MAZHARUL HAQ, J.-Abdul Khaliq, (18), Sajjad (16), Tanveer Alta( Ahmad (19) were tried for the murder of Muhammad Ashfaq. On 24th April, 1978 the Additional Sessions Judge, Sialkot, convicted Abdul Khaliq and Tanveer under section 302/34, P. P. C. Abdul Khaliq was sentenced to death while Tanveer to life imprisonment. On benefit of doubt, their co-accused Sajjad was acquitted. The appeal of the convicts, connected murder reference and Muhammad Shafiq informant's revision against acquittal of Sajjad are before us.
2. Sajjad Ahmad, Tanveer Altaf and Abdul Khaliq all cousins inter se, did not bear good character.
They used to misbehave in the Mohallah of Ashfaq deceased, ho had reprimanded them several times. On 28th May, 1976 at about 3 p. m. Ashfaq came out of his house for going to the bazar. In the street the three accused were cutting filthy jokes with each other. The deceased, his brother Muhammad Shafiq informant stopped them because the women also passed through the lane.
The three got provoked and left threatening the deceased and his brother with dire consequences.
The same evening at about 8 p. m. The deceased and his brother went to Mahfal Touring Talkies to see a movie. As they went inside they saw P. Ws. Khuda Bakhsh, Khawaja Abdul Qayyum and Zahoor Ahmad present there. A little later the three accused also appeared there. On seeing the deceased and his brother, Sajjad accused raised a lalkara that they be caught hold of because they used to stop them from passing through the Mohallah. Upon this Abdul Khaliq plunged at Ashfaq who stood up and tried to run away, but was secured by Sajjad and Tanveer. Muhammad Ashfaq thrust a knife in his back. With the help of Khuda Bakhsh, Abdul Qayyum, Zahoor Ahmad and Noor Ahmad, Abdul Khaliq accused was apprehended there and then with the knife, but his co- accused escaped. The injured was taken to the hospital who died there. Abdul Khaliq was detained at the spot by Abdul Qayyum and others. P. W. 1, Muhammad Shafiq brother of the deceased leaving the dead body in the hospital went to Police Station Shakargarh where he made report Exh.
P. A. To P. W. 10 Muhammad Aslam Butt, S. I. At 8-30 p. m. The same evening at a distance of 1 -- furlongs from the place of occurrence. The S. I. Went to the hospital, prepared the necessary documents and sent the dead body for its post-mortem examination. He then went to the spot, collected blood-stained earth from there. P. W. Abdul Qayyum produced blood--stained dagger Exh. P. 1 before him. It was made into a sealed parcel vide, memo. Exh. P. B. Attested by P. Ws. Noor Muhammad, Abdul Qayyum and Muhammad Shafiq besides the A. S. I. Abdul Khaliq accused who had been secured at the spot was arrested by the S. I. His blood-stained shirt Exh. P.
2. Was got removed and taken into possession through memo. Exh. P. C. Attested by the same aforesaid witnesses except Noor Muhammad. Muhammad Younas, A. S. I. Was deputed to search for Sajjad Ahmad and Tanveer accused who were later arrested by him and produced before the S. I. The came day.
3. P. W. 4 Dr. Muhammad Yousaf, Medical Officer, Civil Hospital, Shakargarh, held the autopsy at 6- 35 p. m. On 29th September, 1975 and found the following observations :-
(1) Incised wound 1---" x --" in the middle penetrating into the left chest. It is in the middle of back of left chest close to spine of seventh dorsal vertebra.
(2) Incised wound 3/8---x 1/8--- x muscle deep on the right chest. Middle of back close to the spine of seventh dorsal vertebra.
Injury No. 1 penetrated into the left chest and cut the thoracic aorta into 3/4". There was a big cut in the lower lobe of lung. The death in his opinion was due to massive haemorrhage and shock due to injury No. 1 which had cut the aorta. Injury No. 2 was simple. Time that elapsed between death and injuries was about 15 minutes and between death and post-mortem was about 12 hours.
