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Criminal Appeal No. 22/J of 1986, decided on 26th November, 1986.
---S. 302--Ocular evidence, appreciation of--Eye-witnesses closely related to deceased, but having no enmity to falsely implicate accused--Witnesses making consistent statements--No discrepancy found in their statements--Minor improvements not affecting merits of casein statement of complainant--No improvement in. statements of other witnesses--Knife recovered from accused found stained with human blood--Accused having motive to kill--Ocular evidence provided by eye-witnesses, held, could not be excluded from consideration.
---S. 302--Delay in recording F.I.R.--Police Station at distance of 4 miles from place of occurrence--Injured in precarious condition taken to hospital also at distance of 4 miles--Two hours' delay in lodging F I.R held was not material in circumstances.[Delay].
---S. 302--Evidence Act (I of 1872), S. 32--Dying declaration--Statement of injured recorded by Investigating Officer--Statement word by word reproduction of F.I.R.--Such statement held, was rightly excluded from consideration by Trial Court.
Hasnaat Ahmad for the State.
Date of hearing: 26th November, 1986.
This is an appeal by Mureed 30 against his conviction under section 302, P.P.C. by learned Sessions Judge, Jhang who vide judgment, dated 11-3-1986 sentenced him to imprisonment for life plus fine of Rs.10,000 or in default three years' R.I. It was ordered that half of the fine, if recovered, be paid as compensation to heirs of the deceased. He was also allowed the benefit of section 382-B, Cr.P.C.
Dilmir 39 and Siddiq 28, two co-accused of the appellant were, however, acquitted by the same judgment.
2. In brief the prosecution case is that on 7-1-1985, at about 7-30 a.m., Hamayun complainant, his son Muhammad Hanif deceased went to the house of Najabat in Chak No. 189/J. B. Mureed armed with knife alongwith his brothers Dilmir and Siddiq both empty handed came there. Dilmir challenged. Siddiq caught hold of Muhammad Hanif whereafter Mureed gave knife blow on his chest. The second knife blow was given on the cheek of Muhammad Hanif who fell down. He was given three more knife blows by Mureed accused on various parts of the body. The alarm attracted Sultan and Muhammad P.Ws. who also witnessed this occurrence.
The motive was stated to be that Mureed etc. accused suspected Muhammad Hanif deceased of having illicit relations with their sister Mst. Bahishtan.
Muhammad Hanif was taken to Civil Hospital, Bhawana for treatment and examination. Leaving him there, Hamayun P.W. 6 went to Police Station Bhawana about 41 miles from the place of occurrence and lodged F.I . R . Exh. P.C. at 9-30 a.m. on the same day which was recorded by S.I. Sadullah Khan P.W. 9.
Initially the case was registered under section 307/34, P.P.C. Muhammad Hanif died in hospital on 8-1-1985, at about 7-30 a.m. The offence was accordingly altered to section 302, P. P. C .
3. Dr. Muhammad Aslam P.W. 7 on 7-1-1985 at 9-15 a.m., medically examined Muhammad Hanif aged 27 years when he was still alive and found the following injuries:--
(1) A stab wound 2 c.m. x c.m. x cutting the underlying bone (mandible upper part) on the right cheek 2 c.m. frontal to right ear lobule.
(2) A stab wound 3 c.m. x 1 c.m. x cavity deep through which air was coming out and in, on the right side of chest frontal part 5 c. m. below the right nipple and outer 7 c. m. to the mid line, at the 6th intercostal space.
(3) A stab wound 2 c.m. x 1 c.m. x cavity deep on the back of left chest 4 c.m. to the left of vertebral column, at the 10th intercostal space
(4) A stab wound 2 c.m. x 3/4 c.m. x muscle deep on the outer side of left buttock.
(5) A stab wound c.m. x c.m. x muscle deep on the right side of chest in the axilla.
The patient was fully conscious. Injuries 1 and 2 were grievous. Injuries 3 and 4 were kept under observation and injury 5 was simple in nature. All injuries were by sharp-edged weapon and of within six hours duration.
After the death of Muhammad Hanif, the same Medical Officer on 8-1-1985, at 11-30 a.m., conducted the post-mortem examination on the dead body. He noted the same injuries as have been given above. All the wounds had been stitched. Dr. Muhammad Aslam P.W. 7 had also operated upon Muhammad Hanif for treatment and gave details of operation in separate notes.
Injury No. 2 had penetrated in the 6th intercostal space on the right frontal chest. Injury No. 3 had penetrated in the 10th intercostal space on the back and left side of chest. These two injuries had ruptured the layers of both pleura in the chest. The pleural cavity contained blood. The right lung had been punctured on the outer side of lower lobe. The left lung had been punctured on the back side of lower lobe. There was fracture of right mandible upper part under injury No. 1.
The death was due to shock and haemorrhage due to injuries 2 and 3 which were individually and collectively sufficient in ordinary course of nature to cause death. Injuries 1 2 and 3 were grievous while other injuries were of simple nature. All injuries had been caused by sharp-edged weapon. Time between injuries and death was about 30 hours and post-mortem was conducted in about six hours of death.
