' Muhammad Arshad, Muhammad Safdar, Liaqat Ali and Muhammad Anwar appellants have come up in appeal against their conviction by Mr. Nusrat Hussain Qureshi, Additional Sessions Judge, Gujranwala, vide judgment dated 5th October, 1981, by which they were sentenced to imprisonment for life and a fine of Rs, 2,000 or in default one year's R. I. Each.
2. The facts of the case are that Mushtaq Ahmad P. W. 8 and his brother Zafar Iqbal deceased were returning to their house from the clinic of Mushtaq Ahmad P. W. On 2nd March, 1977, at about 8-00 p. m. When they reached near the house of Muhammad Arshad accused, suddenly Muhammad Arshad and his three co-accused came out of the house of Muhammad Arshad accused who threw a challenge at Zafar Iqbal. At this, Zafar Iqbal deceased started running towards the open space belonging to Muhammad Sharif to save himself. The four accused out of which Muhammad Arshad had a dagger, Muhammad Safdar and Liaqat Ali both had chhuris in their hands while Muhammad Anwar was empty-handed, chased Zafar Iqbal deceased. When Zafar Iqbal reached the eastern end of the vacant plot of Muhammad Shard, Muhammad Anwar accused overtook him and held him in japha. Thereafter Muhammad Arshad accused inflicted chhura blow on the chest of the deceased who fell down. The three accused i. e. Muhammad Arshad, Muhammad Safdar and Liaqat Ali gave more blows to the deceased with their respective weapons. Mushtaq Ahmad P.
W. Raised alarm which attracted Muhammad Yaqoob P. W. 9 and Muhammad Afzal (not examined). It was stated that Zafar Iqbal deceased had illicit relations with Mst. Khalida Parveen, sister of Muhammad Arshad accused. Zafar Iqbal died at the spot as a result of the injuries. Some more persons assembled at the spot. Leaving the dead body in the care of Muhammad Jamil P. W.
And Ala-ud-Din on the spot, Mushtaq Ahmad P. W. 8 went to P. S. Satellite Town, Gujranwala, about one mile away from. The place of occurrence which was in Chicharwali Khurd. The F. I. R. Exh. P. D.
Was recorded at 9-10 p. m. By Muhammad Sadiq S.-I. P. W.
10.
3. It is stated that Muhammad Sadiq S.-I. P. W. 10 after recording of the F. I. R., went to the spot. He prepared the inquest report and injury statement with respect to Zafar Iqbal deceased and despatched the dead body to the mortuary for post-mortem examination. He collected the blood- stained earth from the spot.
4. At about 12-00 mid-night, Muhammad Sadiq S.-I. P. W. 10 raided the house of Muhammad Arshad accused and found all the four accused-appellants present there. He recovered dagger P.
4 from the hand of Muhammad Arshad accused, vide memo. Exh. P. F. Muhammad Arshad was also found wearing blood-stained clothes shirt P. 9, and shalwar P.
10. They were got removed from his person and taken in possession by Muhammad Sadiq S.-I. Vide memo. Exh. P. K. Muhammad Safdar accused was also present there and chhuri P. 5 was recovered from his possession, vide memo. Exh. P. G. Muhammad Safdar accused was found wearing blood- stained shirt P. 13 and shalwar P. 14 which were got removed from his person and taken in possession, vide memo. Exh. P. M. Liaqat Ali accused was also present there and chhuri P. 6 was recovered from his person, vide memo. Exh. P. H. He was also found wearing shirt P. 11 and shalwar P.
12. These were got removed and taken in possession, vide memo. Exh. P. L. Muhammad Anwar accused who was also present there, was found wearing kurta P. 7 and shalwar P.
8. These were got removed and taken in possession, vide memo. Exh. P. J. Dagger P. 4, the two chhuris P. 5 and P. 6 and clothes of the accused P. 7 to P. 14 were all blood stained. They were made in separate sealed parcels and sent to the Police Station for safe custody in the Malkhana. These recoveries were witnessed by Muhammad Yaqoob P. W. 9, Muhammad Afzal (not examined) and Muhammad Sadiq S.-I. P. W. 10 who had prepared all these memos. These weapons and clothes recovered from the persons of the accused were sent for examination to the Chemical Examiner, Lahore. The report of the Chemical Examiner Exh. P. Q. And that of Serologist Exh. P. S. Indicate that all the articles except one chhuri were stained with human blood.
