Find a Lawyer

Criminal Appeal No. 10/J of 1986, heard on 8th October,1986.

Penal Code (XLV of 1860)‑‑

‑‑‑Ss. 304, Part I & 323‑‑Occurrence taking place near shop of deceased‑‑Load‑shedding in process at the time of occurrence and enough light was not available‑‑Shops were closed and shopkeepers were not present‑‑Eye‑witnesses stage‑managed their presence and their statements contradictory and inspiring no confidence‑‑One prosecution witness not resident of locality and living in another Mohallah and could not satisfactorily explain his presence at spot‑‑First information report not lodged at nearest police station‑‑Analysis of evidence showing that there were circumstances appearing in prosecution case which lent support to defence plea that presence of eye‑witnesses was a doubtful matter‑‑Accused acquitted in circumstances.

Appellant through Jail. Pervaiz Alamgir for the State. Date of hearing: 8th October, 1986.

Muhammad Munir (15) was tried for the murder of Muhammad Yusuf and for having caused injuries to a witness. On 19‑9‑1985, Sessions Judge, Gujranwala, convicted him under section 304, Part I, P.P.C. and sentenced him to seven years' R.I. with a fine of Rs.2,000 in default to undergo six months' R.I. further. He was directed to pay Rs.30,000 as compensation to the heirs of the deceased in default to undergo six months' R.I. He was also convicted under section 323, P.P.C. and sentenced to one month S.I. Both the sentences were ordered to run consecutively. Convict's appeal through jail and Jehangir, petitioner's revision against the acquittal under section 302, P.P.C. are before me.

2. Near the tailoring shop of the appellant, Muhammad Jehangir had a grocer shop in Mohallah Tajpura, Hafizabad, District Gujranwala. Two days before the occurrence in this case, Munir purchased half a kilo of curd on credit from Jehangir and promised to pay after two days. On 19‑5‑1985 at about 7 p.m. Jehangir was in his shop. PWs Zakaullah and Mehdi Hassan were also there with him. Coming from his shop, when Munir passed in front of Jehangir's shop, he asked him to pay up the debt, upon which, Munir abused him. Jenangir abused him back, thereafter, Munir struck his head against his face, hitting the lips and also tried to give a scissors blow, in the scuffle, Jehangir received an injury on the tip of his left hand little finger. In the meanwhile, Jehangir's brother Muhammad Yusuf (deceased) came over and tried to separate them but the accused hit him in the left side of his chest with the scissors, Muhammad Yusuf, fell down and the accused fled away. Besides Jehangir, the occurrence was witnessed by PWs Mehdi Hassan and Zakaullah. The witnesses carried Muhammad Yusuf on a Charpai towards the hospital, since he died on the way, therefore, his body was brought back to the place of occurrence. Leaving it there, Jehangir proceeded towards the police station for making a report but met with PW 11 Yusuf Ali, S.I. on the way at Chowk Darbar Road, Hafizabad. He made statement Ex.P.E. to him at 8‑15 p.m. on the basis of which formal F.I.R. Ex. P.E/1 was registered at Police Station Hafizabad. The S.I. went to the place of occurrence, prepared the necessary documents and sent the dead-body for its post‑mortem examination.

3. The same night at 2 a.m. P.W.1 Dr. Farooq Ahmad Tarar, M.O., THQ Hospital, Hafizabad, examined P.W. Jehangir and found a lacerated wound at the tip of his left hand little finger, it measured c.m. x c.m. There was swelling with pain on the left side of the upper half lip. The injuries were simple, caused by a blunt weapon.

P.W,2 Dr. Muhammad Sadiq, S.M.O., THQ Hospital, Hafizabad, held the autopsy on the deadbody of Muhammad Yusuf on 20‑5‑1985 at 8.30 a.m. and found "an incised wound 2 c.m. x 1 c.m. on the left side of the chest reaching chest cavity, 3 c.m. down and out to left nipple and 11 c.m. away from the mid-line of the front chest. On dissection; the injury was found passing through 3rd and 4th inter-costal space and passing through the interior border of left lung and reaching the cavity of pericardium in the left part along with cut in the left ventrical of the heart. Death in his opinion was due to shock and haemorrhage caused by the injury. Deceased's stomach contained semi digested food, digested food was found in the small intestines and faecal matter in the large intestines.

4. On 27‑5‑1985, Yusuf Ali, ST, arrested the accused who led to the recovery of blood‑stained scissors P.4, from his house, where it was lying in the chaff, it was made into a sealed parcel through memo Ex. P.G. Besides the Investigating Officer, P.W.8 Muhammad Khalil and Haji Muhammad Akram given up as unnecessary attested the memo. The investigation was completed, the accused tried in due course.

