a dispute between Munir Ahmad appellant and Dil Mir P.W., as a result of which both were proceeded against under section 107/151, Cr.P.C. and Din 7Muhammad deceased had stood surety for Dil Mir and got him released on bail which offended the appellant and he, therefore nourished a grudge against him.
The occurrence had taken place on 9-3-1986 and the deceased was firstly admitted in the hospital so initially a case under section 307, P.P.C. was registered but the same was altered into section 302, P.P.C. on 30-3-1986 when Din Muhammad died.
6. Aftab Ahmad, S.I. P.W.10 prepared the injury statement of Din Muhammad Exh.PJ. when he recorded Exh.P.G. at Vehari. He thereafter went to the place of occurrence and took blood-stained earth from the place of occurrence vide recovery memo. Exh.P.K. He arrested Munir Ahmad appellant on 17-3-1986 and on he same day he got recovered blood-stained hatchet P.3 at the instance of the appellant and took the same into possession vide recovery memo. Exh.P.M. He through an application Exh.P.M. enquired from the doctor as to whether Din Muhammad injured was fit to make the statement, on which the doctor opined that he was not fit to make the statement. The opinion is Exh.P.N./1. He took into possession the last-worn clothes of the deceased vide recovery memo. Exh.P.D. and prepared the injury statement and inquest report which are Exhs.P.E. and P.F. After the completion of investigation the challan was submitted in the Court.
7. Sh. Abdul Majeed, Medical Officer, District Headquarter Hospital, Vehari P.W.1 examined Din Muhammad deceased on 9-3-1986 at 4-30 p.m. while he was in injured condition and he found the following injury on his person:--
"A horizontal incised wound about 13 c.m. x 3 c.m. on left side extending from the zygomatic to the temporal region above the left ear. The wound was bone deep."
The injury was kept under observation and X=ray of skull was advised. Vide X?ray report No.1334 and 1335/86, dated 9-3-1986 injury was found to be grievous. Exh.P.A. is the correct carbon copy of medico-legal report which is in his hand and bears his signature. Exh.P.B. is the copy of said medico-legal report where in view of the X-ray report injury No.l was declared to be grievous. He stated that report relating to nature of injury being grievous was also in his hand and bore his signature. He deposed that in view of serious condition of the injured he was referred to Nishtar Hospital, Multan the same day.
8. Dr. Iftikhar Hussain Qureshi, P.W.7 Medical Officer, Civil Hospital, Multan did the post-mortem examination on the dead body of Din Muhammad deceased on 30-3-1986 and following injury was observed by him on the dead body:--
"Healed scar of injury No.1 mentioned in Exh.P.B. issued by Medical Officer District Headquarter Hospital, Vehari was present on the dead body."
In his opinion injury No.1 of Exh.P.B. was sufficient to cause death in the ordinary course of life. Death occurred due to septicaemic shock. Injury No.1 was ante-mortem and caused by sharp-edged weapon. The probable time that elapsed between injury and death was about 20 days while the time between death and post-mortem was 24 to 36 hours. After the post-mortem examination dead body alongwith the last-worn clothes of the deceased, police paper and carbon copy of post-mortem report were handed over to Constable Ghulam Hussain. Exh.P.H. is the correct carbon copy of his post-mortem report which is in his hand and bears his signature. Exh.P.H./1 is the diagram showing the locale of injuries. Exh.P.E. and Exh.P.F. are the injury statement and inquest report.
9. The appellant having pleaded not guilty claimed the trial. In order to substantiate the charge against the appellant the prosecution placed reliance upon the testimony of ten P.Ws. including two eye-witnesses such as P.Ws.8 and 9 of the occurrence; P.Ws.1 and 7 as the Medical Officers who medically examined the deceased when he was alive and did the post-mortem examination on its dead body. The remaining witnesses are the formal and the recovery witnesses, whereas Aftab Ahmad P.W.10 is the Investigating Officer of this case. The learned Public Prosecutor tendered in evidence the report of the Chemical Examiner Exh.P.P. and that of the Serologist Exh.P.Q.