5. The accused were arrested on 3rd March, 1977 and were challaned after investigation. They were tried and convicted as stated above.
6. In support of the case, the prosecution examined ten witnesses in all. Mushtaq Ahmad P. W. 8 is the real brother of the deceased. He lodged the F. I. R. And confirmed the statement made by him in the F. I. R. Muhammad Yaqoob P. W. 9 is an eye-witness. He stated that he alongwith Muhammad Afzal P. W. (not examined) was passing in the street. He heard the noise and saw all the four accused present at the spot. He further stated that Muhammad Arshad armed with dagger, Muhammad Safdar and Liaqat Ali armed with chhuris, caused injuries to the deceased. According to him, the occurrence had been witnessed by Mushtaq Ahmad, Afzal as well. Muhammad Sharif P.
W. 7 is a witness to prove the motive in this case. It is stated by him that a few days before the occurrence, Muhammad Arshad accused had asked him to tell Zafar Iqbal that he should have no relations with his sister otherwise it will not be in his good interest. Abdur Rehman, another witness of motive was not examined. Dr. Gulzar Ahmad P. W. I conducted postmortem examination on the dead body of Zafar Iqbal deceased. He found 22 incised wounds on his person besides two abrasions. One abrasion was on the front of left lower leg and the second was an old abrasion on the left lower leg. Injuries Nos. 1 to 22 had been caused by sharp-edged weapon. On dissection of the thorax cavity he found fourth left rib cut. He also found tenth right cartilage cut at its lower margin. Pleura was found cut at the side of chest injuries. Left lung was found injured posteriorly.
There was small quantity of blood present in the pleural cavity. Pericardium and heart were cut at left venticle and left atrium. All other organs of thorax in the chest cavity were healthy. On opening the abdomen, he found that peritoneum was cut under injury No, 13 which had passed through diaphragm after cutting it. Lever had also been cut under this injury. In the opinion of Dr. Gulzar Ahmad P. W. 1, all the injuries were ante-mortem. Injuries Nos. 8, 9, 12, 13 and 14 were grievous and sufficient to cause death in the ordinary course of nature. Other injuries were of simple nature. The death was due to shock and haemorrhage.
7. The other witnesses were of formal nature.
8. The accused Muhammad Arshad when examined under section 342, Cr. P. C. Denied the charge of murder. In answer to the question as to why this case has been made against him he replied that "Zafar Iqbal deceased had developed illicit relations with my sister Khalida Perveen. I found him in an objectionable position with her in the open field near the back wall of my house and I under grave and sudden provocation killed him. Nobody had seen this occurrence. I had killed him with a knife which I had in my pocket at that time." He denied the recovery of dagger P. 4 but admitted the recovery of shirt P. 9 and shalwar P.
10. The other three accused i. e. Muhammad Safdar, Liaqat Ali and Muhammad Anwar denied their involvement in the case. They also denied the recovery of crime weapons and blood-stained clothes. Excepting Muhammad Safdar, the other accused did not produce any defence.
Muhammad Safdar examined Khalid Islam Dar D. W. 1 who stated that Chiragh Din father of Muhammad Safdar accused was present at the shop of Dr. Mushtaq Ahmad P. W. Who had misbehaved with one of the lady patients. This was objected to by Chiragh Din who was supported by the other Mohalladars in his demand that Mushtaq Ahmad P. W. Should leave the Mohallah. It was for this reason that Muhammad Safdar was involved in the present case.
9. I have gone through the entire evidence with the assistance of learned counsel for the appellants and the State. It was contended by Mr. Muhammad Ghani, Advocate on behalf of Muhammad Anwar appellant that Muhammad Anwar had no motive against Zafar Iqbal deceased ; that he had no connection whatsoever with his co-accused ; that the prosecution story is highly improbable and if it is accepted that Muhammad Anwar accused had held the deceased in japha, then Muhammad Arshad accused could not have inflicted injury to the deceased; that the occurrence took place during the darkness and the accused could not be identified by the witnesses ; that according to the prosecution evidence, Muhammad Anwar accused had held the deceased from his back and as such, there was no occasion of getting his clothes bloodstained ; and finally it was contended that the recovery of blood-stained clothes from Muhammad Anwar accused was highly doubtful and could not be relied upon. It was submitted that mere recovery of blood-stained clothes was not enough to hold Muhammad Anwar appellant guilty of murder of Zafar Iqbal deceased.
