Ijaz Ahmad Chaudhry, J.--This judgment will dispose of CH. Appeal No, 1028 of 2001 filed by Raashid alias Bao Masih and Crl. Appeal No, 1351 of 2001 filed by Allah Ditta, Salamat Masih and Liaqat Masih against their convictions alongwith Murder Reference No, 394 of 2001 sent by the learned trial Court for confirmation of death sentence passed against Raashid alias Bao Masih as all these matters have arisen from the same judgment passed by the learned Sessions Judge, Kasur on 27.6.2001 whereby the appellants were convicted and sentenced as follows:- Rashid alias Boo Masih appellant was convicted under Section 302(b) PPC and sentenced to death with a direction to pay fine of Rs, 10,000/- or in default of payment of fine to undergo R.I. for six months. The compensation in the tune of Rs, 50,000/- was also awarded under section 544-A Cr.P.C. to be paid by Raashid alias Bao Masih appellant to the legal heirs of the deceased.
Allah Ditta alias Bhaghi Masih appellant was convicted under Section 302/34 PPC and sentenced to imprisonment for life as Tazir with a fine of Rs, 10,000/- or in default of payment thereof to further undergo R.I. for six months. The-compensation was also awarded in the tune of Rs, 50,000/- to be paid by Allah Ditta appellant under Section 544-A Cr.P.C. Allah Ditta appellant was also convicted under Section 324/34 PPC and sentenced to seven years R.I. with a fine of Rs, 10,000/- and in case of non-payment of fine to further undergo six months R.I. However, both the sentences awarded to Allah Ditta appellant shall run concurrently.
Salamat Masih appellant was also convicted under Section 324/34 PPC and sentenced to seven years R.I. with a fine of Rs, 10,000/- and in case of non-payment .of fine to further undergo R.I. for six months.
Liaqat Masih appellant was also convicted under Section 337-A(i) PPC and sentenced to one year R.I. with Daman amounting to Rs, 5,000/- to be paid by Liaqat Masih appellant to Arif Masih victim of hurt. However, benefit of Section 382-B Cr.P.C. was extended to all the convicts/appellants.
2. The occurrence in the present case had taken place at 12.00 noon on 9.1.2000 within the area of Mauza Keelu situate at a distance of about 12 kilo-meters from Police Station Saddar Kausr while the matter was reported to the police by Sadiq Masih (PW.7) through FIR No, 8 (Ex PF) recorded at Police Station Saddar Kausr by Ashfaq Hussain Kazi Inspector/SHO (PW.13) the same day at 12.30 p.m.
3. The brief facts narrated in the FIR'(Ex. PF) got recorded by Sadiq Masih complainant (PW.7) are that on the day of occurrence i,e, 9.1.2000, he alongwith Mansha Masih (deceased), Mushtaq Masih (PW.8),and Farzand Masih was sitting at Adda Kailon in a Tea Stall where Raashid alias Bao Masih appellant came from whom an amount of Rs, 5,000/- advanced by Mansha Masih was demanded which annoyed Raashid alias Bao Masih appellant, who started hurling hot words and abuses to Mansha Masih deceased. Then both of them grappled with each other, but on intervention of the complainant and others. Raashid alias Bao Masih appellant left for his house. Then after short interval Raashid appellant armed with Chhuri, Allah Ditta alias Boghi Masih appellant armed with Chhuri, Salamat Masih appellant armed with Chhuri and Liaqat' Masih appellant empty handed came' over there while raising lalkaras. Liaqat Masih raised a lalkara that Mansha should be taken to task whereupon Liaqat Masih appellant caught bold of Mansha and Raashid alias Bao Masih. appellant gave two Chhuri blows, one after the other on left side of chest and left temple who fell down on the ground. Thereafter Allah Ditta alias Boghi Masih appellant also gave Churri blow to Mansha Masih deceased on left arm-pit, who succumbed to the injuries at the, spot. Salamat Masih appellant also inflicted injury to Mushtaq on his neck while Allah Ditta alias Boghi Masih appellant caused injury to Mushtaq on his back and when the complainant, Farzand Masih and Arif Masih interfered, Liaqat Masih appellant taking a soft drink bottle from the Tea Stall caused injury on the face of Arif Masih (PW.9). Raashid alias Bao Masih appellant etc. raised a lalkara that if anybody came forward would also be taken to the same task and all the appellants made good their escape from the place of occurrence.
