' IJAZ AHMAD CHAUDHRY, J.---This appeal has been directed by Yaqoob Masih appellant against the judgment, dated 13-12-2003, passed by learned Additional Sessions Judge, Lahore whereby he was convicted under section 302(b), P.P.C. And sentence to imprisonment for life with direction to pay compensation of Rs,50,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default of payment thereof to undergo S.I. For six months. Benefit under section 382-B, Cr.P.C. Was also extended to the appellant. Through the same judgment, Iqbal Masih alias Balka and Mst.
Seema co-accused, were acquitted while Qaisar alias Kaghi had become fugitives from law and his case was separated.
2. The occurrence in the present case had taken place on 8-8-1999, at 5.30 a.m,. In the area of Muzafar Bricks, Jhuggian Chambran, situate 12 k.m. Away from Police Station, Manga Mandi, Lahore and was reported by Maryam Bibi, P.W.1, widow of Ashiq Masih deceased through statement Exh.P.A.
Recorded by Amir Saleem, S.I. P W.9 at 6.45 a.m. While present at Jhuggian Chambran on patrol duty and on the basis of the same formal F.I.R. No,316 (Exh. P.A./1) was drafted at 7.10 a.m. At Police Station, Manga Mandi, by Muhammad Siddique, S.-I. (P. W.4).
3. The brief facts narrated in the F.I.R. Are that Mst. Maryam Bibi complainant was resident of Muzaffar Brick Kiln Darwaish Kot Road, Muauza Jhuggian Chambran, Manga Mandi, Lahore, who along with her husband Ashiq Masih and his son Arshad used to work at the brick kiln adjacent to their quarter. Iqbal Masih alias Balka also used to work at the same brick kiln and was residing there adjacent to their quarter. Iqbal alias Balka, three four times had asked the husband of the complainant, Ashiq Masih, deceased that his son Arshad Masih had developed illicit relations with his daughter,Mst. Farzana had asked to restrain him. On 8-8-1999 at about 5.30 a.m. When the complainant reached in front of her quarter after easing herself, Qaisar alias Kaghi (P.O.) and Seeman Bibi (acquitted accused) caught hold of her and wanted to take her to their house forcibly.
On the raising of hue and cry her husband Ashiq Masih, Shafi Masih and Arif Masih came and rescued her from the clutches of the accused. Yaqoob Masih, appellant went to his house and brought Chhurri. Then Qaisar alias Kaghi and Mst. Seeman Bibi raised Lalkara that Ashiq Masih had not restrained his son Arshad Masih from carrying on illicit liaison with their daughter and taught him a lesson by killing him. Iqbal Masih also came at the spot and caught hold of Ashiq Masih while Yaqoob Masih appellant inflicted a Chhurri blow hitting on left side of his chest, who fell down and died at the spot. The accused succeeded in fleeing from the spot.
4. The motive behind the occurrence was alleged that Arshad Masih had illicit liaison with Farzana, daughter of Iqbal Masih and to take the revenge Ashiq Masih was murdered.
5. After recording the statements of the complainant, Amer Saleem S.I. P.W.9 had proceeded to the place of occurrence, prepared the necessary documents and sent dead-body to mortuary for post-mortem examination. He collected blood-stained earth from the place of occurrence and took the same into possession vide memo. (Exh.P.P.C.) and recorded the statements of witnesses under section 161, Cr.P.C. He arrested the appellant on 9-8-1999 and on 12-8-1999, he led to the recovery of Chhurri like Khanjar from his residence which after making into seal parcel was taken into possession through memo. (Exh.P.D.). After completion of the investigation, report under section 173, Cr.P.C. Was submitted in the Court. Then the copies of the document required under section 265-C, Cr.P.C. Were supplied to the appellant and his co-accused, charge was framed against them which was denied by them and they claimed to be tried.
6. The prosecution examined as many as nine witnesses to prove its case. The ocular account was furnished by Maryam, P.W.1 and Shafi Masih, P.W.2, while the recovery evidence was given by Jeeta Masih (P.W.3) and Amer Saleem S.I. (P.W.9). The medical evidence was adduced by Dr. Iftikhar, P.W.8, who had conducted the post-mortem of the deceased and P.W.9 had conducted the investigation of this case. The remaining evidence was of formal nature.
