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Criminal Appeal No. 64 and Murder Reference No. 4 of 1983, decided on 11th October, 1986.

---Ss. 302 & 307--Natural witness--Ocular account, corroboration of- Place of occurrence a cinema house--Complainant, manager of cinema- Injured witness, electrician employed in cinema--Prosecution witnesses, not related to deceased--No enmity with accused shown to falsely implicate him--Accused not known to witnesses--No incident between accused and witnesses taking place prior to occurrence--Presence of injured witness not disputed--Witness receiving grievous injury--Accused apprehended at spot immediately after occurrence--Knife stained with human, blood, identity card and cinema ticket recovered from him--Accused not denying his- arrest by complainant at spot--Recoveries of incriminating articles and medical evidence lending corroboration to prosecution story--Two eye-witnesses, held, were natural and independent witnesses of occurrence--Conviction of accused under Ss.302 & 307, P.P.C. was upheld in circumstances.--[Witness].

---Ss. 302 & 307--Quantum of sentence--Accused and deceased coming out of cinema house, abusing each other--Something untoward happened between them inside cinema house--No evidence available to prove origin of quarrel--Origin shrouded in mystery--Accused inflicting solitary blow in abdomen of deceased--Sentence of death was reduced to imprisonment for life in circumstances.

Miss Saeeda Butt for Appellant (at State expenses).

Akhtar Shabbir, Asstt. A.-G. for the State.

Date of hearing: 11th October, 1986.

.--This is an appeal through jail by Jahangir Khan 28 against his conviction by learned Additional Sessions Judge, Lahore who vide judgment, dated 21-12-1982 sentenced him to death plus fine of Rs.10,000 or in default one year's R.I. under section 302, P.P.C. for the murder of Khurshid Ahmad Butt and to ten years' R.I. under section 307, P.P.C. for murderous assault on Muhammad Siddiq P.W.6.

Jahangir Khan appellant, having been sentenced to death, the proceedings are also before us for confirmation of the sentence. This judgment will dispose of both the matters together.

2. The occurrence in this case took place on 2-5-1981, at 6-15 p. m. in Metropole Cinema, Lahore, kilometre from Police Station Qila Gujjar Singh, District Lahore. The formal F.I.R. Exh.P.A./1 was recorded at the Police Station on 2-5-1981 at 6-50 p.m. by A.S.I. Muhammad Sharif P.W.1 on the basis of statement Exh.P.A. recorded at the spot of occurrence on the same day at 6-35 p.m. by S.I. Rehmat Khan P.W.8 at the instance of Ijaz Malik P.W.4.

3. It was stated by Ijaz Malik complainant in his statement Exh.P.A. that he was Manager Metropole Cinema, Abbot Road, Lahore. On 2-5-1981, at about 6-15 p.m., the first film show ended. At that time, he alongwith Muhammad Siddiq Electrician and Shabbir Hussain, a tenant of Room No. 15, Metropole Cinema, was present in the cinema lobby. The cinema viewers were coming out of the hall. Two persons who later came to be known as Khurshid Ahmad Butt son of Muhammad Amin, Kashmiri, resident of 90 Zaildar Road, Ichhra, Lahore and Jahangir Khan son of Noorda Ali Khan, Pathan, resident of Sikandari, P.S. Hoti, District Mardan were seen coming out of the hall abusing each other. Jahangir Khan was telling Khurshid Ahmad Butt as to why he got his seat vacated. He was much agitated. Khurshid Ahmad Butt asked Jahangir accused not to abuse him. At this, Jahangir Khan took out a knife from the fold of his Shalwar and inflicted injury on the abdomen of Khurshid Butt. He started bleeding. In the meanwhile, Muhammad Siddiq and Shabbir Hussain P.Ws. tried to apprehend Jahangir Khan who caused injury with his knife on the abdomen of Muhammad Siddiq. The accused then started running shouting Lalkara that he would kill any one who dare to come near him. It was further stated by Ijaz Malik P.W. that he and Shabbir Hussain P.Ws. chased Jahangir accused and apprehended him with knife. Khurshid Butt was taken to Ganga Ram Hospital by other persons in a Rickshaw. He sent Muhammad Siddiq Electrician to Mayo Hospital, Lahore for treatment. The occurrence was witnessed by him as well as Shabbir Hussain and Muhammad Siddiq P.Ws.

The police arrived at the place of occurrence. Ijaz Malik P.W. produced Jahangir accused alongwith knife which he had snatched from the accused and made statement Exh.P.A. which was sent to Police Station for registration of case.