10. The appellant when confronted with the prosecution evidence during his examination under section 342, Cr.P.C. he traversed the allegations in their entirety and while professing his innocence he took the plea that prior to the occurrence Maqsood P.W.9 and Shabbir, his brother were trying to level allegation of illicit relations with his sister Mst. Tazim and when he learnt about it he admonished them and quarrelled with Maqsood P.W. who, therefore, involved him in this false case being in connivance with Kamal Din P.W.8. He further stated that when he was in the lock-up in this case Shabbir brother of Maqsood P.W. abducted his sister Mst. Tazim and a case was agitated against them and his sister was recovered from their possession. He further stated that these persons fractured the legs of his uncle Murad in the premises of Sessions Court and that case is also pending against them. It was also stated by the appellant that the deceased survived for about 21 days and was in senses but police did not record his dying declaration as he was not ready to falsely implicate the appellant in this case. However, he denied his participation in the occurrence and pleaded that he was involved on account of enmity with the P.Ws. Nevertheless he did not lead any evidence in his defence and nor he opted to appear as his own witness as required under section 340(2), Cr.P.C. After recording the evidence the learned trial Judge recorded the conviction against the appellant as mentioned above.
11. Learned counsel for the appellant after having taken us through the evidence, criticised the impugned judgment and contended that the prosecution has failed to prove its case against the appellant beyond reasonable doubt and that the learned trial Judge has wrongly placed reliance on the testimony of both the eye-witnesses who are interested witnesses. Kamal Din P.W. is the real brother of the deceased whereas Maqsood Ahmad was his friend and actually he was the person who got him involved in this case falsely with the reasons that his brother Shabbir had abducted Mst. Tazim sister of the appellant and a case against him and his other family members was registered and is pending adjudication. He also argued that Shabbir brother of Maqsood Ahmad P.W. has also caused injuries to Murad Ali maternal-uncle of the appellant and that case is also pending adjudication. It was also submitted that the presence of Kamal Din P.W. is not established on the record at the time of occurrence and nor he could be present there because the mosque to which he was allegedly proceeding for bath is towards East and not towards West where the occurrence, according to him took place. It was vehemently argued that it does not believe to reason that in the presence of Dilmir against whom the appellant had the actual motive, he caused the murder of Din Muhammad and spared Dilmir when the fault of the deceased was that he stood surety for him. It was lastly argued that Kamal Din P.W. has categorically stated that he did not hear the conversation which preceded the 'occurrence between the appellant and the deceased, whereas Maqsood Ahmad P.W. deposed that the deceased and the appellant exchanged abuses for about 4/5 minutes, on the basis of this it was contended that this occurrence took place suddenly in heat of passion and therefore, was not a pre-planned affair and as such the case against the appellant would fall under section 304, Part I, P.P.C. and not under section 302, P.P.C.
It was maintained that the appellant allegedly gave a solitary blow and did not repeat the same which also shows that he had no intention to murder the deceased and the deceased died after 21 days of the occurrence due to septic shock, as a result of pus in the injury and also due to wrong treatment. On the basis of this argument the learned counsel prayed for alteration of sentence of death to imprisonment for life.
12. The learned AA.-G. defended the judgment of the trial Court but conceded on the point of alteration of sentence of death to imprisonment for life.
