ALTAF Versus STATE

Muhammad Ashiq aged 23 years appellant was tried alongwith his brother Muhammad lqbal aged 19 years in the Court of learned Sessions Judge, Sahiwal in the said case which was registered at Police Station Galla Mandi, Sahiwal on 6-3-1992. Through judgment, dated 2-12-1992 the learned Sessions Judge convicted the appellant under section 302, P.P.C. and sentenced him to imprisonment for life and a fine of Rs.10,000, in default of payment of said fine to further undergo four months R.I., was awarded to him. Under section 544-A, Cr.P.C. it was ordered that the appellant will pay Rs.10,000 as compensation to the legal heirs of the deceased, in default of payment of said compensation to undergo further R.I. for four months. Muhammad Iqbal his co-accused was acquitted of the charge through this judgment.

2. Feeling aggrieved Muhammad Ashiq appellant has challenged his conviction and sentence through this appeal.

3. The unfortunate occurrence took place on 6-3-1992 at 11.00 a.m. in the area of Moliallah Noor Park within the jurisdiction of Police Station Galla Mandi situated at a distance of four furlongs from the place of occurrence. Muhammad Sharif complainant (P.W.8) the real brother of Ali Muhammad deceased reported the occurrence on the same day at the police station at 11-30 a.m. and the F.I.R. Exh.P.F. was recorded by Muhammad Akram, Inspector/ S.H.O. (P.W..I1).

4. Briefly the facts of the case are that the complainant alongwith Muhammad Ashiq son, of Malang Ali, Muhammad Ramzan son of Muhammad Ashiq, Ali Muhammad deceased real brother of the complainant, Mst. Sardaran mother, Mst. Parveen and Mst. Nasreen sisters of the complainant are residents of Gulzeb Colony, Lahore. They had travelled from Lahore to the house of Muhammad Siddique P.W.7 brother-in-law of the complainant resident of Mohallah Nur Park on 5-3-1992 to arrange the marriage of Muhammad Ramzan P.W.9. They had stayed the night because the, date could not be arranged on their arrival on 5-3-1992 and on the following morning at about 11.00 a.m. All Muhammad deceased was confronted by Ashiq and Muhammad Iqbal sons of Hakem Ali caste Rajput Bhatti residents of Mohallah Nur Park, Sahiwal near the Railway Line while the deceased was proceeding for getting his clothes pressed. Muhammad lqbal accused raised a Lalkara that-Ali Muhammad be not spared and he caught hold of him. Ashiq accused gave a Chhuri blow to the deceased on his chest. The alarm raised at the spot attracted Muhammad Ashiq son of Malang Ali and Muhammad Ramzan besides the complainant who had witnessed the occurrence. Many other residents of the Mohallah had also reached there. All of them dared the accused and raised Lalkara upon which the accused ran away from the spot. Ali Muhammad had in the meanwhile fallen down on the ground in the street and had expired. The accused had managed to get away from the spot with the Chhuri. The motive for this occurrence mentioned in this statement is an altercation of the sister of the complainant with the female relatives of the accused prior to this occurrence.

5. After recording of the F.I.R., the Investigating Officer arrived at the spot and he prepared injury statement Exh.P.G. and inquest report Exh.P.H. in respect to the dead body of Ali Muhammad deceased and despatched the same to the mortuary for post-mortem examination. He collected blood-stained earth from the place of occurrence and made it into a sealed parcel and took it into possession vide memo. Exh.P.D. which was attested by Muhammad Siddique P.W.7, Muhammad Ashiq P.W.10 and Muhammad Akram, Investigating Officer P.W.11. On 21-3-1992 he arrested Muhammad Ashiq appellant while Muhammad lqbal accused was arrested on 8-4-1992. On 21-3-1992 Muhammad Ashiq accused while in police custody led to residential room and from a box got recovered a Chhuri Exh.P.4 which was made into a sealed parcel and taken into possession vide memo. Exh.P.E. The said memo was attested by Muhammad Siddique P.W.7, Muhammad Ashiq P.W.10 and Muhammad Akram, Investigating Officer P.W.11. After completion of the investigation the accused were challaned and sent-up for trial.

6. To prove the charge prosecution produced 11 P.Ws. and tendered in evidence reports of the Chemical Examiner Exh.P.J. and Exh.P.K. and those of Serologist Exh.P.L. and Exh.P.M. The accused were examined under section 342, Cr.P.C. and they denied the prosecution case and pleaded false implication. However, they did not opt to appear as required by section 340(2), Cr.P.C. to give evidence on oath in rebuttal to the prosecution evidence nor did they produced any defence evidence.

