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Before Mazharul Haq and Ijaz Nisar, JJ
HASHMAT ALI-Appellant
versus
THE STATE-Respondent
Criminal Appeal No. 16 of 1983, heard on 24th March, 1985.
--- S. 302 - Appreciation of evidence - Deceased, according to medical evidence, suffered five injuries but eye-witness mentioned in his statement only three-Contradiction about number of injuries, held, was not material as no eye-witness acts like a referee in a boxing match-In excitement of attack and in anxiety to ask others for help, one was likely to miss noticing an injury or two-Eye-witness otherwise having no previous enmity with accused, stood test of scrutiny and his statement fully corroborated by another witness who was a natural witness of occurrence-Evidence of such eye-witness could not be ignored.
-- S. 302-Appreciation of evidence-Contention that had informer, real brother of deceased, been present at place of occurrence, he would have interfered to avoid attack but he did not do so, thus being an interested witness, he stage-managed his presence at spot Informer, held. being unarmed did not interfere out of fear in circumstances.
-- S. 302-Appreciation of evidence-Witness, a resident of vicinity and stood test of scrutiny-Statement of witness fully corroborated by testamony of informant-No past enmity against deceased established-Fact that said witness had resiled from his statement in another murder case, held, would not brand him as a liar for all times to come-Evidence of such witness would have to be weighed in context to facts of case with caution but could not be ignored.
-- S. 302 - Appreciation of evidence- Recovery - Blood-stained clothes of accused and weapon of offence recovered on following day of occurrence at instance of accused-Recovery of said articles witnessed by another witness who lived at a distance of 25 yards away from spot and that by Investigating Officer-No fault, held, could be found in such recovery.
-- S. 302-Appreciation of evidence-Motive being an earlier quarrel and exchange of hot words between deceased and accused-Motive story given by informant in F. I. R. but did not mention same at trial-Prosecution witness who was a witness of earlier incident between deceased and accused deposed about motive and also claimed to have separated them, when they were exchanging hot words-Contention by defence that said witness wag inimical towards accused because under cross-examination he admitted that he was challaned in two criminal cases at the instance of accused party, thus evidence of such witness should be excluded and there being no other evidence in support of motive story same should be discarded Eye-witnesses denied such suggestion put by defence-No evidence led in support of such contention-Held Informant had proved F. I. R. at trial which also contained motive story-Deceased's conduct was not so serious so as to offer such a provocation for which accused would kill him-Motive story though was a weak one but that would not mean that defence version was correct in circumstances.
--- Ss. 302 & 100-Private defence, right of-Plea that on resistance of accused deceased took out a dagger and threatened him with death in case he opposed his illegal desire, and on accused's success in snatching dagger from him after receiving some injuries, deceased continued his efforts to snatch dagger back from accused and in right of private defence to his life accused caused injuries to deceased-Held, inherent defect in plea was that if accused was successful in snatching dagger from deceased, he would have under circumstances received some harm but there was not a scratch found on him-Defence plea therefore, was not worthy of any credit Conviction maintained in circumstances.
-- S. 302-Sentence-Motive story found to be a weak one--Accused at time of commission of crime a few months above 16 years of age-Sentence of death reduced to sentence of imprisonment for life in circumstances.
Ch. Rafiq Ahmad Bajwa for Appellant.
Muhammad Asghar for A.-G. for the State.
Date of hearing : 24th March, 1985.
MAZHARUL HAQ, J.-Hashmat Ali (18) was tried for the murder of Muhammad Saleem by the Additional Sessions Judge, Multan. On 27th January, 1983, he was convicted for the murder and sentenced to death with a fine of Rs. 10,000 in default to undergo three years' R. I. Half of the fine if realised was ordered to be paid as compensation to the heirs of the deceased. Convict's appeal and the connected murder reference are before us.
