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Criminal Appeal No.-1167 and Murder Reference No. 304 of 1979, decided on 1st March, 1982.
--S. 302--Motive--Proof of--No direct evidence adduced to prove motive--Immediate cause of attack also not known--Motive merely an altercation between accused and deceased--Such altercation took place in presence of respectable of Mohallah--None of such respectable produced in evidence--Motive, held, not proved.--[Motive]
---S. 302--Ocular evidence--Testimony of--Eye-witness real brother of deceased--Mere relationship, held, not sufficient to exclude evidence. [Witness]
---S. 302--Intention--Medical evidence revealing one incised wound on inner aspect of right thigh--Femoral artery and femoral vein found to be cut through and through--Doctor opining shock and haemorrhage being cause of death--Exact location of femoral artery and vein being not known to a layman but was a hurt dangerous to life of victim- Conviction altered from S. 302, P.P.C. to one under S. 326, P.P.C.
Muhammad Feroze v. Muhammad Arif and others 1976 S C M R
Date of hearing: 1st March, 1982.
MUHAMMAD MUNIR KHAN
, J.--This criminal appeal and the connected murder reference arise from the judgment of the learned Additional Sessions Judge, Multan, whereby he on 13-10-1979, while acquitting co-accused Rehmat, convicted the appellant, Faiz Bakhsh aged 25 years, under section 302, P.P.C for causing the death of Muhammad Ramzan and sentenced him to death and fine of Rs.2,000 with the direction that the fine, if realised, shall be paid to the legal heirs of the deceased.
2. The occurrence took place on 27-1-1979 at 9 p. m. in a street near the house of the deceased situated in Basti Daira Multan City within the limits of Police Station Mumtazabad. The F.I.R. Exh.P.D. was lodged by Mahboob Ahmad (P.W.5), brother of the deceased at 10-30 p. m. on the same day and was recorded by Qadir Bakhsh A.S.I. P.W.7.
MOTIVE
3. The motive as alleged in the F.I.R. was that at 6 p.m. on the eventful day Faiz Bakhsh appellant and Rehmat (his brother) acquitted co-accused were standing in a lane near the house of the deceased. Muhammad Ramzan deceased took exception to their presence and enquired from them as to why they had come in the lane. The deceased and the appellant then exchanged abuses and grappled, but were separated by the respectables of Mohallah. The appellant and the acquitted co-accused Rehmat, at that time, declared that they would teach lesson to the deceased for their insult.
OCCURRENCE
4. At the fateful time Mahboob Ahmad (P.W.5) brother of the deceased and his mother Mst. Noor Bibi (not produced, given up as 4 being unnecessary) were present in their house; they were attracted
by an alarm coming from a nearby lane; they rushed towards the. place of occurrence and saw that Rehmat co-accused had caught hold of the deceased while Faiz Bakhsh appellant gave him (deceased) a Chhuri blow on the inner aspect of right thigh. On receiving the injury, Muhammad Ramzan fell down on the ground and expired on the spot. The occurrence was also seen by Karim Bakhsh (P.W.6).
INVESTIGATION
5. After recording the F.I.R., the A.S.I. Qadir Bakhsh went to the spot. He prepared inquest report Exh.P.H. and sent the dead body to the mortuary for post-mortem examination under the escort of F.C. Rustam Ali (P.W.1). On 29-1-1979, he arrested the appellant, got recovered blood-stained Chhuri P.3 from his residential house vide memo Exh.P.F. attested by Karim Bakhsh (P.W.6) and Muhamamd Ramzan (not produced, given up as being unnecessary). After the completion of the investigation, the challan was submitted against the appellant and his brother Rehmat. The Serologist's Report is Exh.P.K. which shows that Chhuri P.3 was stained with human blood.
MEDICAL
6. On 28-1-1979 at 4-30 p.m., Dr. Allah Nawaz Khan (P.W.4) conducted the post-mortem examination on the dead body of Muhammad Ramzan deceased and found the following injury:-
"An incised wound 71 c.m. x 11 c.m. muscle deep on the inner aspect of right thigh, on dissection muscle was cut and also femoral artery and femoral vein cut through and through and reached to the bone."
In his opinion, death was due to shock and haemorrhage under injury No-1 cutting the big blood vessel of right thigh. Injury was sufficient to cause death in the ordinary course of nature. In cross-examination he stated that he was certain that patient could remain in his senses and could talk for about 5 to 10 minutes. The deceased must have taken his last meals about three to five hours before his death. The doctor further stated that as soon as the dead body reached him, he conducted the post-mortem without delay.
DEFENCE CASE
7. The appellant when examined under section 342, Cr.P.C. denied all the incriminating circumstances. He stated that the case against him was false and Chhuri P.3 was planted on him by the Thanedar in order to strengthen the prosecution, case. He did, not lead any evidence in defence.
