' Sardar Muhammad son of Fazal Din (26), Maqbool Ahmed (23) and Sarwar (30) sons of Chiragh Din werditried for the murder of Muhammad Aslam and for causing hurt to Shabbir Ahmad, P. W.
On 3rd May, 1978 Sardar Muhammad was convicted under sections 302 and 324, P. P. C. He was sentenced to death and fined Ks. 2,000 in default to suffer two years' R. I. On the second count he was sentenced to one year's R. I.
' Sarwar and Maqbool were convicted under sections 302/109 and 324/109, P. P. C. They were also sentenced to death and fined Rs, 2,000 each in default to undergo two years' R. I. On the second count each sentenced to one year's R. I. Half of the fine on the first count in each case was ordered to be paid as compensation to the heirs of the deceased. Appeals of the convicts and the connected murder reference are before us.
2. Shabbir Ahmad (informant) in partnership with Maqbool Ahmad and Sarwar appellants took on lease for one year a mango orchard from Ch. Zahoor Ahmad, M. P. A. Since it was a profitable business, Maqbool Ahmad and Sarwar terminated the partnership with Shabbir. A dispute arose.
Ch. Zahoor Ahmad, M. P. A., was asked to intervene and at 4 p. m. On 23rd July, 1975 Shabbir Ahmad, informant, alongwith his brother Muhammad Aslam went to the dera of said M. P. A. Maqbool Ahmad and Sarwar appellants also reached there. Besides Ch. Zahoor Ahmad, Ch. Fateh Muhammad, Badar Din, Muhammad Hussain and Mauj Din residents of Mamun Kanjan were also there. Since Maqbool and Sarwar were adamant, therefore, a compromise could not be arrived at instead the two parties got excited, upon which Ch. Zahoor Ahmad asked Maqbool Ahmad and Sarwar to quit the orchard. He directed Shabbir Ahmad and his brother to look after the fruits. It was for this reason that Maqbool Ahmad and Sarwar bore a grudge against them. The accused sent for their cousin Sardar Muhammad, accused, from Sargodha and on 14th July, 1975 at about 9 a. m.
Maqbool Ahmad and Sarwar were standing near their house instigating Sardar Muhammad that since Shabbir Ahmad and Aslam were responsible for the disgrace and the financial loss to them, therefore, he should finish them. Feroze Din (P. W. 9) and Muhammad Abdullah (P. W. 7) overhead this conversation. They asked them not to think on these lines as it never paid. They even offered to get the matter compromised but the accused ignored the offer and at 11 a. m. On 4th July, 1975 when Shabbir Ahmad Informant, and his brotherMuhammad A slam were in the Bazar near "Mandi"
Mamu Kanjan, Sardar Muhammad armed with a knife suddenly appeared there and declared that he would teach them a lesson for depriving his cousins of the lease and inflicted a knife blow in the right side of the abdomen of Muhammad Aslam who fell down. Shabbir Ahmad tried to intervene, but was also stabbed by Sardar Muhammad in the left side of his abdomen. The alarm attracted P.Ws. Feroze Din, Bashir Ahmad and others who also saw the occurrence. As the witnesses approached nearer, Sardar fled away brandishing the knife. The informant and his brother were carried to the Civil Hospital, Mamu Kanjan.
3. P.W. 1 Dr. Abdul Qayyum, Medical Officer, Rural Health Centre, Mamu Kanjan, on 4th July, 1975 at 12-10 p. m. Examined Muhammad Aslam and found a stab wound l' x 1/3' x 2' obliquely going upward and inward below the skin, on the upper part of the right side of abdomen, just below the costal margin, oblique in direction. The upper part of right peritonium was injured with surgical emphazema all over this area. Exhibit P. A. Is the carbon copy of the medico-legal report, ' The same day at 12-45 p. m. He examined P. W. Shabbir Ahmad (informant) and found an incised wound 1k" x x 11" on the outer and upper part of the left thigh, oblique in direction. This injury was simple. Exhibit P. B. Is its carbon copy.
' Some official of the Civil Hospital delivered the two medical reports to P. W. 12 Falak Sher, S. I./S. H.
0., Police Station Mamun Kanjan. Upon this information he went to the hospital. Since Muhammad Aslam was not fit to make a statement, therefore, he recorded the statement Exh. P. G. Of P. W.
