MUHAMMAD ILYAS, J.-Mujtahid Hussain son of Jafar Hussain, aged 25 years, caste Syed, clerk, resident of Mohallah Jahangirabad, Sheikhupura, alongwith Muhammad Yousaf son of Fazal Ahmad, aged 24 years, caste Gujjar, Lahourer, resident of Mandiala Virkan, Police Station Sheikhupura City, were tried by, the Additional Sessions Judge, Sheikhupura, under section 302 read with section 34 of the Pakistan Penal Code, for having caused the death of one Abbas in furtherance of their common intention. By his order, dated the 27th September 1978, the learned Additional Sessions Judge acquitted Muhammad Yousuf, by giving him benefit of doubt, but convicted Mujtahid Hussain under section 302 of the Pakistan Penal Code and sentenced him to death and a fine of Rs. 2,000 or, in default, to suffer punishment of two years. Mujtahid Hussain has preferred this appeal (Criminal Appeal No. 960 of 1978), while the learned Addi--tional Sessions Judge had made a reference (Murder Reference No. 226 of 1978) for confirmation of the death penalty awarded by him. The complainant in the case, namely, Muhammad Ishaq (P. W. 9) has also made a revision petition (Criminal Revision No. 907 of 1978) against the acquittal of Muhammad Yousuf. The appeal, the reference and criminal revision shall all be disposed of by this judgment.
2. The prosecution version as put forth at the trial was that on 18th October 1975, at 6-30 p.m., Mujtahid Hussain appellant took Abbas deceased from his house for enjoying a picture at Gulistan Cinema of the Sheikhupura town, but at about 7-30 p.m., near the building of that Cinema the appellant with the help of the acquitted accused, Muhammad Yousuf, killed him by inflicting injuries on him with chhuri Exh. P. 5 Muhammad Yousuf had held the victim in his clasp while Mujtahid Hussain appellant gave him injuries to which he succumbed at the spot. The occurrence was witnessed by Muhammad Ismail (P. W. 6) and Ibrahim (P. W. 7), After causing the death of the deceased, the assailants made good their escape. As they were going away from the scene of occurrence, they came across Muhammad Saleem (P. W. 8) who had noticed that the appellant was armed with chhuri while Muhammad Yousuf was empty handed. It was Muhammad Ismail who informed the complainant. Muhammad Ishaq (P. W. 9) about the incident. Muhammad Ishaq is a brother of the deceased. Muhammad Ishaq then reported the matter at the Police Station of Sheikhupura City by means of First Information Report, Exh. P. H. Which was recorded by Khalil-ur- Rehman's, Sub-Inspector (P. W. 11).
3. Having recorded the F. I. R, the Sub-inspector (Khalil-ur---Rehman's) went to the spot and after preparing the inquest report, Exh. P. J., and injury statement. Exh. P. K., despatched the dead body of Abbas to mortuary for post-mortem examination.
4. Dr. Manzoor Hussain Kazmi (P. W. 5) performed autopsy on the dead body and found the following injuries thereon:--
(1) An incised wound 1" x --" skin deep on the frontal border of right exilla.
(2) An incised wound 2" x 1" x 1----- on the right side of chest 3" above and outer to right nipple.
(3) An incised wound 1--" x --" deep to the chest cavity.
(4) An incised wound 2" x --' cutting the lower end of right ulna on the back of right wrist.
(5) An incised wound 2--" x 1" deep to the bone on the back of little finger side of right hand. This injury went through and through the hand and appeared on the palm of right hand cutting the blood vessel of the hand.
(6) An incised wound 2" x --" on the back of right hand 3/8" below Injury No. 5.
(7) An incised wound 2" x --" on the thumb side of the back of right hand.
5. The investigation of the case was conducted by Khalil-ur-Rehman's, Sub-Inspector. He arrested the appellant on 22nd October, 1975, that is, after four days of the occurrence. Two days thereafter the appellant, while in custody, led to the recovery of blood-stained chhuri, Exh. P. 5, from the roof of his kotha, which was taken into possession, vide memo Exh. P. C. The appellant also got recovered his blood-stained clothes namely, Shalwar Exh. P. 6 and shirt, Exh. P. 7, from underneath a box lying in a room of his house. These clothes had been secured, vide memo Exh. P. D. On the same day the acquitted accused, Muhammad Yousuf led to the recovery of blood-stained chadar, Exh. P. 8 from his residential house which was taken into possession vide memo. Exh. P. C. These recoveries were witnesses by Muhammad Ishaque (P. W. 4). According to the report of the Chemical Examiner, Exh.