8. In order to prove its case, the prosecution examined as nt'any
as seven witnesses.
P.W.1 Rustam Ali Constable. He escorted the dead body of Muhammad Ramzan to mortuary for post-mortem. Hz also took .the sealed parcels, to, the Chemical Examiner intact.
P.W.2 Muhammad Irshad Muharrir Head Constable. He received and kept intact two sealed parcels in the Malkhana and handed over the same to Rustam Ali F.C. for onward transmission to the Chemical Examiner.
P.W.3 Saeed Muhammad Khan. He prepared the site plan of the spot on the pointatiob of the witnesses.
P.W.4 Dr. Allah Nawaz Khan. He conducted the post-mortem.
P.W.5 Mahboob Ahmad.. He is brother of the deceased. He lodged the F . I . R . He stated that at the time of occurrence he and his mother Mst. Noor Bibi were present in their house. When they heard alarm from the nearby land, they went there and saw that Rehmat co-accused had caught hold of the deceased and the appellant inflicted one blow with Chhuri on the person of the deceased, who fell down and succumbed to the injury 'on the spot. It is remarkable that in his examination-in-chief he said nothing about the, motive. On cross-examination, he stated as follows: -
"An altercation had taken place a 'few hairs earlier to the murder incident between the deceased and the accused persons. The deceased had told the accused person not to visit his lane and they had abused each other. I was not present when the deceased and the accused had altercated at about Degerwela. I was told about this earlier occurrence by one Allah Ditta, who is not a P.W."
On further cross-examination he stated: "On one previous occasion, my deceased brother had quarrelled with the accused persons in my presence on this score. After the quarrel some respectables of the Mohallah intervened and the accused persons were turned out to some other Mohallah" .
P.W.6 Karim Bakhsh. He is not related to the deceased. He is an eye-witness. He has stated that at about 9 p.m. he was present in the lane of tote occurrence when he was attracted by an alarm raised by the deceased. He ran towards the spot and saw Rehmat accused had caught hold of the deceased and Faiz Bakhsh appellant caused a Chhuri blow to the deceased and that he found Mahboob P.W. and Mst. Noor Bibi present on the spot raising alarm. In cross-examination he stated that his house is not in the lane where the occurrence had taken place but in the third lane and that the lane of occurrence falls on his way. He further stated that when he reached the spot, a Chhuri blow had already been given, one more blow was given in his presence. He admitted that he lives in Hassanabad Colony.
P.W.7 Qadir Bakhsh A.S.I. He recorded the F.I.R. got the post-mortem done on the dead body of the deceased; arrested the accused and effected recovery of blood-stained Chhuri P.3 from the appellant and, submitted the challan.
9. Learned counsel for the appellant has- contended that the prosecution has failed to prove its case beyond reasonable doubts against the appellant, its evidence is not worth reliance and in any case offence under section 302, P.P.C. is not made out against-the appellant.
10. As against this, learned Assistant Advocate-General has vehemently defended the judgment of the trial Court and has submitted that the eye-witnesses had no animosity against the appellant and as such, they are reliable witnesses. He further submitted that the act of, the appellant falls within the ambit of section 302, P. P: C.
11. The above statement of facts and evidence would make it very much clear that the motive as alleged in the F. I. R. was not stated by Mahboob Ahmad (P.W.5) in his examination-in-chief. His statement in cross-examination that one Allah Ditta had told him that an altercation had taken place a few hours earlier of the murder incident between the deceased and the accused is merely a hearsay because Allah Ditta has not been examined by the prosecution. His further statement that on one previous occasion th,e deceased had quarrelled with the accused persons in his presence on this score and that after the quarrel respectables of the Mohallah intervened and the accused persons were turned out to some other Mohallah cannot advance the prosecution case for the reasons: Firstly, it is not the prosecution case; secondly, it is not known as to how many days, months or years prior to the murder this quarrel had taken place; and thirdly; the respectables of the Mohallah who had intervened have not been produced to prove this incident.
Be that as it may, the fact remains there that the prosecution has failed to prove motive for the murder as alleged in the F.I.R. Moreover, the eye-witnesses had not seen the occurrence from its start. When they were attracted they saw that the co-accused had caught hold of the deceased and the appellant was giving Chhuri blow. What actually had preceded the infliction of the blow still remains shrouded in the mystery. Therefore, in the circumstances of the case, it cannot-be said with certainty that the occurrence had not taken place all of a sudden.
