AFTAB FARRUKH, J.---Abdul Rashid appellant alongwith his co. Accused Muhammad Saleem were tried in the Court of Mr. Inayat Ullah Cheema, Additional Sessions Judge, Lahore for the murder of Hamesh Gul, a Chaukidar. The learned trial Court by its order dated the 31st March, 1977 found Abdul Rashid appellant guilty under section 304, Part I of Pakistan Penal Code, convicted him thereunder and sentenced him to undergo 10 years' R. I. No sentence of fine has been passed. His co-accused Muhammad Saleem was acquitted of the charge.
The appellant has impugned his conviction (Criminal Appeal 397/77), while the State has filed Criminal Appeal No. 58 of 1978, praying for the conviction of the acquitted co-accused, namely Muhammad Saleem, and the conviction of Abdul Rashid appellant under section 302, P. P. C. Our brothers admitted the same only against Abdul Rashid appellant. Ghulam Hussain complainant has also filed a private revision (Criminal Revision) No. 483/77), praying for the revision of the impugned judgment and for the conviction of Abdul Rashid appellant under sections 302, 449, 458 and 328, P. P. C. In which our brother Khalil-ur-Rehman's, J. Was pleased to pass the following orders:- "Same order as in Criminal Appeal No. 397/77."
All the three matters are being disposed of by this judgment.
2. The conviction is based on the ocular testimony of Tariq Hussain (P. W. 13), Ghulam Hussain (P. W.
12) and Shahid Iqbal (P. W. 10), corroborated by the testimony of Mst. Allah Rakhi (P. W. 14) besides the medical evidence and the evidence of Jalal, Din (P. W. 9) on the question of motive.
3. The case for the prosecution briefly stated is that Abdul Rashid appellant was previously working with Jalal Din (P. W. 9) as an employee, he abducted Mst. Bilquis alias Fazal Bibi and her daughter, namely, Mst. Nasim and took them to Jauharabad Ghulam Hussain P. W. 12 i.e. The complainant helped his uncle Jalal Din (P. W. 9) in reporting the matter to the Police and pursuing it further for the recovery of the abductees. He accompanied Jalal Din P. W. 9 to Jauharabad and got recovered the abovesaid abductees along with some ornaments and clothes from house of Abdul Rashid appellant, therefore, Abdul Rashid appellant highly offended with Ghulam Hussain (P. W. 12) for helping Jalal P. W. 9.
On the night between the 18th and 19th of August, 1975 at about a.m. While the complainant was asleep inside his house situated in the area of Siddiq Street, Mahboob Park within the jurisdiction of Police Station, Misri Shah, Lahore, his mother, namely, Mst. Allah Rakhi (p. W. 14) raised hue and cry that somebody bad put some medicine in his eyes. Mst. Allah Rakhi (P. W. 14) was sleeping in the deori which led to the courtyard. Hearing the alarm he got up and saw the appellant (armed with chhuri) putting the medicine in the eyes of his mother. He also raised alarm and the accused after scaling over the wall of the house ran towards the vacant side in front of the house of the complainant. The alarm attracted Shahid Iqbal (P. W. 10), Hamesh Gul deceased, and on their enquiry they were apprised of the situation. All of them started searching for the culprits and during the course of search Tariq Hussain P. W. 13 noticed something moving behind the heap of clay in the vacant site. Hamesh Gul deceased, Shahid Iqbal P. W. 10, Tariq Hussain P. W. 13 and the complainant Ghulam Hussain set out towards the aforesaid place. Hamesh Gul deceased was ahead of them and when he reached near the heap of clay, the appellant Abdul Rashid as well as Muhammad Saleem (acquitted co-accused) got up from behind, holding chhuris and declared if any body got near them he would not be spared. Hamesh Gul deceased did not pay heed to it and stepped forward. Muhammad Saleem (acquitted co-accused) exhorted the appellant Abdul Rashid that he should kill him and further that they would be apprehend--ed in case they did not use the chhuris, whereupon Abdul