4. After completing the investigation the accused were prosecuted in due course. They denied guilt.
Sajjad Ahmad and Tanveer said that they were involved in the case because of their relationship with Abdul Khaliq. Sajjad Ahmad produced Exh. D. F. a certificate issued by his Principal to show that he was a student of Gorden College, Rawalpindi and was to appear in the S. S. C. Examination of Sargodha Board in 1977 and that he had been attending classes till 26th May, 1976. In order to prove his permanent address, Sajjad produced Exh. D. C., a copy of the extract from the Register of Births of Rawalpindi which showed his date of birth and address.
5. Tanveer Ahmad claimed that he lived with his father at Lahore where his father had business.
6. ExpLalningthecase against him Abdul Khaliq accused trade the following statement: --- "I had gone to see the cinema show. The cinema show had not yet started I was loitering about the cinema premises outside as it was too hot to sit in the cinema hall. There was commotion in the cinema hall. All of a sudden, I went inside and saw an unknown assailant stabbed the deceased and the deceased fell down on receipt of the first blow. The said assailant then plunged the chhuri in the back of the deceased and himself ran away. I went near the deceased and found him as Ishfaq of our Mohallah. I pulled out the churri and then went to the police station. The deceased was taken by the presentees to the hospital whereas I myself went to the police station along with the churri and narrated the incident and produced the chhuri. The police called the complainant party and the complainant party demanded that either I should disclose the identity of the unknown assailant or myself would be treated as the murderer. None of the eye-witnesses was present at the time nor my co-accused were with me at the time. Because I could net disclose the name of the assailant, I was involved in the case."
He added that he produced chhuri P. 1 before the Police and that his shirt was smeared with blood as he pulled out the knife from the body of the deceased. He produced certificate Exh. D. E. To prove that Khuda Bukhsh P. W. 2 was a student of Law College of Anjuman Himayat Islam, Lahore. His Roll No. Was 1632, who had attended the classes on 28th May, 1976. The accused led no evidence in defence.
7. For good reasons Abdul Khaliq's story was disbelieved by the trial Court. Substitution is a rare phenomenon. Why should every body present in the cinema go out of the way to involve Abdul Khaliq in the case in place of the real culprit ? Had Abdul Khaliq realy wanted to help the deceased, then instead of pulling out the knife from his body he should have tried to apprehend his assailant with the help of all those who were there. Because the truth was otherwise, therefore Abdul Khaliq himself was apprehended at the spot by others with the weapon of offence, which he used against his victim. Under these circumstances the question left for determination was whether those who saw him attacking Muhammad Ishfaq could be relied upon to prove his guilt. Before coming to the evidence of the eye-witnesses, we may mention here that the story of the motive for the crime did not carry much weight. Besides the solitary statement of Muhammad Shafiq informant, there is no evidence in support of it. Admittedly Tanveer and Sajjad accused were residents of Lahore and Rawalpindi respectively. It will, therefore, be too much to say that every now and then, they used to be with Abdul Khaliq in Shakargarh misbehaving in deceased's Mollaha. Even otherwise the motive story is too weak because the three accused were said to have been cutting jokes with each other and not hinting at either the deceased or any one else. In any case what were 'they joking about is not disclosed. It, therefore, appears that in order to introduce premeditation in the attack, the motive story was put up.
E. True, the two eye-witnesses namely Noor Muhammad and Abdul Qayyum were given up as won-over, but this did not affect the evidence of the remaining three eye-witnesses namely Muhammad Shafiq, Khuda Bukhsh and Zaboor. They had no enmity with the accused. Attempt was made to discredit P. W. Khuda Bukhsh on the ground that he could not be present at the spot because he was a student of the Law College, Lahore and was present in the evening class at the time of the occurrence. The admission of the witnesses that he had arranged for his proxy in the class is highly objectionable, and no educational institution should tolerate such a conduct.
