Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Criminal Appeal No.1044 and Murder Reference No.271 of 1979, decided on 13th February, 1982.
‑‑‑Ss. 302 & 452‑‑Principles for safe administration of justice in criminal cases discussed (i) that it is' for prosecution to prove its case on strength of its own evidence; (ii) that an accused person is presumed to be innocent till proved guilty, and (iii) accused being a favourite child of law has been given a licence of telling a lie, he cannot be punished for his falsity and that if there is any reasonable and genuine doubt, not an artificial doubt, accused shall get its benefit not as a matter of grace but as a matter of right.
-----Ss. 302 & 452‑‑F.I.R. treated as dying declaration‑‑F. I. R. prompt and concrete‑‑F. I. R. not challenged at all in cross‑examination ‑‑A.S.I. who recorded F.I.R. not suggested that F. I. R. was not genuine document and that it was not written at time and place where it purports‑‑Name of accused, names of witnesses and weapon of offence mentioned in F.I.R.‑‑Defence not becoming able to shake it nor criticising this piece of evidence‑‑F.I.R. relied upon as a circumstance for basing conviction.
‑‑‑Ss. 302 & 452‑‑Motive‑‑Alleged motive getting support from dying declaration and statement of son of deceased‑‑Accused also admitting in his statement under S.342, Cr.P.C. that deceased prosecuted ejectment petition against accused and got ejectment order‑‑Accused, held, had a strong and definite motive against deceased.
‑‑‑Ss. 302 & 452‑‑Ocular evidence‑‑Eye‑witnesses not interested as they are neither related to deceased nor inimical to accused‑‑Two of eye‑witnesses giving cogent reasons for their presence at spot at time of occurrence‑‑Shop of third eye‑witness situated just in front of place of occurrence‑‑Such witness becomes a natural witness‑‑All eye‑witnesses successfully standing test of cross‑examination‑‑Some minor discepancies, contradictions and improvements found in their statements‑‑Held, fate of criminal case does not depend on such vague and minor discepancies‑‑Ocular evidence believed.
‑‑‑Ss. 302 & 452‑‑Ocular evidence‑‑Ocular evidence found in consonance of probabilities and materially falling in with other evidence and circumstances, as such inspiring confidence‑‑Same standing supported by prompt F.I.R. which can also be treated as dying declaration‑‑Ocular evidence believed.
‑‑‑--S. 302‑‑Evidence Act (I of 1872), S.32(1)‑‑Murder‑‑First information report‑‑Dying declaration‑‑F.I.R. can be treated as dying declaration.‑ [First information report].
‑‑‑Ss. 302 & 452‑‑Murder allegedly committed by one person alone‑ Deceased also stating in dying declaration that accused alone inflicted injury on his person‑‑Substitution of innocent person in place of actual culprit not believed‑‑Accused also failing to lay down some foundation for substitution‑‑Accused alone, held, responsible for murder of deceased.
‑‑‑Ss. 302 & 326‑‑Deceased dying after 3 months of time of occurrence‑‑Due to septicemia caused by infection of abdominal cavity and chest cavity‑‑Doctor conducting post‑mortem, not stating that injury caused by accused was sufficient to cause death in ordinary course of nature‑‑Medical evidence not establishing that septicemia in abdominal cavity and especially in chest cavity was caused by abdominal injury caused by accused‑‑Accused granted benefit of doubt to this extent and offence committed by accused was held to be merely one of grievous hurt with sharp‑edged weapon and his conviction under S.302, P.P.C. altered to one under 5.326, P.P.C. and sentenced to 7 years' R.I. plus fine‑‑Conviction under 5.452, P.P.C. also maintained‑‑Death sentence not confirmed.
A.K. Dogar for Appellant.
Zia‑ud‑Din Qamar for the State.
Date of hearing: 13th February, 1982.
This criminal appeal and the connected murder reference arise from the judgment of the learned Sessions Judge, Multan, whereby, he on 8‑9‑1979 convicted Taj Muhammad appellant, aged 42 years, under section 302, P.P.C. for causing the death of Shaukat Ali, aged 25 years, and sentenced him to death and fine of Rs.2,000 to be paid to the heirs of the deceased under section 544‑A, Cr.P.C. or in default thereof to R.I. for one year. The appellant was also convicted under section 452, P.P.C. for having committed house‑trespass after having made preparation to cause hurt and was sentenced to five years' R.I. with the direction that if the sentence of death is not confirmed by the High Court and altered to any other imprisonment, the same shall run concurrently.