Rashid appellant inflicted chhuri blow hitting Hamesh Gul deceased at his left flank. Hamesh Gul deceased raised hue and cry and so did the P. Ws. The appellant attempted to give a chhuri blow to the complainant Ghulam Hussain but the same was averted by a danda which the complainant was holding at that time. The complainant Ghulam Hussain gave a danda blow hitting Abdul Rashid appellant on his head. Thereafter both the accused took to their heels towards the eastern side and the P. Ws. Gave chase raising hue and cry. Hamesh Gul deceased also followed them. When they reached near the kothi of Abdul Rashid at a distance of about 350/400 feet from the place where Hamesh Gul deceased was injured, Qadeer, Mazhar Saeed and Arif P. Ws. Apprehended Abdul Rashid appellant and Muhammad Saleem (acquitted co-accused). They snatched the chhuri from the bands of both the accused, and Qadeer (P.W. 7) handed over the chhuri to Ghulam Hussain complainant which he had snatched from Abdul Rashid appellant while Muhammad Arif (P. W. 5) handed over the chhuri snatched by him from the acquitted co-accused Muhammad Saleem. Abdul Qadeer, Muhammad Arif P. Ws. And Mazhar Saeed belaboured the accused persons with dandas and fist blows.
Thereafter, they took the two accused towards Misri Shah Police Station and on the way .They came across a thanedar and two constables of Police Station, Misri Shah, Lahore, Bashir Ahmad, Sub- Inspector (P. W. 3) recorded statement Exh. P. C. Of Ghulam Hussain P. W. 12 at 3-20 a. m. On the same night and a case under sections 307/326/34 and 452, P. P. C. Was registered besides the offences under section 13 of the Arms Ordinance, 1965. Hamesh Gul later succumbed to the injuries and the offence was amended to one under section 302, P. P. C.
The Investigating Officer also took into possession chhuri (P. 4) vide memo. Exh. P. D., and chhuri (P.
5) vide memo. Exh. P. E. The chhuri (P. 4) was found to be stained with human blood vide report Exh.
P. X., of the Serologist. The Investigating Officer also took into possession from near the place where Hamesh Gul deceased was injured, a pair of shoes P. 6/1-2, another pair of shoes P. 7/1-2, bag P. 8, suit P. 9/1-2, another suit P. 10/1-2, two shalwars P. 11/1-2, kurta P. 12, shirt P. 13 and shoe P. 15.
5. The appellant while answering to question No. 16 has owned the articles except the pair of shoes Exh. P. 6/1-2, which according to him, were left over at the house of Ghulam Hussain P. W. 12, when he was given beating by Ghulam Hussain P. W. 12 and his son Sajjad Hussain.
6. The appellant has also produced in defence a certified copy of the judgment dated the 10June, 1975 passed in an appeal by Mian Abdur Rehman's, Additional District and Sessions Judge, Lahore, and a copy of the order dated the 13th September, 1975 (Exh. D. 2) passed by Mr. Fakhar Hayat, Judge Family Court, Lahore. The acquitted co-accused has given his version in answer to question No. 17, which is quoted below:- "I being a student at Jauharabad had come to Lahore to stay with my relatives to spend my summer vacation. I was going to Sargodha in the early hours of the morning. When I was passing near P. S. Misri Shah, I was called upon by Abdul Rashid accused at the said Police Station. He asked me to convey to the inmates of his house at Jauharabad that he had been beaten by Ghulam Hussain P. W. Etc. In the meanwhile Abdul Ghafoor A. S. I. Quarrelled with me for my intervention. He gave me beating and falsely implicated me in this case. This is to cover up the beating and having been offer by me. I am absolutely innocent."
7. On the 20th August, 1975 at 3 p. m. Dr. Muhammad Tahir Anis (P. W. 6) performed the post- mortem examination and found the following injuries on the person of the deceased:-
(1) A stitched sharp-edged wound 1" long in left upper part of empigastrium directed obliquely.
(2) Stitched sharp-edged 7" long verticle over left paramedian, area of abdomen.