However, Khuda Bukhsh's presence at the spot is supported by the prompt F. I. R. Wherein his name is mentioned. Moreover, the investigating officer reached the spot at 9. 30 p. m. And recorded the statement of the witnesses which include Kbuda Bukhsh's statement. There is thus no doubt that he saw the occurrence. There is also no reason why he should falsely rope in the accused in a murder case: Similarly P. W. 3 Zahoor Bukhsh who is another disinterested witness, had no motive to falsely rope in the accused.
9. Much stress was Lald on the fact that the doctor found two injuries on the deceased; but the eye-witnesses speak of only one. Before analysing this it may be straightaway mentioned that the witnesses did not try to bring their evidence in line with the medical evidence. On the other hand, it cannot be called a contradiction as such. Injury No. 2 is 3/8" x 1/8" muscle deep in middle of back close to the spine near seventh dorsal vertebera. Similarly injury No. 1, the fatal blow, is also on the left side in the back chest. The diagram prepared by the doctor at the post-mortem examination would reveal that the injuries are close to each other. The omission to mention the first injury which is a minor injury, indicates that either the witnesses did not see the attack open and only saw the fatal blow being given to the deceased or that the-two injuries being so close to each other in the same region were inflicted in swift action, and that the witnesses could not have noticed the impact of the minor injury and the entire incident appeared to them to be a single knife thrust in the back of the deceased. In this view of the matter there is hardly scope for the argument that there was such a contradiction in the medical evidence and ocular testimony that it created a doubt about the presence of the eye-witnesses.
10. Abdul Khaliq has admitted his presence at the spot. His defence story of substitution is worthless. On the other hand his apprehension at the spot with the weapon of offence in his hand and the evidence of the three eye-witnesses. The only question left for consideration is the application of, section 34, P. P. C. Trial Court has given the benefit at doubt of Sajjad accused and acquitted him on the ground that according to the report under section 173, Cr. P. C. (Exh. D. D.)
Sajjad was found innocent by the Police. This report was said to have been made in the basis of the investigation of the Police Officers namely Salabat Khan, Inspector and Zaheer Ahmad, D. S. P. But they did not appear as witnesses in the case. Nor those witnesses who appeared before them during investigation appeared at the trial in defence. However, in our opinion, the question of the application of section 34 P. P. C. Does not hinge on the report under section 173 Cr. P. C. It will depend on the evidence of this case, which does not indicate whether the companions of Abdul Khaliq had the knowledge that he had a knife with him when he came into the cinema hall. We are left with the lalkara of Abdul Khaliq, its effect on his companions and the actual stabbing. In the first place, time between the lalkara and the stabbing could not have been much. It may be added here that the incitement by lalkara attributed to Abdul Khaliq in the V. I. R. And in the statements of the witnesses before police did not include the word "kill !" It only referred to "catch him !" This is obviously an improvement. Another question would arise i. e. Whether Abdul Khaliq who was armed with a knife would need to call out for his companions for help. The injuries to the deceased are in the back which could have been inflicted when he plunged at the deceased after he had got up from his seat. Had there been a lalkara from a distance the deceased could have escaped before the arrival of the accused near him. Again, if there was a grappling with the deceased by Sajjad and Tanveer accused, then there would have been signs of scuffle at the spot and even the state of deceased's clothes would have indicated it. Moreover, in a sudden attack like the one in this case, if the companions of Abdul Khaliq accused had acted then they would have run the risk of injuries to themselves at the hand of the accused. This is not the prosecution case that the deceased was thrown on the ground, overpowered and thereafter he was attacked. The swift action in which the deceased was attacked leaves room for doubt i. e. Whether his companions had assisted him B in any manner. We, therefore, give the benefit of doubt to Tanveer also and acquit him.
11. We have no doubt about the guilt of Abdul Khaliq. We maintain his conviction, but reduce the sentence to life imprisonment because, it was an unpremeditated attack and what passed between the deceased and the accused immediately before the -attack is not known. Moreover, Abdul Khaliq was about 16 years of age at the time of the commission of the crime. Death sentence is nor confirmed.
Death sentence not confirmed.