MUHAMMAD ASGHAR Versus THE STATE
Muhammad Asghar (27) was tried by the Sessions Judge, Khushab, for staving murdered Muhammad Ishaq on 3-11-1989 at 9-15 a.m. in front of the hotel of Muhammad Asghar Muhajar, in Grain Market Quaid Abad, at a distance of 2 miles from Police Station Ganjial, District Khushab.
Vide judgment, dated 21-11-1990, he was convicted under section 302, P.P.C. and sentenced to imprisonment for life plus to pay a fine of Rs.10,000 in default whereof to undergo R.I. for 6 months. He was, also directed to pay a sum of Rs.10,000 as compensation to the heirs of the deceased, in default whereof to undergo R.I. for 6 months
2. The convict has filed appeal through jail.
3. F.I.R. Exh.P.A. was registered at the police station by Qutab Sher, Moharrir Head Constable P W.2 on 3-11-1989 at 10-15 a.m. on the statement of Abdur Rehman P.W.6.
According to F.I.R. the complainant who was running grocery shop, was going to Quaid Abad to purchase some articles. He reached the hotel of Muhammad Asghar Muhajar, near Grain Market, Quaid Abad at 9-15 a.m. He saw Muhammad Ishaq (deceased) son of his sister sitting on a cot 'in front of the hotel. Muhammad Asghar (appellant) came there armed with a knife and launched attack on him (Ishaq). The first blow given by him struck Muhammad Ishaq on the left side of head. The second blow struck him on the right arm. He fell down. Muhammad Asghar gave 2 more blows with the knife on the chest and left flank.
The occurrence, apart from the complainant was also seen by Abdul Majid and Muhammad Azam P.Ws. who were present nearby. They tried to catch Muhammad Asghar but he ran away toward Adda.
Muhammad Ishaq was removed to the Civil Hospital, Quaid Abad. He was medically examined there on the same day at 9-45 a.m. The report was lodged by the complainant after the medical examination.
4. About motive for the occurrence it is stated therein, that the deceased and Muhammad Aslam had slapped Suleman brother of the appellant a few days before the occurrence, and Muhammad Asghar appellant had launched murderous assault on Muhammad Ishaq to avenge that.
5. Allah Bakhsh S.-I. P.W.9 who was entrusted the investigation of the case, while being on patrol duty in Mauza Ganjial, went to the Civil Hospital and recorded statement Exh.P.C. of Muhammad Ishaq, after obtaining the opinion of the doctor, about fitness of the injured to make a statement. The statement was recorded in the presence of the doctor. After the conclusion of the statement, he had obtained the signatures of the doctor with a certificate that the injured had remained conscious while making statement. Thereafter he went to the spot and collected blood-stained earth from there vide memo. Exh.P.G. He also recorded the statements of the witnesses.
The appellant was arrested by the S.-I. on 6-I1-1989. Knife P.3 got recovered by the appellant on the same day was taken into possession vide memo. Exh.P.1 On receipt of information on 7-10-1989 that the injured had expired in the hospital, he went there and despatched the dead body for post-mortem after preparing necessary papers.
After completion of necessary investigation he got the challan submitted to Court.
6. Statements of nine P. Ws. were recorded at the trial.
Dr. Pirzada Syed Alam Shah who had medically examined the deceased, whilst alive on 3-11-1989 at 9-45 a.m., appeared as P.W.1. He had noted following injuries on his person:--
(1) An incised wound 3" x 1/2" x skull deep on left side of the back of head.
(2) An incised stabbed wound 1-1/4" x 1/2" x chest deep on the front of left side of chest, just above the left nipple.
(3) An incised stabbed wound 1-1/2" x 1/2" deep into the chest and abdomen, on the left later side momentum was coming out of the wound.
(4) An incised stabbed wound 1/4" x 1/4" x muscle deep on the outer side of right elbow joint.
The injuries were opined to have been caused by a sharp-edged weapon, within 20 minutes. Injuries Nos. l and 4 were declared simple while injuries Nos.2 and 3 were kept under observation.
He also stated that the S.-I. had recorded statement Exh.P.C. of Muhammad Ishaq on the same day in his presence after obtaining opinion from him that he was fit to make a statement, and that he had remained near the patient when he was making statement and had appended a note also on Exh. P. C. The note is marked as Exh.P.C./1.
Muhammad Ishaq expired on 10-12-1989 at 8-30 p.m. The same doctor on 11-12-1989 performed autopsy on the dead body of Muhammad Ishaq at 8-15 a.m. He found the same injuries on the body, as noted by him at the time of medical examination on 3-11-1989. He had, however, also noted the following marks:--
"(5) A gabbed skin edges of the abdominal operation incision 4" x 1" x 1/2" deep. Peritoneum intact with abses.
(4) An healed scar of wound of drain 1/2" x 1/4" on the left side of abdomen laterally in circle shape."
Death was opined to have occurred due to excessive blood loss and damage of left lung diaphragm, stomach and vital organs of the body, as a result of injuries Nos.2 and 3. All the injuries were opined to have been caused by sharp-edged weapon. Probable time between the injuries and death was opined to be 8 days while the duration between death and post-mortem was 12 hours.
During cross-examination he stated that the injured was accompanied by his maternal-uncle Abdur Rehman when he was brought for medical examination. He denied the suggestion that the injured used to lose consciousness sometimes, while making statement
7. Ocular account was deposed to by Abdur. Rehman P. W.6 and Muhammad Azam P.W.7.
Abdur Rehman while repeating the facts given by him in the F.I.R. also claimed to have witnessed the recovery of knife P.3, at the instance of the appellant 3 days after the occurrence. During cross-examination he stated that the deceased had gone to Quaid Abad to bring medicine for his mother who was ill since few days. He gave the distance of his village as one mile. He admitted that there were other shops around the place of occurrence and some persons were also present around when the occurrence had taken place. He expressed inability to give the names of anyone of them. He stated that the deceased had remained in serious condition, and was not able to speak, during the eight days, that he was alive except for some time, after the operation in D.H.Q. Hospital, Sargodha. He admitted that he alongwith Abdul Majid and mother of the injured, was sitting with him; when the police had arrived in the hospital.
