MUHAMMAD JAVED Versus STATE
Learned Additional Sessions Judge, Gujrat having tried Muhammad Javed appellant (19) together with his father Abdul Aziz (53) for the murder of Muhammad Ashraf deceased (21) and murderous assault on Mukhtar Hussain P.W.8 and Muhammad Rafiq (given up P.W.), acquitting the co-accused convicted and sentenced the appellant under section 302, P.P.C. to imprisonment for life with a fine of Rs. 20,000 in default to serve two years' R.I., in the event of recovery thereof half of it to be paid as compensation to legal heirs of the deceased concurrently under section 324, P.P.C. to 2 years' R.I. vide the impugned judgment, dated 24-9-1989, legality whereof has been assailed through Criminal Appeal Nb.689 of 1989 while the complainant by virtue of Criminal Revision No.172 of 1990 has impugned legality of the co accused's acquittal in addition to seeking enhancement of the appellant's sentence which are being disposed of hereinbelow.
2. Mukhtar Hussain complainant injured P.W.8, a 2nd year student and brother of the deceased on 20-12-1987 around 9-40 p.m. got recorded statement Exh.P.A. with Ghulam Abbas, A.S.I. P.W.2 in Aziz Bhatti Shaheed Hospital, Gujrat on the basis whereof formal F.I.R. Exh.P.A./1 was registered by Pervaiz Akhtarj A.S.I. P.W.1 at Police Station Civil Lines, Gujrat at 10-00 p.m. initially under section 307/34, P.P.C. which charge upon passing away of the deceased at 2-00 a.m. was amended to section 302, P.P.C. to the effect that the appellant with a view to avenging the noon time trifling with the deceased around 5-30 p.m. equipped with Chhuri alongwith the co-accused carrying knife emerged on the culvert across Kashmir Colony of which they all were residents where the deceased alongwith complainant and their paternal nephew Muhammad Rafiq (given up injured P.W.) were chatting. The co-accused exhorting to do away with them inflicted knife blow on the complainant's left upper arm while the appellant thrusted Chhuri into Muhammad Rafiq's abdomen on the left side and on the rear right flank of the deceased, consequent whereto both collapsed on the ground whereafter the assailants vanished away. The occurrence was also witnessed by Muhammad Jamil P.W.10', Muhammad Sadiq and Muhammad Din. Both the injured were removed to the hospital where the deceased succumbed to the injuries.
3. Ghulam Abbas A.S.I. P.W.2 after recording the complaint secured into possession blood-stained shirts of Muhammad Rafiq P.1, Mukhtar Hussain P.2 vide memo. Exhs.P.C. and P.D. respectively, blood-stained earth vide memo. Exh.P.G., through application Exhs.P.E. and P.T. sought doctor's opinion as to whether the injured were in fit condition to make statement whereafter the investigation was taken over by Malik Muhammad Ashraf, S.I. P.W.11 on 21-12-1987 who prepared the deceased's inquest report Exh.P.P. injury statement Exh.P.Q. despatched the dead body to the mortuary under the escort of Muhammad Shafiq, F.C. P.W.3 who subsequently tendered the last worn clothes of the deceased shirt P.3, Shalwar P.4, Chadder P.5 secured into possession vide memo. Exh.P.H., on 21-12-1987 got prepared site plan Exh.P.M. from Muhammad Ashraf Toor, Draftsman P.W.6 arrested the appellant on 29-12-1987 who on 2-1-1988 led to the recovery of blood-stained Chhuri P.6 from the room of his house concealed in the ceiling taken into possession vide memo. Exh.P.O. witnessed by Muhammad Bashir P.W.9 (maternal-cousin of the deceased), Muhammad Shafi (given up) in addition to the Investigation Officer and in cross-examination stated that presence of the co accused at the'venue and time of occurrence was not established beyond doubt, prepared injury statement of the appellant Exh.D.B. incorporating therein opinion of Dr. Muhammad Jamil Ahsan P.W.7 due to non-availability of the prescribed form for the medical examination, observing 2 healed wounds 2 x 25 c.m. on the outer aspect of the left little finger located on the middle phalanx and first phalanx of 8 to 12 days duration in recalled testimony, appellant's mother was present in the house at the time of recovery, both the recovery witnesses joined him from the police station, pleading ignorance as to purpose of their visit, controverted the suggestion as to failure to record the exact defence version.
4. Dr. Muhammad Munir P.W.5 on the day of occurrence at 6-30 p.m. examined the deceased as well as Muhammad Rafiq and Mukhtar Hussain injured vide medico-legal reports Exhs.P.I., P.J, P. L. respectively. The injuries were on non-vital parts and were advised X-rays.
5. Dr. Muhammad Jamil Ahsan P.W.7 on 21-12-1987 conducted autopsy on the dead body of the deceased brought by Muhammad Shafiq F.C. P.W.3 identified by Sher Dil P.W.13 and vide post-mortem report Exh.P.N. noted the following:--
(1) An incised wound with two stitches of 2 c.m length was present on the fight renal area i.e. the angle of ribs and vertebra column corresponding cuts on the clothes were present.
(2) Scratch on the outer aspect of upper thigh 8 c.m. below the illiac crest
(3) A curved scratch on about mid front of thigh 6 c.m. x 1/2 c.m. dimension.
All other organs normal and healthy, a hole of 1-1/2 c.m length in the mesentary attached with the ascending colon near the right colic flexure with like size of tear in the mentum, right kidney injured superficially in the middle of posterior surface, stomach empty, death was caused due to shock and haemorrhage from injury No. I sufficient to cause death in the ordinary course of nature, ante-mortem of sharp-edged origin, probable duration between injuries and death 8 to 12 hours within 10 hours whereof post-mortem was conducted; responding to questions stated that injury No.l was stitched wound while injuries 2 and 3 were superficial and might have been caused due to fall as well.
