Muhammad Rafiq, Manzoor Ahmad and Maqsood Ahmad, sons of Barn Din, were tried by an Additional Sessions Judge of Lahore under section 302/34, P. P. C. For the murder of Allah Rakha, deceased. The learned trial Judge, by his judgment dated 19-2-1981, convicted Muhammad Rafiq and Manzoor Ahmad, accused, under the said section and. Sentenced them to life imprisonment each with a fine of Rupees Three Thousand (Rs. 3,OC0) each or in default of payment of fine to further rigorous imprisonment for one year each. Maqsood Ahmad, accused was given the benefit of doubt and acquitted of the charge. Fine, if realized from Muhammad Rafiq and Manzoor Ahmad, accused, was ordered to be paid to the heirs of Allah Rakha, deceased, as compensation. The appal (Cr. A. 153 of 1981) preferred by the convict is now before me for disposal.
2. The prosecution case briefly, as disclosed in the F. I. R. Exh. P. D./1 is that Mst. Hanifan Bibi, wife of Boota, resident of Gujranwala, a real sister of Allah Rakha, deceased married her daughter Mst.
Rehana with Rafiq, accused, about six months before the occurrence. Allah Rakha, deceased, was against this marriage. Muhammad Rafiq, accused, and his brothers often taunted the deceased for having opposed the marriage. On 4-5-1979, after Maghrib prayer time, Allah Rakha, deceased, was standing in the lane. Near his house at Lakhodher Road. Maqsood alias Fauji, accused, taunted the deceased for having obstructed the marriage of his niece, whereupon both of them abused each other. Maqsood Ahmad P. W. 5, complainant, also reached there. The matter was patched up and Maqsood Ahmed alias Fauji, accused, went to his house. After a short while, when Maqsood Ahmad P. W. 5 and Allah Rakha, deceased were standing in front of their house in a lane, Muhammad Rafiq, accused, armed with a khanjer, Maqsood Ahmad Fauji and Manzoor, accused, both armed with Chhuris, reached there. Maqsood, accused, raised a lalkara that Allah Rakha, deceased, should be finished and attacked the deceased. Muhammad Rafiq, accused, inflicted a khanjer blow on the chest of the deceased. Manzoor Ahmad, accused, gave a churri, blow on the left buttock of the deceased. After receiving the injuries, the deceased fell on the ground. The accused then came towards Maqsood Ahmad P. W. 5, but he ran away to save his life. Nazir Ahmad P. W. 6, Muhammad Latif and Muhammad Azam (given up P. Ws.) and others came there and witnessed the occurrence. The accused then fled away. During the scuffle, Manzoor Ahmad, accused, also sustained injuries. Maqsood Ahmad P: W. 5, immediately after the occurrence carried his father Allah Rakha, in injured condition, to the Mayo Hospital, Lahore, where he was medically examined by Dr. Ijaz Ahmad p. W. 11, who found the following injuries on his person :-
(1) Stab injury in the chest incised wound on the right side of the chest in the fourth intercostal space 4 c. m. x -- c. m. Depth not probed. Bleeding. Advised X-Rays.
(2) Stab injury on left thigh, incised wound 1 c. m. x 1-- c. m. Bleeding profusely.
3Akbar Nawaz A. S. I. P. W. 4, who was on patrol duty learnt about the occurrence. He immediately rushed to the Mayo Hospital, Lahore, where he inquired from the doctor if Allah Rakha, could make a statement, which was answered in negative by the doctor. Thereupon the statement of Exh. P. D.
Of Maqsood Ahmad P. W. 5, who was present in the hospital, was recorded by Akbar Nawaz A. S. I. P.
W. 4 at 11-30 p.m.
4. On the basis of the above statement, formal F. I. R. Exh. P. D./1 was recorded on 5-5-1979 at 00-20 a.m. At Police Station Baghbanpura by Muhammad Munir S. I. P. W.
7. At 01-15 a.m., the investigating officer learnt that Allah Rakha, deceased, had expired. He proceeded to the hospital where, after preparing the necessary papers, he sent the dead body for post-mortem examination. He then proceeded to the spot where he recovered blood-stained earth from the place of occurrence, which he took into possession vide memo P. F.
5. On 5-5-1979 at 12-10 p.m., Dr. Imtiaz Ahmad Bhatti P. W. 8 performed the post-mortem examination on the dead body of Allah Rakha, deceased, and found the following injuries on it :-
(1) A stab wound 4 c. m. x 1-- c. m. x depth not probed over outer upper left buttock.