2. The occurrence took place on 13‑7‑1977 at 9 p.m. in the shop of Shaukat Ali deceased situated in the main Bazar of Lodhran. F.I.R. Exh.P.E. was lodged by Shaukat Ali deceased on 14‑7‑1977 at 12‑15 a.m. and was recorded by Noor Muhammad Khan A.S.I. (P.W.4) at Police Station Lodhran. The distance between the place of occurrence and the police station is two furlongs. Initially, the F.I.R. was registered under section 307/452, P.P.C. but after the death of Shaukat Ali on 3‑11‑1977, the offence was converted to under section 302/452, P.P.C.
3. Taj Muhammad appellant was occupying the house of Zia‑ud‑Din Babar (son of deceased) as a tenant. Zia‑ud‑Din Babar (P.W.10) filed an ejectment petition against the appellant before the Rent Controller. The deceased used to prosecute the same as special attorney of his son. On 12‑7‑1977 id a day before the occurrence that petition was decided against the appellant. After this decision the appellant threatened the deceased with dire consequences.
4. At the eventful time, Shaukat All deceased, Riaz Ahmad Khan (P.W.7) and Nadir Ahmad (P.W.8) were present in the shop of the deceased. Taj Muhammad appellant armed with knife entered into the shop, raised Lalkara and inflicted injuries with knife on the person of Shaukat Ali and fled away taking the knife with him. This occurrence was also seen by Bashir Ahmad (P.W.9).
5. Mian Khan S.I./S.H.O. (P.W.13) reached the spot at 5 a.m. on 14‑7‑1977. He recorded the statements of Riaz Ahmad Khan, Nasir Ahmad and Muhammad Bashir (eye‑witnesses). Ziauddin produced blood‑stained Kuria P.2 of the deceased which was taken into possession vide memo. Exh.P.J. The S.H.O. arrested the appellant on 2‑8‑1977. On 9‑8‑1977, the appellant got recovered knife P.1 (not blood‑stained) from his residential Kotha which was taken into possession vide memo. Exh. P.K. After investigation incomplete challan under section 307/452, P.P.C. was submitted and after the death of Shaukat Ali, supplementary challan under section 302/452, P.P.C. was presented.
6. Shaukat Ali was first medically examined by Dr. Sharafuddin (P.W.5) Medical Officer, Municipal Dispensary Daulat Gate, Multan on 14‑7‑1977. He found the following injuries on his person:‑--
(1) A stab wound on right hypochondrium 7" lateral to umblicus 1" long 1 " deep x 1/8" vide transversely placed. Corresponding cuts on the right side of Kurta were also there.
(2) An abrasion 1 long, " wide on medial surface and middle part of left upper arm, longitudinally placed.
(3) An abrasion 1" long, " wide on medial surface and middle part of left upper arm, 1 " above and parallel to injury No.2.
Injuries Nos. 2 and 3 were simple. Injury No. 1 was dangerous to life and was caused with sharp‑edged weapon. Injuries Nos. 2 and 3 were caused by blunt weapon. Shaukat Ali remained in the dispensary for a day and left for Nishtar Hospital in the morning of 15‑7‑1977, where he was operated upon by Dr. Hamid Ali Shah (P.W.15) assisted by Dr. Rafaqat Ali Jaffery (P.W.16) and Dr. Abdul Hassan Kazmi (not produced). He was discharged from the hospital on 31‑10‑1977 on his own request and expired in his house on 3‑11‑1977.
On 3‑11‑1977, Dr. Abdul Ghafoor, Medical Officer Civil Hospital, Mian Channu, conducted the post‑mortem examination on the dead body of Shaukat Ali, He found the following injuries:‑
(1) An old scar mark vertical in direction 8" x 1 "' on the front of abdomen. This scar was of operation cut. In the centre of the scar, there was a septic wound 2"' x 2"'.
(2) An old scar mark 1" x 1" on the right side of the abdomen 8" from the umblicus.
(3) Septic wound 1 " x 1 " x chest cavity deep on the right side of chest, 4" towards the right side of the right nipple.
Pleueral cavity. Both the lungs were inflammed. On opening the abdomen there were adhesion all over the peritoneum and the adhesion on the inner surface of the skin. Intestines were adherent with each other. In the opinion of the doctor the cause of death was due to septicemia caused by infection of abdominal cavity and chest cavity. On seeing the operation report, there were two purforations in the large intestine as a result of which there was blood and faecal matter in the abdominal cavity. According to the doctor, the blood and faecal matter may have infected the abdominal cavity and resulted in septicemia.
