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Criminal Appeal No. 417, Criminal Revision No. 498 and Murder Reference No. 121 of 1981, heard on 20th March, 1984.

(a) Penal Code (XLV of 1860)--

---S. 302/34--Prosecution version about occurrence believable and supported by evidence of witnesses who neither have had any connection with complainant party nor any enmity with accused nor any motive to falsely implicate him--Eye-witnesses cross-examined at length but nothing useful to defence elicited from their statements--Evidence of witnesses trustworthy and corroborated by recovery evidence--Report of Serologist showing that knife recovered from accused was stained with human blood--Eye-witnesses being co- villagers/ neighbours of accused, possibility of mistaken identification of accused not existing--Besides dying declaration, evidence produced by prosecution sufficient to bring home charge to accused beyond a shadow of doubt--Conviction of accused under section 302, Penal Code, maintained.

(b) Penal Code (XLV of 1860)--

---S. 302/34--Conviction--Sentence--Accused launching a brutal premeditated attack on an innocent person who wanted a peaceful settlement of his dispute with accused and giving a terrific knife blow at a delicate part of his body--Accused, held, deserved no clemency in matter of sentence--Death sentence confirmed.

(c) Penal Code (XLV of 1.860)--

---S. 302/34--Acquittal--Co-accused empty-handed and inflicting no injury on deceased and having no knowledge that co-accused was armed with knife--Benefit of doubt, held, rightly extended to co-accused and no interference called for with order of his acquittal.

(d) Penal Code (XLV of 1860)--

--S. 302/34--Appreciation of evidence--Fact that prosecution witness was brother of deceased, held, not sufficient to brand him as an interested witness.

S.M. Latif Khan Khosa for Appellants.

Nasir-ud-Din for the State.

Munir Ahmad Bhatti for Complainant.

Date of hearing: 20th March, 1984.

JUDGMENT

Fazal Hussain (55) and his son Abdul Latif (25), caste Arain, residents of Chak No. 24/2-L, were tried under section 302/34, P.P.C. by the learned Additional Sessions Judge, Sahiwal, who by his judgment, dated 28th June, 1981, acquitted Abdul Latif of the charge but convicted Fazal Hussain under section 302, P.P.C. and sentenced him to death subject to confirmation by this Court and a fine of tts.3,000 or in default in the payment thereof to undergo rigorous imprisonment for two years. The amount of fine, if recovered, was ordered to be paid to the legal heirs of the deceased as compensation. The convict has appealed. The case is also before us on reference for confirmation of the death sentence awarded to him. Muhammad Sharif, brother of the deceased, has challenged the order of acquittal of Abdul Latif through Criminal Revision No. 498 of 1981. All these matters shall be disposed of by this judgment.

2. The occurrence took place on 28th July, 1980 in the Abadi of Chak No. 24/2-L. The prosecution version is that a lane intervened between the house of Fazal Hussain appellant and one Mohkam Din. The house of Din Muhammad deceased is adjacent to the house of afore-mentioned Mohkam Din on the southern side. The said lane was being used by the deceased for the last 30/32 years. About six months prior to the occurrence Mohkam Din sold his house to Fazal Hussain appellant. A day prior to the occurrence the appellant demolished the western wall of the said house and annexed the lane to his own house. The deceased and Muhammad Sharif P.W. admonished Fazal Hussain appellant for annexing the street to his house. On the fateful day at about evening time Muhammad Sharif P.W. and Din Muhammad deceased started for the Dera of Haji Sher Muahmmad Lambardar (not produced) to request him to settle the dispute, On the way Taj Muhammad P.W. also joined them, and all the three went to afore-mentioned H:rji Sher Muhammad. He sent the Chowkidar to call Fazal Hussain appellant but he did not come to his Dera. The deceased, Muhammad Sharif and Taj Muhammad P.Ws. then started back. When they reached near the house of aforesaid Mohkam Din, iazal Hussain appellant and his son, acquitted accused Abdul Latif, confronted them. Abdul Latif took the deceased into his hold and Fazal Hussain appellant inflicted a knife blow on the left side of his abdomen, as a result of which he fell to the ground. Muhammad Sharif and Taj Muhammad P.Ws. tried to intervene but the accused fled away from the spot taking the knife. Din Muhammad deceased was taken to Civil Hospital, Okara where he was medically examined.

On receiving information about the admission of, Din Muhammad deceased in the hospital, Maqbul Ahmad, A.S.I., Police Station Sadar Okara, reached the hospital and enquired from the doctor if Din Muhammad injured was fit to make a statement, to which the doctor replied in the affirmative. The A.S.l. then recorded the statemcrrt Exh. P.B. of the deceased at 12-15 a.m. on 29th July 1980, on the basis of which formal F.I.R. (Exh.P.B/1) was recorded at Police Station Sadar Okara at 12-40 a.m. Initially the case was registered under section 307/34, P.P.C. On 30th July, 1380 Din Muhammad injured expired in the hospital and the offence was converted to section 302, P. P. C .

