Muhammad Manzoor, aged 28 years, armed with dagger, Muhammad Siddique, aged 20 years, armed with knife, both sons of Muhammad Sharif and, therefore, real brothers as well as Muhammad Ishfaq Son of Muhammad Ismail, aged 23 years, armed with dagger, have been convicted under S. 302/34, P. P. C. For the murder of Muhammad Aslam, aged 20 years, and vide judgment dated 28th April, 1980 of the Additional Sessions Judge, Lahore, each of them was sentenced to life imprisonment plus fine of Rs. 3,000 or in default to undergo two years, rigorous imprisonment. It was also directed that if the fine was realized from them, it should be Paid as compensation to the heirs of the deceased. Their co-accused Muhammad Hussain, also armed with dagger, was given the benefit of doubt and acquitted.
It may be pointed out at this- stage that alongwith the present con--victs the name of Muhammad Sharif, father of Muhammad Manzoor and Muhammad Siddique convicts, was mentioned in the F. I. R. As armed with a dagger and specific part had been attributed to him. But in the supplementary statement recorded on the same day by the Investigating Officer, of the complainant, the name of Muhammad Sharif was stated to have been mentioned erroneously and instead Muhammad Hussain was ascribed the said part. Therefore, Muhammad Sharif was never arrested by the Police in connection with this case. But Muhammad Hussain was arrested and tried.
The record also indicates that one Abdul Rashid was likewise arrested in connection with this murder case but was subsequently discharged. In other words, there was a confusion about the identity of the fourth accused who might have accompanied the three convicts. The first informant had named Muhammad Sharif as the fourth accused, but in his supplementary statement he named Muhammad Hussain and had stated that he had mentioned the name of Muhammad Sharif by mistake. However, Abdul Rashid had also been arrested on suspicion of being the fourth accused, in the instant case, but was discharged. Muhammad Hussain had been given the benefit of doubt and acquitted by the trial Judge mainly for the reason that initially in the F. I. R. His name did not figure but the name of Muhammad Sharif was mentioned as the fourth accused. However, Muhammad Sharif was never arrested and instead Muhammad Hussain was named in the supplementary statement of the first informant and accordingly he had been arrested. But despite all this another person Abdul Rashid was also considered a suspect who was arrested but subsequently discharged. Since this was the position, the trial Judge doubted whether Muhammad Hussain was or was not the fourth accused in the instant case and it was for this reason that he was given the benefit of doubt and acquitted.
Muhammad Manzoor and Muhammad Siddique convicts have filed Cr. Appeal No. 573 of 1980 whereas Muhammad Ishfaq convict had filed Cr. Appeal No. 653 of 1980. Since these appeals are directed against the same judgment, they are being taken up together and disposed of by this judgment. .
2. The occurrence took place at 8-00 a.m. On 30th March, 1975 at Chah Bhangian at a distance of one mile from Police Station, Baghbanpura and 21 furlongs from Police Post Singhpura (Shalimar).
Statement Exh. P. E. Was made by Ziafat Ali P. W. 3, brother of the deceased, at the Mayo Hospital, Lahore, on the same day at 10-45 a.m. And it was recorded by Fateh Muhammad S. I. P. W. 15 who had arrived there in response to a ruqqa. Formal F. I. R. Exh. P. E./1 on the basis of the said statement was registered at Police Station by Muhammad Ishaq A. S. I. P. W. 7 at 11-30 a.m. On the same day.
Initially, a case was registered under S. 307j34; P. P. C., but later on the death of the deceased at 5- 15 p.m. On the same day, section 307, P.P.C. Was altered- to section 302, P. P. C.
3. The prosecution has produced three eye-witnesses of the occurrence, namely, Muhammad Munawwar P. W. 2, stated to be from the same Biradari as the deceased. Ziafat Ali P. W. 3, real brother of the deceased and first informant, and Liaqat All P. W. 4, friend of the deceased: Two other persons, namely, Muhammad Yasin and Fayyaz Ahmad were cited as eye-witnesses in the F. I. R.
But they were given up as won over.
It may be pointed out at this stage that Muhammad Yasin was the eye-witness in whose shop the occurrence had taken place. He was also an unconnected person. Any way, if the prosecution had not produced him and had given him up, the defence also did not produce him as a D. W.
4. The motive for crime, as stated in the F. I. R., is that three days before the present occurrence Muhammad Sharif, father of Muhammad Manzoor and Muhammad Siddique appellants, was insulted by the deceased and this led to quarrel between the parties. However, the respectables of the locality intervened and patched the matter up. It is stated that the accused party retained a grudge on account of this incident and it was in this background that they had attacked the deceased.