(3) Stitched wound 1" long over right cubital fossa.
(4) Stitched wound 1'' long over right front wrist.
(Both sides of heart were found almost empty. Peritoneum showed stitching against injuries Nos. 1 and 2 in its front part about 6 ounces of fluid diet. Small and large intestines also contained diet.
Liver showed a stitched wound 7/8" long over front surface of left lobe directed backwards and to the right going through and through the left lobe thickness and injuring the galbladder opening it through and through near its neck and then piercing for about 3/4" in the right lobe of liver. Part of quadrate lobes posterior edge was also found injured. Urinary bladder was full of urine).
The same doctor on the 19th August, 1975 examined Abdul Rashid appellant and Muhammad Saleem co-accused as well, at 4-30 p.m. And found the following injuries on their person:-- Abdul Rashid:
(1) Lacerated wound 1J"x 1/3" over top of head extending enuoposteriorly.
(2) Multiple (3) contusions in area 7" x 4" left lower back chest.
(3) Two contusion: in area 3' x 2" right back shoulder.
(4) Contusion 1--'' x --" upper back mid chest.
(5) Contusion in area 4' x 2' outer upper left arm.
(6) Contused abrasion 3' x --" with swelling over back mid left forearm.
(7) Contusion 2" x 1" outer lower back right forearm.
(8) Contused swelling in area 7" x 6" inner upper part of left leg.
(9) Contusion 4' x 1--" lower front outer part of right thigh.
(10) Contusion 1" x --' front of left knee.
(11) Contused swelling 4" x 3" back right mid thigh.
(12) Contused multiple swellings in area 4--' x 4" right gluteal region.
(13) Multiple contusion in area 3" x 2--" left gluteal region.
Muhammad Saleem:
(1) Lacerated wound 1" x 1/3" top of head.
(2) Contused swelling 1"x 1" left parietal region of head.
(3) Contusion 3/4" x --" over front of bridge of nose with tenderness.
(4) Contusion 6" x --" upper back right chest. .th
(5) Contusion 7" x 1" right back lower chest.
(6) Contusion 3" x --" left mid scapular region.
(7) Contusion 4" x --" top of left shoulder.
(8) Contusion 2--" x 1" back of left wrist.
(9) Multiple contusion in, area 7" x 2--" over outer aspect of left arm.
(10) Contusion --" x 1" back of left elbow.
(11) Contusion 1" x --" outer mid left thigh.
P. W. 15 Lady Dr. S. Bhatti examined Mst. Allah Rakhi (P. W. 14), on the 19th August 1975, and she found as follows: ---Upper and lower lids of both the eyes were swollen, the conjunctive is red. (The injury observed was kept under observation which on re-examination was declared simple. The injury was caused by some chemical).
P. W. 21 Dr. Aslam Javed assisted the Surgeon Dr. Nasim Raza, who performed an operation upon Hamesh Gul, when he was alive, and be has deposed to that effect in the performance of operation.
8. As against the prosecution version Abdul Rashid appellant has put forward his version in answer to questions Nos. 18 and 24, which is to the effect: "On the alleged night of occurrence I was given beating by Ghulam Hussain P. W. And Sajjad Hussain his son after when I was administered chloroform at their house------.------------------ ---------------------------.When I was working as an employee of JaLal Din P. W. 1 was asked by him to arrange the marriage of Nasim Akhtar with my brother, namely, Muhammad Bashir and the same was approved by JaLal Din P. W. The marriage was there fore, contracted accordingly.
Ghulam Hussain, P. W. Was offended over this marriage. He, therefore, colluded with JaLal Din. P. W.
And two and a half months after the marriage, brought a false case against me as well as my brother for which reason we sent back Mst. Naseem Akhtar mentioned above when we were approached through Police, Mst. Naseem Akhtar was forced to file a suit for dissolution of marriage.