Shabbir Ahmad, on the basis of which formal F. I. R. (Exh. P. G /1) was registered at 8 p. m. On 4th July, 1975 at the Police Station Mamu Kanjan situated at a distance of four furlongs from the place of occurrence. The S.I. Then went to the spot. He collected bloodstained earth from there. The same night he received information from the doctor through Rukka (Exh. P. E.) that Muhammad Aslam died at 1-40 a. m. He then went to the hospital and sent the dead body for its post-mortem examination.
4. P. W. 5 Dr. Muhammad Riaz Ali, Medical Officer, Civil Hospital, Samundri, held autopsy on the dead body of Muhammad Aslam at 10 a. m. On 5th July, 1975 and found a stitched wound 1" long on the upper part of abdomen on right side. He observed that liver and stomach of the deceased were injured. In his opinion death was due to shock and haemorrhage caused by the solitary injury which was sufficient to cause death in the ordinary course of nature. The probable time that lapsed between injury and death was 13 hours and between death and post-mortem about 9 hours.
5. P. W. 12, Falak Sher Chishti, S. H. O. Police Station Mamun Kanjan arrested all accused on 13th July, 1975. The same day Sardar Muhammad accused, in custody, led to the recovery of blood-stained knife Exh. P 6, wrapped in a piece of cloth, from underneath a bridge of a saim Nullah in the area of Mamun Kanjan. It was made into a sealed parcel vide Memo. Exh. P. M. Attested by the S. H.
0., P. W. 6 Mushtaq Ahmad and Muhammad Ramzan (not produced).
6. All accused denied guilt at the trial. Admitting his relationship with his co-accused, Sardar Muhammad accused said that he was involved in this case due to enmity with Maqbool Ahmad and Sarwar. Explaining the case against him, he made the following statement "Muhammad Aslam deceased and Shabbir P. W. Are my real paternal, cousins. I did not have any enmity with them. Sarwar and Maqbool accused are my paternal-cousins. Earlier they had engaged their sister Mst. Sarwari with me. Later on they had undone the said betrothal at the instance of Feroze Din P. W. Fazal Din my father and Chiragh the father of co-accused Sarwar and Maqbool had a joint house in Mamun Kanjan. My father and had migrated to Sargodha about 8/9 years back. Previously we have been living together in the said house. After our migration to Sargodha the house remained in the entire possession of Chiragh aforesaid. After some time, he sold the house for a consideration of Rs, 11,000. He did not pay our share. We had a dispute with him on this score as well. I had come to Mamun Kanjan after two days of the present occurrence in order to claim money from the co-accused and their father. While I was here the co-accused with the collusion of Zahoor Ahmad got me falsely involved in the case and also got me arrested. I am innocent."
' Admitting their relationship with Sardar Muhammad, Maqbool Ahmad and Sarwar said that as against an advance of Rs, 30,000 they had obtained the garden on lease from Zahoor Ahmad but later Badar Din excluded them from this lease and thereafter Muhammad Aslam, deceased, Shabbir Ahmad P. W. And Shafiq took the garden on lease and that there was no dispute about the lease of the garden, nor any Punchayat was held at the dera of Ch. Zahoor Ahmad. The two added that they were not on speaking terms with Sardar Muhammad their co-accused because he had broken the engagement of their sister with him. Explaining the case against them the two further said that the case was foisted against them in order to deprive them of Rs, 30,000 which they had advanced to Ch. Zahoor Ahmad. No accused led evidence in defence.
7. Relying on the evidence of the eye-witnesses namely, P. W. 8 Abdullah son of Feroze, P. W. 9 Feroze Din, P. W. 10 Shabbir Ahmad, P. W. 11 Bashir Ahmad and the evidence of recovery of the blood-stained knife as against Sardar Muhammad, against Sarwar and Maqbool for the abetment of murder it relied on the evidence of P. W. 7 Muhammad Abdullah son of Gulab Din and P. W. 9 Feroze Din and found the case satisfactorily proved against the three accused.
8. Criticizing the finding of the trial Court, learned counsel for Sarwar and Maqbool, appellants, argued that even the trial Court was conscious of the fact that there was no direct evidence on the point of dispute over the orchard between the parties. It also took into consideration the statements of the accused. No doubt there is the solitary statement of the deceased's brother P. W.