(2) Stab wound 4 c. m. x 1-- c. m. x depth not probed over right chest at 3 o'clock position 61 c. m.
From right nipple.
(3) An abrasion 4-- c. m. x 1 c. m. Over outer mid left buttock.
Left internal iliac artery was found cut corresponding to injury No. 1. Injury No. 2 was simple and muscle deep. Injury No. 1 was held sufficient to cause death in the ordinary course of nature through shock and haemorrhage. Probable duration between injuries and death was within six hours and that between death and post-mortem examination was about twelve hours.
6. On 6-5-1979, Muhammad Rafiq and Maqsood Ahmad, accused, were arrested by Muhammad Munir S. I. P. W.
7. As Muhammad Rafiq, accused, had certain injuries on his person, he was sent for medical examination. Dr. Imtiaz Ahmad Bhatti P. W. 8 found three lacerations on the accused's left hand and outer upper right fore-arm, both of which blunt weapon injuries were declared to be simple and caused within 2/3 days of the examination.
7. On 13-5-1979, Manzoor Ahmad, accused, was arrested by Muhammad Munir, S. I. P. W.
7. On the same day, Maqsood Ahmad and Manzoor Ahmad accused, led to the recovery of blood stained Churri P 3 and blood--stained Churri P 4 respectively from different rooms of their residential kotha, which were taken into possession by the police vide memos P. G. And P. H. Respectively in the presence of Muhammad Munir S. I. P. W. 7, Muhammad Iqbal (won over P. W.) and Muhammad Shafi P. W. (who died before the trial).
8. At the trial, the prosecution produced Maqsood Ahmad P. W. 5 and Nazir Ahmad P. W. 6 in support of the motive and the ocular account, Muhammad Munir S. I. P. W. 7 in proof of the recoveries and Dr. Imtiaz Bhatti P. W. 8 and Dr. Ijaz Ahmad Malik P. W. 11 to corroborate the medical testimony.
9. All the three accused admitted that they were brothers and that Muhammad Rafiq, accused, bad married Mst. Rehana about six months before the occurrence, which marriage Allah Rakha, deceased, had opposed, but they denied the fact that they were annoyed with the deceased on that account. Both Muhammad Rafiq and Maqsood Ahmad, accused, imputed their false implication to Maqsood Ahmad P. W. 5, as he was inimical to them on account of the marriage of Muhammad Rafiq accused with Mst. Rehana. Both denied their presence at the spot at the time of occurrence. Muhammad Rafiq, accused, explained the injuries on his person by stating that he had fallen down from his bicycle some 2/3 days before the occurrence and had suffered injuries on that account. Manzoor Ahmad, accused, admitted the occurrence, though in different circumstances. He stated that on the day of occurrence at Maghrab prayer time, he was coming back to his house from Baghbanpura. When he reached near the Girls School at Lakhodher Road, he saw a large number of persons present there and Maqsood Ahmad P. W. 5 and Allah Rakha, deceased, forcibly taking away Mst. Rehana, who was raising. Hue and cry. He tried to rescue her, but he was given a knife blow, as a result of which he fell down and became unconscious. He further stated that he did not know who killed the deceased, but that he had been falsely implicated in the case due to enmity.
10. The learned trial Judge, relying upon the motive, the ocular testimony and the medical evidence, convicted and sentenced Muhammad Rafiq and Manzoor Ahmad, accused, as stated in para. 1 above, but granted the benefit of doubt to Maqsood Ahmad, accused, as no overt act was attributed to him and his participation in the occurrence appeared to be doubtful.
11. I have heard the arguments of the learned counsel for the appellant, and the State and have perused the evidence and the documents on the record. Both the appellants and the acquitted accused admit that Mst. Rehana, niece of Allah Rakha, deceased, was married to Muhammad Rafiq, appellant, about six months prior to the occurrence and that the deceased opposed the marriage Muhammad Rafiq P. W. 6, in supporting the motive, stated that their relations with his paternal aunt had become strained on that account and that the appellants and the acquitted accused used to tease them by taunting that they had secured Mst. Rehana against the wishes of the deceased and his sons and that the appellants and the acquitted accused were annoyed with them, as they had opposed the marriage. Nazir Ahmad P. W. 6 admitted in cross-examination that Allah Rakha, deceased, desired to marry Mst. Rehana with his son Maqsood Ahmad P. V'Y.