The marriage was not dissolved. The present case against me has been falsely brought during the pendency of the aforesaid case. On the evening of the alleged night of occurrence, I went to the house of Ghulam Hussain, P. W. Where a meeting had been proposed for reconciliation. The matter could not be finalised and I prefer to sleep over the house of Ghulam Hussain, P. W. Being his relative to make further attempt for negotiation and reconciliation. It was about mid-night that Ghulam Hussain, P. W. Administered chloroform to me and started beating me along with his son namely, Sajjad Hussain. I was semi unconscious. On the receipt of injuries, I raised hue and cry. In the meanwhile, Ghulam Hussain, P. W. Also cried 'thief! `thief'! It was a dark night. Hamesh Gul deceased in the mean while came up at the house of Ghulam Hussain, P. W. And he also joined Ghulam Hussain for beating me. In the meanwhile Ghulam Hussain, P. W. Picked up a chhuri from a chulla Hamesh Gul deceased gave a danda blow at my head. I fell down and during this time, Ghulam Hussain, P. W. Who aimed the chhuri at me accidentally hit Hamesh Gul deceased.
Thereafter, I left the aforesaid articles at the house of Ghulam Hussain, P. W. And wept to Police Station Misri Shah, bare-footed to lodge the F. I. R. In the meanwhile Ghulam Hussain, P. W. Arrived at the said police station and exercising his undue influence upon the local police, got myself falsely enroped in this case, I am absolutely innocent."
9. We are not satisfied about the motive as asserted by the prosecu--tion. Ghulam Hussain, P. W. 12 had divorced Mst. Bilquis alias Fazal .Bibs prior to her alleged abduction, and if the appellant had any motive to attack anyone, it would have been JaLal Din (P. W. 9) who was the husband of Mst.
Bilquis and the brother of Nasim Akhtar, and who was the first informant in the case relating to abduction etc. There is no reason to believe why the appellant should have picked up Ghulam Hussain, P. W. 12 for the assault rather than JaLal Din, P. W. 9 and similarly we see no reason that the appellant should have also chosen to put some thing in the eyes of a 70-year-old lady Mst. Allah Rakhi i.e. The mother of the complainant Ghulam Hussain. Mst. Nasim Akhtar had been married to the real brother of Abdul Rashid appellant and the marriage had been dissolved subsequently through the intervention of the elders. The were of Jalal Din (P. W.9) is still with Abdul Rashid appellant, and therefore we feel that it is Jalal Din, P. W. 9 or Ghulam Hussain, P. W. 12 who would still have a cause of grievance with the appellant. If any assault was to be made on the complainant party on account of Mst. Nasira Akhtar's restoration tire brother of the appellant to whom she was married should necessarily have been a party to it and along with the accused at the time of any negotiation which he was not.
10. The learned trial Court for cogent reasons given in paragraphs No. 25.27 of the impugned judgment has disbelieved the first part of the incident, i.e. Entering the house of the complainant and putting some-thing In the eyes of Mst. Allah Rakhi P. W.
14. Though it is possible to take a view, different from that taken by the learned trial Court being not unreasonable or unfair we would adopt the same.
11. Shahid Iqbal, P. W. 10 is an independent witness. Tariq Hussain. P. W. 13 had risen after the alarm and apprised of the situation by none but Ghulam Hussain complainant and. If for the sake of argument their entire version was to be accepted, the position in short boils down fact that after the detection of the intruders in the house, the accused the scaling over the wall ran from the house and hid themselves behind the heap of clay in the open site. The complainant party decided to look for them, traced them out and on being so found the accused stood up forbade them from getting near and when Hamesh Gul deceased did not ay heed to the warning, a solitary blow was given which landed in his abdomen and the accused took to their heels. They were given a chase, rounded up and apprehended. 1n-between the two accused, they have suffered as many as 24 injuries (13 by Abdul Ron appellant and 11 by Muhammad Saleem acquitted co -accused). None else on the complainant side has received any injury at the hands of the two accused, though a bald claim has been made that the appellant gave a blow to the complainant Ghulam Hussain (P.