7. Dr. Muhammad Iftikhar Khan, Medical Officer, D.H.Q. Hospital, Sahiwal appeared as P.W.1 and stated that on 6-3-1992 at 3-30 p.m. he conducted autopsy on the dead body of Ali Muhammad deceased and found the following injuries on his person:---

(1) An incised wound 2.5 c.m. x 1.5 c.m. x deep going on the front middle part of left chest just inner to left nipple.

(2) An incised wound 3 c.m. x 1.5 c.m. x through on outer and inner side of distal part of left forearm.

In his opinion injuries Nos. l and 2 were caused by sharp-edged weapon and sufficient to cause death in the ordinary course of nature. Both the injuries were ante mortem and the time between injuries and death was immediate while between death and post-mortem was five hours.

8. With the assistance of the learned counsel for the appellant the evidence adduced at the time of trial has been perused and the entire record scrutinised. The arguments of the learned counsel for the appellant and the learned counsel for the State have been heard at length.

9. The ocular account in the present case consists of Muhammad Sharif complainant (P.W.8) real brother of the deceased, Muhammad Ramzan P.W.9 is the son of Muhammad Ashiq P.W.10 who is husband of the sister of the deceased and all of them are residents of Lahore and had come a day earlier to the house of Muhammad Siddique who is also the husband of the sister of the deceased. All these witnesses have admittedly no previous enmity with the .1ccused and have no motive or reason to falsely implicate hit11 or nominate his brother in the said occurrence. So much so that the deceased also did not have any previous enmity with the accused and that all the witnesses have unanimously stated that Muhammad Ashiq appellant caused both the injuries in their presence and sight to the deceased. Both the injuries are narrated by the eye witnesses are corroborated by the medical evidence. The learned counsel for the appellant has pointed out that the occurrence is stated to have taken place at a considerable distance from the house of Muhammad Siddique P. W.7 and according to the evidence of the Doctor the deceased succumbed to the injuries and was not in a position to move then how his dead body was found to be lying in front of the house of Muhammad Siddique when the police came at the spot' This point when considered keeping in view the normal natural human conduct it appeals to reason that the witnesses saw the deceased being injured and when he fell down the natural reaction of the P. Ws. was to carry him back to the house of their near ones to give him some aid or facility and may be in between that time for a few minutes or seconds he was alive and then he expired in front of the house of Muhammad Siddique where the police found the dead body lying. Secondly the P.Ws. and the deceased were residents of Lahore and their only pivotal connection and base in Sahiwal was the house of Muhammad Siddique who happened to be their brother-in-law, and thus, it was but natural that they would revert to Muhammad Siddique's house or ask for his help in such a situation. As far as the identity of the accused is concerned there is no doubt that the occurrence took place in broad daylight and the appellant being the resident of that locality was identified correctly. The other question is that how the witnesses who were the residents of Lahore knew the appellant. The answer is obvious and natural that since their sister is married in that Mohallah and that they have been corning and going frequently prior to this occurrence, the accused being a resident of that Mohallah they had known him prior to the occurrence. The appellant has not come out with any cogent and plausible reason as to why he has been implicated in this case especially under the circumstances when there was no previous enmity between the parties. The learned counsel for the appellant has submitted that all the witnesses are interested. The argument is not acceptable. It is a settled proposition that an interested witness is one who is related to the deceased and inter. se with the other P.Ws. and who is also inimical to the accused but in the present case in the absence of any enmity, mere relationship would not make them interested witnesses and a reason to discard their evidence. So far as my view is concerned they are independent and truthful witnesses who have no reason or motive to falsely implicate the accused in the present occurrence. The medical evidence even fully corroborates their) testimony.

10. The learned trial Court has already disbelieved the motive and for that reason awarded the lesser sentence to the appellant. The reasons given by the learned Trial Court for disbelieving the evidence of recovery are based on the misapplication and misinterpretation of law while the same has not been discarded or disbelieved on facts. To quote what the learned Trial Court has held; "the recovery being violative of the statutory provisions contained in section 103, Cr.P.C. is also without any probative value. It is as such discarded from consideration because it is of no help to the prosecution." It is most unfortunate that this appeal has come up for hearing at a time when the author Judge of this impugned judgment is no longer in this world to read and acquaint himself with the correct interpretation and application of law but yet to set things right in the proper legal perspective and for future guidance and proper appreciation and application of law it would be appropriate to settle this ambiguity.

