BASHIR AHMAD Versus THE STATE
Learned Sessions Judge, Gujranwala having tried Bashir Ahmad appellant (22) alongwith Allah Ditta (50), Rahim Bakhsh (45) and Muhammad Mansha (13), father, paternal-uncle and cousin respectively for the murder of Allah Ditta (20) vide judgment, dated 30-4-1987 acquitting the latter three convicted and sentenced the appellant under section 302, P.P.C. to imprisonment for life with a fine of Rs.2,000 in default to serve one year's R.I. in addition to payment of Rs.10,000 as compensation to legal heirs of the deceased, in default to serve 6 months' R.I. with the benefit of contemplated by section 382-B, Cr.P.C. legality whereof has been assailed by virtue of the present appeal.
2. Nabi Bakhsh P.W.6 father of the deceased on 28-10-1986 at 8-30 a.m. recorded statement Exh.P.C. with Ghulam Hussain, A.S.I. P.W.8 upon showing up at the spot, learning of the incident while on patrol duty in Kot Hassan Khan, on the basis whereof formal F.I.R. Exh.P.C./1 was registered by Naqi Hussain, Moharrir/Head Constable P.W.3 at 9-30 a.m. at Police Station Sadar Hafizabad. 10 miles away to the effect that on the preceding evening the deceased got entangled with the appellant and the acquitted co-accused upon restraining the latter from lifting street's earth alongwith their's having been dumped during construction of their house wherefrom they were disengaged by womenfolk with the assailants hurling threats to teach a lesson for the same. In the furtherance whereof, upon stepping into the street. He was confronted with an exhortation around 7-00 a.m. by the acquitted co-accused being empty handed and the appellant equipped with a Chhuri within the complainant's view watching from the house door and during chase was overpowered in front of Mumtaz Ahmad Awan's house entrance. Rahim caught hold of him by the upper limbs, Mansha took him into clasp from the rear while the appellant stabbed him in the abdomen on the left side who dashing into Mukhtar Ahmad Awan's house collapsed there and succumbed to the injuries. The incident was also witnessed by the complainant's daughter Mst. Sabran, Mst. Norran (given up as unnecessary) and the latter's husband Manzoor Ahmad.
3. Ghulam Hussain, A.S.I. P.W.8 after recording the complaint prepared injury statement Exh.P.G., inquest report Exh.P.H. of the deceased despatched the dead body to the mortuary for post-mortem examination under Aman Ullah F.C. P.W.2's escort who on the next day tendered the deceased's last worn blood-stained clothes Shirt P.1, loin-cloth P.2 taken into possession vide memo. Exh.P.B., prepared rough site plan Exh.P.I., secured into possession blood-stained earth vide memo. Exh.P.E., on 29-10-1986 arrested the appellant alongwith Mansha and Allah Ditta upon voluntary appearance and Rahim on 1-11-1986, effected recovery of blood-stained Chhuri P.3 from the appellant's house on his pointation on 31-10-1986 vide memo. P.F. attested by Abdul Ghafoor (given up), Muhammad Ilyas P.W.5 and the Investigating Officer got prepared site plan Exh.P.D. from Rana Nadim Masud Draftsman P.W.4 and testifying the investigation in cross-examination stated that the deceased's body was lying in the complainant's courtyard, blood-stained earth was collected from the street and not from Mumtaz Awan's house nor did he notice any trail of blood, nor did he find any knife lying on the spot, both the recovery witnesses Muhammad Ilyas P.W.5 and Abdul Ghafoor (given up) were known to him being witnesses to the recovery of the deceased's blood-stained clothes, pleading ignorance as to their relationship with the latter affirmed that motive incident was not verified and the appellant's adopted stance as to abusing of his mother was not found to be cause of assault.
4. Dr. Muhammad Akhtar P.W.9 on the same day around 4-00 p.m. conducted autopsy on the dead body brought by Aman Ullah F.C. P.W.2 identified by the complainant and Manzur Ahmad P.W.7 and vide post mortem report Exh.PJ. observed as following:--
"Verticle incised wound 3-1/2 c.m. x 1-1/4 c.m. going deep on front of abdomen upper part left side, 8 c.m. from midline and 12-1/2 c.m. below left nipple."
All muscles of abdomen, anterior wall of stomach and left liver lobe cut through and through, stomach containing blood, small intestine digested food, large intestine faecal matter, urinary bladder empty, all other organs healthy; death was opined to have been caused due to shock and haemorrhage resulting from the injury to liver and stomach, ante-mortem, sufficient to cause death in the ordinary course of nature of sharp-edged origin, duration between injury and death soon, within 12 hours whereof post-mortem was conducted.