W. 12) but the same was averted by him with a danda.
12. We are satisfied that both sides are not telling the whole truth. As stated earlier these was no occasion for the accused to attack Ghulam Hussain complainant. Similarly we are not satisfied about the defence version put forward by the appellant as Mst. Bilquis was still living with him, and as such he dare not come and stay in the house of Ghulam Hussain complainant a real nephew of Jalal Din. P. W- 9 and if he had come to stay, he would not have been alone. Similarly it would be too difficult to imagine that someone out of the complainant party would by mistake cause a fatal injury to Hamesh Gul deceased with a weapon like chhuri. Accidental firearm injury is possible by mistake or coincidence but the chhuri is such a weapon which has to be wielded from a very close distance, therefore, we cannot make ourselves believe this assertion. Similarly if the appellant was asleep the complainant need not have used chloroform before attacking him, and one or two blows. While the appellant was asleep could have incapacitated him and in any case, in case of murder in the house of Ghulam Hussain P. W. 12, the complainant would have had to expLaln the murder, which would have not been an easy onus to discharge.
13. There is an intriguing circumstance in this case, from near the place where Hamesh Gut deceased was injured, pairs of shoes and clothes of the accused were found and taken into possession and in his statement under section 342 of the Code of Criminal Procedure Abdul Rashid appellant has owned his clothes except a pair of shoes Exh P. 6(1-2. Analysing all these circumstances it appears to us that in all probability the complainant fairly late in the night found the appellant passing by his house, he suspected some foul play and attempted to catch hold of the appellant, rais--ed the alarm of chore ! Chore !, whereupon P. W. 10 Shahid Iqbal, Hamesh Gul deceased and other neighbours responded, searched for the culprits, found out the appellant and his co-accused hidden behind the heap of clay and unfortunately an injury was received by Hamesh Gul deceased, where--after the mohallahdars while capturing the appellant and his companion gave them a severe beating.
14. In any case the case for the prosecution taken at its best is that on the alarm of Mst. Allah Rakhi P.W. 14 the appellant and his co-accused took to their heels, raff towards the vacant site and disappeared. P. Ws. Responded to the alarm. The complainant apprised them of the situation and they set out on search and discovered them hidden behind the heap of clay. The accused stood up armed with chhuris and instead of attacking them forbade them from coming near but Hamesh Gul deceased did not pay heed to the warning and a solitary blow was given to him which unfor-- tunately landed in his abdomen and after the infliction of blow the appel--lant along with his co- accused again ran away. They were given a chase rounded up and given beating. From the above it appears that the appellant and his co-accused were interested only in making good their escape and not resorting to violence and it was only due to the conduct of the complainant party who set out to search and then put the appellant in a compelling situation so as to resort to violence, that this unfortunate response took place but this does not mean that the appellant is absolved of the responsibility for the stab in the abdomen. Since he has not repeated the blow and immediately thereafter attempted to run away, and it was the complainant party which set out on search and found him out hidden behind the heap of clay, and there is also the possibility that the pursuers in their anxiety to capture the accused may have opened the assault, and the appellant getting apprehensive, in a confused state of mind may have responded with the solitary blow. We would, therefore, alter the convic--tion of the appellant from under section 304, Part I of Pakistan Penal Code to one under section 304, Part II of Pakistan Penal Code, and reduce the sentence from 10 years' R. I. To one already undergone (the appellant was arrested on the 19th August 1975, and under the amended section 382-B of the Code of Criminal Procedure the period of detention pending the trial has to be taken into consideration and he would have also earned remission).
15. We served notice upon the learned counsel for the appellant to show cause why compensation under section 544-A, Cr, P. C. Be not awar--ded. He accepted the notice. After hearing the learned counsel we order that the appellant shall pay Rs. 10,000 (rupees ten thousands only) as compensation to the legal heirs of Hamesh Gul deceased. Collector concerned is directed to take necessary steps for its realization and to make sure that the amount is received by the legal heirs of the deceased and nobody else. All the three matters stand disposed of accordingly.