6. Mukhtar Hussain complainant P.W.8 reiterating the prosecution story explained that the motive incident occurred over construction of a wall, the police arrived in the hospital at 9-00 p.m. other inhabitants of the area were also attracted to the scene but by that time the assailants had run away, his house is 50/60 feet away from the culvert where they were putting up together as a joint family, none of them was armed nor did they inflict any injury to the appellant, assailants were not seen prior to the exhortation, he was still rising when he received injury at the hands of the acquitted co-accused while Muhammad Rafiq injured suffered the injury in a standing posture and the deceased when he was about to move away, vehemently refuted the suggestion of having waylaid the appellant alongwith the deceased carrying a Sota and Rafiq Chhuri as well as causation of stick injury to the appellant by the former who snatching Chhuri from the latter in self-defence inflicted one injury to each of them; he was present by the deceased during the motive incident but neither of them suffered any injury at that time.
7. He was corroborated on all material particulars by Muhammad Jamil P.W.10, a neighbour, belonging to the same brotherhood and engaged in cleaning Verandah of the mosque, two houses away at that time.
8. The Assistant District Attorney tendered in evidence positive reports of the Chemical Examiner as well as that of the Serologist qua earth, straws and Chhuri Exhs.P.T., P.U., P.T./1 and P.U./1, respectively, while rest of the evidence was of formal nature.
9. The appellant in his statement under section 342, Cr.P.C giving his version of the incident opted not to depose under section 340(2) ibid "The P.Ws. are inter se related and inimical towards me. On the day of occurrence Mukhtar, Rafique P.Ws. and Ashraf deceased were sitting at the Pulli and had waylaid me. Ashraf deceased was armed with a Sota and Rafique P.W. was armed with a Chhuri. When I passed near them, Mukhtar Hussain P.W raised Lalkara that I should be done to death and at the same time they attacked me. Ashraf deceased caused injuries to me with Sota and Rafique P.W. was to inflict Chhuri blows to me so I struggled with him and succeeded in snatching the Chhuri from him. Mukhtar Hussain P.W. wanted to grapple with me so in self-defence of my person and in order to save myself from the clutches of accused, I gave one blow to each of the P.Ws. and the deceased, I have committed no offence. No other P. W . was present at that time nor Abdul Aziz accused was present there at that time. As Ashraf deceased died subsequently, so I was falsely roped in alongwith my father Abdul Aziz accused. The police did not record my statement truly and correctly. Though I had appeared before the police on the day of occurrence voluntarily but the police did not produce me before any Magistrate and in spite of my insistence did not get me medically examined. The police wanted that my injuries be healed so that my plea of self-defence be eliminated. The police kept me in wrongful confinement and when they made it sure that my injuries had healed they produced me before Magistrate and got me examined by a doctor at the asking of the Magistrate".
10. On the basis of the aforegoing the learned trial Court returned the verdict under appeal.
11. Learned counsel for the appellant challenging the findings submitted that the prosecution story is not worthy of credence for suppressing the appellant's injuries seat whereof tends to demonstrate that the complainant side was the aggressor and he was warding off the assault; Muhammad Jamil P .W. is purely a chance witness while no independent person from the locality has, supported the prosecution story; recovery is doubtful viz. retention of the blood-stained crime weapon as a souvenir is incredible specially-being a case of joint possession, motive furnished by the complainant remains unproved; conversely the appellant's version of the occurrence is reasonably probable. In the alternative, being a case of solitary injury in a sudden flare up without previous enmity, the sentence under appeal is not called for.
12. To which learned, counsel for the complainant joined issue submitting that the occurrence having been admitted the defence version taken in its totality seems to be highly improbable viz., the appellant despite being injured succeeded in causing fatal injuries to the deceased and the complainant; the injury found on the appellant's person is self-suffered; the seat and the nature of the injury being attributed to the deceased has been pleaded in oblivion of the fact that had that been true it would have resulted at least fracture of the index finger, thus is a convenient afterthought. While learned counsel appearing on behalf of the State supported the judgment.
13. Having minutely examined the evidence and visualising the prosecution story in juxtaposition with that of the defence version I am of the considered view that the latter utterly lacks credence viz., the appellant causing two sharp- i edged injuries to the complainant and the injured P.W. within the presence of the deceased armed with a stick subsequent to the administration of injury thereby. Had that been so the appellant would have not been allowed to cause the fatal injuries to two persons, conversely would have been easily overpowered by Muhammad Rafique P.W. equally equipped with Chhuri and supplemented with serious injuries, while the deceased sought to have kept him at sticks distance, thus is a convenient afterthought whereas the prosecution has convincingly proved its case through the ocular account furnished by the injured complainant and stands corroborated by the independent testimony of Muhammad Jamil who resides within the immediate vicinity of the occurrence where his presence has been logically explained and the unimpeached medical evidence, while the minor discrepancies pointed out by the learned counsel for the appellant are of no avail in view of the admitted occurrence. Consequently appellant's conviction and sentence is unexceptionable and the appeal being devoid of any substance is hereby dismissed. The appellant being on bail should be taken into custody for serving out the remaining sentence.
14. Likewise, no case for enhancement of the sentence or taking a different view as to co-accused's acquittal is made out, so the revision also meets the same fate.
N.H.Q./M-1798/L Appeal dismissed.