4. After recording the FIR Ashfaq Hussain Kazi Inspector/SHO (PW,13) alongwith Haq Nawaz SI (PW.12) and others proceeded towards the spot Mushtaq injured was being taken to the hospital in the Dala and Haq Nawaz S.I. was sent with him. Injury statement as well inquest report were prepared and the deadbody of Mansha Masih was sent to the Mortuary after preparing the necessary documents. Then blood-stained earth was also taken into possession from the spot and the statements of the witnesses were recorded. The post-mortem examination was conducted by Dr. Rashid Ahmad Bhullar (PW.6) on the following day i,e, 10.1.2000 at 10.30 a.m. Haq Nawaz SI (PW.12) arrested all the accused on 8.2.2000. On 13.2.2000 Raashid Masih appellant led to the recovery of C'hhuri P. 5 which was taken into possession vide memo Ex. PH and the said recovery was witnessed by Arif Masih (PW.9) and Farzand (given up PW). On 20.2.2000 Allah .Ditta appellant in the presence of the same set of witnesses led to the recovery of Churri P. 76 which was taken into possession vide memo Ex. PJ. On the same day Liaqat Masih appellant also led to the recovery of Chhuri P. 7 which was taken into possession vide memo Ex. PK and Liaqat Masih also led to the recovery of Soda bottle P.8 which was also taken into possession vide memo Ex. PL.
5. After the completion of the investigation report under Section 173 Cr.P.C. was submitted in the Court, copies as required under Section 265-C Cr.P.C. were supplied to the appellants and charge was framed against them which was denied by them and they claimed to be tried.
6. The prosecution in order to prove the guilt of the appellants produced as many as 13 witnesses.
The ocular account was furnished by Sadiq Masih (PW.7) Mushtaq Mashi (PW.8) and Arif Masih (PW.9) while investigation was conducted by Haq Nawaz (PW.12) and Ashfaq Hussain Kazi Inspector/ SHO (PW.13). The medical evidence was produced through the statements of Dr. Rashid Ahmad Bhullar (PW.6) who had conducted the post-mortem examination of the deceased, Dr. Raza-ur-Rehman Hashmi (PW.10), who medically examined Arif Masih (PW.9) and Dr. Mumtaz Ahmad (PW.11) who medically examined Mushtaq Masih (PW.8). The remaining witnesses are of formal nature and need not discuss here.
7. After the close of the prosecution evidence the statements of the appellants were recorded under Section 342 Cr.P.C. in which they denied the allegations and professed their innocence. To a question that "why this case against you and why the PWs have deposed against you? Raashid alias Bao Masih appellant took the specific plea of self defence, which is reproduced here in verbatum:-- "In fact Mansha Masih deceased is a desperate person having been all drunk on the fateful day while sitting at a tea-stall threw a burning Cigarettes upon me. I agitated and a quarrel was there, Mansha Masih deceased, gave me physical beatings. I left the spot leaving behind my pair of shoes and Chaddar which were in fact snatched by Mansha Masih deceased while I was weeping. I reached home and told the whole incident to my mother. She came to the Hotel to lodge a complaint and get back pair of shoe and Chaddar. I remained standing near the electric pole at a distance 30/35 karams (150 to 175 feet) from the Hotel. My mother collected pair of shoe and Chaddar and also complained against Mansha Masih deceased to get annoyed and abused my mother. My mother also returned in the same coin on which Mansha Masih became all naked' before my mother. I cried that he should have felt ashamed and also abused Mansha Masih.
