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Criminal Appeal No. 877 of 1975, decided 0 Ist December 1976.
Falsus in uno falsus to omnibus-Discarded by superior Courts in Pakistan-Each case to be considered on its own merits. -Penal Code (XLV of 1864). S. 302.
Tawaib Khan and another v. The State P L P I970 S C 13 rel.
--- S. 302/34 read with S. 324-Conviction, propriety of-Common intention-Incident happened at spur of moment and accused attributed a simple knife Injury on fore-arm of deceased-No evidence to show that attack on deceased was result of common intention-Case, held, one of individual liability-Conviction under S. 302/34 altered to one under S., 334, P. P. C., in circumstances.- [Common Intention).
--- Sentence-Mere fact that accused inflicted a solitary blow on deceased - Held t Not an extenuating circumstance justifying interference with sentence-Sentence of life imprisonment maintained, in circumstance.-(Sentence].
Ghulam Sarwar Chaudhry for Appellant.
Nemo for the State,
Dates of hearing, 13th October and 4th November 1976.
Ajmal Pervaiz alias Guddo awed Muhammad Jahangir alias Kaka, had been sentenced to life imprisonment for the murder of Muhammad Shafiq, which took place on 22-5-1973, at about 6-00 p.m. within the jurisdiction of Police Station, Nawankot, 1 abate. Both the convicts have filed separate appeals against their conviction and sentence. This judgment shall dispose of both the appeals.
2. On 22-5- 973, at about 6-00 p.m. Khalil Ahmad along with his brother Muhammad Shafique bad gone to Mumtaz Cinema to see film Chand Tara which was being exhibited there, Muhammad Shafique was standing in queue in front of the booking office. There was huge crowd. Ajmal Pervaiz and Muhammad Jehangir, residents of Pakki Thathhi turned up. Ajmal Pervaiz wanted to take the place of Muhammad Shafique in queue, but Muhammad Shafique did not agree to that. On this, both Ajmal Pervaiz pro Muhammad Jehangir abused Muhammad Shafique and left the place. Both of them then came back after about five minutes. Ajmal Pervaiz tried to pull out Muhammad Shafique from the queue but Muhammad Shafique never left his place, on which Ajmal Pervaiz brought out a khanjar from his dhab and inflicted an injury on him on the left side of abdomen below the ribs. Muhammad Jehangir also attacked him with a knife as a result of which Muhammad Shafique received an injury on the left forearm. Both of them shouted that in case any one came to the rescue of Muhammad Shafique he would also be done to death. Both the accused then ran away. Mustaqeem and Muhammad Hanif witnessed the occurrence in addition to the complainant. Khalil and Mustaqeem took Muhammad Shafique to the hospital.
Muhammad Jnayat, A. S, reduced the aforesaid version of Khalil Ahmad into writing. I, In the Mayo Hospital the same day at 8-30 p .m. as first information report Exh. P. A., because on enquiry by the police offices the doctor who was attending the injured certified vide Exh. P. J. that the condition of the injured was precarious and he was not in a position to give any statement.
3. Investigation was conducted by the aforesaid A. S. I. who after recording the statement of Khalil Ahmad proceeded to the spot, took into possession blood-stained earth vide memo. Exh. P. B. He searched for the accused and arrested them on 24-5-1973. On 27-5-1973, Ajmal Pervaiz appellant led to the recovery of khanjar P. 5 from the water-channel in the area of Chah Mian Khan. It was taken into possession vide memo. Exh. P. D. Similarly, Muhammad Jehangir, led to the recovery of knife P. 6 from the same place vide; memo. Exh. P. E.
4. Muhammad Shafique while he was alive examined by Doctor Nazar Ahmad, Medical Officer, on 22-5-1973 at 7-30 p.m. who found three incised wounds on hit person.
