Journal: PCr.

LJ
Year: 1990
Old Headnote:
(a) Penal Code (XLV of 1860) - -S. 302-Appreciation of evidence-Motive set up by
prosecution was proved-Eye-witnesses although related to deceased were natural
witnesses and no animus or grudge was ascribed to them for deposing falsely
against accused- Accused even in his statement did not completely deny the
occurrence and in his plea he suppressed material facts-Many persons, according
to accused, had appeared during investigation in support of his plea, but none of
them was examined by him at the trial in defence-Conviction of accused under
S.302, P.P.C. was maintained in circumstances. |pp. 1656, 1657] A, B, C & D (b)
Penal Code (XLV of 1860)- ____S. 302-Sentence-Accused had acted in a cruel manner
as he had inflicted five incised/stab wounds on the defenceless deceased-No
extenuating circumstance thus existed for awarding lesser punishment to accused-
Sentence of death was consequently confirmed, [p. 1657] E (c) Criminal Procedure
Code (V of 1898)- ____g 544-A--Sentence of two years’ R.I. in default of payment
of compensation being in violation of subsection (2) of S.544-A, Cr.P.C. was reduced
to imprisonment for six months, [p. 1657] F
New Headnote:
PPC-Pakistan Penal Code,1860

Section 302

No extenuating circumstance for awarding lesser punishment when the

appellant inflicted five incised/stab wounds on the defenceless deceased. -
Trial Court was justified in relying upon the ocular account of natural witnesses who
ascribed no animus or grudge to falsely depose against the appellant.

CrPC- Code of Criminal Procedure, 1898

Section 544-A

Sentence of two years R.I. in default of payment of compensation is

in violation of subsection (2) of section 544-A, Cr.P.C.