12. After hearing the learned counsel for the parties, going through the record and keeping in mind that it is for the prosecution to prove its case beyond reasonable doubt and if there is any genuine doubt the appellant must get its benefit as a matter of right and not as a matter of grace, we have appreciated the evidence and have come to the conclusion that the prosecution has proved beyond reasonable doubt that the deceased had received injury found on his person at the hands of the appellant and none else for the following reasons:-
(i) The F.I.R. is prompt and concrete. The occurrence took place at 9 p.m. F.I.R. was lodged at 10-30 p.m. i.e. 1t hour thereafter. The distance between the place of occurrence and the police station is two miles. The name of the appellant, the weapon used by him and the names of the witnesses are mentioned therein. The defence has not been able to shake the F.I.R. There is nothing on the record to doubt that Exh . P. D . was not prepared at the time and place as it purports. To us, it is a case of prompt F.I.R. and the same can be used to corroborate, at least the statement of its maker, i-.e. Mehboob Ahmad (P.W.5).
(ii) Ocular evidence. There is no denying of the fact that Mahboob Ahmad is the real brother of the deceased. Mere relationship, however, is not sufficient to exclude his evidence. He is a natural witness. The occurrence took place near his house. He has no enmity with the appellant. He stood the test of cross-examination. The learned counsel for the appellant has not been able to point out material discrepancies or improvements in his statement. The appellant was previously known to him, as such, it was not difficult for him to identify the culprit and having identified him (culprit), who had caused the death of his brother, it cannot be believed that he would substitute some innocent person for the real culprit. He stands corroborated by an independent witness namely, Karim Bakhsh (P.W.6). Since the occurrence took place in a lane Karim Bakhsh being a passer by is a natural witness. He has no animus against the appellant. He faced the cross-examination successfully except for in significant discrepancies here and there in his evidence. The contention of the learned counsel that his evidence is in conflict with the medical evidence is without substance because the witness has not stated that he saw the appellant inflicting two injuries on the person of the deceased What he stated is: 'When I reached the spot, a Chhuri blow had already been given one more blow was given in my presence.' As such, it is crystal clear that he saw the appellant causing one injury and his statement is not in conflict with the medical evidence.
We have appreciated the ocular testimony in accordance with guiding principles laid down by the Superior Courts. We find that the evidence is in consonance with probabilities, materially fits in with the other evidence and the attending circumstances of the case and, as such, inspires confidence.
(iii) Recovery. The appellant was arrested on 29-1-1979. On that date, he got recovered blood-stained Chhuri P.3 from his residential Kotha. This recovery has been supported by Karim Bakhsh, an independent witness. It may be noted that Karim Bakhsh, was not cross-examined on the point of recovery except one suggestion that Chhuri was not recovered in his presence. Serologist's report shows that the Chhuri was stained with human blood.
13. The learned Assistant Advocate-General has contended that the offence made out against the appellant is that of murder. We are unable to accept this contention for the following reasons:
(a) The motive, as discussed, in para. 11 of the judgment has not been proved. The circumstances which have appeared in the cross-examination are far-fetched. The immediate cause of attack is not known and, as such, the possibility that the occurrence took place all of a sudden is not excluded;
(b) The appellant gave one Chhuri blow and did not repeat the same though there was none to intervene;
(c) the injury was inflicted on the inner aspect of the leg which apparently is not a vital part of the body. The blow, however, cut blood vessels and on dissection it was found that femoral artery and femoral vein were cut through and through under the injury. The exact location of this femoral artery, and vein is not known to a lay man. It was observed in a case reported as Muhammad Feroze v. Muhammad Arif and others 1976 S C M R 497. "The learned Judges of the High Court have rightly observed that "the appellant as a lay man could not be saddled with the knowledge of the location of the different artery and vein in the human body and in support of their view they have relied upon the case cf Public Prosecutor v. Ram Swami Nadan. In the case under report it was observed that an ordinary person may not be presumed to know the precise location of the artery in the human limbs. If a stab with a knife or a dagger aimed at arm or a leg severs any artery and the injured man dies as a result it might be quite reasonable to argue that the offence was not one of culpable homicide and the assailant could only be presumed to have intended to cause hurt or grievous hurt with a dangerous weapon."
We feel inclined to follow the same view. From the nature of the injury caused to the deceased, it is legitimate to infer that it was a hurt which endangered the life of the victim. The doctor has opined that the deceased died as a result of shock and haemorrhage. In our opinion, therefore, the appellant had committed the offence punishable under section 326, P.P.C.
14. The upshot of the above discussion is that the decision of the learned Additional Sessions Judge is modified as follows;
The conviction of the appellant Faiz Bakhsh is altered from section 302, P.P.C. to one under section 326, P.P.C. and he is sentenced to seven years' R.I. and a fine of Rs.2,000; in default thereof he shall undergo further R.I. for one year. The fine, if realised, shall be paid to the legal heirs of the deceased.
The sentence of death is not confirmed. With this modification the appeal is partly accepted.
M.Y. H. Death sentence not confirmed
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