P. L. All the said articles were stained with blood. The report of the Serologist, Exh. P. M., reveals that the blood stains on the chhuri had disintegrated and, therefore, their origin could not be determined. As for the other articles, it was reported by him that they were stained with human blood.
6. At the trial, besides examining the aforementioned witnesses the prosecution produced Abdur Rashid (P. W. 1), Muhammad Afzal (P. W. 2), Husain Shah (P. W. 3), Muhammad Ishaque (P. W. 4) and Taj Din (P. W. 10) who are all formal witnesses in this case.
7. In their statements, under section 342 of the Code of Criminal Procedure, the two accused had refuted all the allegations levelled against them and maintained that they had been involved in the case due to suspicion. They, however, did not produce any evidence in defence.
8. As stated above, the trial Court acquitted Muhammad Yousuf by giving him the benefit of doubt.
As regards Mujtahid Hussain appellant, the view expressed by the learned trial Judge was that "the case of murder has been fully proved" against him. Therefore, he was convicted and sentenced as aforesaid.
9. The main argument raised by Mr. Ijaz Hussain Batalvi, learned counsel for the appellant, against the conviction of the appellant, was that the prosecution had a doubtful case inasmuch as it was alleged in the F. I. R. That five persons, including the appellant, had caused the death of Abbas but what was attempted to be proved at the trial was that it was only the appellant who alongwith the acquitted accused, Muhammad Yousaf had taken the life of Abbas. According to him, to start with, the two eye-witnesses, namely, Muhammad Ismail and Ibrahim also subscribed to the version as set out in the F. I. R. But at the trial they had a different story to tell. In this connection it was pointed out by him that, as stated the rein, the F. I. R. Was lodged by the complainant, Muhammad Ishaque (Pt W. 9) on the basis of information supplied to him by Muhammad Ismail. He also invited our attention to the inquest report. Exh. P. J., according to which the facts of the case were the same as embodied in the F. I. R. Additionally, Mr. Batalvi made a reference to the statement of the complainant in which it was admitted by him that he had met both the eye-witnesses, namely, Muhammad Ismail and Ibrahim, before reporting the matter to the police. Besides, it was urged by the learned counsel that Muhammad Ismail and Ibrahim were present at the police station when the F. I. R. Was recorded.
10. In reply, it was submitted by Mr. Muhammad Rafique Butt, learned counsel for the State, that the complainant was not an eye-witness of the occurrence and, therefore, the exaggerations made by him in the making of the F. I. R. Are of little consequence. It was also maintained by him that the eye-witnesses of the incident as well as Muhammad Saleem, who had seen the appellant leaving the place of occurrence along with the weapon of offence, were respectable persons of high status and had no enmity whatsoever with the appellant. Thus, according to him, there was no good reason for discarding their testimony. Further, it was pointed out by learned counsel for the State that the occurrence took place at 7-30 p.m. And soon thereafter the Sub-inspector went to the spot at 9-00 p.m. And recorded the statements of the aforesaid witnesses and thus there was hardly any time left with them to concoct a false story so as to involve the appellant in the case in hand.
11. As regards the contention of learned counsel for the appellant that according to the F. I. R., Abbas had been killed by five persons but the prosecution was launched against the appellant and the acquitted accused, Muhammad Yousaf, only, it has already been stated that the F. I. R. War: lodged by Muhammad Ishaque who is not an eye-witness of the occurrence. The explanation given by him for making a mention of five persons as culprits was as follows:- "I had named Inayat, Ayub, Nazir, Mujtahid and a fifth unidentified person as the murderers of my brother. When I reported the matter to the Police, I was under the impression that Inayat. Nazir and Ayub who were inimical towards my brother must have joined Mujtahid Hussain during the occurrence. Therefore, I mentioned their names in the F. I. R."