5. It is, therefore, clear that the relations of the appellants and the acquitted accused with the deceased and his sons were strained and they nursed grudge against the deceased, as he bad opposed the marriage of his niece with Muhammad Rafiq, appellant. The motive for the crime, therefore, stands established.
12. The ocular account is furnished by Maqsood Ahmad P. W. 5 and Nazir Ahmad P. W. 6, the son and paternal cousin respectively of the deceased. The occurrence is admitted in this case by Manzoor Ahmad, appellant. The only question, therefore, that arises is whether, after keeping in juxtaposition the story of the prosecution and that of the defence, the evidence on the record and the surrounding circumstances establish the case of the prosecution beyond every shadow of doubt or reasonably leads to the inference that the defence story is true or reasonably probable.
The defence case is that Manzoor Ahmad, appellant, was returning to his house, he saw Allah Rakha, deceased, and his son Maqsood Ahmad P. W. 5 forcibly taking away Mst. Rehana, who was raising hue and cry and that when he tried to rescue her, he was given a knife injury by Maqsood Ahmad P. W. 5, as a result of which he fell down and became unconscious. The defence does not disclose who killed Allah Rakha, deceased. Mst. Rehana D. W. 1, the wife of Muhammad Rafiq, appellant, appeared in Court as a defence witness and supported the said defence story. Maqsood Ahmad P. W. 5 was also put the defence version in cross-examination, namely, that he and his father had gone to the house of the appellant, that in their absence they had abducted Mst.
Rehana and that Manzoor Ahmad, appellant, had met them in the way and tried to rescue his sister-in-law, which suggestions were denied. Nazir Ahmad P. W. 6 was also put the defence version in cross-examination, namely, that on the day of occurrence, Allah Rakha, deceased, himself brought Mst. Rehana from their house in their absence and Manzoor Ahmad, appellant, met him in the way and rescued Mst. Rehana with the help of Muhammad Azam and Muhammad Latif (won over P. Ws). To Nazir Ahmad P. W. 6 it was not suggested that Manzoor Ahmad P. W. 5 was also with the deceased when he abducted Mst. Rebana from the house of the appellants. It was further suggested to Nazir Ahmad P. W. 6 that Maqsood Ahmad P. W. 5 had a khanjer with him, that he bad cau4ed injury to Manzoor, appellant, and Allah Rakha, deceased, with the same in a scuffle, which sugges--tions were not put to Maqsood Ahmad P. W. 5, and which suggestions were denied by Nazir Ahmad P. W.
6. Muhammad Rafiq, appellant, and Maqsood Ahmad, acquitted accused, did not in their statements adopt the defence story of Manzoor Ahmad, appellant. Manzoor Ahmad, appellant, alone put up the defence story, though he could not account for the fact as to who had killed the deceased. Mst. Rehana D. W. I admitted in cross-examination that she neither lodged any report about her abduction against Maqsood Ahmad P. W. 5 or Allah Rakha, deceased, nor appeared before the investigating officer in defiance of the appellants during the investigation. The ambient nature of the questions put in cross-examination to Maqsood Ahmad P. W. 5 and Nazir Ahmad P. W: 6 about the defence story and the fact that Mo. Rehana D. W. 1 did not appear before the investigating officer to plead the same during investigation or file any report about her abduction against Maqsood Ahmad P. W. 5 or his father Allah Rakha, k deceased, clearly shows that the defence story is a trumped up story and not one which actually took pace. This leaves me with the prosecution evidence which is straightforward and clear. In the absence of any particular enmity between the prosecutions witnesses and the appellants, it is doubtful that the witnesses would have, attempted to falsely implicate any of the appellants. However, as regards Muhammad Rafiq, appellant, I am in some doubt. Muhammad Rafiq, appellant, had married Mst. Rehana, which obviously would have annoyed Maqsood Ahmad P. W. 5, complainant, who was previously engaged to her. Since Maqsood Ahmad P. W. 5 lodged the first statement Exh. P. D. Before the police, the probability that he implicated Muhammad Rafiq, appellant, in the incident, assuming that he was not there, cannot be totally excluded. Learned counsel for the appellants drew my attention to the police statements of Muhammad Latif and Muhammad Azam (won over P. Ws.) to show that these two independent; witnesses only named Manzoor Ahmad, appellant, and Maqsood Ahmad, acquitted accused, as having injured Allah Rakha, deceased, and not Muhammad Rafiq, appellant, who only came later and separated the parties. However, I cannot read these police statements in evidence as Muhammad Latif and Muhammad Azam (won over P.