10. Mr. Rafiq Ahmad Bajwa, Advocate appearing on behalf of Muhammad Arshad, Muhammad Safdar and Liaqat Ali appellants has contended that the site plan does not support the ocular evidence. It rather supports the defence version that the appellant Muhammad Arshad had killed Zafar Iqbal deceased under grave and sudden provocation. Referring to the site plan, it was also contended that the alleged electric bulb at the spot was at much distance and in that light the witnesses could not have identified the assailants ; that the story of prosecution is improbable because while running away from the spot, the deceased could have entered his own house to avoid attack by the accused but insteadhe ran in the open field ; that Yaqoob P. W. In his police statement under section 161, Cr. P. C. (Exh. D. A./I) did not name Mushtaq Ahmad P. W. 8 as eye- witness of the occurrence ; that Yaqoob P. W. Was a stranger but still in his statement (Exh. D. A./1) narrated the motive of the present occurrence. From this it was concluded by the learned counsel that it was a fabricated case and the witness was not present and that he is making a statement according to what was written by the Investigating Officer in his statement under section 161, Cr. P.
C. 11 was next argued by the learned counsel that Yaqoob P. W. 9 and Muhammad Afzal (given up P.
W.) were not present at the spot because according to the F. I. R., the dead body had been left in the care of Muhammad Jamil and Ala-ud-Din who were not the alleged eye-witnesses. If Yaqoob and Muhammad Afzal had been present, the dead body would have been left in their charge and the names of these witnesses should have been mentioned in the inquest report. It was further argued that Muhammad Sharif P. W. 7 had stated in cross-examination that after the occurrence he went to the Police Station where the Investigating Officer arrived after 1 or 11 hours of the mid- night. On the other hand, Muhammad Sadiq S.-I. P. W. 10 stated that he remained at the spot and at the house of Muhammad Arshad accused till 6-00 a. m. On the next day of the occurrence. It was, therefore, submitted by the learned counsel that the arrest of the accused and recoveries of crime weapons alongwith the blood-stained clothes becomes very doubtful. He stressed that this discrepancy between the statement of Muhammad Sharif P. W. 7 and Muhammad Sadiq S.-1. P. W.
10 in material. The learned counsel challenged the recoveries from the accused. Regarding Yaqoob P. W. 9 it was submitted that this witness was involved in criminal cases and was facing trial under the Control of Goonda Act. As such, it was submitted that he should not be relied upon specially when he was not only a chance witness but also did not reside in that locality. Regarding Mushtaq Ahmad P. W. 8 it was pointed out that he has admitted himself to be a quack ; that the enmity between him and Muhammad Arshad accused is admitted ; that he had a motive to falsely implicate the accused that he was not a natural witness and finally that his conduct at the spot was not natural. Even if on account of fear of the accused, he did not go near his brother Zafar Iqbal, be could least have gone and lifted his dead brother in his lap after the accused had left. In view of these it was submitted that Mushtaq Ahmad P. W. Could also not be relied upon. I have noted down all the points of learned counsel on the basis of which it was contended by him that Mushtaq Ahmad P. W. 8 should not have been relied upon.
10. The learned counsel for the State vehemently controverted the arguments of both the learned counsel for the appellants.
11. I have gone through the entire evidence and have considered the arguments of both the learned counsel. It will be noted that excepting the motive alleged by the prosecution regarding illicit relations between Zafar Iqbal deceased and Mst. Khalida Perveen sister of Muhammad Arshad accused, there is no other enmity between the complainant and the accused. In this view of the matter, I find that Mushtaq Ahmad P. W. 8 had no motive to falsely implicate the accused. The occurrence is admitted by at least Muhammad Arshad accused. The time of occurrence is also not in dispute and the place of occurrence is also not seriously contested. Mushtaq Ahmad P. W. 8 is no doubt a real brother of Zafar Iqbal deceased but this fact alone is not sufficient to discredit his deposition in Court. Secondly, in my opinion he was a witness of locality and therefore, a natural witness. The deceased Zafar Iqbal and Mushtaq Ahmad P. W. 8 resided in one and the same house.