In cross‑examination the doctor stated that he could not say that if these two purforations were caused by knife injury. He volunteered that the possibility was not ruled out that the purforations were caused by knife injury or other causes. He, however, categorically stated "it is correct that the injury could not be direct or indirect cause of pleura effusion and infection in the chest cavity." In cross‑examination he further stated that he could not say what was the effect of the injury in regard to the death of the deceased as he had 4 not observed the injury himself. It is remarkable that the doctor has not stated that the injury was sufficient to cause death in the ordinary course of nature or it had caused the death of the deceased.
Dr. Rafaqat All Jaffery (P.W.16) stated that the deceased was operated upon by Dr. Hamid Ali Shah and that the witnesses had taken down the notes of the operation. He further stated that the patient had stab wound. On opening the abdomen air come out, there was blood, faeces and puss in the peritoneum cavity. There were two purforations in colon. On Court question, he stated that two purforations were due to stab wound because on opening the cavity the air had came out. Septicaemia could be the result of faeces and puss. It may be noted that this witness had said nothing about the chest cavity.
7. The appellant denied all the incriminating circumstances. He stated that he was falsely involved on account of litigation between him and the complainant party with regard to the house of the complainant party which was in his possession for the last 6/7 years. He, however, did not lead any evidence in defence.
8. In order to prove its case, the prosecution examined as many 16 witnesses.
P.W.1 Muhammad Akram F.C. 1655.‑‑ He escorted the dead body from the house of the deceased to mortuary for post‑mortem.
P.W.2 Abdul Waheed, Draftsman.‑‑ He prepared the site plan on the pointation of the witnesses.
P.W.3 Sher Shah A.S.I.‑‑ He partly investigated the case, prepared injury statement and inquest report.
P.W.4 Noor Muhammad Khan A.S.I.‑‑ He recorded the F.I.R. Exh.P.E. and prepared the injury statement of Shaukat Ali deceased.
P.W.5 Dr. Sharafuddin.‑‑ He examined the deceased when he was alive and found three injuries on his person.
P.W.6 Dr. Abdul Ghafoor.‑‑ He conducted the post‑mortem examination on the dead body of Shaukat Ali.
P.W. 7 Riaz Ahmad Khan.‑‑ He is an eye‑witness. He stated that in his view the appellant inflicted knife blows on the person of the deceased.
P.W. 8 Nasir Ahmad.‑‑ He is an eye‑witness. He gave almost the same version as given in the F.I.R. by the deceased himself.
P.W. 9 Muhammad Bashir.‑‑ He is an eye‑witness. His shop is just in front of the shop of the deceased. He stated that he saw the appellant giving knife blows to the deceased at the fateful time.
P.W. 10 Ziauddin Babar.--‑ He is the son of the deceased. He identified the dead body at the time of post‑mortem and supported the motive.
P.W. 11 Muhammad Akram F.C. 350.‑‑ He was given summons for the service of Dr. Abdul Hassan Kazmi. His report is that the said doctor had gone abroad.
P.W.12 Mahboob Ali.‑‑ He is a recovery witness. He stated that in his presence the appellant got recovered knife P.1 from his residential Kotha.
P.W.13 Mian Khan S.I./S.H.O.‑‑ He investigated the case, effected recovery of knife P.1 from the appellant and submitted the challan.
P.W.14 Muhammad Khalil, Record Keeper.‑‑He brought the operation and admission registers of Nishtar Hospital relating to the deceased.
P.W. 15 Dr. Hamid Ali Shah.‑‑ He had operated upon Shaukat Ali deceased.
P.W. 16 Dr. Rafaqat Ali Jaffery.‑‑ He had prepared the operation notes of the deceased.
9. Before us, the learned counsel for the appellant has argued that the prosecution has failed to prove its case beyond reasonable doubt the alleged eye‑witnesses are not reliable and there are discrepancies and contradictions in the prosecution evidence. In the alternative, ho argued that the act of the appellant doers not fall within the ambit of section 302, P.P.C.
10. As against this, the learned counsel for the State has vehemently supported the judgment of the trial Court. He stated that the prosecution has brought home the guilt of the appellant beyond shades of doubt, the ocular account is reliable and the discrepancies, if any, are minor.
11. The above statement of facts made very much clear that the fate of the prosecution case hinges upon Exh.P.E. and the evidence of the three eye‑witnesses, namely, Riaz Ahmad Khan, Nasir Ahmad and Muhammad Bashir.
After hearing the learned counsel for the parties, going through the record of the case and keeping in mind the principles laid down by the superior Courts for the safe administration of justice in criminal cases:
(i) That it is for the prosecution to prove its case on the strengths of its own evidence;
(ii) that an accused person is presumed to be innocent till proved guilty; and
(iii) that since the accused being a favourite child of law has been given a licence of telling a lie which has also been recognize by the Courts, he cannot be punished for his falsity and that if there is any doubt, of course, reasonable and genuine doubt and not an artificial doubt, the accused shall get its benefit nor as a matter of grace but as a matter of right.