Ws.) were not produced at the trial. In these circumstances, whilst I accept the ocular account furnished by Maqsood Ahmad P. W. 5 and Nazir Ahmad P. W. 6, to be a reliable and true account of the prosecution story. I would look for corroboration qua Muhammad Rafiq, appellant, in particular.
13. The recoveries in this case have been disbelieved by the learned trial Judge for good and cogent reasons. The learned counsel for the Slat has not attempted to support the recoveries. I would, therefore, reject the recoveries as offering any corroboration in the instant case. As regards the medical testimony, Dr. Imtiaz Ahmad Bhatti, P. W. 8, who conducted the post-mortem examination on Allah Rakha, deceased, found two stab wounds of the same dimension namely 4 cm x 1-- cm on the upper left buttock and front of right chest of the deceased. The dimensions of both the injuries being the same, it cannot be stated with certainty that Muhammad Rafiq, appellant, caused the injury on the right chest and Manzoor Ahmad, appellant, caused that on the left buttock. Unequivocal identification not being possible, it cannot be said that the medical testimony explicitly and unreservedly connects injury No. 2 on the deceased, which happens to be on the chest, as being that of Muhammad. Rafiq, appellant. In these C circumstances, there is no confirmatory circumstance against Muhammad Rafiq, appellant. By way of abundant caution and safe dispensation of justice, he is entitled to the benefit of doubt. The case against Manzoor Ahmad, appellant, however requires no corroboration, as his participation stands proved by his own statement.
14. The upshot of the above discussion is that the motive, the ocular account, the medical testimony and the statement of Manzoor Ahmad, appellant, himself, conclusively prove the case against Manzoor, appellant, beyond any shadow of doubt. The only question that remains is the nature of the offence committed by him. The prosecution witnesses admit that Manzoor Ahmad, appellant, tried to give a second blow to Allah Rakha, deceased, who warded it off and the said blow fell on the thigh of Manzoor Ahmad, appellant, himself. Manzoor Ahmad, however, in his statement under section 342, Cr. P. C. Submits that he received the said injury whilst trying to rescue Mst. Rehana. From the evidence on the record and the surrounding circumstances, it appears that two members of the accuse party injured the deceased. Maqsood Ahmad P. W. 5 and Nazir Ahmad P. W. 6 refer to the two appellants as having injured the deceased. Muhammad Latif and Muhammad Azam (won over P. Ws.), who are no related to the deceased, refer to Manzoor Ahmad, appellant, and Maqsood Ahmad, acquitted accused, as the assailants. As stated earlier, even discarding the police statements Exh. D. A. And D. B. Of Muhammad Latif and Muhammad Azam (won over P. Ws.) from all consideration, the fact remains that two members of the accused party are attributed to have injured the deceased. Manzoor Ahmad, appellant, admits injuries on his person in the occurrence. From the evidence on the record and the surrounding circumstances, it does not appear to be a case of premeditated murder. The accused party very likely turned up to teach Maqsood Ahmad P. W. 5 a lesson, but that Allah Rakha, deceased, being present, some quarrel took place or erupted, during which two knife blows were given by two of the members of the accused party in the heat of passion upon the sudden quarrel and without the offenders having taken any undue advantage in the matter. In these circumstances, Manzoor Ahmad, appellant, appears to be liable for an offence under section 304(1), P. P. C. And not under section 302, P. P. C..
15. For the foregoing reasons, the conviction of Manzoor Ahmad, appellant, is altered from one under section 302, P. P. C. To that under section 304(1), P. P C. And he is sentenced to ten years' rigorous imprisonment with a fine of Rs. 5,000 or in default thereof to further rigorous imprisonment for two years. In view of section 382-B, Cr. P. C., the full period of detention undergone by Manzoor Ahmad, appellant, as an under-trial prisoner, shall be taken into consideration by the Jail authorities when computing his sentence. The appeal of Manzoor Ahmad, appellant, there--fore, is partly accepted, in terms of alteration of conviction and reduction in sentence, as stated above.
16. Muhammad Rafiq, appellant, is entitled to the benefit of doubt. His appeal is accepted and his conviction and sentence is set aside. He shall be released forthwith, if not required in any other case. Fine, if any recovered from him, shall be refunded to him.