7. After the close of the prosecution evidence, the appellant and the co-accused were examined under section 342, Cr.P.0 who had denied the allegations and professed their innocence. To a question that why thiscase had been lodged against him, Yagoob Masih appellant, replied in the following terms:-- "I am innocent. All the witnesses are close relatives and interested one. On the day of occurrence I along with my father Iqbal Masih were not present in our house and had gone to Lahore. In fact ron the day of occurrence Arshad Masih son of Ashiq Masih entered into our house by climbing over the wall and grappled with my sister and tried to commit illicit intercourse with her. She raised alarm, therefore, Arshad fled away by climbing over the wall. Qaisar accused and Seema went to the house of complainant, lodged a protest. There Ashiq Masih and his wife started altercation with Seeman and Qaisar accused and gave chhurri blows to Qaisar accused which was missed and unfortunately inflicted to the deceased Ashiq Masih who intervened at that time. Therefore, Arshad fled away from the place of occurrence. The case was registered against me by the complainant just to save the skin of his son Arshad Masih who had committed the crime. i.
' The accused-appellant, however, did not opt to make statement his defence under section 340, Cr.P.C. However, he had Mst. Farzana her sister as D.W.1 and closed his defence evidence.
8. After hearing the learned counsel for the parties, the learned Trial Court has passed the impugned judgment of conviction and sentence against the appellant as detailed in Para No,1 ante. Hence this appeal.
9. Learned counsel for the appellant _contends that the prosecution story was fabricated one and the appellant was falsely involved in the present case; that P.W.1 Mst. Maryam Bibi during the cross- examination claimed that she had received injuries and the blood started oozing from her body but she was not medically examined; that the complainant admitted that P.W.2 Shafi Masih was related to her but P.W.2 when appeared in the Court stated that he had no relations with her; that there are contradictions in the statements of the witnesses on material points, who have made dishonest improvements at the trial; that the witnesses had not seen the occurrence and the appellant had not participated in the incident; that on the basis of same evidence, the co-accused Mst. Seeman and Iqbal have been acquitted and the appellant is also entitled to the same treatment as there is no corroboration to the statements of the eye-witnesses as the recovery effected from the appellant was disbelieved by the Trial Court and the motive is also not proved as the complainant admitted that before the incident there were no illicit relations between Farzana and Arshad.
10. Learned counsel for the State opposes this appeal on the ground that the motive was proved; that the ocular account is fully corroborated by the medical evidence; that the F.I.R. Was lodged promptly and there was no time left to concoct the story narrated by the complainant in the FIR; that there was no contradiction in the statements of the eyewitnesses regarding the time, place of occurrence and the manner in which the occurrence had taken place; that the ocular account was fully supported by the medical evidence and the prosecution had succeeded in proving the guilt of the appellant beyond any shadow of doubt; that it was not a sudden fight and the appellant had come out of the house, while armed with chhurri and caused the injury on the chest of Ashiq Masih deceased who died at the spot. Relies upon Sikandar v. The State (PLD 1966 SC 555) to contend that the conviction and sentence is maintainable under section 302, P.P.C.
11. I have heard the arguments of the learned counsel for the parties and perused the record with due care and caution. The occurrence in the present case had taken place on 8-8-1999 at 5.30 a.m. While the matter was reported to the Police at 6.30 a.m. The same day by Maryam Bibi P.W.1 who is widow of deceased Ashiq Masih. Occurrence had taken place in front of the house of Maryam Bibi. She was a natural witness. Similarly P.W.2 Shafi Masih was residing near the place of occurrence and he reached the spot after hearing the alarm. He has fully supported the statement of the complainant (P.W.1). Both the eye-witnesses had no enmity, grudge or to falsely implicate the appellant in the presentcase and their presence was fully established at the place of occurrence. In such circumstances there is no reason for disbelieving their statements. Minor discrepancies in their statements cannot be held sufficient to discard their evidence, which can be termed as lapses of time because the occurrence in the present case had taken place on 8-8- 1999 while their statements were recorded more than two years thereafter on 20-9-2001 and 10-12- 2001.