Mansha Masih shouted that tiny creature (myself), is to be learnt a lesson and he ran towards me. I felt myself in danger and thus picked up a Churn from the fruit vendor (REHRI-WALA). Mansha Masih attacked me and I gave him Churri blows who fell down. Mushtaq Masih PW who was following Mansha Masih attacked me and I gave me Churri 'blows who fell down. Arif Masih struck against the electric pole and injury was caused on his face. I had injured Mushtaq Masih and Mansha Masih in my self-defence. I am dead sure that had it not taken the aforesaid step, I must had been murdered and my mother had been dishonoured and disgraced. My co-accused are absolutely innocent."
However, the other appellants had denied their participation in the occurrence. The appellants did not .opt to make statements under Section 340(2) Cr.P.C. In the defence evidence only Shahzada Sultan ASP (CW.1) was got examined by the appellants who deposed that the investigation was conducted by him.
8. The learned trial Court after hearing arguments of both the parties had passed the impugned judgment of convictions and sentences against the appellants as detailed in Para No, 1 ante. Hence all these matters before this Court.
9. Learned counsel for the appellants Rashid alias Bao Masih and Allah Ditta contends that the complainant was not present at the spot and there are contradictions in the statements of the witnesses regarding the minute details of the incident, which were on material points and it is established on the record that the witnesses were not present at the spot, who had not seen the incident as claimed by them and even otherwise they cannot be termed as truthful witnesses; that injured PW Mushtaq Masih (PW.8) had not spoken the truth and concealed the true facts. It is next contended that the defence plea raised by Raashid Masih appellant is nearer to the truth having been borne out from the record; that the appellant Allah Ditta had been falsely implicated in the present case being real brother of the co-convict Raashid Masih alias Bao; that the prosecution story is not believable; that motive has not been established as the deceased was 35 years of age while the appellant Raashid Masih alias Bao was aged about 16 years at the time of the incident and no evidence had been produced that why the huge amount of Rs, 5,000/- by the deceased was given to a boy of such age; that none of the Investigating Officers had declared any of the appellants guilty and the investigation was transferred from them; that CW.1 Shahzada Sultan ASP has supported the defence plea about the innocence of Salamat Masih appellant and also throwing of the Cigarette on Rashid Masih Appellant by the deceased resulting in this incident that the occurrence had taken place at the spur of moment and the appellant Raashid Masih was aged about 16 years as per his Matriculation Certificate at the time of incident and his age also had been given in his statement recorded under Section 342 Cr.P.C. as 19 years, who was a juvenile and death sentence could not be awarded to him; and that the prosecution story is not believable and the appellants are entitled to acquittal.
10. Learned counsel for the State on the other hand have opposed these appeals on the ground that the eye-witnesses were residents of the same locality and they had sufficiently proved their presence at the spot; that Mushtaq Masih (PW.7) and Arif Masih (PW.9) had also received the injuries during the incident and their presence at the spot was beyond any doubt; that the minor contradictions in their statements cannot affect the prosecution story as a whole as such type of contradictions can occur by the passage of time; that the contradictions even otherwise are not on material points and have been rightly ignored by the learned trial Court, and that the convictions and sentence recorded by the learned trial Court against the appellants being based on the evidence on the record may be maintained.
11. We have heard the arguments of the learned counsel for the parties and also perused the record.
12. As far as Liaqat Masih and Salamat Masih Appellants No, 2 and 3 in Crl. Appeal No, 1351 of 20(11 are concerned, nobody has entered appearance to prosecute this appeal on their behalf. They were only sentenced to seven years and one year imprisonment respectively and operation of their sentences was not suspended by this Court. The possibility of serving out the whole sentence by these appellants cannot be ruled out. It appears that for this reason no one has entered appearance on their behalf. It also shows lack of interest on their behalf to prosecute Crl. Appeal No, 1351 of 2001, which to their extent is dismissed having become infructuous.
13. Now we are left with the cases of Rashid alias Bao Masih and Allah Ditta appellants, who were sentenced to death and life imprisonment respectively.