5. Explaining the case against him, the accused denied having purchased curd on credit. He denied the recovery of scissors from his house but said that the pair of scissors was taken into possession by the police from the place of occurrence. He also denied the presence of eye‑witnesses and said that during the days of occurrence, it was load‑shedding. He closed his shop at about 8/9 p.m. and was on his way back home, when he reached near the shop of the deceased, he came out and cut abnoxious jokes with him, thereafter, he dragged him inside his shop for sodomy, upon which, he hit him with the scissors which he had with him. In defence, the accused also made a statement on oath and under cross‑examination said that four five times on previous occasions, the deceased had also desired to commit sodomy with him and he reported his misbehaviour to a councillor.

6. Disbelieving the defence version, trial court came to the conclusion that it was a sudden fight covered by Exception IV to section 300, P.P.C., it therefore, convicted the appellant accordingly.

7. The sole question for determination in this appeal would be whether there were circumstances appearing in the evidence of this case in support of the defence plea. Admittedly, the appellant was about fifteen years of age at the time of the occurrence; whereas the deceased was twenty‑four years old. It is the prosecution case in the FIR and at the trial that at the time of occurrence, P.W.10 Zakaullah and Mehdi Hassan (given up) were present with P.W.9 Jehangir informant in his shop. As such, it was one against three. It would , therefore, be highly improbable that this young lad would pounce upon Jehangir who was more than twice his age i.e. thirty‑six. It is also noteworthy that according to the prosecution, Yusuf (deceased) brother of Jehangir stepped in after Jehangir had been hit on the lips, before that his presence at the shop or nearby is not mentioned. How he happened to reach there is not explained. On the other hand, in the F.I.R., it is mentioned that Jehangir was in his shop with Zakaullah and Mehdi Hassan when the occurrence took place. Under the circumstances, had the two witnesses been there at the shop, then they would have been the first to interfere and rescue Jehangir before Yusuf (deceased) could reach, but they did nothing to prevent the attack. P.W. 10 Zakaullah is not a resident of the locality. Admittedly he lived one and quarter mile away from the place of occurrence in another Mohallah. It is admitted under cross‑examination that previously, the deceased also lived in that Mohallah. PW Zakaullah could not satisfactorily explain his presence at the place of occurrence. He simply said that he had just come to the shop of the informant whom he had not known earlier. Why he came to the shop was also not explained by him. His evidence under the circumstances did not inspire confidence.

8. The evidence of PW 9 Jehangir was no better than that of PW Zakaullah. Admittedly, he was a family man having six children, yet he claimed that he often slept in the shop which was improbable. To my mind, he took up this position because it was admitted that the injured was carried on a Charpai which was lying in the shop and the witness had also denied that the deceased never slept in the shop. Further in order to give the impression that the deceased had E nothing to do with the shop, he said that the deceased was a carpenter but did not mention where he worked. The evidence of the two eye‑witnesses leaves an impression that they have stage‑managed their presence at the spot and were trying to give the impression that Yusuf came there later. The injuries suffered by Jehangir are so trivial that even the doctor described the injury on the tip of informant's finger as routine injury. Moreover, according to the medical evidence, both injuries were caused by a blunt weapon whereas according to the evidence, the accused wielded a scissors.

9. There was yet another circumstance which may be mentioned, at this stage that is PW Jehangir tried to give an impression that there was enough light because he denied the load‑shedding at their time of the occurrence, but he was contradicted by PW Zakaullah who under cross‑examination admitted that at the time of the occurrence, it was load‑shedding. It would thus follow that there was not enough light and it is the case of both the witnesses and even the Investigating Officer that all the other shops around were closed and the shop‑keepers were not there. Last but the least, the FIR was not made at the Police Station which was only half a mile from there, instead, it was made in Chowk Darbar which was near the place of occurrence. It appears that in order to cover up the time, the witnesses took up the position that they first carried the injured towards the hospital, since on the way he died, they brought his dead body to the place of occurrence and it was, thereafter, that the informant went to make a report when he met with the S.I. on the way at a distance of half a furlong from the place of occurrence.

10. The above analysis of the evidence would show that there were circumstances appearing in the prosecution evidence which lent support to the defence plea and that the presence of the two D eye‑witnesses was a doubtful matter. I, therefore, accept the appeal, and acquit the appellant of the charges. He shall be released forthwith if not required in any other case.

M.Y.H./M‑208/L Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.