We have appreciated the prosecution case and have come to the conclusion that the prosecution have proved beyond reasonable doubt that Shaukat Ali suffered injuries at the hands of the appellant on the day of occurrence for the following reasons:‑
(a) F.I.R. Exh.P.E., which has to be treated as dying declaration is prompt and concrete. The occurrence took place at 9 p.m. on 13‑7‑1977, and the F.I.R. was lodged at 12‑15 i.e. with 3 hours. We find that this document (Exh.P.E) has not been challenged at all in the cross‑examination. It has not even been suggested to Noor Muhammad Khan A.S.I., who had recorded the report that Exh.P.E. was not a genuine document or that it was not written at the time and place where it purports. The name of the appellant, motive, the names of the witnesses and the weapon of offence are mentioned in it. The defence has not been able to shake this nor criticised this piece of evidence before us;
(b) The alleged motive stands supported by the dying declarations and statement of Ziauddin Babar. The appellant when examines: under section 342, Cr.P.C. has in answer to question No.1, admitted that Ziauddin Babar had filed an ejectment suit against him before the Rent Controller in which an order of ejectment was passed against him on 12‑7‑1977 and Shaukat Ali deceased used to prosecute that case as a special attorney of his son. Ziauddin Babar. The appellant had thus a strong and definite motive against the deceased: and
(c) We find that the eye‑witnesses are not interested. They are neither related to the deceased nor they are inimical towards the appellant. They are the natural witnesses. Riaz Ahmad and Nasir Ahmad have given cogent reasons for their presence at the shop at the time of occurrence. The shop of Muhammad Bashir P. W. is just in front of the shop of the deceased where the occurrence had taken place. He is a natural witness. All the three eye‑witnesses have successfully stood the test of cross‑examination. Learned counsel for the appellant has pointer: out some minor discrepancies, contradictions and improvements here and there in the statements of these witnesses. We are o: the considered opinion that the fate of criminal case does not depend on these vague and minor discrepancies. To us, the ocular evidence is in consonance with the probabilities, materially fits in with the other evidence and the circumstances of the case, and as such, inspires confidence and that the same stands supported by the prompt F.I.R. which can also be treated as a declaration. We further find that the murder is alleged to have been committed by one person alone. Shaukat Ali deceased has stated in the dying declaration (Exh.P.E.) that it was the appellant who had inflicted knife blow on his person, therefore, substitution of an innocent person in place of actual culprit cannot be believed. The appellant has also failed to lay down some foundation for the substitution. Resultantly, it is held that the appellant and none else had caused injury which endangered the life of the deceased.
13. Learned counsel for the State has contended before us that the offence made out against the appellant is that of murder. We are unable to accept this contention.
14. The appellant, Taj Din, caused one incised wound; the death occurred after 3 months; the deceased left the hospital on 31‑10‑1977 on his own request; P.W.6 Dr. Abdul Ghafoor has not stated that this injury was sufficient to cause death in the ordinary course of nature. He simply stated that in his opinion the cause of death was due to septicemia caused by the infection of abdominal cavity and the chess cavity and that the blood and faecal matter might have infected the abdominal cavity and resulted in septicemia. He stated that "the possibility is not ruled out that the purforations were caused by knife injury or other causes. I cannot say what was the effect of the injury in regard to the death of the deceased as I had not observed the injury myself." In this state of evidence it cannot be safely held that 14 septicemia in the abdominal cavity and especially in the chest cavity was caused by the abdominal injury inflicted by the appellant. The appellant, therefore, must get the benefit of doubt on this point.
14‑A. For what has been stated above, we are of the view that the offence committed by the appellant in inflicting the knife blow to the deceased was merely one of grievous hurt with a sharp‑edged weapon.
15. The upshot of the discussion is that the appeal is partly accepted. The conviction of the appellant, under section 302, P.P.C. is set aside and the same is altered to one under section 326, P.P.C. and he is sentenced to seven years' R.I. plus a fine of Rs.2,000 to be paid to the heirs of, the deceased or in default thereof to six months' R.I. The sentence of death is not confirmed.
The conviction and sentence under section 452, P.P.C. is, however, maintained. It is directed that both the sentences would run concurrently. The period, if any, during which the appellant was detained as an under‑trial, shall be considered as a part of the sentence. He shall be given the benefit of provision of section 382‑B, Cr.P.C.
H.A.K. Conviction /sentence altered
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer