' M.A. SHAHID SIDDIQUI, J.----This judgment shall dispose of Murder Reference No.638 of 2000,Criminal Appeal No. 314 of 2000 and Criminal Appeal No. 1660 of 2000.
2. The appellants Muhammad Imran alias Asif and his father Mubarik Ali along with their co- accused were tried by Mr. Muhammad Tariq Abbasi Additional Sessions Judge Gujranwala in case F.I.R. No.341/96 dated 4-10-1996 registered at police stations Peoples Colony Gujranwala for the offences under sections 302/34, P.P.C. Vide judgment, dated 10-10-2000 both the appellants were convicted under section 302(b) P.P.C. Of committing Qatl-i-Amd of Shahid Mehmood deceased.
Muhammad Imran alias Asif was sentenced to death and directed to pay Rs.2,00,000 as compensation to the legal heirs of the deceased and in default of payment thereof to further undergo six months R.I. Mubarik Ali appellant was sentenced to imprisonment to life. He was also directed to pay Rs.100,000 as compensation to the legal heirs of the deceased and in default of payment thereof to further undergo six months' R.I. Benefit of section 382-B, Cr.P.C. Was also extended to the said appellant.
3. The case of the prosecution is that about 1-1/2 months prior to the occurrence Shahid Mehmood deceased had picked up a quarrel with Muhammad Imran alias Asif his brother Irfan (Proclaimed Offender) and their father Mubarik Ali. The matter was patched up with the intervention of the residents of the area. However, the accused retained grudge. Being apprehensive the father of the complainant sent Shahid Mehmood to the house of his relatives at R.Y. Khan 7/8 days prior to the occurrence he had returned to his house.
4. On the day of occurrence Shahid Mehmood deceased and his brother Muhammad Azam, complainant (P.W. 1) were going on a motorcycle bearing registration No. 4132-GAH on Haidery Road. When they reached Muhammadi Chowk the aforementioned three accused armed with Chhuris accompanied by Muhammad Saleem co-accused who was carrying iron rod suddenly emerged on the road and intercepted the motorcycle. Shahid Mehmood left the motorcycle and ran towards Bazar No.
2. He was chased and overpowered by the accused near the shop of Basharat Ali, Milk Seller. All the four accused caused injuries to Shahid Mehmood with their respective weapons. Muhammad Azam complainant, when tried to intervene was assaulted and injured by Muhammad Saleem with iron-rod. As per F.I.R. The occurrence was witnessed by Zulifqar Ali (given up P.W.) and Muhammad Lateef (P.W.2). Shahid Mehmood was removed to Civil Hospital Gujranwala where he died. In the meantime Muhammad Saleem Butt, S.H.O. (now DSP), Peoples Colony, Gujranwala (P.W. 14) had also reached the hospital.
4A Muhammad Saleem Butt, after recording the statement of the complainant Exh. PA completed the formalities before sending the dead body to mortuary, rushed to the spot, from where he seized bloodstained earth and took into possession the motorcycle of the deceased. He also recorded supplementary statement of Muhammad Azam, complainant in which he introduced Amar Mehmood P.W.2 and Talib Hussain (given up P.W.) as eye-witnesses of the occurrence. He arrested Muhammad Imran alias Asif and Muhammad Saleem co-accused on 16-10-1996. Investigation was then transferred to Zafar Iqbal (P.W.10) who was then posted as Inspector, Range Crimes, Gurjanwala. Muhammad Imran appellant while in police custody led Zafar Ali Shah S.-I. (P.W.12) to Yadgaar Hotel situated on Haidery Road and got recovered the blood-stained Chhuri P.S. Mubarik Ali appellant was arrested on 24-11-1996 and two days thereafter the investigation was transferred to S.P. Headquarters Gujranwala. In the opinion of Zafar Iqbal, Inspector (P.W.10) and Dr. Kamran Afzal, S.P., Range Crimes, Gujranwala, the accused Mubarik Ali, Muhammad Saleem and Irfan were innocent. Accordingly they were placed in column No.2 of the report under section 173, Cr.P.C.
Prepared by Muhammad Saleem Butt, S.H.O., Police Station Peoples Colony, Gujranwala.
4B At the commencement of the trial the learned trial Court formally charge-sheeted all the four accused on 11-5-1998 under section 302/34, P.P.C. The accused pleaded not guilty and claimed trial. The prosecution examined as many as 14 witnesses in support of its case. Muhammad Azam (P.W.1), Amar Mehmood (P.W.2) and Muhammad Latif (P.W.4) furnished the ocular account of occurrence. The medical evidence was furnished by Dr. Fazal-ul-Rehman (P.W.3) who had medically examined Muhammad Azam complainant on 4-10-1996 and found two swellings one on the lower right part of the chest and other on the outer side of the lower part of left leg. He testified his report Exh.PD which shows that Muhammad Azam was medically examined at 9-30 p.m. Dr. Shahid Hussain (P.W.9) had conducted the post-mortem examination on the dead body of Shahid Mehmood on 5-10-1996 and had observe as many as 16 injuries on different parts of his body.
Injuries Nos.15 and 16 which have been described as abrasion on the inner side of the knee and multiple abrasions on outer side of left ankle were caused with blunt weapon while rest of the injuries were found to have been caused with sharp edged weapon..
5. Ashfaq Ahmed (P.W.6) deposed about the recovery of bloodstained Chhuri P.6 made at the instance of Muhammad Imran alias Asif on 30-11-1996. The statement of Shabbir Ahmed (P.W.5), Ashiq Hussain (P.W.7) and Basharat Ali (P.W.8) are more or less of formal nature. Zafar Iqbal, Inspector (P.W.10), Zafar Ali Shah, S.-I. (P.W.12), Arif Hussain Shah, S.-I. (P.W.13) and Muhammad Saleem Butt, S.H.O. Now DSP (P.W.14) deposed about the various steps they took during the investigation of the case.
6. It may be observed that Irfan co-accused who was on bail absented from trial Court after the recording of the statement of Muhammad Saleem Butt (P.W.14). Therefore, his statement under section 342, Cr.P.C. Was not recorded. He was proceeded against under section 512, Cr.P.C.
Muhammad Imran alias Asif appellant in his statement under section 342, Cr.P.C. Denied the allegation of murder. However, he' admitted to have caused injuries to Shahid Mehmood deceased at the relevant time and place. He pleaded that in fact he and his friend Chand had picked up a quarrel with deceased and other Mohallandars because the deceased was a man of violent temperament and used to tease the passerby girls. He maintained that the deceased had met him per chance at the relevant time when he was proceeding on motorcycle along with his cousin (Phophizad) on Haidery Road and had come face to face with him. At that time the deceased was teasing the sister of his friend Chand. There was exchange of hot words between him and the deceased who fired a shot on him. Apprehending danger to his life he and his said cousin picked up Chhuri and Bughda lying near hotel and gave injuries to Shahid Mehmood deceased. He pleaded to have acted in the exercise of right of self defence. Mubarik Ali appellant and Muhammad Saleem accused (since acquitted) denied to have' participated in the occurrence. All the three accused neither appeared in the witness box in disproof of the charge as required under section 340(2), Cr.P.C. Nor did they produce any evidence in their defence. The learned Trial Court after taking into consideration the entire material brought on the record convicted and sentenced the appellants as detailed above.
7. Learned counsel for the appellants in Criminal Appeal No.314-J of 2000 while assailing the conviction and sentence, inter alia, argued that all the three eye-witnesses were not present at the spot. Despite their close relationship none had attempted to physically intervene; that the F.I.R. Was registered after deliberations and obtaining false medico legal report 'Of Muhammad Azam, complainant; that Mubarik Ali appellant and his brother Muhammad Saleem accused (since acquitted) had no motive to participate in the occurrence; that the medical evidence does not corroborate the ocular account of the occurrence and the occurrence was not premeditated, it was effectuated at the spur of the moment and the injuries found on the person of the deceased reflected venom which Muhammad Imran alias Asif appellant has against the deceased because of his nefarious and violent activities. Lastly it was submitted that in the circumstances of the case Imran appellant did not deserve extreme penalty.
7A. Conversely learned counsel appearing on behalf of the State and learned counsel for the complainant fully supported the judgment of the learned trial Court. They argued that the occurrence took place in a board daylight at a public place. It was reported to the police promptly and the complainant had on time to think about the false implication of any person.
8. We have made reappraisal of the entire material brought on the record. Muhammad Azam (P.W.1) is undeniably the real brother of Shahid Mehmood deceased. He is resident of Street No.6, Arfat Colony, Gujranwala and occurrence also took place in the same colony. We have no doubt in our mind that the matter was reported to the police immediately after the occurrence in the hospital. The mere fact that the complainant was got medically examined at 9-30 p.m. Does not show that the occurrence was not witnessed by him. Injuries found on his person were of very minor nature, therefore, these were not taken seriously. In the circumstances of the case the omission on the part of the complainant to take notice of his injuries was not unnatural.
Muhammad Latif (P.W.4) explained that on the day of occurrence he had gone to see Zulfiqar (given up P.W.) in Street No.3. Arfat Colony and from there, he and Zulfiqar Ali P.W. Were proceeding towards Street No.27 to see a relative when the occurrence taken place. There is nothing on the record to show that he is related to the deceased in any manner although he was employed in the tannery of Muhammad Latif, uncle of the deceased. He had absolutely no motive to falsely depose against the appellants. As B regards Amar Mehmood (P.W.2) we do not feel inclined to place implicit reliance on his testimony because he happens to be the real maternal uncle of the deceased and his name was not mentioned in the F.I.R. Which was lodged promptly.
9. The motive for the offences as per F.I.R. Is that one and half months prior to the occurrence Shahid Mehmood deceased had picked up a quarrel with Imran, Irfan and their father Mubarik Ali.
The complainant has not said anything about the nature of dispute which prompted Mubarik Ali and his brother Muhammad Saleem to join hands with Muhammad Imran alias Asif appellant. The appellant Imran right from day ever pleaded that Shahid Mehmood deceased used to tease the sister of his friend Chand. In the absence of any other explanation from the prosecution side regarding the nature of dispute it can safely be concluded that the dispute between Shahid Mehmood deceased and Imran appellant pertained to the sister of the friend of Imran. In this view of the matter Mubarik Ali and his brother Muhammad Saleem cannot be said to have any motive to participate in the occurrence even otherwise the occurrence was not pre-planned. There is nothing on the record to show that the accused knew beforehand the deceased would be coming on a motorcycle at the relevant time. It has also come on the record that except Imran appellant all other accused pleaded their innocence. Muhammad Saleem Butt (P W.14) the then Inspector, Police Station Peoples Colony, Gujranwala who had inspected the spot immediately after the registration of the case admitted that the place of occurrence was a thickly populated area located in Bazaar where there were inumerable shops. He had spent three hours at the spot and had enquired from a number of persons about the occurrence. He maintained that none had supported the prosecution version. He also admitted that the first version of the accused Muhammad Imran alias Asif before him was that Shahid Mahmood deceased used to cut jokes with Riffat sister of Chand. He also admitted that on the basis of the finding of innocence of Mubarik Ali, Muhammad Saleem and Irfan recorded by the then S.P., Range Crimes, Gujranwala he had placed the said three accused in column No.2 of the report under section 173, Cr.P.C. This finding recorded by the police does not appear to be unfounded. No weapon was recovered from their possession. They had no motive to participate in the occurrence. We are, therefore, of the confirmed view that the prosecution had failed to establish its case against Mubarik Ali, appellant and accused Muhammad Saleem (Since acquitted).
10. Now we proceed to deal with the case of Muhammad Imran alias Asif, appellant. He admitted to have participated in the occurrence and accused caused injuries to Shahid Mehmood at the relevant time and place in exercise of right of self-defence. It was now the duty of the appellant under Article 121 of the Qanun-e-Shandat Order, 1984 to substantiate his plea. He not only declined to appear in the witness box under section 340(2), Cr.P.C. But also did not produce any evidence to substantiate his plea. It is evidence from the statement of Muhammad Saleem Butt (P.W.14) the then Inspector/S.H.O. Police Station Peoples Colony, Gujranwala who arrested Muhammad Imran alias Asif on 16-10-1996 that the plea of self-defence taken up by the appellant at the trial had never been taken by him at any stage during investigation of the case. Muhammad Saleem Butt (P.W.14) in his cross-examination disclosed that the first version of the accused Muhammad Imran alias Asif before him was only this much that Shahid Mehmood used to cut jokes with the passing girls and he also used to cut jokes with one Mat. Riffat sister of Chand. The plea taken up by the appellant Imran in his statement under section 342, Cr.P.C. Was not even put to his witness in his cross-examination. So the plea of self-defence taken up by the appellant at the trial was inconsistent besides being afterthought which he otherwise failed to substantiate.
11. As a sequel to the discussion made above, we have come to the conclusion that the prosecution had proved its case against Muhammad Imran alias Asif, appellant to the hilt whereas the case of Mubarik Ali, appellant and accused/respondent Muhammad Saleem (since acquitted) was not free from doubt. Accordingly we allow benefit of doubt to Mubarik Ali, accept Criminal Appeal No.314-J of 2000 to his extent and set aside his conviction and sentence. He shall be set at liberty forthwith if not required in any other case.
12. Shahid Mehmood,, deceased was done to death at a public place. He had sustained as many as 16 injuries on different parts of his body with a sharp edged weapon. He was butchered by Muhammad Imran alias Asif, appellant without any immediate cause. We have found no reason to take a lenient view. The death sentence awarded by the learned trial Court vide judgment, dated 10-10-2000 is hereby confirmed. We, therefore, dismiss the appeal filed on his behalf.
13. Murder Reference No. 638 of 2000 is answered in affirmative. Criminal Appeal No. 1660 of 2000 filed by the complainant Muhammad Azam also fails and is hereby dismissed.