4. The police after recording statement Exh.P.A. undertook investigation.

Ijaz Malik on 2-5-1981 produced knife P.4 which he had secured from Jahangir Khan accused, before S.I. Rehmat Khan P.W.4 who took the same in possession vide memo. Exh. P.C. attested by Ijaz Malik P.W.4 Rafiq Zaidi P.W.7 and Shabbir Hussain P.W. (not examined).

The accused was arrested at the spot on 2-5-1981. On personal search of Jahangir Khan accused at the time of his arrest, identity card P.7 and cinema ticket P.8 were recovered from the pocket of his shirt vide memo. Exh.P.F. by S.I. Rehmat Khan P.W.8 in presence of Ijaz Malik P.W.4, Rafiq Zaidi P.W.7 and Shabbir Hussain P.W. (not examined).

The blood-stained earth was collected from the place of occurrence during inspection of spot on 2-5-1981 by the Investigating Officer, vide memo. Exh.P.E.

Muhammad Siddiq P.W. was medically examined by Dr. Abdus Sattar Chaudhary on 2-5-1981 at 6-45 p.m. who found a stab wound 2.5 c.m. x 1 c.m. oblique on umblical area of abdomen 5 c.m. left to umblicus. Depth was not probed. This injury was fresh caused by sharp-edged weapon and of grievous nature. Dr. Abdus Sattar Chaudhary was not available for evidence during the trial. The medico-legal certificate Exh.P.L. was proved by Muhammad Hussain Record Keeper. Mayo Hospital, Lahore P.W.11 who was well-conversant with his handwriting and signatures.

Khurshid Ahmad was admitted in Ganga Ram Hospital after the occurrence at about 7-15 p.m. He was medically examined by Dr. Arshad Mahmood who found a stab wound 1"- long on the umblicus. A part of small gut was coming out of the wound. The skin of Khurshid was cold and reactionless. He expired at 7-40 p. m. on 2-5-1981 before an operation could be performed. This injury was fresh and had been caused by sharp-edged weapon and was dangerous. The whereabouts of Dr. Arshad Mahmood were not known. P.W.12 Javaid Iqbal Record Clerk who was well-conversant with his handwriting and signatures, proved the medico legal certificate Exh . P. M .

After the death of Khurshid Ahmad Butt, his dead body was sent for post-mortem examination, which was conducted on 3-5-1981 at 1-30 p.m. by Dr. Syed Mustafa. Hussain Urazi P.W.5, who found the following injury on the dead body:-

A stab wound 2.5 c.m. x 1 c.m. going deep with clear cut margins, 0.25 c.m. above the navel in 'the centre of the abdomen.

On dissection, the stab was clean through and through the mesentry and pierced the abdominal arota in the front. The abdominal cavity contained four pints of blood. The stomach, small intestines and bladder were found healthy. All other organs and bones were healthy. The injury had been caused by sharp-edged weapon. The death occurred due to shock and haemorrhage on account of the above-mentioned injury which was sufficient in ordinary course of nature to cause death. The probable time that elapsed between injury and death was immediate and post-mortem was conducted within a day of the death.

Blood-stained knife P.4 was found stained with human blood vide report of Chemical Examiner Exh . P. N . and that of Serologist Exh.P.O. The accused was challaned after completion of investigation.

5. The prosecution, in support of its case examined ten witnesses during the trial. Ijaz Malik P.W.4 and Muhammad Siddiq P.W.6 were examined as eye-witnesses. Shabbir Hussain, another eye-witness named in the F.I.R. was given up as unnecessary. Rafiq Zaidi P.W.7 reached the spot immediately after the occurrence and witnessed the recoveries of incriminating articles from the accused. The medical evidence was furnished by Dr. Syed Mustafa Hussain P.W.5, Muhammad Hussain Record Keeper P.W.11 and Javaid Iqbal Record Clerk P.W.12 as given in detail above. The case was investigated by S.I. Rehmat Khan P.W.8. The evidence of the rest of witnesses was of formal nature.

The accused, when examined after close of prosecution evidence, denied the charge and pleaded innocence. He denied recoveries of knife P.4, identity card P.7 and cinema ticket P.8 from him. It was stated by him that he was innocent and did not know why has he been implicated in this case. In answer to question if he has anything else to say, he stated that he was a beggar and was present at Montgomery Road for begging. He was caught by two constables who took him direct to the police station. He did not produce any evidence in defence.