14. The occurrence in the present case had taken place on 9.1.2000 at 12.00 noon and on the statement of Sadiq Masih (PW.7) brother of Mansha Masih deceased FIR (Ex. PF) was recorded at 12.30 p.m. on the same day at Police Station Saddar Kasur by Ashfaq Hussain Kazi Inspector/SHO (PW.13). The names of the witnesses and the appellants including their roles played during the incident had been specifically given in the FIR. The Investigating Officer (PW.13) after recording the FIR had proceeded towards the place of occurrence and in the way Mushtaq Masih injured was found being taken to hospital in serious injured condition and Haq Nawaz SI (PW.12) was sent with him. The injury statement was also prepared and from the spot blood-stained earth was taken into possession by PW.13, who had also sent the deadbody to the Mortuary for the post-mortem examination, which was conducted on the next day i,e, 10.1.2000 at 10.30 a.m. by Dr. Rashid Ahmad Bhullar SMO (PW.6). The latter noticed three wounds caused by sharp edged weapon on the dead body of the deceased Mansha Masih. Mushtaq Masih (PW.8) was, however, medically examined on 9.1.2000 by Dr. Mumtaz Ahmad (PW.1) at 1.30 p.m. within 1(1/2) hours of the occurrence and he also noticed two incised wounds on the person of Mushtaq Ahmad. The victim was found unconscious and duration of the injuries was declared by the doctor within two hours. Then the serious condition of the injured PW compelled the doctor to refer him to General Hospital, Lahore. All these facts show that the occurrence had taken place and the injured witnesses alongwith the deceased had received injuries at the place of incident. The immediate removal of the injured PW Mushtaq Masih to the hospital also supports the prosecution story that it was not an unwitnessed occurrence and the presence of the PWs at the spot Was established beybond any shadow of doubt.
15. The prove the ocular account the prosecution produced Sadiq Masih (PW.7), Mushtaq Masih (PW.8) and Arif Masih (PW.11). Mushtaq Masih and Sadiq Masih PWs were real brothers of the deceased Mansha Masih whil Arif Masih (PW.11) was their first cousin. The presence of Sadiq Masih at the spot stood established as he had got lodged the FIR promptly and he also claimed that the distance between his house and place of occurrence was 30 to 40 karms. He had also explained his presence at the spot that he alongwith the deceased and other PWs had gone to the Tea Stall for taking tea where the occurrence had taken place. The place of incident has been established as the blood-stained earth was taken from there. According to the eye-witnesses there was holiday due to Eid-ul-Fitar on the day of incident and the witnesses had not gone to their routine job. The possibility cannot be ruled out that they being free had gone to the Tea Stall for making `gup shup' over a cup of tea. Even otherwise the other eye witnesses namely Mushtaq Masih (PW.8) had received two sharp edged weapon injuries on the vital parts of his body, who was medically examined on the same day at 1.30 p.m. and the doctor had declared that the said injuries were received by him within the duration of two hours. The locale of injuries and the time of receiving of injuries as observed by the doctor supported the ocular account that the occurrence had taken place at the time given by the prosecution. Arif Masih (PW.11) had also received injury during the incident and he was also medically examined but as he had not received serious injury, he remained present at the place of incident till the arrival of the police and then he was sent to the hospital with delay. However, the said delay had been sufficiently explained and he was also resident of the same locality. In such circumstances we find that the presence of the witnesses had been established at the scene to the occurrence.