5. Nabi Bakhsh complainant P.W.6 reiterating the prosecution story stated that all the assailants reside in one house within the same street with whom they had no previous enmity, Manzur Ahmad P.W.7, Abdul Ghafoor (given up) and Muhammad Ilyas P.W.5 are respectively sons of Mauj Din and Ahmed Din who are not his real paternal-uncles but cousins of his father, Manzur Ahmad P.W. has separate residence within the same Haveh with an intervening wall, the deceased had taken breakfast and "Lassi", did not rush to his house upon being confronted with the exhortation nor did he raise any alarm, was injured 10 yards away from his house door wherefrom he was distanced by three yards, vehemently refuting the suggestion of the deceased having disgraced appellant's mother Mst. Fatima by cracking obscene joke, dancing nude and subjecting her to beating, appellant's arrival at that juncture from the fields and stabbing the former in sudden and grave provocation with pocket "Maswak" knife, non-precipitating of the motive incident and lying of the dead body in his house where the police arrived, however, his statement was recorded after examining the deceased's injury.
6. Manzur Ahmad P.W.7 corroborated the complainant on all material particulars stating that he witnessed the occurrence while returning from the fields after answering the call of nature.
7. Positive reports of the Chemical Examiner and that of the Serologist qua earth and crime weapon Exhs.P.K., P.L., P.M. and P.N. respectively were tendered in evidence by the Public Prosecutor. Rest of the evidence was of formal nature.
8. The acquitted co-accused pleaded false involvement due to party faction whereas the appellant in his statement under section 342 as well as 340(2), Cr.P.C. admitting the incident, contradicting the allegations gave his version of the occurrence in the following terms:--
"No incident took place on the evening preceding the day of occurrence. On 28-10-1986 I had gone out to the fields from my house early in the morning with a knife for Maswak and to answer the call of nature. When I was returning to my house I saw Mst. Ghulam Fatima my mother collecting earth from the Gali. At that time Allah Ditta deceased disgraced her and also gave her a beating and danced in a naked position by removing his loin-cloth from the front side of his body. I lost my mental balance and gave a knife blow to Allah Ditta deceased in the Gali. Remaining three accused were not present there at that time. I left the knife at the spot. I appeared before the police on the same day of my own and stated my version. I also produced my mother before the A.S.I. These facts have been suppressed by the prosecution and we have been falsely implicated in this case with the collusion of Mumtaz Awan with the complainant party. We did not have any previous enmity with complainant party." .
9. Learned counsel questioning legality of the appellant's conviction andsentence submitted that the F.I.R. was lodged after deliberations and preliminary on the spot enquiry, the set out motive remains unproved, prosecution witnesses being closely related inter se and disbelieved qua the acquitted co-accused have rendered their version amenable to grave doubt as to the appellant as well warranting corroboration from independent source which is lacking, recovery of the crime weapon having not been witnessed by any independent person of the locality does not furnish the sought for corroboration, belated despatch thereof to the Chemical Examiner tends to suggest plantation and, lastly, the prosecution has failed to prove its case as originally set up in the F.I.R.
10. While learned counsel appearing on behalf of the State and the complainant has supported the judgment.
11. Having gone through the entire evidence of the admitted occurrence visualising the prosecution story in juxtaposition with that of the appellant, I am not persuaded by the contentions urged for the reason that not only the appellant's stance is utterly improbable in view of the size and dimension of the claimed weapon of assault, viz., common pen-knife of 3 inch folding blade which not only should have folded upon thrust against the body but also by no stretch of imagination could have inflicted the complained of injury and remained irreconciled by the learned counsel for the appellant upon specific query nor admittedly the appellant's mother Mst. Fatima was exposed to 11 any medical examination for the alleged manhandling.
12. Conversely the prosecution case stands fully proved through unimpeached testimony of the complainant and Manzur Ahmad P.Ws. of the broad daylight occurrence whose presence at the venue of occurrence being natural inhabitants is beyond any manner of doubt and stands vouched by E insertion of their names in the inquest report drawn up at the spot by the Investigating Officer, who admittedly had no enmity against the appellant prior to the promptly reported,"currence and remains undented despite conferment of benefit of doubt to the acquitted co-accused for safe administration of criminal justice since sifting of chaff from the grain being the time honoured B phenomenology.
13. Consequently the appeal being devoid of any substance fails and is hereby dismissed.
14. The -appellant is on bail, should be taken into custody for serving out the remaining sentence.
N.H.Q./B-130/L Appeal dismissed.