The place of occurrence is close to this house. The prosecution case is that both these persons were returning from their shop to their house when they were surprised by all the four accused.
There is another aspect that the F. I. R. Was lodged immediately after the occurrence and there was hardly any chance or occasion for Mushtaq Ahmad to falsely implicate the accused persons.
Mushtaq Ahmad P. W. Is supported by Muhammad Sharif P. W. 7 who had deposed regarding the motive. I need not discuss in detail the evidence of Muhammad Sharif P. W. Because Muhammad Arshad accused has admitted illicit relations of Zafar Iqbal with his own sister. Thus, motive is a circumstance which corroborates the testimony of Mushtaq Ahmad P. W. Then there is the arrest of the accused immediately after the occurrence. The Sub-Inspector after preliminaries on the spot went in search of the accused and raided the house of Muhammad Arshad appellant. All the accused were arrested in that house. Muhammad Arshad accused was found in possession of daggar P. 4 and was wearing shirt P. 9 and shalwar P. 10 at the time of his arrest. Muhammad Safdar accused was found in possession of chhuri P. 5 and wearing shirt P. 13 and shalwar P.
14. Liaqat Ali accused was found in possession of chhuri P. 6 and wearing shirt P. 11 and shalwar P. 12 while Muhammad Anwar accused was found wearing kurta P. 7 and shalwar P. 8 at the time of arrest. Excepting one ehhuri, the other crime weapons and all the clothes were found to be stained with human blood wide report of Chemical Examiner Exh. P. Q. And that of Serologist Exh. P. S. Thus, the recoveries of the crime weapons and the blood-stained earth establish their presence at the spot and fully corroborate the testimony of Mushtaq Ahmad P. W.
8. It is correct that no opinion was given regarding one chhuri due to disintegration of blood but that would not mean that the said chhuri was not recovered or used by the accused at the time of occurrence. It was argued by the learned counsel that the Sub-Inspector deposited these blood- stained articles in Malkhana on 3rd March, 1977 and were sent to the Chemical Examiner 22 days thereafter on 24th March, 1977. It was, therefore, argued that blood could not have stayed on these articles during these 22 days. I am not prepared to accept this argument. The recoveries were effected on the night of the occurrence which took place on 2nd March, 1977. The recoveries were effected after mid-night and therefore, the date of recoveries was 3rd March, 1977 and on that very day the recovered articles were deposited in the Malkhana. It is well-known that general elections were held in March, 1977 and there were disturbances. As such, the explanation of Muhammad Sadiq S.-I. That these were sent to the Chemical Examiner after 22 days is plausible and reasonable. The blood on these articles would not disappear/disintegrate in 22 days. Thus the recoveries of these articles immediately after the occurrence from the accused provide very strong corroboration of the statement of Mushtaq Ahmad P. W.
8. The submission of learned counsel that Mushtaq Ahmad should not be relied upon because he was cheating the general public by declaring himself to be a doctor. It is nowhere in the evidence that he ever cheated the general public by declaring himself to be a qualified medical man. He has admitted that he was a quack. It was well-known to all that he was not a qualified doctor. It is well- known that in Mufassil areas, such like people do act as medical men although they are not qualified. So far as the or enmity between Mushtaq Ahmad and the accused is concerned, I have already observed that there is no other enmity except the one alleged by the prosecution as motive in this case. He is a natural witness and his conduct was also natural at the time of occurrence. If there is some discrepancy between his statement or the statements of other witnesses, that is not material and does not affect the merits of the case. I place reliance on the evidence of Mushtaq Ahmad P. W.