12. Learned counsel for the appellant had stressed that P.W.1 during the cross-examination had admitted that Yaqoob Masih appellant and Iqbal acquitted accused had gone to Lahore on the day of occurrence. I have noted down that a specific question was puf to P.W.1 in this regard, who firstly stated "yes", but in the same breath she clearly denied the said suggestion and narrated the role attributed to the appellant. She also stated that the appellant had not gone to Lahore. For ready reference the same is reproduced below:--
(Q) Whether Iqbal Masih and Yaqoob Masih accused had gone to Lahore on the day of occurrence and that you have deposed falsely in this respect?
Ans. Yes, but it is incorrect Iqbal held my husband with "Japha" whereas Yaqoob Masih injured with dagger. Volunteered that they had not gone to Lahore."
I am of the view that this portion is of no help to the appellant as he was the only accused nominated by the eye-witnesses to have caused single fatal blow in the chest of the deceased.
The appellant was previously known to the eye-witnesses and there was no chance of misidentity.
13. Learned counsel for the appellant has contended that thecomplainant (P.W.1) during the cross- examination stated that there were no relations between Farzana and Arshad and thus motive was not proved. The contention of the learned counsel for the State cannot be accepted as P.W.1 Maryam Bibi consistently stated in the F.I.R. And at the trial that Arshad had illicit relations with Farzana, but no complaint' whatsoever in this regard was ever made before the Police. Hence this argument of the learned counsel for the State is repelled. Even the defence taken by the accused party was that Arshad had firstly entered their house to commit illicit intercourse with Mst. Farzana sister of the appellant, but on raising alarm he fled away. Thereafter the mother of Mst. Farzana and her brother Qaisar had gone to the house of Arshad for complaint to his parents. As such it is proved on the record that the accused had a motive in this case.
14. The case of the appellant is distinguishable from the case of the acquitted accused as the tendency has been developed in the society to falsely implicate the close relatives of the main accused by widening a net as well. In the F.I.R. It was stated by the complainant that the appellant had brought chhurri and caused an injury in the chest of the deceased. The same statement has been made by the eye-witnesses during the trial. The statements of the eye-witnesses are fully in line with the medical evidence. According to P.W.8 Dr. Iftikhar Ahmad who had conducted the post- mortem examination on the dead-body of the deceased, the injury on the body of the deceased was ante-mortem caused with sharp-edged weapon and cause of death in this case was damage to right lung and its vessels and heart and stated in the injury, leading to hemorrhage, shock and death. The doctor further stated that this injury was sufficient to cause death in the ordinary course of nature.
15. The defence taken by the appellant that "in fact on the day of occurrence Arshad Masih son of Ashiq Masih entered into our house by climbing over the wall and grappled with my sister and tried to commit illicit intercourse with her. She raised alam, therefore, Arshad fled away by climbing over the wall. Qaisar accused and Seeman went to the house of complainant, lodged a protest. There Ashiq Masih and his wife hadaltercation with Seeman and Qaisar accused and gave chhurri blows to Qaisar accused which was missed and unfortunately inflicted to the deceased Ashiq Masih who intervened at that time. Therefore, Arshad fled away from the place of occurrence." Is not plausible as none from the accused side had received any injury if Arshad son of the deceased had come at the spot while armed with Chhurri to assault upon the accused. The statement of Mst. Farzana Bibi (D.W.1) is of no help to the appellant as according to her own version she was not present at the place of occurrence.
16. In view of the above discussion, I am satisfied that the prosecution has been able to bring home guilt to the appellant beyond any shadow of doubt. The contention of the learned counsel for the appellant cannot be accepted that the occurrence had taken place at the spur of the moment due to the family honour and the appellant cannot be convicted under section 302(b), P.P.C. Learned counsel for the State has rightly relied upon Sikaridar v. The State (PLD 1966 SC 555) wherein the conditions have been laid down for bringing out the case from the ambit of culpable homicide amounting to murder, if the fight had taken place suddenly and was not premeditated and the accused had not taken the undue advantage at the time of incident. Although in the present case the occurrence had taken place suddenly without premeditation but the accused had taken the undue advantage by causing injury on the right side of the chest/vital part of the deceased which resulted into instant death and this injury was declared sufficient to cause death in the ordinary course of nature. Hence the conviction and sentence awarded to the appellant by the learned Trial Court is maintained and this appeal F having no merit is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.