12. As for the contention of learned counsel for the appellant that the eye-witnesses had also, at the outset, endorsed the prosecution version as given in the F. I. R., it was stated by Muhammad Ismail, an eyewitness, that he had informed the complainant that ''Abbas had beets murdered by Mujtahid and Yousaf" and "did not tell him that he had identified Inayat, Ayub and Mujtahid on the spot and the fourth accused could not be identified". That the complainant did not act strictly in accordance with the information supplied by Muhammad Ismail is evident from the fact that although, in the words of the complainant, Muhammad Ismail had told him that rive persons, including an unidentified one had killed Abbas, the grievance voiced by him towards the end of the F. I. R. Was that only four persons, namely, Inayat, Ayub, Nazir and Mujtahid had killed his brother.
Ibrahim, the other eye-witness, also stated that he did not tell the complainant or the police that Inayat, Ayub, Mujtahid and an unidentified person were responsible to the murder of Abbas. It is true that the endorsement appearing after statement of the complainant in the F. I. R. Reveals that two persons, namely Muhammad Ismail and Ibrahim had gone to the police station along with the complainant but, as explained by the Sub-inspector, Khalil-ur-Rehman's (P. W. 11), who recorded the F. I. R, the said Muhammad Ismail and Ibrahim were different from Muhammad Ismail and Ibrahim who had given ocular account of the incident. Their parentage is also different. It was denied by the eye--witnesses that they had accompanied the complainant to the police station.
Also, according to the F. I. R., Muhammad Ismail had informed the complainant about the occurrence after leaving Ibrahim at the spot. Therefore, Ibrahim, who is an eye-witness, could not possibly be present at the spot as well as at the police station at one and the same time. As regards the inquest report, no doubt the facts given therein are the same as indicated in the F. I. R.
But it was not stated by the maker of the said report, namely, Khalil-ur-Rehman's, Sub-Inspector, that the eye-witnesses had anything to do with the preparation of the said report In the circum.
Stances, we are unable to agree with learned counsel for the appellant that at the initial stage of proceedings the eye-witnesses had endorsed the version of the occurrence as given in the F. I. R.
According to which Abbas was killed by five persons and not two.
13. We feel that the F. I. R. In this case is a product of the complainant's own impression coupled with the information rendered to him by Muhammad Ismail but since in the F. I. R. Also the appellant is named as one of the culprits there is no inconsistency in the prosecution case, right from beginning till its conclusion, so far as the involvement of the appellant is concerned. In this view of the matter, the averments the F. I. R. Arc of little avail to the appellant.
14. Learned counsel for the appellant attempted to assail the testimony of the eye-witnesses, namely, Muhammad Ismail and Ibrahim, and the witness of waj takker, Muhammad Saleem, by raising the plea that they were all Arains by caste and had conspired to implicate two non--- Arains in this case, namely the appellant, who is a Syed and the acquitted accused who happens to be a Gujjar. It was also submitted by the learned counsel that Ibrahim and Muhammad Salim were related to the complainant.
15. It is true that the castes of the said witnesses, the complainant and the two accused, who had faced trial, are as above but this, by itself, does not justify rejection of their sworn testimony, especially when we all know that in Muslim society Sayeds are held in high esteem.
16. As for the relationship of the witnesses, Ibrahim is related to the deceased inasmuch as the father of the complainant is his first cousin and his son is married to the sister of the deceased but Muhammad Ismail or Muhammad Salim has no relationship with the deceased or the complainant. Muhammad Salim is indirectly related to Ibrahim in that the daughter of his brother is married to the son of Ibrahim. Nothing has been brought on the record to show that they were inimically disposed towards the appellant. Even a suggestion in this behalf was not made to them.
We, therefore, see no good reason to doubt their veracity.
17. While dealing with Muhammad Saleem, it was also submitted by learned counsel for the appellant that there was no occasion for his coming across the appellant at the time of his leaving the scene of occurrence with the weapon of offence: The deposition of Muhammad Saleem in this behalf was that, being a cinema owner, he was going to Gulistan Cinema to contact a party of film distributors that, on the way, he had met the appellant and his acquitted co-accused. This statement of Muhammad Saleem was taken exception to by the learned counsel for the appellant on the plea that on his own showing Muhammad Saleem had not contacted the film distributors.
The explanation given by Muhammad Saleem in the matter was that he did not contact them because of the incident relating to the present murder. This appears to be a plausible explanation.