Judgment:
JUDGMENT ABDUL WAHEED, J.- Muhammad Ajmal alias Gullo (17) was tried for the
murder of Muhammad Younsal (18) by the Additional Sessions Judge, Jhang who
vide his judgment dated 3rd of April, 1986 convicted him under section 302, P.P.C.
and sentenced him to death and to pay a fine of Rs.10,000 or in default to undergo
R.I for a further period of two years. He was further directed under section 544-
A, Cr.P.C. to pay Rs.10,000 as compensation to the heirs of the deceased or
in default to suffer R.I. for a further period of two years. He has filed an appeal
against his conviction and sentence. There is also a reference under section
374, Cr.P.C. for confirmation of the sentence of death. This judgment will dispose of
the appeal as well as the reference. 2. The occurrence took place on 29th of June,
1985 at 10-00 a.m. in front of the house of Habib Shah P.W.6, father of
the deceased, at Mohallah Jogianwala, three furlongs away from Police Station
Kotwali, District Jhang. It was reported by Habib Shah P.W.6 vide statement Ex.P.D.
on the same date at 11-00 a.m. to A.S.I. Ashiq Hussain P.W.9 at Chowk Saddar
where he was present at that time on patrol duty. This place is at a distance of
about one furlong from Police Station Kotwali. On the basis of the statement, a case
under section 302, P.P.C. was registered at Police Station Kotwali on the same date
at 11-05 a.m. vide formal F.I.R. Exh.P.D./l drawn by M.H.C. Ghulam Murtaza Shah
P.W.4. 3. The prosecution case briefly was that the deceased had lent to the
appellant a sum of Rs.40,000 which was given to him by his father after selling his
house. The deceased was demanding the rc-paymcnt of the loan but the appellant
procrastinated the same. A day before the occurrence, there had occurred an
altercation between them on this account. 4. On the day of occurrence, Habib Shah
P.W.6 was present in his house alongwith the deceased. At about 10-00 a.m. there
was a knock at the door. As soon as the deceased went out, the appellant who was
present outside gave a Chhuri blow to him on his forehead. Habid Shah P.W.6
rushed outside. The appellant inflicted three more Chhuri blows on
the deceased hitting him on the chest and left forearm. The deceased fell down.
Besides Habib Shah P.W. 6, this occurrence was seen by Sardar Ali P.W. 7 and Imam
Din (given up as unnecessary) and Muhmmad Riaz (given up as having been won
over) who happened to be passing in the street at that time. Habib Shah and Sardar
Ali started carrying the deceased in an injured condition in a tonga to the Civil
Hospital. On the way when they reached Bhattian Choonaywali,
the deceased succumbed to the injuries. 5. It was alleged that the appellant had
attacked the deceased as a sequel of the altercation which had taken place
between them a day before the occurrence on the re-payment of the loan. 6. After
recording the F.I.R. A.S.I. Ashiq Hussain P.W.9 went to Bhattian Choonaywali where
the dead body was lying. He prepared injury statement Exh.P.H. and inquest report
Exh.P.J. in respect of the dead body and despatched the same to the mortuary for
post-mortem examination under the escort of F.C. Muhammad Aslam P.W.3. He
then repaired to the spot and on reaching there collected blood-stained earth vide
memo. Exh.P.E. and made it into a scaled parcel. On the same day he raided the
house of the appellant and arrested him from there. He was wearing blood-stained
Shalwar P.4 and shirt P.5. He took them into possession vide memo Exh.P.F.
However, he did not make them into a sealed parcel nor sent them to the Chemical
Examiner. On 4th of July 1985, the appellant while in custody got recovered from
his house blood-stained Chhuri'P.8. Inspector Javcd Ali Mirza P.W.8 took the same
into possession and made it into a sealed parcel vide memo Exh.P.G. in the
presence of Habib Shah P.W.6 and Sardar Ali P.W.7. The blood-stained Chhuri and
the blood-stained earth were found stained with human blood by the Chemical
Examiner vide his reports Exhs.P.L. and P.M. and the Serologist vide his reports
Exhs.P.N. and P.O. On the conclusion of the investigation, the appellant was
challaned under section 302 P.P.C. 7. On 29th of June, 1985 at 3-30 p.m. Dr. A.B.
Salecm, Medical Officer, District Headquarters Hospital, Jhang performed post-
mortem examination on the dead body of the deceased and found the following
injuries: (1) An incised wound 2 c.m. x 0.5 c.m. x bone deep on the left side of
forehead 1 c.m. above the left eyebrow. (2) A stab wound 1.5 c.m. x 1 c.m. on the
left side of the chest 5 c.m. away from the left nipple. On dissection it was found
piercing the walls of chest, upper and lower lobe of left lung and finally into left
atrium of heart. (3) A stab wound 1.5 c.m. x 1 c.m. on the left side of the chest 1
c.m. below injury No.2. On dissection it was found piercing the walls of the chest,
upper and lower lobe of the left lung and finally into the left atrium of heart. (4)
An incised wound 6 c.m. x 2 c.m. x bone deep on the outer side of the left forearm,
middle part. (5) An incised wound 4 c.m. x 1 c.m. x muscle deep on the back of the
left upper arm upper part, 8. In the opinion of the Medical Officer, the cause
of death was interna! and external bleeding due to puncture of heart and shock as
a result of injuries Nos.2 and 3 which were sufficient to cause death in the ordinary
course of nature. All the injuries were ante-mortem and had been caused by sharp-
edged weapon. The probable interval between the injuries and the death was
about 1/2 hour and between the death and the post mortem examination about 5-
1/2 hours. Exh.P.A. is the post-mortem examination report and Exh.P.A./l and
Exh.P.A./2 are the sketches showing the locale of the injuries. The Medical Officer in
his cross-examination stated that injuries Nos.l, 4 and 5 were simple in nature and
injury No.l could be caused in a scuffle. 9. The appellant was charged under
section 302, P.P.C. to which he pleaded not guilty. 10. The prosecution in suport of
its case examined nine witnesses who included Habib Shah P.W.6 and Sardar Ali
P.W.7 who deposed to the occurrence and the recoveries effected in this case.
Habib Shah P.W.6 also deposed to the motive. 11. The appellant in