The learned trial Judge placed reliance on the eye-witnesses and recoveries of incriminating articles and convicted the accused as stated above.

6. We have gone through the evidence on record with the assistance of the learned counsel appearing for the parties and have also gone through the memorandum of appeal submitted by Jahangir Khan appellant through jail. It is contended by him in his appeal that he was a poor man and was begging near Metropole Cinema when the police got him apprehended through the Cinema Manager and implicated him falsely in this case. It is stated in the memorandum of appeal that some bad characters killed the deceased at the instance of cinema management and in order to give them protection he was falsely implicated in this case.

On behalf of the appellant, it was contended by his learned counsel that the witnesses were interested and, therefore, not reliable; secondly, that the accused had no motive. to murder Khurshid Butt deceased or to injure Muhammad Siddiq P.W. and that even if the prosecution case is accepted then also the facts and circumstances of this case did not justify capital sentence to the accused. The learned Assistant Advocate-General controverted these contentions.

7. We have carefully scrutinised the evidence recorded during the trial and have also gone through the police file in this case. Ijaz Malik P.W.4 and Muhammad Siddiq P.W.6 were employees of Metropole Cinema. Ijaz Malik P.W. was the Manager while Muhammad Siddiq was Electrician employed at the cinema. They both were natural witnesses. It is correct that other cinema viewers were not cited or examined as witnesses during the trial but in our view it was not possible for the prosecution to examine those persons because firstly, they may not have been willing to be witnesses in the case and secondly, they may have left the cinema premises after end of the show making it difficult for the) police to locate them. The two eye-witnesses examined by the prosecution were not related to the deceased. They had no enmity with the accused to falsely implicate him in this case. It is not' the case of Jahangir' Khan appellant that he was known to the witnesses before this occurrence or that there was any incident between him and the witnesses prior to the present occurrence giving them a cause for his false implication in this case. Muhammad Siddiq P.W. was injured and his presence at the time of occurrence can, therefore, not be disputed. He received grievous injury on his person which could not be self-suffered or fabricated. The accused was apprehended at the spot immediately after the occurrence. Blood-stained knife P.4 his admitted identity card P.7 and the cinema ticket P.8 were recovered from him. The accused himself has not denied his arrest at the place of occurrence by Ijaz Malik P.W. In his memorandum of appeal through jail, he admitted that Ijaz Malik alongwith his companions apprehended him and handed him over to the police after the occurrence. These circumstances clearly proved the involvement of Jahangir Khan accused in the present occurrence. They recoveries of incriminating articles from the accused lend corroborating evidence to the ocular account of this case. The two eye-witnesses cannot be considered as interested witnesses. They were rather natural and independent witnesses of this occurrence. The medical evidence also fully supported the prosecution case against the accused. We are, therefore, of the view that Jahangir Khan appellant was rightly convicted under sections 302 and 307, P.P.C. for the murder of Khurshid Butt and for murderous assault on Muhammad Siddiq P.W.

It was contended on behalf of the appellant that in the facts and circumstances of this case the sentence of death was uncalled for. We have minutely considered this aspect of the case. According to the prosecution evidence, Khurshid Butt deceased and Jahangir Khan accused were coming out of the cinema hall abusing each other after the end of cinema show. Khurshid Butt deceased asked the accused to stop abusing him whereafter he took out his knife and gave a solitary blow on the abdomen of the deceased. It, therefore, appears that something happened between the deceased and the accused inside the hall on account of which they started abusing each other while coming out of the hall. There is no evidence to prove the origin of the quarrel which is shrouded in mystery. According to the F.I.R., .the accused while coming out of the hall, asked Khurshid Ahmad as to why he had got his seat vacated. This fact indicates that something untowards did take place between the two inside the hall. The accused inflicted only one injury on the person of the deceased. In view of this, the sentence of death awarded to Jahangir Khan accused is reduced to imprisonment for life. The sentence of death IS NOT confirmed. The accused is beggar. He is a poor man. We, therefore remit his sentence of fine.

8. As a result of the above discussion, the conviction of Jahangir Khan appellant under sections 302 and 307, P.P.C. is maintained. He is sentenced to imprisonment for life under section 302, P . P. C. and to five years' R.I. under section 307, P.P.C. Both the sentences will run concurrently.

9. Subject to the above modification, this appeal fails and is accordingly dismissed. The appellant will be informed of the result of this appeal in jail.

S. A. Order accordingly.

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