13. After having heard both the sides we have given our anxious consideration to the arguments advanced by the learned counsel for the appellant and have also reappraised the evidence. We find that both the P.Ws. have been cross-examined at length on all points canvassed for the acquittal but the defence failed to elicit anything from them favouring the defence version. The depositions of both the eye-witnesses have fully been corroborated with each other on all material particulars regarding this occurrence. There is no denying the fact that Kamal Din P.W. is the real brother of the deceased but his deposition cannot be brushed aside on this score alone. The rule of prudence in such cases is that the Courts have to scrutinize the evidence of relative witnesses with some abundant caution. We are of the view that the statements of both the witnesses meet the standard of judicial acceptability and is therefore, worth credence. In this case the occurrence took place at 3-10 p.m. and the report was lodged at 4-10 p.m. so the promptitude with which the matter was reported excludes the possibilities of any consultation or false implication. The point that Dilmir was present but was not attacked has been dealt with exhaustively by the learned trial Judge and, he found that Dilmir was not present prior to the occurrence at the spot and had come over there per chance with his cart when the occurrence had started, as stated in the F.I.R. and in the statements of the P.Ws.
14. The enmity of Maqsood Ahmad P.W. on account of some illicit relations between Mst. Tazam sister of the appellant and her abduction by Shabbir brother of Maqsood Ahmed P.W. was highlighted to prove that Maqsood Ahmad was not an independent witness and rather is inimical towards the appellant but we find that the occurrence of abduction and that of causing injuries by Shabbir to Murad Ali uncle of the appellant took place much after this occurrence. At the time of occurrence there was no enmity between Maqsood Ahmad, Shabbir and the appellant as stated by Maqsood Ahmad P.W. during his cross-examination. We find that Maqsood Ahmad has been nominated in the F.I.R. and was subjected to lengthy cross-examined on all the points but he withstood the same and corroborated P.W.8 on all material points.
15. We find that the eye-witness account rendered by P.Ws.8 and 9 is cogent, consistent and natural; corroborated by the medical evidence and the evidence of motive. The medical evidence is in full accord with the ocular account furnished by these P.Ws. We do not agree with the learned defence counsel that death in this case occurred due to accumulation of pus in the brain injury or due to the wrong treatment given to him and also by the negligence of the doctor. We find that in this case death occurred due to the injury caused to him and the death was the direct result of the injury, although the deceased died after 21 days. It may be pointed out that the doctor had clearly mentioned that injury No.1 was sufficient in the ordinarily course of nature to cause death and also occurred due to septicaemia. This septicaemia was the direct result of the injury inflicted by the appellant.
16. As regards the contention that whether in view of the facts and circumstances of the case and the evidence adduced on record the case against the appellant falls under the ambit of section 302, P.P.C. or under section 304, Part I, P.P.C. we find that Maqsood Ahmad P.W. admitted during the cross-examination that when the deceased and the appellant happened to see each other they started abusing each other which continued for 4/5 minutes prior to the occurrence. The place of occurrence is at a thoroughfare and during the exchange of abuses no person besides the eye-witnesses came to the spot. After having gone through this part of the statement of Maqsood Ahmad P.W. we are of the view that there was some ill-will going on between the parties before the occurrence. This occurrence took place at' the spur of the moment and in the heat of passion. When the appellant saw the deceased there was an exchange of hot words and they abused each other which ultimately resulted into this unfortunate occurrence. We therefore, hold that the appellant caused the injury to the deceased without premeditation in a sudden fight in the heat of passion upon the sudden quarrel falling under Exception (iv) of section 3(0, P.P.C.
17. Advertising to the question of sentence we are .of .the view that the case against the appellant falls under section 304, Part I, P.P.C. We, therefore, hold him guilty as such. Under the circumstances we sentence the appellant to undergo rigorous imprisonment for. 10 years. He is also sentenced to pay a fine of Rs.10,000 and in default of payment of fine he shall have to undergo two years' R.I. The fine, if recovered shall be paid to the legal heirs of the deceased as compensation as envisaged under section 544-A, Cr.P.C. He is also found entitled to the benefit of section 382-B, Cr.P.C.
18. With this modification in the conviction and sentence the Criminal Appeal No.36 of 1990 is disposed of. However, the murder reference is answered in the negative as the death sentence has not been confirmed.
N.H.Q./M-1555/L ??????
Order accordingly.