3. The Assistant Sub-Inspector reached the spot oil 29th July, 1980 and secured some blood-stained earth vide memo. Exh.P.E. He searched for the accused persons but they were not available. On 30th July, 1980 he received Ruqqa Exh.P.H. from the doctor about the death of Din Muhammad deceased, upon which he went to the hospital and prepared injury-statement (Exh.P.L.) and inquest report (Exh.P.M,) of the dead body and despatched it to the mortuary for cost-mortem examination. He arrested the accused on 1st August, 1980. On the same day Fazal Hussain appellant, while in custody, led to the recovery of blood-stained knife (Exh.P.2) from his house which was made into a sealed parcel vile memo. Exh.P.D. After the investigation, the accused were challaned.

4. On 28th July, 1980 at 11 p.m. Dr. Safdar Ali, Medical Officer, Civil Hospital, Okara, examined Din Muhammad deceased, when alive, and found a stab wound 1" x " x abdomen deep on the front of abdomen, left side. Omentum was protruding out of the abdomen The injury was kept under observation. It was caused with a sharp-edged weapon within the duration of four hours.

On 30th July, 1980 the same doctor conducted the autopsy on the dead body of Din Muhammad deceased and found the injury referred to above on it. Whole of the coils of small intestines were hlackened and gangrenous due to rupture of mesenteric vessels. Death was due to shock, haemorrhage, rupture of mesenteric vessels and gangrene of small intestine resulting from injury No. 1 which was sufficient to cause death in the ordinary course of nature. There was also a surgical lapratomy wound on the left side of upper part of the abdomen

5. In support of its Aase the prosecution examined two eye-witnesses, namely, Muhammad Sharif and Taj Muhammad, and also relied on the dying declaration and evidence relating to recovery of knife at the instance of the appellant.

6. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. When asked to explain why this case against him, he made the following statement--

"The Ahata in dispute was purchased by my brother Ashiq oussain long before this occurrence. My brother Ashiq Hussain wanted to annex the lane which was his property and wanted to extend the said Ahata. On the day of occurrence at about 9/10 p.m. when the 'Taravies' were being offered and it was dark there took place brick-batting between the women-folk of Din Muhammad deceased and the women-folk of Ashiq Hussain my brother and thus a large number of persons collected there, out of whom some body stabbed the deceased. I have been falsely involved in this case at the instance of Haji Sher Muhammad Lambardar who is inimical towards me due to the last elections: There is party faction in our village. One party is headed by Haji Sher Muhammed Lambardar and we were in the opposite group. During the investigation of this case we offered to take or give oath about our innocence but the complainant party refused to accept this proposal knowing well that I and my son Abdul Latif are innocent in this case."

No evidence was led in defence.

7. The learned trial Judge accepted the prosecution evidence against the appellant and convicted and sentenced him as mentioned above. He, however, gave benefit of doubt to, co-accused Abdul Latif and acquitted him of the charge.

8. The learned counsel for the appellant contends that the presence of the eye-witnesses is not established, the recovery is fake and the dying declaration is a document of doubtful authenticity, therefore, the conviction and sentence of the appellant is unsustainable. In the alternative, he submits that there was no background of enmity between the parties; the appellant inflicted only one blow to the deceased and gangrene of small intestine also contributed to the death of the deceased, therefore, the capital punishment was not called for.

9. At the trial Muhammad Sharif and Taj Muhammad P.Ws. supported the prosecution version as detailed in the earlier portion of this judgment and we need not recapitulate their statements here. It is not denied that there was a dispute over the lane intervening between the houses of Mohkam Din and Fazal Hussain appellant. According to the prosecution, the house of Mohkam Din was purchased by the appellant and he demolished the western wall of that house in order to annex the intervening lane with his house situate on the other side of the lane. Fazal Hussain appellant admitted that there was a dispute over the annexing of the land, but his case is that it was his brother Ashiq Hussain who purchased the Ahata and wanted to annex the lane to the said Ahata. We see no reason to disbelieve the prosecution version that the dispute over the lane was between the deceased and the appellant. If Ashiq Hussain was a party to that dispute there was no reason fort" the complainant to falsely implicate the appellant on that score. The site plan (Exh. P. A .) shows that the outer door of the residential house of Din Muhammad deceased opened in the lane which was annexed with the house of the appellant by demolishing the western wall of the Ihata purchased by the appellant from Mohkam Din. In the rural society it is very common that people seek the help of the Lambardar or other respectables for the settlement of their disputes. In the circumstances, the visit of Muhammad Sharif P.W. to the Dera of Lambardar in the company of his brother Din Muhammad who was aggrieved due to the demolition of the wall, was quite natural.