5. All the appellants and the acquitted co-accused were arrested on 5th April, 1976 (six days after the occurrence) by Fateh Muhammad S. I. P. W.
15. At the pointing out of Muhammad Manzoor appellant blood--stained dagger P. 7 was recovered and taken into possession vide memo. Exh. P.
J. Dated 10th April, 1976. The, attesting witnesses are Zahoor Ahmad P. W. 12, Fateh Muhammad S. I.
P. W. 15 and Muhammad Nazir (not produced). At the instance of Muhammad Siddique appellant blood--stained knife P. 8 was recovered and taken into possession vide memo. Exh. P. K. Dated 10th April, 1976. The attesting witnesses are the same as above. At the instance of Muhammad Ishfaq appellant blood-stained dagger P. 6 was recovered and taken into possession vide memo. Exh. P.
G. Dated 12th April, 1976. The attesting witnesses are Sher Muhammad P. W. 6, Fateh Muhammad S. I.
P. W. 15 and Muhammad Riaz (not produced). At the instance of Muhammad Hussain, acquitted co-accused, blood-stained dagger P. 5 was recovered and taken into possession vide memo. Exh.
P. F. Dated 12th April, 1976. The attesting witnesses are the same as above. According to the report of the Serologist Exh. P. V. Dagger P. 7, recovered at the instance of Muhammad Manzoor appellant, and knife P. 8, recovered at the instance of Muhammad Siddique appel--lant, were found to be stained with human blood whereas blood on dagger P. 6, recovered at the instance of Muhammad Ishfaq appellant, and dagger P. 5, recovered at the instance of Muhammad Hussain, acquitted co- --accused, had disintegrated and its origin could not be determined.
6. The appellants and the acquitted co-accused, in their statements before the trial Court, totally denied having participated in the occurrence. They disowned recoveries and stated that these had been planted. They further stated that they had beer falsely implicated due to enmity with the complainant-party who were bad characters of the area.
7. In the F. I. R. The occurrence is reported to have taken place in the following manner: On the fateful day the deceased and Ziafat Ali P. W. 3 were returning to their house after having taken a bath in the Hamam of one Munir. When they reached near the spot, Muhammad Sharif, Muhammad Manzoor, Muhammad Siddique and Muhammad Ishfaq, all armed with dagger, arrived there. Muhammad Sharif had raised a lalkara that they should apprehend the deceased and finish him in order to teach him a lesson of insulting him. Thereafter, Muhammad Manzoor with his dagger gave one after the other three blows which fell on the right chest, right belly and right hand of the deceased. Then Muhammad Siddique gave blows with his dagger which fell on the left side of belly, left flank and left hand of the deceased. At this stage the deceased, in order to save his life, entered the shop of Muhammad Yasin (not produced). Muhammad Yasin was present at his shop at that time. Muhammad Sharif and Muhammad Ishfaq chased the deceased into the shop of Muhammad Yasin. Then Muhammad Sharif with his dagger gave a blow which fell on the left buttock of the deceased and Muhammad Ishfaq with his dagger gave blows which fell on the left ear and at the back waist of the deceased. In the meantime Muhammad Manzoor and Muhammad Siddique, who were standing outside the shop of Muhammad Yasin went on raising lalkaras that if any one were to come near, he would meet the same fate. On the alarm of the deceased as well as Ziafat Ali P. W.
3. Muhammad Munawwar P. W. 2 and Liaqat Ali P. W. 4 were attracted to the scene of crime like Fayyaz Ahmad (not produced). All of them including Ziafat Ali P.
W. And Muhammad Yasin witnessed the occurrence and rescued the deceased in an injured condition from the clutches of the accused-party, who ran away from the spot waiving their daggers in the air. The deceased, in an injured condition, was put in a car and was taken to the Mayo Hospital, Lahore, where he was admitted.
8. Dr. Mukhtar Ali P. W. 13 medically examined the deceased while he was still alive at 4-40 a.m. On 30th March, 1976 and noted on his per-- son the following nine injuries
(1) Incised wound l --" x --" on the left chest. Depth was not probed.
(2) Incised wound 1--" x --" on the right side of the chest. The depth was not probed.
(3) Incised wound 1" x --" on, the left side of the chest on upper part.
(4) Several stabbed wounds (incised) 1" x 1/3" on the upper part of the back.