12. So far as Yaqoob P. W. Is concerned, I have no doubt in my mind that he was also present at the place of occurrence and had seen the occurrence. It is correct that he was facing trial under the Control of Goonda Act and was involved in a few criminal cases but as admitted by the learned counsel for the appellants, a person of his character can also speak the truth. It is a fact that he did not name Mushtaq Ahmad P. W. As having witnessed the present occurrence but this omission would not mean that he was not present or that Mushtaq Ahmad P. W. Had not seen the occurrence. Another point on the basis of which it was argued that Yaqoob P. W. Was not present at the spot is that in his statement before the police (Exh. D. A./1), he categorically stated that the murder of Zafar Iqbal had been committed on account of his illicit relations with the sister of Muhammad Arshad accused. It was pointed out that in his statement during the trial, he stated that he came to know about the illicit relations after the occurrence on the spot. It was, therefore, argued that the statement under section,161, Cr. P. C. Was written by the Investigating Officer of his own accord and this witness was, therefore, not present on the spot. I have considered this argument. I do not find any inconsistency between the two statements, In his statement during the trial he stated that he came to know about the motive after the occurrence on the spot. In his statement before the police he stated about the motive. The police arrived at the spot after about two hours of the occurrence and the statement before the police was made after he had acquired knowledge of illicit relations on the spot. There was, therefore, no contradiction between the two statements. This witness was also present at the time of the arrest and recoveries from the accused. There are, no doubt, some minor discrepancies regarding the recoveries but I am satisfied from the evidence that the accused were arrested immediately after the occurrence from the house of the accused and the crime weapons and the blood-stained clothes were recovered from them. There is the evidence of Dr. Gulzar Ahmad P. W. 1 who had conducted post-mortem examination on the dead body of the deceased. As stated above, he found 22 incised wounds on his person. It was argued by the learned counsel that the prosecution case that the first blow was given by Muhammad Arshad on the chest is not supported by the fact that Dr. Gulzar Ahmad P. W. I found other injuries on the hands of the deceased which indicate that the deceased first tried to ward off the blows and received injuries on his hands and it was, therefore, concluded by the learned counsel that the story that first blow was given by Muhammad Arshad on chest is false. I am not prepared to accept this contention. The deceased fell down on the ground and it is conceivable that he must have been groaning and writhing in pain and rolling on the ground.
Three persons were beating the deceased mercilessly with their sharp-pointed weapons. It was darkness and it is therefore, clear that the injuries were inflicted on various parts of the deceased. It was next contended that it was darkness and there was not sufficient light to identify the assailants. It was also pointed out in this respect that the house of Khushi Muhammad where the bulb was on has not been shown in the site plan. It is true that in the sketch of plan itself alongwith point F 'G', the name of Khushi Muhammad is not written but in the marginal notes against point 'G' it is stated to be the house of Khushi Muhammad where bulb was on. The accused were known to the witnesses and in such circumstances it was not difficult for them to identify the accused in that electric light.
13. Another point urged by the learned counsel for the appellant was that the conduct of Zafar Iqbal deceased in not entering his house when he was being chased by the accused and instead running towards the open space is highly improbable. It was contended that the natural conduct of Zafar Iqbal deceased would have been taken refuge in his own house instead of running in the open plot. It was, therefore, argued that the presence of the dead body in the open plot of Muhammad Sharif P. W. Lends support to the defence version. I am not impressed with this argument. The behaviour, attitude and thinking of an individual at a particular moment and in a particular situation can vary. The behaviour of an individual in a particular circumstance can be natural and it can also be very unnatural and improbable. In the instant case, in my opinion, behaviour of Zafar Iqbal deceased was natural. If he had entered his own house, be would have found himself confined in the four walls of the said house without any further outlet for escape from the clutches of the accused. Secondly, the entry of Zafar Iqbal in his own house followed by the accused might have involved the other inmates of the house resulting in their damage/harm/injuries. In these circumstances it was very natural for Zafar Iqbal deceased to have taken a course towards the open space instead of his own house.
14. I have given my deep thinkings to this case keeping in view the defence version set up by Muhammad Arshad accused. It is stated by him that he found his sister Mst. Khalida Parveen with Zafar Iqbal deceased behind his house and under grave and sudden provocation caused injuries to the deceased. The other three accused denied their presence on the spot. In my opinion the defence version is without any basis. Muhammad Arshad accused stated that he had found his sister alongwith the accused G behind his own house. The field of Muhammad Sharif P. W. Is behind the house of Muhammad Arshad. If the accused had found Zafar lqbal and Mst. Khalida Perveen sitting together, she must have also been injured by the accused but we do not find any evidence regarding her injuries. Secondly, the plot of Muhammad Sharif P. W. Where the present occurrence took place is surrounded by residential houses. The place of occurrence, from where the blood- stained earth was taken is close to a passage. The occurrence took place at about 8.00 p. m.