Muhammad Shafique died on 29-5-1973 at 6-30 p.m. and the autopsy was performed by Doctor Sabir Ali, Deputy Medico-legal Surgeon Punjab, Lahore, who noticed venesecution wounds both legs and supra-umbilical left paramecium incision, 6" along with 10 stitches on the abdomen. There were two drainage wounds, one on the chest, other on the abdomen (left side). There was a longitudinal surgical incision, 9" long with 17 snitches along with the course of brachial artery on the right arm. Injury No. 2 which was a stitched incised wound. 1" with two stitches transversely oblique on the left chest, 6 " below the nipple at 5 O'clock in the opinion of the doctor was sufficient to cause death of deceased in the ordinary course of nature.
5. The appellants denied the charge of murder and pleaded not guilty. When asked as to why they had been involved in this case, both of them gave a detailed version, to which I shall refer when I come to discuss tie defence evidence as well as the contentions of the learned counsel for the appellants.
6. Prosecution case rests on the testimony of Khalil Ahmad (P. W. 8), Mustaqeem (P. W. 9) and Muhammad Hanif (P. W. 10) who sate the occurrence. The rest of the evidence is that of the two doctors and recoveries of weapons from the appellants.
Before proceeding further I may observe that nobody appeared on behalf of the State, although these are transportation appeals, as a result of which I received no assistance from the side of the State.
7. Khalil Ahmad complainant before the trial Court stuck to the version which he had given to the police officer and which had been referred to above. He assigned the fatal blow with the khanjar to Ajmal Pervaiz. The injury on the right arm was attributed to Muhammad Jahangir. The witness confidently deposed about the part played by each of the appellants. Mustaqeem P. W confirmed his version with regard to the actual stebbing. Even Muhammad Hanif P. W. was sure as to who inflicted the blow on the deceased.
Muhammad Arshad and Muhammad Riaz P. Ws witnessed the recovery of respective weapons from the appellants. As Muhammad Arshad resiled from his previous statement before the Committing Magistrate, his statement was transferred under section 288, Cr. P. C. to the sessions file.
8. Learned counsel appearing for the appellants took me through the entire prosecution evidence. He attacked the prosecution version on number of grounds. The main emphasis being on the fact that the prosecution case was doubtful, because the eye-witnesses were interested and inimical and that there evidence was full of commissions, contradictions and even improvements. Complainant was real brother of the deceased. Mustaqeem was their maternal uncle. Muhammad Hanif was a servant of the complainant party and belonged to their brotherhood.
Learned counsel submitted that with such a state of affairs, it was not safe to rely on the evidence of the witnesses. Reliance in this connection was placed on Sohni v. Bahadur and others (P L D 1965 S C 111).
It was next contended that according to the first information report the deceased received two injuries but according to the medical evidence the number consisted of three. This proved that the ocular evidence was at variance with the medical report and made trio entire case extremely doubtful. In support of this submission learned counsel cited Sona end 3 others v. The State (1968 P Cr. L J 1397).
Last of all, learned counsel submitted that there was yet another strong factor, which completely demolished the prosecution case and that, was an application by the complainant. (Photostat copy of which had been placed on the record as Exh. D. A.). According to this application the real culprits were two other persons, namely, Khushi Muhammad and Kala. It was argued that the aforesaid application changed the entire complexion of the prosecution story, because there became two different versions. Learned counsel further submitted that if there were two versions of the prosecution case then the appellants were entitled to its benefit and that would be nothing short of acquittal.
I may observe that so for as Exh. D. A. was concerned; the trial Court summoned Ch. Naseer Ahmad, D. S. P. Leiab, as C. W. 1, to prove this, whose evidence shall be referred later on.