10. Muhammad Sharif P.W. admitted that the house of Taj Muhammad P.W. was at a distance of one and a half Killas from the spot and he had no work of his own at the Dera of Lambardar. Taj Muhammad P.W. also admitted that he had no personal work with the Lambardar.and it was per chance that the deceased and Muhammad Sharif came to the shop of Sher Muhammad where he was sitting and he accompanied them to the Dera of Lambardar. Relying on these admissions, it was contended that the presence of Taj Muhammad P.W. at the spot was doubtful. We do not find any force in this submission. Taj Muhammad P.W. stated that on inquiry Din Muhammad deceased and Muhammad Sharif P.W. told him that they were going to the Dera of Lambardar because appellant had demolished the wall and blocked their passage and thereupon he also accompanied them to the Dera of Lambardar from the shop of Muhammad Sharif situate in the villa-re Chowk. This witness has no connection whatsoever with the complainant party nor any enmity with the appellant. He had absolutely no motive to come forward as a fa15ei witness.

11. The learned counsel for the appellant submitted that the conduct of the eye-witnesses was highly unnatural as they did riot try to rescue the deceased and this fact creates a serious doubt about their presence at the spot. This argument is also devoid of force. It is the case of a solitary blow. Muhammad Sharif P.W. has given a reasonable Explanation saying that they tried to intervene but the accused ran away from the spot alongwith the knife. In cross-examination he elaborated that he did not hold either of the accused in 'Japhha' to rescue his brother because the attack was sudden and he had no time to physically intervene.

12. The learned counsel for the appellant next argued that the occurrence had taken place in the dark hours of the night, therefore, the eye-witnesses were not in a position to correctly identify the assailant. Except the bald statement of the appellant, there is nothing on the record to support this version. If it be assumed that the occurrence had taken place at 9/10 p.m., even then it cannot be reasonably contended that the assailant had escaped unidentified. Both the eye-witnesses are co-villagers of the appellant and Muhammad Sharif P.W. is also his neighbourer. In the circumstances, there was no ' possibility of any mistaken identification. We are, therefore, satisfied that Muhammad Sharif and Taj Muhammad P.Ws. had seen the occurrence.

13. Muhammad Sharif P. W. is the brother of the deceased out this fact by itself is not sufficient to brand him as an interested witness. Like Taj Muhammad P.W. he, too, had absolutely no motive to falsely' implicate the appellant in a crime involving capital punishment both the eye-witnesses were cross-examined at length but nothing useful to the defence could be elicited from their statements. Their evidence is trustworthy and can form a sound basis for conviction.

14. 'File ocular evidence finds corroboration from the evidence relating to recovery of knife at the instance of the appellant. He led to the recovery of blood-stained knife from his house on Ist August, 1980. Besides the Investigating Officer (P.W.10), this recovery is supported by Chiragh Din (P.W.4) and Taj Muhammad (P.W.8). We have already observed that Taj Muhammad P.W. is an independent and disinterested witness having no motive for false implication. Same is the position of Chiragh Din (P.W.4). According to the report of the Serologist, the knife was stained with human blood.

15. The learned counsel for the appellant assailed the dying declaration on the ground that it does not bear the signatures of the doctor and at the relevant time many relatives of the deceased were present in the hospital, therefore, the possibility of tutoring could not be ruled out. Maqbul Ahmad A.S.I. (P.W.10) stated that on reaching the hospital he enquired from the doctor if Din Muhammad injured was fit to make a statement, to which he replied in the affirmative and thereafter he recorded his statement EXh.P.H. There is, however, nothing on the record to show that the statement was recorded in the presence of the doctor or that the injured remained in senses throughout the time his statement was being recorded. The A.S.I. admitted that when he visited the hospital Muhammad Sharif and some others were present near the injured and were talking with him. If, for the reasons stated by the learned counsel, the dying declaration is kept out of consideration, even then the remaining evidence is sufficient to bring) home the charge to the appellant beyond a shadow of doubt Accordingly, we maintain the conviction of the appellant under section 302, P P.C.

It was a brutal premeditated attack on an innocent person who wanted a peaceful settlement of the dispute through the intervention of the village headman. The appellant gave a terrific knife blow at a J delicate part of the body like abdomen which ultimately resulted in his death. According to the medical evidence, death was due to injury No.1 which caused shock, haemorrhage, rupture of the mesentric vessels and gangrene of small intestine. Gangrene was the direct result of this injury which was sufficient in the ordinary course of nature to cause death. There is thus no mitigating circumstance in favour of the appellant and he does not deserve any clemency in the matter of sentence.

Accordingly , we dismiss his appeal and confirm his death sentence.

16 The reasons which weighed with the learned trial Judge for acquitting Abdul Latif respondent were that he was empty-handed; he did not inflict any injury on the deceased and in the circumstances of the case it was not necessary for Fazal Hussain appellant to have sought his assistance to inflict the solitary injury on the deceased. It need also be mentioned that there is nothing on tile record to show that Fazal Hussain appellant was holding a knife when both the accused confronted the deceased or that Abdul Latif accused had the knowledge that his co-accused was so armed. In the circumstances benefit of doubt has been rightly extended to Abdul Latif accused and no interference is called for with the order of his acquittal. Criminal revision is also dismissed.

M. Y. H.

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