(5)Incised wound 1" x --" the lower and outer side of left abdomen.
(6) Incised wound 1" x 1" at the middle of the back. Depth was not probed.
(7) Incised wound 1" x 1"at the lower part of the left ear canal.
(8) Incised wound 1" on the left thumb.
(9) Incised wound 2" x --" on the front of left thigh.
These injuries were kept under observations.
The deceased died at 5-15 p.m. On the same day. Dr. Tahir Anees P, W. 9 conducted post-mortem examination on the dead body of the deceased at 11-30 a.m. On 31st March, 1976, and found on his person the following 27 injuries: (1)Incised wound 3/4" x 1" back of head.
(2)Stitched wound 3--" long over right temple.
(3)Incised wound1/3" x 1/6" right upper eye lid.
(4) Stitched wound 1" long mid right eye-brew.
(5) Stitched wound 3/4" long left temple.
(6) Partly stitched wound 1" long upper back right shoulder.
(7) Stitched wound 1--" long over back right shoulder.
(9) Two stitched wounds back upper mid chest each about one inch long.
(10)-(11) Two stitched wounds left upper back chest each about one inch long.
(12) Stitched wound 12" long mid upper loin.
(13) Stitched wound 1--" long outer right chest
(14) Stitched wound 6" long right upper front chest.
(15) Incised wound 1/3" x 1/8" two inches above to injury No. 14.
(16) Stitched wound 1-- " long right lower front chest.
(17) Stitched wound 1--" long left lower front chest.
(18) Stitched wound 1--" long over left flank.
(19) Stitched wound 1--" long mid front: left thigh.
(20) Stitched wound 1--" long outer lower right forearm.
(21)-(22) Two incised wounds each alongWIN3/4" long over inner part of right thumb.
(23) Stitched wound 1--" long mid back outer part of left, arm
(24) Incised wound 1" long inner upper left thumb.
(25) Incised wound 1--" long outer left palm.
(26) Abrasion 2" x 1--" long upper back right forearm
(27) Incised surgical wound 3/4" long right lower inner leg.
According to him, all the injuries except No. 26 had been caused by sharp edged weapon. Injury No. 26 was caused with blunt-weapon. Injuries 13, 14 and 16 were sufficient to cause death in the ordinary course of nature through bleeding and shock.
It may be pointed out at this stage that if one were to calculate the number of the injuries specifically, according to the ocular testimony, it comes to nine. Dr. Mukhtar Ali Naro P. W. Who medically examined the deceased while he was still alive being the first doctor who attended to him also mentioned in his statement that he had found nine injuries on the person of the deceased. In the inquest report Exh. P. T. Which was pre--pared by the Investigating Officer at 7-00 p.m. On the same day, in the brief facts the same number of injuries is mentioned as in the F. I. R. Or in the statement of Dr. Mukhtar Ali Naro P.W. But as is evident from the statement of Dr. Tapir Anees P. W. Who conducted the post-mortem examination on the dead body of the deceased, he noted 27 injuries on the person of the deceased. It may be pointed out at this stage that none of the eve- witnesses or the Investigating Officer or the two Medical Officers were put any suggestion in the cross-examination by learned counsel for defence as to why there was variation in the number of injuries sustained by the deceased according to the version of Dr. Mukhtar Ali Naro P. W. And that of Dr. Tahir Anees P. W.