8. Muhammad Azam P.W.7 corroborated the statement made by P.W.6 in so far as it pertained to the actual occurrence. He also claimed to have witnessed the collection of blood-stained earth from the spot by the Investigating Officer. During cross-examination while denying any relationship with the deceased, he admitted that he knew him since 4 months prior to the occurrence. He stated that he had witnessed the occurrence while going to meet Haji Sharif, from, whom he had to obtain a sum of 88.4,000 as instalment, out of the price of the wagon, which he had sold to him. He stated that some of the persons present at the spot had followed the accused and tried to catch him.
9. Allah Bakhsh, S.-I. who had investigated the case, appeared as P.W.9 and gave the details of the investigation done by him. He also claimed to have recorded Exh.P.C. statement of the deceased, while being admitted, in injured condition, to Civil Hospital, Quaid Abad, in the presence of the doctor and of having taken into possession knife P.3 got recovered by the appellant after arrest on 6-11-1989. During cross-examination he admitted that some relatives of Muhammad Ishaq and the complainant were sitting with the injured in the hospital when he had reached there. He admitted that he had not visited Muhammad Ishaq after recording his statement Exh.P.C., till his death. He denied the suggestion that the deceased was not conscious when he had recorded his statement and that he had prepared that statement incorrectly. He also denied the suggestion that the accused had not led to the recovery of knife P.3, and that he had planted the same in order to strengthen the prosecution case.
10. The appellant during his statement under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence. He declined to make statement on oath. Although initially he expressed desire to produce evidence in defence, yet later, decided not to do so.
11. The appeal has been filed by the convict from the jail. Nobody represents him. As such I proceed to decide the appeal with the assistant of learned A.A.-G. who is appearing for the State.
12. Learned trial Judge did not believe the motive part of the occurrence. After going through the reasons noted in that regard I do not feel any substantial ground to differ.
Learned trial Judge had excluded from consideration statement Exh.P.C. of the deceased recorded on 3-11-1989 while being admitted to Civil Hospital, Quaid Abad. Apart from the reasons noted by learned trial Judge the other important aspect, worth noticing, is, that the sequence of the injuries noted in Exh.P.C., is exactly the same which the complainant had given while lodging the F.I.R. I do not think, it was a coincidence. While going through Exh.P.C. for comparison with the manner of narration of the occurrence given in the F.I.R., one gets a clear impression that narration of the occurrence, given in Exh.P.C. is almost a ditto copy of the manner of the occurrence narrated in the F. I. R.
In the circumstances the view expressed by learned trial Judge that it would not be safe t6 place reliance on the contents of Exh.P.C. possesses substance.
13. Although Abdur Rehman P.W. was a real maternal-uncle of the deceased, yet the defence failed to bring anything on record that he was inimically disposed towards the appellant in any manner. Except the incident of quarrel, which took place between the deceased and brother of the appellant, no other quarrel or fight had ever taken place between the appellant and any member of the family of the deceased. The incident of quarrel of the deceased with the brother of the appellant was also denied by him.
In the circumstances, the testimony of P.W. Abdul Rehman, cannot be dubbed as tainted for any reason. The fact that the deceased was removed to the hospital immediately after he was injured, and the fact that the F.I.R. was lodged promptly are enough to uphold the claim of the complainant that he had witnessed the occurrence and removed his nephew in injured state to the hospital.
14. Muhammad Azam P.W who furnished the ocular account, was an independent witness. He had no relationship whatsoever with the complainant. He had no deep connections with the deceased as well. He knew him since 4 months only prior to the occurrence. He was not inimical to the appellant. Nothing in that regard was suggested. He was not only an eye-witness of the occurrence but v as also available at the spot to witness the collection of blood stained earth from there, which done shortly after the occurrence. If this witness had not been present at the time of occurrence, he would not have been available for attestation of collection of blood-stained earth as well. The fact that he had not accompanied the complainant to lodge the report shows that he had no personal interest. His testimony lends complete support and corroboration to the ocular account furnished by Abdur Rehman P.W.6.
15. No doubt the knife recovered at the instance of the appellant, was not found stained with blood but there is no cogent reason to disbelieve the evidence of recovery of the same. The reasons given by learned trial Judge in that regard to disbelieve the recovery evidence have not impressed me. Mere fact that a brother of the appellant was also running a shop from where the knife was recovered, was no ground to discard the whole evidence in that regard. It was not only the complainant who claimed to have witnessed the recovery, but the Investigating Officer had also stated on oath that the appellant had got recovered the knife on the day of arrest. There is nothing on record to hold that the Investigating Officer was biased or inimical to the appellant.
16. The medical evidence in turn, also lends corroboration to the ocular account.
For all the reasons noted above I am convinced that the prosecution has been able to prove the case against the appellant beyond reasonable shadows of doubt. His conviction and sentence of imprisonment for life are, therefore, maintained.
However, keeping in view the fact that the appellant was a poor person (he could not even engage a counsel), the sum of fine of Rs.10,000 is reduced to Rs.5,000 (Rs. five thousand only) in default whereof he will undergo R.I. for three months. The sum of compensation of Rs.10,000 is also reduced for same reason, to Rs.5,000 (Rs. five thousand only) in default whereof he will suffer R.I. for three months. Benefit of the provisions of section 382-B, Cr.P.C. shall be extended.
N.H.Q./M-886/L Order accordingly.