11. To reiterate the manner and mode of recovery in the present case, it was effected on the pointation of the accused while he was in police custody and he led to that recovery. This type of recovery is conducted under Article 40 of the Qanun-e-Shahadat which is reproduced as under:---

" Article 40 . --- When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

The requirements of law and the manner/ mode for such recovery is totally different, the requirements of proof for such recoveries is also different, while the concept and application of section 103, Cr.P.C. is entirely different and it can in no manner be invoked and required to be followed as a procedure for recoveries effected under Article 40 of the Qanun-e-Shahadat. The relevant provisions of law in the Cr.P.C. given under the heading 'D' pertaining toy search are reproduced:--- ,

'Section 101 .--- The provisions of sections 43, 75, 77, 79. 82, 83 and 84 shall, so far as may be apply to all search-warrants issued under section 96, section 98, section 94-A or section 100.

Section 102 . --- (1) Whenever any place liable to search or inspection under this Chapter is closed, any person residing in, or being in charge of such place shall, on demand of the officer or other person executing the warrant, and on production of the warrant .allow him free ingress thereto, and afford all reasonable facilities for a search therein.

(2) If ingress into such place cannot be so obtained the officer or other person executing the warrant may proceed in manner provided by section 48.

(3) Where any person in or about such place is reasonable suspected of concealing about his person any article for which search should be made such person may be searched. If such person is a woman, the direction of section 52 shall be observed.

Section 103 . --- (1) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situated to attend and witness the search and may issue an order in writing to them or any of them so to do. ,

(2) The search shall be made in their presence, and a list of all things seized in the course of search and of the places in which they arc respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.

(3) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared tinder this section, signed by the said witnesses, shall be delivered to such occupant' or person at his request.

(4) When any person is searched under section 102, subsection (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person at his request.

(5) Any person who, without reasonable cause, refuse or neglects to attend and witness a search under this section, when called upon to do so by any order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Pakistan Penal Code. " '

The bare reading of sections 101, 102 and 103 of the Cr.P.C. indicates that the procedure required to be followed in course of a search in pursuance to warrants issued is entirely different-from the recovery effected in the pointation of the accused and that the procedure of sections 101, 102 and 103, Cr.P.C. is not at all applicable to such recoveries effected on the pointation of accused of which a disclosure is made in course of investigation.

12. Recovery under Article 40 of the Qanun-e-Shahadat can never be termed as search for the reason that it is never conducted under a warrant nor is it conducted at one particular place as pin-pointed in the warrant.

The place of recovery under Article 40 is always in the,, mind/knowledge of the accused and he in course of investigation discloses that and agrees to lead and get the same recovered and thereafter while in custody leads, points the place and gets recovered the incriminating evidence as a link to the main offence.

13. For monitoring the process of recovery under Article 40 of the Qanune-Shahadat, it is not an absolute requirement that the recovery be witnessed by the inhabitants of the locality. The general main requirement of law is that the recovery be witnessed by two respectables of unimpeachable character and if they are also of the locality it would add to the veracity/ authenticity of the proceedings but if they are not of the locality then too their evidence cannot be discarded unless there are some ether cogent legal reasons for disbelieving the same. Since the learned Trial Court has disbelieved the factum of recovery by misinterpretation of law only on legal aspect, hence, I find no reason to disbelieve the factum of recovery on factual grounds. The Chhuri Exh.P.4 was found stained with human blood by the report of Serologist, I find that this is enough additional corroboration to the crime committed by the appellant and to maintain the conviction and sentence awarded to the appellant. He was not given the benefit of section 382-B, Cr.P.C. by the learned Trial Court, the same is given to him through this judgment. With these observations, the appeal of the appellant being devoid of any merit is dismissed.

14. Before parting with the appeal I have found that the above case was registered on 6-3-1992 and at that time Qisas and Diyat Ordinance was already in force since October, 1990. Under the new section of 302, P.P.C. there is no punishment for sentence of fine to the accused and the learned Trial Court has been oblivious of this change in law. Hence to set things right the sentence of fine awarded to the appellant by the learned Trial Court and the sentence in default of payment of fine thereof is set aside. With this modification the rest of the conviction and sentence awarded to the appellant is upheld.

A.A.IM-546/1. Appeal dismissed.