2. In the morning at about 9.10 a.m. on 9th July, 1981, Hashmat Ali accused, in a drunken state publicly misbehaved by making a noise. Muhammad Saleem (deceased) reprimanded him upon which both exchanged hot words. P. W. 7 Muhammad Yasin intervened. While leaving Hashmat Ali threatened to avenge the insult. The same evening at about 9.30 p.m. P. W. 9 Muhammad Aslam and his brother Muhammad Saleem (deceased) were returning home after realising money from various customers. When they reached opposite the house of Abdul Ghafoor in Mohallah Hamam, Hashmat Ali appeared there with a dagger ; and said that Saleem would not be spared. He inflicted dagger blows in the left side of Saleem's chest who fell down. Hashmat gave another blow to him in the buttocks. P. W. 11 Raja Riyasat Ali and Muhammad Waheed (given up) also witnessed the occurrence. They raised a Lalkara at Hashmat Ali who made good his escape with the dagger. Saleem was carried in a Rickshaw to Civil Hospital Multan but he died on the way. Thereafter Aslam went to the Police Station Kup situate at a distance of three furlongs from the place of occurrence. At 10.30 p.m. be made report Exh. P. G. to P. W. 12 Muhammad Ibrahim S. 1. After registering the case the S. I. went to Civil Hospital, prepared the necessary documents and sent the dead body for its post-mortem examination. Thereafter the S. I. went to the place of occurrence from where be collected the blood-stained earth.
3. P. W. 5 Dr. Imtiaz Ahmad Khan, Medical Officer, Civil Hospital, Multan on 10-7-1981 held the autopsy on the dead body of Saleem and found the following injuries on it :
(1) An incised wound 31/2 cm x 2 cm x chest cavity deep on anterior of left chest 8 cm inferior and medial to left nipple and 3 cm away from mid-line.
On dissection this injury cut the muscles, underneath intercostal blood vessels, then it cut the left 6th rib, then it penetrated the pleura and left lung and then it punctured the pericardium and lower part of left ventricle of heart. Chest cavity was filled with blood. The other blood vessels of the concerned area also cut under injury No. 1.
(2) An incised wound 2 cm x 2 cm x bone deep at upper end of sternum.
(3) An incised wound 2 cm x cm x muscle deep on front of left chest 10 cm below and medial to left nipple and 4 cm away from mid-line.
(4) An incised wound 3 cm. x cm. x muscle deep on front of left upper arm.
(5) An incised wound 3 cm. x l.cm. x muscle deep on left gluteal region.
Death in his opinion was due to shock and injury to the lung and heart caused by injury No. 1 which was sufficient- to cause death in the ordinary course of nature.
4. On 10-7-1981, . Muhammad Ibrahim S. 1. arrested Hashmat Ali. In custody he led to the recovery of his blood-stained clothes, shirt P. 7 and Shalwar P. 6 which were taken into possession through memo. P. F., attested by P. W. 8 Muhammad Aslam and Shaukat Ali (given up). The same day in custody Hashmat got recovered dagger P. 5 which was made into sealed parcel vide memo. P. E. attested by the same witnesses. After completing the investigation the accused was sent up for trial.
5. During his examination Hashmat Ali denied guilt. He took up the plea of self-defence and made the following statement :
"Muhammad Saleem deceased was a bad character. He had bad eyes on me and had been teasing me earlier to 9-7-1981. On 9-7-1981 about Aishewela I was going to my house and when I passed in front of the Factory of Shaukat Ali, Muhammad Saleem came out of it and held me in his grip and tried to drag me inside the Factory in order to commit sodomy upon me. I resisted whereupon he took out a dagger and threatened me with death in case I opposed his illegal desire. I, however, succeeded in snatching the dagger from him after receiving some injuries. Muhammad Saleem continued his efforts to snatch the dagger back from me and also to forcibly take me inside the Factory in order to satisfy his lust. In the right of my private defence to save my life and honour I also caused him injuries. The prosecution witnesses were not present at the spot. Raja Riyasat was inimical to our family and he had influence over the police and got me falsely involved in this case."
No evidence in defence was led.