9. Learned counsel also referred to the statements made by the appel lants and submitted that Ajmal Pervaiz when examined by the trial Court stated that one Bashir, the younger brother of Khushi Lambardar was his friend and just like a brother. Bashir and his elder brother Khushi Muham mad were involved in the murder case of one Amin son of Hassan Din and as there was none to look after their affairs, he came down to Pakki Thathhi from Sialkot and was looking after their properties and cultivation. Hassan Din and Shah Din, father and uncle of Amin deceased in the murder case lodged a report against him and he was arrested under section 107/151, Cr. P. C. Ajmal Pervaiz further stated that when Khushi Muhammad and others were in jail, he was bailed out and the complainant party had thus gnat him falsely involved in the present murder case, being a party man of Khushi Muhammad, (cause Muhammad Hanif P. W. belonged to the party of Hassan Din.
Same is the statement of the other appellant. He admitted that he was a near relative of Khushi Muhammad.
10. In the light of the statements of the two appellants, learned counsel submitted that possibility that both of them had been falsely implicated, cannot be safely excluded and for that matter, the prosecution had not been able to prove its case beyond reasonable doubt.
11. Undoubtedly, the two eke-witnesses are relations of the deceased. Khalil Ahmad is the brother of the deceased. Mustaqeem is their material uncle. The third witness Muhammad Hanif, although not a relation, at the same tune he cannot be described as a disinterested witness.
The factum of recovery of respective weapons had been proved, although one of the witnesses, namely, Muhammad Arshad before the trial Court resiled from his previous statement. Therefore, his statement was transferred under section 288, Cr. P. C. to the Sessions file. According to the report (Exh. P. G.) Of the Chemical Examiner, dagger and knife, recovered from the appellants, were stained with blood and the report (Exh. P. R.) Of the Serologist showed that the weapon was stained with human blood. .
12. Before giving my finding with regard to the credibility of the evidence of Khalil Ahmad and Mustaqeem, I may observe that so far as Mohammad Hanif is concerned, his evidence does not inspire confidence. His answers were evasive. He pretended not to know the relationship even between Khalil Ahmad and Mustaqeem and was even reluctant to name as to what other pictures he had seen in the cinema. His evidence is in conflict with the evidence of Imam Ali Shah Draftsman, who deposed that according to the police it were the eye-witnesses. As an abundant caution, therefore, I do not rely on his evidence.
13. This leaves me to consider whether the conviction and the sentence are likely to be maintained on the evidence of Khalil Ahmad and Mustaqeem corroborated by the medical evidence and that of the recovery. Both Khalil Ahmad and Mustaqeem were cross-examined at great length, as a result of which, learned defence counsel succeeded to certain extent in brings on record certain omissions and pointed out to a few improvements here and there in their evidence before the trial Court.
In view of the unnecessary lengthy cross-examination it was but natural for the witnesses to make certain slips and omission but I am not prepared to discard their evidence on this ground alone, because the main question for consideration is a: to whether there, is any conflict and contradiction in their testimony with regard to the actual incident. Both of them were definite and sure about the part played by each of the appellants and there is no contradiction on this point. Both the witnesses have given a very natural and convincing explanation of their presence at the spot.
Nothing hid been brought on the record by the defence to doubt the identification of the appellants. The incident, as already observed, took place at 6-00 p. m. It was the month of May and at that time it does not got so dark as to make the identification doubtful.
14. Lengthy arguments were addressed by the learned counsel regarding the application (Exh. D. A.) Submitted by Khalil Ahmad as well as the evidence of Ch. Naseer Ahmad. The application was filed on 9-6-1973 and was addressed to the Superintendent of Police, Lahore. Ch. Naseer Ahmad enquired it into. He summoned the complainant who after consulting an Advocate stated before the Deputy Superintendent of Police that he had been advised not to pursue the application; otherwise it would destroy the original case. The officer in spite of that went to the spot, called the witnesses and ultimately found that the application was without any substance. The officer stated that during the investigation he also examined Mustaqeem and Hanif Hand who stuck to the original version that the real culprits were the appellants.
The aforesaid application was excluded from consideration by the trial Court. The defence has not given any explanation as to what had happened to the original. However, I have considered the evidence of the Deputy Superintendent of Police, but I do not think that is in any way beneficial to the defence, because according to the enquiry conducted by this officer, he found the two appellants to be the real culprits. Hence the submission of the learned counsel that the prosecution case consisted of two versions is net tenable.
15. The medical evidence proved beyond any shadow of doubt that the injury received by Muhammad Shafique deceased at the hands of Ajmal Pervaiz was fatal. In this connection I may as well dispose of another submission- of the learned counsel, which was that according to the eye witnesses, the deceased had received two injuries, whereas the doctor's report showed three. This contention is of a minor significance, because in a situation like the one, where there was a huge crowd outside the cinema on hardly expects the witness to be very precise.
16. The maxim falsus to uno falsus fn omnibus had been discarded b,, the superior Courts in ties country and each case, therefore, is to be consid ered on its own merits and while doing so it is open to the Court to believe that portion of the evidence which inspires confidence and discard the rest. Reference in this connection is made to Tawaib Khan and another v. The State (P L D 1970 S C 13).
17. There is no doubt that Muhammad Shafique was knifed to death at the hands of Ajmal Pervaiz and the otter injury was given to him by Muhammad Jehangir. This fact is established by the evidence of Khalil Ahmad duly supported by Mustaqeem and further corroborated by the medical evidence and even that of recovery. The prosecution in my view, therefore, proved its case beyond reasonable doubt.
18. It is nor the question of criminal liability of each accused, which deserves to be considered. The prosecution case from the very beginning is that the injury alleged to have been inflicted by Muhammad Jehangir was on the forearm. This injury was kept under observation, but there is nothing on the record to show as to whether it was ultimately found simple or grievous or dangerous to life. However; learned counsel produced before me a copy of the order-dated 11-7-1914, posted by my learned brother M. M. Farukee, J. where this injury had been shown to be simple. Even otherwise from the dimension and depth it can be safely inferred that it was neither grievous nor dangerous to life. The prosecution had led no evidence to show that the attack on the deceased was the result of common intention. The entire incident happened at the spur of moment. It is a case of individual B liability. The conviction of Muhammad Jehangir under section 302, P. P. C. is, therefore, not maintainable and the same is altered to one under sec tion 324, P. P. C.
I think the sentence already undergone by Muhammad Jehangir would meet the ends of justice and I order accordingly. He shall be set at liberty forthwith if he is not required in any other case. Criminal Appeal No. 690 of 1975 is disposed of accordingly.
19. The trial Court has already taken a lenient view in awarding, imprisonment for life to Ajmal Pervaiz. The mere fact that he inflicted a solitary blow on the deceased is net an extenuating circumstance. Stabbing bar, become common practice. This must be stopped and persons carrying illicit arms cannot be allowed to play with the lives of law-abiding citizens according to their whims. Therefore, in cases, like the present cane, deterrent sentence his to be awarded. I am wherefore, not inclined to interfere with the sentence passed by the trial Court. However, I may observe that even if the conviction of Ajmal Pervaiz is to be altered from section 302 to section 304, Part 1, P. P. C., even then he is liable to imprisonment for life.
The arguments in this case concluded on 13th October 1976, but the case was listed for rehearing on 4-11-x976, because subsequently I noticed that in the order of the trial Court, while convicting Ajmal Pervaiz under section 302, P. P. C, sentence oil fine had not been imposed which is manda tory as held by the Supreme Court in The State v. Rab Nawaz and others (P L D 1974 S C 87). I, therefore, formally gave notice to the learned counsel that in case the appeal of Ajmal Pervaiz is to be dismissed then why the sentence of fine should also not be imposed. So while dismissing the Appeal No. 877-75 of Ajmal Pervaiz I further order that lee shall pay a fine of R.s. 3,000 to the parents of the deceased or in default imprisonment for two year.
Order accordingly.
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