Which was the early hours of the night and the people remain awake in their houses and move about in the streets. It is also in the evidence that the females of the adjoining houses go to ease themselves in the said plot at about the time of occurrence. In this view of the matter, it could not be expected that Zafar Iqbal deceased would take the risk of enjoying the company of Mst. Khalida Perveen at that hour. I am not satisfied with the defence version which is without any basis and foundation. In view of the above discussion I am satisfied that the prosecution has proved its case.
15. Although Muhammad Anwar accused was present alongwith the other three accused at the time of occurrence and he was arrested along-with the clothes P. 7 and P.
8. From the house of Muhammad Arshad accused, but from the facts and circumstances of this case it cannot be said that he shared common intention of murder alongwith the three other accused. He was empty-handed. If he had the common intention of murdering Zafar Iqbal he could have also taken some kind of weapon in his hand. He was empty-handed and did not cause any injuries to the deceased. I, therefore, give him the benefit of doubt as having no common intention to murder Zafar Iqbal alongwith other three accused. As abundant caution and giving him the benefit of doubt, I acquit him of the charge. He shall be released forthwith unless required in some other case.
16. So far as the other three accused are concerned, I have held that', the prosecution has fully proved its case against them.
17. Before the commencement of hearing of this appeal, by my order dated 31st March, 1984, I had given notice to the appellants to show cause as to way, in case their appeal is dismissed, they shall not be ordered to pay compensation under section 544-A, Cr. P. C. To the heirs of the deceased.
18. This notice was accepted by their learned counsel. In this case, learned trial Judge had directed that in case the fine was recovered, the same shall be paid to the heirs of the deceased. Ne independent order under section 544-A, Cr. P. C. Was passed for payment of compensation to the heirs of the deceased. I am of the opinion that the payment of fine, if recovered, was not a compliance of mandatory provisions of section 544-A, Cr. P. C. The fine can be recovered by issue of warrant under section 386, Cr P. C. This section gives an option to the convict to undergo imprisonment in default of payment of fine. In such a case warrant for the recovery of fine cannot be issued by any authority/Court. On the other hand, the amount of compensation under section 544-A, Cr. P. C. Can be recovered even if the convict undergoes imprisonment in default of the said compensation amount. The word "and" has been used in section 544-A, Cr. P. C. For default in payment of the compensation money. In the present case, Zafar Iqbal deceased was an earning hand. He was working with his brother Mushtaq Ahmad P. W.
8. Thus, the family has been deprived of his income. In this view of the matter, Muhammad Arshad, Muhammad Safdar and Liaqat Ali appellants will pay Rs, 5,000 each and in default undergo six months' R. I. Each, as compensation to the heirs of the deceased under section 544-A, Cr. P. C. They will undergo imprisonment for life and pay a fine of Rs, 2,000 each or in default one year's R. I. Each as ordered by the trial Court. They will, however, be given the benefit of section 382-B, Cr. P. C. At the time of computation of their sentence in prison.
19. Before parting with the judgment, I must observe that the Investigating Agencies, District Attorneys and the trial Courts do not seem to be aware of the implications of the provisions of section 544-A, Cr. P. C. The amount of compensation is mandatory under section 544-A, Cr. P. C.
And is independent of the punishment of fine which is imposed on accused after the conviction.
The amount of compensation is to be determined judiciously. It is, therefore, necessary that the Investigating Officer should collect evidence regarding the financial position of the accused and also regarding the vocation of life and also the dependents of the deceased. This evidence should then be produced in Court for determination of the amount of compensation to be imposed upon the accused and to be paid to the heirs of the deceased. A request for compensation should also be made by the Investigating Officer in his report under section 173, Cr. P. C.
20. The complainant had filed Criminal Revision No, 629 of 1981 against Muhammad Arshad appellant only. No notice was issued in the said case and it was only ordered to be heard alongwith Criminal Appeal No, 615 of 1981. The appellants were awarded lesser punishment because they had murdered Zafar Iqbal deceased on account of family honour. The sentence awarded to the three appellants was adequate and proper.
21. There is no merit in Criminal Revision which is accordingly dismissed in limine.