16. Now the only question is whether they had spoken the whole truth or not. After perusal of the evidence on record, we find that the eye witnesses remained consistent with each other regarding the time, place and the manner in which the appellants had caused injuries to the deceased and the injured PWs. Raashid Masih alias Bao appellant while armed with Chhuri was alleged to have made repeated blows on the person of Mansha Masih hitting on the left side of the chest and the head. Then Allah Ditta appellant while armed with Chhuri had given a blow to the deceased after falling on the ground, which hit on the left side of back of the deceased. Allah Ditta appellant was also alleged to have caused a blow on the back of Mushtaq Masih injured PW. Salamat Masih appellant also inflicted a Churri blow on the neck of Mushtaq .Masih. Thereafter Liaqat Masih appellant who was empty handed had raised a lalkara and held the, deceased in Japha. Then he gave a blow on the face of Arif Masih with a bottle. All these three eye witnesses were subjected to lengthy cross-examination but the defence failed to gain anything to shatter their veracity. The injuries explained by the PWs were duly noted down by the three doctors (PWs 6, 10 and 11) while conducting post-mortem examination of the deceased and medical examination of the two injured PWs on the same locale. Admittedly none of the witnesses had any previous enmity or grudge to falsely implicate the appellants in the present case. It was a daylight occurrence and the appellants were previously known to the PWs, hence there was no chance of misidentity of the assailants. The FIR was got lodged promptly, which eliminates the possibility of concoction of prosecution story to falsely implicate the appellants after due deliberation. The minor contradiction in the statements of the eye-witnesses regarding the minute details of the occurrence and the presence of the other people around the place of occurrence can be termed as lapses of time as the occurrence had taken place on 9.1.2000 while statements of PWs-7 & 8 were recorded on 6.10.2000 and PW-9 was examined on 24.4.2001. The said contradictions being not on material points cannot be declared fatal to the prosecution story. After going through the whole evidence on record, we have no hesitation in holding that the ocular account furnished by the prosecution was trustworthy and confidence inspiring, which even without being corroborated by any independent piece of evidence was sufficient to connect the appellants with the commission of the crime.
17. During the investigation of the case, the recovery of blood-stained weapons (chhuries) had been effected from Raashid Masih alias Bao, Allah Ditta and Salamat Masih appellants from their houses and the persons of the locality though belonged to the complainant party including Arif Masih (PW-9) had witnessed the said recovery proceedings from each .of the accused. The said weapons were found to be stained with human blood according to the reports of the Chemical Examiner and the Serologist. There was no previous ill-will between the parties. The said witnesses who were joined in the investigation cannot be disbelieved merely because they had relationship with the deceased. Even otherwise, it has been repeatedly held that the independent persons. are generally reluctant to join the recovery proceedings and to become witnesses in the criminal case to avoid enmity with the criminals. In the present case, one person was murdered and the other two had received the injuries. In such a situation, the independent persons of the locality might be recluctant to come forward to avoid enmity with any of the parties. However, the defence failed to attribute any mala fide to the Investigating Officer for creating such piece of evidence against them. We find that recovery of blood-stained weapons on the pointing out of IRaashid Masih alias Bao, Allah Ditta and Liaqat Masih (appellants) had been established and it corroborates the ocular account.
18. Now we come to the motive of the incident set-up by the prosecution. It was alleged by the eye- witnesses and in the FIR that the deceased had given an amount of Rs, 5,000/- to the appellant Raashid. Masih as a loan and when the said 'amount was demanded at the place of incident, hot words were used between both the deceased and the said appellant having been infuriated returned to home and came back alongwith the other appellants, who all participated in the occurrence. Except the oral statement there is no evidence on the record to prove the motive that the deceased had to take back loan amounting to Rs, 5,000/- from Raashid Masih alias Bao (appellant;). Even otherwise, we are not satisfied that the appellant who was aged about 17 years and was not working any where having no source of income had been given an amount of Rs, 5,000/- by the deceased aged about 35-years as a loan, who also had been working in the school only as a Sweeper and was not a rick person. No witness was produced who had witnessed said transaction of advancing loan by the deceased to Raashid Masih (appellant). The purpose of advancing loan to the appellant by the deceased was also not disclosed. The occurrence appears to have taken place at the spur of moment and the orign thereof had been concealed by both the parties. We are satisfied that the prosecution had not been able to prove the motive set-up by it through sufficient evidence, but this alone is not sufficient to discard the ocular account as in each case it cannot be expected that the witnesses must have knowledge about the motive, which even otherwise is a matter purely between the assailants and the victims. Even killings are made now a days without motive and some times occurrences took place at the spur of moment on making jokes to each other.
19. The defence plea taken by Raashid Masih alias Bao (appellant) reproduced in Para No, 7 ante is also not found plausible or borne out from the record, which appears to be an after thought story.