9. I have heard learned counsel for both the parties and carefully perused the record. Muhammad Manzoor and Muhammad Siddique appellants are represented by Mr. M. B. Zaman, Advocate, whereas Muhammad Ishfaq appellant is represented by Mr. Ziauddin Khan, Advo--cate. The case of the prosecution is based on the ocular testimony corro--borated by the recovery evidence and supported by the motive version as well as the medical evidence. The benefit of doubt was granted to Muhammad Hussain and he was acquitted mainly for the reason that there was uncertainty about the identity of the fourth co-accused who had accompanied the present appellants. As I have already pointed out the first informant in the F. I. .R. Gave the name of Muhammad Sharif as the fourth co-accused, but in his supplementary statement recorded on the same day he stated that the name of Muhammad Sharif had been wrongly given in the F. I. R. As the fourth co-accused but instead there was Muhammad Hussain. However, learned counsel also indicated that one Abdul Rashid was likewise arrested as a suspect in the instant case but was subsequently discharged. Thus, it is evident that Muhammad Sharif was not arrested and Abdul Rashid was discharged as the fourth co-accused. Muhammad Hussain being considered as the fourth co- accused was tried. In my view, the trial Court was correct in applying the principle of abun--dant caution in the case of Muhammad Hussain and he was rightly given the benefit of doubt and acquitted. Mr. Ziauddin Khan, Advocate has attempted to argue that the case of his client, namely, Muhammad Ishfaq appellant was distinguishable from the other two appellants. It is sub--mitted that Muhammad Ishfaq appellant who had filed a separate appeal was not connected with the motive at all. If there was any motive to murder the deceased, it was of Muhammad Manzoor and Muhammad Siddique appellants who were real brothers and whose father had been insulted by the deceased. It was next submitted that the case of Muhammad Ishfaq appellant was at par with Muhammad Hussain, acquit--ted co-accused. It was argued that blood on the weapons of offence recovered from both of them had disintegrated and its origin could not be determined, both were arrested and recoveries were effected from them on the same day and to both of them simple injuries were attributed so far as the deceased was concerned. It was next argued that the complainant side had deliberately tried to enlarge the net by roping in Muhammad Sharif and then instead of him Muhammad Hussain or Abdul Rashid. The reasoning of learned counsel is that the position of Muhammad Ishfaq appellant was similar to that of Muhammad Sharif, Abdul Rashid, Muhammad Hussain and had been falsely implicated only because the complainant-party was intending to enlarge the net. I have pointed out to learned counsel that even though he may not be connected directly with the motive, according to the prosecution version he had accompanied the other appellants and was stated to be armed with dagger which he used in the course of occurrence by inflicting injury on the person of the deceas--ed like the other two appellants. It is, therefore, irrelevant if he was directly connected with the motive or not. It is also clear from the record that the case of Muhammad Ishfaq appellant was not at par with Muhammad Hussain, the acquitted co-accused. Muhammad Hussain was given the benefit of doubt and acquitted by the trial Judge merely for the reason that there was some uncertainty about the identity of the fourth co-accused. Muhammad Sharif had been originally named in the F. I. R. But in the supplementary statement the first informant clearly stated that he had wrongly given the name of Muhammad Sharif and that it was Muhammad Hussain, who was accompanying the other three appellants.
Furthermore, in this connection Abdul Rashid was also made to join the investigation as a suspect but he was subsequently discharged. Thus, it is evident that there was some confusion about the identity of the fourth co--accused and it was for this reason that the trial Judge gave the benefit of doubt to Muhammad Hussain and acquitted him. But the case of Muhammad Ishfaq appellant is not identical with Muhammad Hussain, acquitted co--accused. About him the prosecution evidence and particularly the ocular testimony is quite consistent that he was accompanying the other appellants and they all three attacked and caused injuries to the deceased with their respective sharp-edged weapons. It was then argued by learned counsel that the case of Muhammad Ishfaq appellant was not covered under S. 34, P. P. C. As his conduct and behaviour was different in the course of the occurrence as compared to the other two appellants. Learned counsel submitted that only a simple incised injury to the deceased had been attributed to Muhammad Ishfaq appellant by the eye-witnesses. It was argued that the other two appellants had a direct motive as against the deceased whereas Muhammad Ishfaq appellant did not have any motive as against the deceased. According to the eye-witness account Muhammad Ishfaq appellant, although was companion of the other appellants and was likewise armed with a sharp- edged weapon, he did not cause any fatal injury to the deceased and was attributed only a single simple incised injury at the back-as according to the medical evidence there was no other injury found on the ear of the deceased which was alleged to have been caused by Muhammad Ishfaq appellant. Learned counsel for Muhammad Ishfaq appellant argued that in the case of his client section 34, P. P. C. Could have not been made applicable. The reasoning is that Muhammad Ishfaq appellant might have not formed a common intention with the other appellants to commit the murder of the deceased, because the deceased had insulted the father of the other two appellants. According to learned counsel there was no such evidence on the record. He wants me to draw the inference that it was reasonably pro--bable that the intention was to teach the deceased a lesson for insulting the father of the other two appellants and in this common intention Muhammad Ishfaq appellant might have joined the other two appellants. But at the time of the occurrence the other two appellants caused fatal injuries to the deceased as they were directly connected with the motive in the sense that their father had been insulted by the deceased and that, therefore, they formed common intention to murder the deceased. But so far as Muhammad Ishfaq appellant was concerned, he did not cause any injury to the deceased while he was being attacked by the other two appellants. According to the prosecution version the deceased, after receiving injuries at the hands of the other two appellants, ran into the shop of Muhammad Yasin. It is stated by the eye-witnesses that it was in the shop that Muhammad Ishfaq appellant gave two blows with his dagger to the deceased which fell on his left ear and at the back waist. It is submitted that according to the medical evidence, there is no injury on the ear and the back waist injury which is attributed to Muhammad Ishfaq appellant is an incised injury but simple in nature.