6. Disbelieving the defence version, trial Court found the prosecution case satisfactorily proved against the appellant. Criticizing the finding learned counsel for the appellant contended that the eye-witnesses being interested in the deceased have stage-managed their presence at the spot. They in fact did not see the occurrence. In support of this submission, it was argued that had P. W. 8 Muhammad Aslam, informant, the real brother of the deceased been present at the place of occurrence, he would have interfered to avoid the attack, but he did not interfere. According to the medical evidence, the deceased suffered five injuries but the eyewitnesses mentioned only three. Moreover, P. W. 8 Muhammad Aslaln claimed to have taken his brother with him for realising money from the customers whom he had supplied sugar. The customers named by him had their shops near Gur Mandi and the shortest route from there to his house was not the one which passed through Lohari Gate where the occurrence took place. This according to the learned counsel was another circumstance which indicated that the informant had not seen the occurrence and had put up a false story to make believe his presence with the deceased. In support of the submission, it was also argued that though according to the informant, he had gone to realise money from his customers but he could not tell how much collection he made that day. We have considered the submissions. The informant may not have. remembered the exact amount which he collected. As to their having taken the longer route, no question was put to the informant why they came by the Lohari Gate, he may have given an explanation. We also do nit attach much importance to the submission that why the informant did not interfere. Obviously, out of fear, he did not interfere as he was unarmed.
7. In so far as the contradiction about the number of injuries is concerned is not material because no eye-witness acts like a referee in a boxing match. In the excitement of the attack and in the anxiety to ask others for help, one is likely to miss noticing an injury or two. We are B satisfied with the evidence of the informant who even otherwise had no previous enmity with the appellant. His statement is fully corroborated by P. W. 11 Raja Riasat Ali who was a natural witness of the occurrence because his house was at a distance of 15 yards away from the place o fl occurrence. Criticizing the evidence of P. W. 11 Raja Riasat Ali, learned counsel for the appellant contended that this witness was most unreliable because admittedly he had resiled from his statement in another murder case because the parties in that had compromised. We are of the view that evidence of this witness will have to be weighed in context to the facts of this case and in this regard he has stood the test of scrutiny. He lives in the vicinity and as such is a natural witness. Simply because he had resiled from his statement in another case would not brand him as a liar for all times to come. Of course, it puts one to caution but as we have observed earlier that the witness stood the test of scrutiny, his evidence is fully corroborated by the testimony of the informant. We, therefore, do not agree with the submission that his evidence should be ignored. An attempt was however made to show that this witness had strained relations with the appellant. He admitted having lost the election against one Aley Nabi. He denied the suggestion that the appellant supported his rival candidate. On the contrary, according to this witness, the appellant and his family had voted for him. He also denied the suggestion whether he appeared as a witness against the accused in a theft case. We have no reason to disbelieve him because had he appeared as a witness in the theft case, the appellant could have produced certified copies of his statement.
8. The blood-stainad clothes of the appellant and the weapon of offence were recovered on the following day of the occurrence at the instance of the appellant. The recovery was witnessed by P. W. 8 p Muhammad Aslam who lived at a distance of 25 yards away from the spot. We see no fault in his evidence. It is also corroborated by the investigating officer.
9. Though the motive story is given by the informant in the F. I. R. but he did not mention the same at the trial. We find that P. W. 7 Muhammad Yasin who was a witness of the earlier incident between the deceased and the appellant deposed about it and also claimed to have separated them, when they were exchanging hot words. His evidence was attacked by the defence on the ground that he was inimical towards the accused because under cross-examination he admitted that he was challaned in a gambling case and in an Arms Ordinance case at the instance of the accused party. It was thus argued that excluding the evidence of P. W. 7 Muhammad Yasin, prosecution is left with no evidence in support of the motive story. There is some force in the submission. On the other band, we find that the informant proved the F. I. R. at the trial which contained the motive story. Nevertheless, we are of the view that deceased's conduct was not so serious so as to offer such a provocation for which the appellant would kill him. Undoubtedly, the motive story is a weak one but this would not mean that the defence version was correct. The defence was suggested to the eye-witnesses but it was denied by them. The appellant also led no evidence in support of his version. The inherent defect in the defence version is that if the appellant was successful in snatching the dagger from the deceased, he would have under the circumstances received some harm but there is not a scratch on him. The defence version in our view was worthy of no credit. We, therefore, maintain the conviction.
10. In view of our observation about the motive story and the fact that the appellant was a few months above 16 years of age at the time of the commission of the crime, we, therefore, do not propose to confirm the death sentence. While dismissing the appeal, we reduce the sentence to imprisonment for life. The sentence of fine is also reduced to Rs. 2,000 in default to undergo six months' R. I. further.
M. B. A. Sentence reduced.
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