We are, therefore, not inclined to disbelieve Muhammad Saleem just for the reason that he had not actually met the film distributors at Gulistan Cinema.
18. Another plea raised by the learned counsel for the appellant was that at the place of the murder of Abbas, which had occurred at night, there was not enough light for any one to see as to who was causing injuries to the deceased. According to the statements of the eye-witnesses there were electric poles near the place of occurrence and it was in the light of bulbs fitted on those poles that the eye-witnesses had seen the occur--occurrence. There is nothing on the record to show that there are no electric poles at the place where the incident had taken place. It was also stated by the eye-witnesses that it was a moon-lit night. According to this Court's Calender, it was the 12th day of the lunar month (Shawwal). The sunset was at 5-31 p.m. The moon rise was at 4-19 p.m. And the occurrence had taken place at 7-30 p.m. We are, therefore, unable to agree with the learned counsel that the infliction of injuries to the deceased could not be witnessed by any one as he was injured in the darkness of night.
19. One more point canvassed by the learned counsel for the appellant was that there was not much difference between the case of the acquitted accused, Muhammad Yousaf, and that of the appellant and yet the former was let of by the learned Additional Sessions Judge but the latter was ordered to be sentenced to the gallows. The reason given by the learned Additional Sessions Judge for acquitting Muhammad Yousaf are as follows:-- "The role attributed to the Yousaf accused is that he took the deceased in his Japha. No injury has been assigned to him. His name is not mentioned in the F. I. R. He is not connected with the motive.
I, therefore, conclude that the case against Yousaf accused has not been proved by the prosecution beyond doubt."
It seems that in view of the factors noted by the learned Additional Sessions Judge, he was not sure of the involvement of Muhammad Yousaf in the case and, therefore, he had ordered his acquittal.
He had done so without disbelieving the eye-witnesses or the witness of wajrakker or any other evidence. Therefore, if, out of abundant caution, he had acquitted Muhammad Yousaf that does not constitute a valid ground for acquitting the appellant also.
20. We have seen that according to sworn testimony of the two eye--witnesses, namely, Muhammad Ismail and Ibrahim the appellant had caused the death of Abbas by inflicting injuries on him with a chhuri. Soon after the occurrence he was seen by Muhammad Saleem alongwith the chhuri. Muhammad Ismail as well as Muhammad Saleem are cinema owners and are men of status. As explained earlier, there is no valid reason to disbelieve the said witnesses. Their testimony is also supported by the recovery of blood-stained chhuri, Exh. P. 5, and the blood-stained clothes of the appellant, Exhs. P: 6 and P.
7. These recoveries were witnessed, among others by Muhammad Ishaque (P. W. 4) who, being a Supervisor of the Health Department, appears to be a reliable witness, The origin of blood on the chhuri could not be determined as the blood stains therein had disintegrated but the blood on the clothes of the appel--lant was found to be of human origin. The medical evidence, which is in the shape of the statement and the report (Exh. P. G.) of Dr. Manzoor Hussain Kazmi (P. W. 5), is also to the effect that the fatal injuries suffered by the deceased were caused by a sharp-edged weapon. In addition, there is the statement of the complainant, Muhammad Ishaque, to the effect that the deceased was last seen with the appellant inasmuch as the latter had taken away the former to the cinema show and that due to his enmity with the deceased the aforesaid Inayat had got the deceased killed by the appellant. Even if the statement of Muhammad Ishaque in this behalf is excluded from consideration due to his objectionable role qua the making of the F. I. R. The ocular evidence, the evidence of waj takker, the evidence of recoveries and the medical evidence make it abundantly clear that the appellant had intentionally caused the death of Abbas, In this view of the matters we uphold the conviction of the appellant under section 302, P. P. C.
21. As for the penalty imposed on the appellant, no mitigating circumstance was pointed out by learned counsel for the appellant and we have also noticed none. We, therefore, confirm the death sentence awarded to him by the learned trial Court.
22. The reference is disposed of accordingly and the appeal is dismissed.
23. As for the revision petition filed by the complainant, his learned counsel, Mr. Nemat Khan, did not press the same as he was not in favour of the retrial of the case. The revision petition too, is, therefore, dismissed.