Thus, according to learned counsel Muhammad Ishfaq appellant did not have common intention with the other two appellants to commit the murder of the deceased. He could, at the most, be considered responsible for his own injury which he had caused an that, therefore, his conviction should have been recorded under section 324, P.P.C. And should have been sentenced thereunder.
In support of his argument learned counsel has relied upon Younas Qureshi v. Ghulam Sabir (1974 SCMR 251). In that case it was held that with regard to the application of section 34, P. P. C., the Court was entitled to be satisfied on evidence of pre-concert to be reliable and worthy of credit.
Reliance was also placed on Abdul Sattar v. State (PLD 1979 Kar. 72). In that case it was held that frequently the Court is prejudiced against an accused because of his association with others whom the Court convicts on the basis that the Court starts the assumption that the birds of the same feather flock together. There is no complete safeguard against such prejudice in cases of joint trial. However, judicial pronouncements have always administered a caution in cases where a person is sought to be convicted on the ground of his animation with com--mon intention. Learned counsel argued that Muhammad Ishfaq appellant could have possibly not formed the common intention with the other to commit the murder of the deceased and that his case was not covered by section 34, P. P. C.
I have carefully considered the arguments of learned counsel for the appellants in the instant case.
In the light of the above discussion, in my considered opinion the prosecution has succeeded in establishing its case as against Muhammad Manzoor and Muhammad Siddique appellants. They were both brothers and had a motive to attack the deceased in order to take revenge of the insult committed by the deceased of their father. According to eye-witness account they both caused fatal injuries with sharp edged weapons to the deceased. The ocular testimony about the point ascribed to them is supported by the medical evidence and the motive version and is corroborated by the recovery evidence. Consequently, their conviction as well as sentence awarded to them, in the circumstances, were quite proper and are accordingly maintained. The result is that Cr. A. No. 573 of 1980 filed by Muhammad Manzoor and Muhammad Siddique appellants is hereby dismissed.
The case of Muhammad Ishfaq appellant is somewhat different. Learned counsel for Muhammad Ishfaq appellant has successfully argued that his having formed a common intention with the other two appellants was not free from doubt. Muhammad Ishfaq appellant had no direct motive to attack the deceased. Although he had accompanied the other two appellants who had a motive to attack the deceased, because the deceased had insulted their father, he is only attributed a simple incised injury caused at the back of the deceased and also not at that place where the other two appellants had caused fatal injuries to him. It is reasonably probable, as learned counsel has argued, that Muhammad Ishfaq appellant might have joined the other two appellants in the forming of common intention for teaching a lesson to the deceased for having insulted the father of the other two. But when the other two appellants attacked the deceased, they caused fatal injuries to him and in the meantime when the deceased ran into the shop of Muhammad Yasin.
Muhammad Ishfaq appellant is stated to have given him a simple incised injury. This Muhammad Yasin has not been produced by the prosecution. Thus, there is some force in the argument that section 34, P. P. C. Was not applicable in the case of Muhammad Ishfaq appellant but he could be at the most responsible for the injury which he has caused to the deceased. In this respect Younas Qureshi v. Ghulam Sabir (1974 SCMR 251) as well as Abdul Sattar v. State (PLD 1979 Kar. 72 (para 21-A at page. 82) are quite relevant. In the light of the above discussion I am of the view that the prosecution has not succeeded in establishing its case as against Muhammad Ishfaq appellant under section 302/34, P. P. C. Beyond any shadow of doubt. Consequently, his conviction under section 302/34, P. P. C. And sentence thereunder were not proper and are accordingly set aside, for, he should have been given the benefit of doubt which I hereby give to him. Fine, if realised, should be refunded to him. However, he has caused a simple incised injury at the back of the deceased and, therefore, I convict him B instead under section 324, P. P. C. He was arrested in connection with this case on 5th June, 1976 and had never been released on bail. Conse--quently it will meet the ends of justice if he is sentenced under section 324, P. P. C. To the term of imprisonment which he has already undergone. The result is that the appeal of Muhammad Ishfaq appellant i.e. Cr. A No. 653 of 1980 is accepted to this extent. Since he has already under--gone his sentence, he shall be released from Jail forthwith if not wanted in any other case.