3. The Investigating Officer after registration of the case undertook investigation. He collected blood-stained earth from the place of occurrence vide memo. Exh. P.L.
The Investigating Officer on 7-1-1985 made an application Exh, P . H . to secure a report from the Medical Officer as to whether Muhammad Hanif, an indoor patient was fit to make statement or not. The Medical Officer vide report Exh. P. H . declared Muhammad Hanif fit to make statement whereafter at about 10-15 a.m., S.I. Sadaullah Khan P.W. 9 recorded his statement Exh. P.K. under section 161, Cr.P.C.
The accused were arrested on 12-1-1985.
On the day of his arrest, Mureed accused while in police custody led to the recovery of blood-stained knife P. 6 from his house which was taken in possession vide memo. Exh. P.D. by S.I. Sadullah Khan P.W. 9 in presence of Hamayun P.W. 6 and Peera P.W. (not examined). This knife was found stained with human blood, vide report of Chemical Examiner Exh. P.Q. and that of Serologist Exh. P.R.
The accused were challaned after completion of investigation.
4. Hamayun P.W. 6 father of the deceased and Sultan P.W. 8, an uncle of the deceased, appeared as eye-witnesses. Muhammad, an eye-witness named in the F.I.R., was given up. The recovery of knife P.6 was witnessed by Hamayun P.W. 6. The medical evidence was furnished by Dr. Muhammad Aslam P.W.7 as given in detail above. The case was investigated by S.I. Sadullah Khan P.W.9. The evidence of rest of the witnesses was of formal nature.
The accused when examined after close of prosecution evidence, denied the charge and pleaded innocence. Mureed appellant denied recovery of knife P.6. He did not agree to make statement on oath under section 340, Cr.P.C. No defence evidence was produced by the accused.
The learned trial Judge placed reliance on the prosecution evidence and convicted Mureed appellant as stated above.
5. I have carefully gone through the evidence on record with the assistance of learned State counsel. Hamayun P.W.6 and Sultan P.W. 8 are closely related to the deceased. They have, however, no enmity to falsely implicate the accused in this case. It was pointed out by the learned counsel for the State that Rajan, a sister of Hamayun P.W. was married to Kameer, an uncle of the accused while Mst. Bakhan was married to Amir father of Mureed appellant. These two ladies were divorced. In exchange, Mst. Rani, a sister of the father of the accused, was married to Sultan who also divorced her. I have considered this enmity between the parties. It appears that the ladies of the parties were married in exchange. All of them seem to have been divorced with consent of their respective husbands. There was no litigation between the parties for separation of those ladies. As such, I am of the view that this enmity could not be a cause of false implication of the accused in this case. The two eye-witnesses made consistent statements during the trial. There was no discrepancy in their statements. The learned counsel for the State pointed out four improvements in the statement of Hamayun P.W. 6. The first improvement indicated that Hamayun P . W. stated in his F .I . R . Exh. P.C. that at about 7-30 a.m., he had gone to the house of Najabat with Muhammad Hanif deceased but during trial he added the word "sunrise". Secondly, in his F. I. R. , he did not state that Hanif was 2 Karams ahead of him, Thirdly, he had not stated in the F.I.R. that they had entered the Ehata of Najabat. The word "ehata" was not specifically mentioned and finally, that the knife blow on the face of Hanif was not specified in the F .I . R . These improvements are not material to affect the merits of this case. There was no improvement in the statement of Sultan P.W. 8. The trend of cross-examination indicates that the presence of Sultan P.W. was challenged because of his residence at the shrine of Pir Karam Shah. It was admitted by him that his national identity-card also indicated his residence at shrine. It was explained by this witness that he was a Malang. He sometimes remained at the shrine of Peer Karam Shah and sometimes lived in his own house in the Chak which was only 2 miles away from the said shrine. There being not much distance between the two paces, it was possible that Sultan P.W. resided at both the places from time to time. I have considered the question of delay in recording of the F.I.R. The occurrence took place at 7-30 a.m. on 7-1-1985. The police station and the hospital were about 4 miles from the place of occurrence. Muhammad Hanif was taken to hospital, because of his precarious condition whereafter the F.I.R. Exh. P.C. was recorded at 9-30 a.m. on the day of occurrence. The delay of two hours in recording of the F.I.R. is not, therefore, material in the facts and circumstances of this case.
The learned trial Judge did not place reliance on the statement of Muhammad Hanif deceased Exh. P.K. recorded by the Investigating Officer in the hospital. A perusal of this statement would show that it was merely word by word copy of the F.I.R. I am, therefore, of the view that it was rightly excluded from consideration by the trial Court.
The knife P.6 was found stained with human blood. Its recovery was witnessed by Hamayun P.W.6. He was an independent witness. This recovery, also lends support to the ocular account of this case.
The accused also had a motive to murder Muhammad Hanif. I do not find any circumstance to exclude the evidence of the two eye-witnesses from consideration against the accused.
6. In view of the above discussion, I find no merits in this appeal which is accordingly dismissed. The conviction and sentence of Mureed accused-appellant is maintained. He will be informed of the result of this appeal in jail.
S. A. Appeal dismissed.
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