his statement under section 342, Cr.P.C denied the prosecution case and the
recoveries effected in this case. He raised the following plca:- "I have
been falsely involved in this case. In fact the deceased had attacked me when I was
passing in front of his house, we grappled with each other and during the scuffle he
sustained injuries. The police has given a wrong twist to the facts of this case
during investigation. So many persons appeared as eye-witnesses before the I.O.
but dishonestly they have not been cited as eye-witnesses because they
corroborated my version. The close relatives of the deceased reside at distant
places and have been made witnesses of the occurrence." 12. The conviction of the
appellant has been assailed on the grounds that the evidence in support of the
motive is unsatisfactory, that the ocular account has been fprnishcd by
the witnesses who are related to the deceased and that the plea raised by the
appellant was taken by him at the earliest opportunity during investigation. It is
further argued that since the motive in this case is shrouded in mystry, the extreme
penalty of death is not called for. Learned counsel for the State has controverted
these contentions. 13. Habib Shah P.W.6 deposed to the motive. He stated that he
sold his house and got a shop for the deceased, his son, for carrying on the
business of spare parts. His son, however, sold the shop and gave the amount of
Rs.40,000 to the appellant as debt. Subsequently in spite of the demands of
the deceased, the appellant did not re-pay the loan. There was exchange of hot
words between them and it was for this reason that the appellant committed the
murder of the deceased. In cross-examination he stated that the appellant had not
executed any receipt acknowledging the debt and further that he did not witness
the exchange of hot words between the deceased and the appellant and it was his
guess that the appellant had committed the murder of the deceased for the above
reason. The statement in cross-examination does not dilute his testimony in
examination-in-chicf, rather it fortifies his veracity and reveals his morality to speak
unadulterated truth. No doubt, there is no corroboration of his testimony on the
motive, nevertheless it does not smack of a contrivance. Moreover, the appellant
while pleading that it was the deceased who attacked him when he was passing in
front of his house did not give any reason for the attack. Some suggestions were
put to Habib Shah P.W.6 and Sardar Ali P.W.7 in their cross-examination reflecting
on the character of the deceased. They refuted the suggestions. Nothing was
brought on record to pursue and sustain those suggestions. T herefore,
the statement of Habib Shah P.W.6 on the motive deserves credence. 14. As
mentioned above, the ocular account was provided by Habib Shah P.W.6 and
Sardar Ali P.W.7. They deposed that on the day of occurrence at about 10-00 a.m.
the appellant knocked at the door of the house of the deceased. As soon as
the deceased came out of his house, the appellant gave a Chhuri blow hitting him
on his left eye-brow. The appellant inflicted 3/4 more Chhuri blows on
the deceased hitting him on the chest and left upper arm. The deceased fell to the
ground. The appellant ran away from the spot with the Chhuri. According to them,
Imam Din and Riaz also saw this occurrence. They further stated that
the deceased was carried to the hospital in an injured condition in a tonga but he
expired on the way at Chowk Choona Bhattian. 15. Habib Shah P.W.6 is the father
of the deceased. He is a natural witness because the occurrence took place in front
of his house. Sardar Ali P.W. 7 also is related to the deceased being the cousin of his
father. As staled by him in his cross-examination, his house is only about one
hundred yards away from the spot. His presence too at the spot at the time
of occurrence, albeit by chance, was not unnatural. Besides, they
were ascribed no animus or grudge to falsely depose against the appellant. The
appellant in his statement did not completely deny the occurrence. According to
him, when he was passing in front of the house of the deceased,
the deceased attacked him, they grappled with each other and it was during the
scuffle that the deceased sustained the injuries. He gave no explanation as to why
he was passing in front of the house of the deceased, why did the deceased attack
and grapple with him, how was it that in the scuffle he remained unscathed while
the deceased received as many as five incised and stab wounds, two out of
which proved fatal and who caused the injuries and with what weapon. The silence
of the appellant on these material points speaks loudly that his plea is suppression
of facts. According to him,
many persons had appeared during investigation in support of his plea.
However, none of them was examined at the trial in defence. 16. For the foregoing
reasons, the learned trial Court was justified in relying upon the ocular account and
holding the appellant guilty of the murder of the deceased. Therefore, the
conviction of the appellant under section 302, P.P.C. is maintained. 17. As regards
the sentence, learned counsel for the appellant has argued that the extreme
penalty of death is not warranted in this case as the immediate cause of the
murder is shrouded in mystry. According to the evidence on record, there was no
hostility between the deceased and the appellant except the bad feelings generated
by the failure of the appellant to repay the loan due to the deceased. The
appellant acted in a cruel manner inasmuch as
he inflicted five incised/stab wounds on the defenceless deceased. In this view of
the matter, there is no extenuating circumstance for awarding lesser punishment to
the appellant. We, therefore, maintain the sentence of death. However, the
sentence of two years’ R.I. in default of payment of compensation being
in violation of subsection (2) of section 544-A, Cr.P.C.
is reduced to imprisonment for six months. 18. In the result, this appeal is
dismissed with the above modification in the quantum of
the imprisonment in default of payment of compensation. 19. The sentence
of death awarded to the appellant is confirmed.