The occurrence had taken place at a hotel, where the presence of other persons was, admitted, but none else appeared to prove the said defence version. Even the mother of Raashad Masih alias Bao (appellant) did not come forward before the learned trial Court to substantiate the defence plea that Raashid Masih alias Bao (appellant) had acted in the state of grave and sudden provocation to save the modesty of his mother. Moreover, it cannot be expected that Raashid Masih alias Bao (appellant) alone had caused injuries to the deceased and Mushtaq Masih (PW-8) only with a Chhurri as he was not given any beating by them. The local of the injuries on the persons of the deceased and the injured PWs shows involvement of more than one assailants in the occurrence. The time and place of occurrence alongwith the presence of the witnesses at the time of occurrence is even admitted by the appellants, which also provide corroboration to the ocular account. The Hon'ble Supreme Court in case "Sultan Khan vs. Sher Khan & others" (PLD 1991 S.C. 520) held as under:-- "The statement of an accused should be taken into consideration in its entirely and not merely the inculpatory part of it to the exclusion of the exculpatory part unless there is other reliable evidence which supplements the prosecution case. In such a condition, the exculpatory part if proved to be false may be excluded."
We find that other reliable evidence is available on the record to prove the prosecution case and exculpatory part of the statement of Raashid Masih alias Bao (appellant) is taken out of consideration.
20. In view of the above discussion, we have no hesitation in holding that the prosecution had been able to bring home charges to all the appellants beyond any shadow of doubt and the conviction recorded against them by the learned trial Court under different offences are maintained. Allah Ditta (appellant) had already been sentenced to life imprisonment for causing injury to Mansha Masih deceased and 7-years R.I. for attempting to commit Qatl-i-Amd of Mushtaq Masih (PW-8), which are maintained with the compensation amounting of Rs, 50,000/- payable to the legal heirs of the deceased under Section 544-A Cr.P.C. and fine of Rs, 10,000/- awarded under Section 324/34 PPC, but it is clarified that in default of payment of compensation and fine, Allah Ditta (appellant) shall further undergo 6- months S.I. on each count instead of R.I. as directed by the learned trial Court. However, the sentence of fine amounting to Rs, 10,000/- awarded under Section 302(b)/34 PPC is set-aside as is not provided by the statute. Both the sentences shall run concurrently as directed by the learned trial Court and benefit of Section 382-B Cr.P.C. shall also be given to him.
Criminal Appeal No 1351 of 2001 is accordingly dismissed, which has also been dismissed by us to the extent of other appellants namely Salamat Masih and Liaqat Masih having become infrucutuous as observed in Para No, 12 ante.
21. However, Raashid Masih alias Bao (appellant) was sentenced to death for causing fatal blows to Mansha Masih 'deceased. We have already observed that the prosecution failed to prove the motive and the occurrence appeared to have taken place at the spur of moment, but the immediate cause for commission thereof was not correctly brought on the record by both the parties. Moreover, in the statement under Section 342 Cr.P.C. made on 12.5.2001 by Raashid Masih alias Bao (appellant) he was recorded 19 years of age without any objection by the other party and as such he was less than 18 years of age at the time of incident taken place on 9.1.2000. Under the provisions of the Juvenile Justice System Ordinance, 2000 promulgated on 1.7.2000, the death penalty could not be awarded to a juvenile/child less than 18-years of age. Thus, the conviction recorded against Raashid Masih alias Bao (appellant) under Section 302(b) PPC is maintained, but death sentence awarded to him by the learned trial Court is converted to life imprisonment. The direction for payment of compensation amounting to Rs, 50,000/- to the legal heirs of the deceased is also maintained, but in default of payment thereof, he shall further undergo 6 months S.I. instead of R.I. as directed by the learned trial Court. However, the sentence of fine having not been provided by the Statute under Section 302 PPC is set-aside. Benefit of Section 382-B Cr.P.C. shall also be extended to Raashid Masih alias. Bao (appellant). With such a modification in the quantum of sentence only, Criminal Appeal No, 1028 of 2001 filed by Raashid Masih alias Bao (appellant) is dismissed accordingly.
Murder Reference No, 394 of 2001 is replied in the negative and the sentence of death awarded to Raashid Masih alias Bao (appellant) is not confirmed.