10 Shabbir (informant) about the dispute over the orchard. On the other hand Sarwar and Maqbool accused did admit of some dispute about the earnest money of Rs, 30,000 which, according to them, the complainant party desired to grab it. Though Maqbool Ahmad did say that he was still one of the partners in the orcharthlease with Aslam (deceased), Shabbir and one Shafiq ; whereas according to the prosecution, the lease had been given to the deceased and his brother Shabbir.
However, a large number of witnesses took part in the Punchayat held at the house of Zahoor Ahmad, petitioner, but they were given up. Even Zahoor Ahmad owner of the orchard, was not produced at the trial as having been won-over. Be that as it may, there is no denying the fact that there was some dispute about the lease between the parties.
9. The sole question for determination in the case of Sarwar and Maqbool appellants was whether they had sent for Sardar Muhammad, their cousin co-accused from Sargodha for doing away with Ismail and his brother Shabbir. It may be mentioned at the outset that there was no evidence to prove that Sardar Muhammad was sent for by them for this purpose. Admittedly, he is related to the two accused and previously used to live in Mamun Kanjan in the same house with them. Even the complainant party is no stranger to him because both parties are related inter se and it is also admitted by the prosecution witnesses that Sardar Muhammad was brought up in village Mamun Kanjan. His presence in the village was no proof of his having come there in consequence of a conspiracy with Maqbool and Sarwar.
' It was next contended that the evidence of P. W. 7 Abdullah and that of P. W. 9 Feroze was got up as it did not appeal to reason. It was argued that according to these two witnesses at about 9 a. m.
They were proceeding towards their houses and as they passed near the house of Maqbool and Sarwar, they found these two talking to Sardar Muhammad in front of their house asking him to do away with Aslam and Shabbir as they had caused them a financial loss. On hearing this the two witnesses stopped them from taking any dangerous step. P. W. 9 Feroze even offered to get the matter settled between them. Under cross-examination P. W. Feroze added that the accused assured him and P. W. 7 Abdullah son of Ghulab Din that they would not commit the crime. Sardar Muhammad, however, did not say anything. It may be mentioned here that P. W. Abdullah never mentioned this detail. P. W. 9 Feroze's wife's sister's daughter is admittedly married to P. W. Shabbir (informant). Feroze admitted that he was anxious to convey a warning to the deceased and his brother but before he could do so, the occurrence took place. His statement that he was anxious to inform the deceased and his brother about the conspiracy does not inspire confidence because the occurrence took place two hours after the witnesses had heard the accused talking to each other. Moreover, be is also an eye-witness of the occurrence. He, therefore, had ample opportunity to warn the deceased. Admittedly, the house of P. W. 7 Abdullah is contiguous to the house of Sarwar and Maqbool. On the other hand, the house of the deceased and his brother is opposite to their house. P. Ws. Abdullah and Feroze could have conveyed the warning straightaway to the deceased and his brother ; if they were not there, then they could have at least conveyed it to the other members of their family, but they did not do so ; nor they cared to find out if the deceased and his brother were inside the house. Feroze P. W. Also did not live far away as he was a resident of a Mohallah which was contiguous to the Mohallah of P. W. 7 Abdullah. Above all, it would seem rathe strange that the accused would conspire a murder in a thoroughfare within the hearing of everybody, particularly those who were related to the complainant party. In this view of the matter, evidence of P. W. 7 Abdullah and P. W. 9 Feroze insofar as conspiracy to kill was concerned, did not inspire confidence. The prosecution has, therefore, not satisfactorily proved its case against them.
They are, therefore, given the benefit of doubt and acquitted.
10. In so far as the case of Sardar Muhammad was coneerned, learned counsel appearing on his behalf argued that he had no motive to attack the deceased. It was next contended that the F. I. R.
In this case was delayed because it was recorded after due deliberation introducing interested witnesses as eye-witnesses and that their evidence required strong corroboration which was not forthcoming in this case. P. W. 8 Abdullah son of Feroze Din was not even named in the F. I. R. As an eye-witness, but was introduced later. As to the recovery, it was contended that the occurrence was said to have taken place on 4th July, 1975 whereas the knife was recovered at the instance of Sardar Muhammad, on 13th July, 1975 from an open place under a saim Nullah. This recovery, according to the learned counsel was highly doubtful because Sardar Muhammad accused was arrested on the day of the recovery, i,e, nine days after the occurrence ; as such he had ample opportunity to wash away the blood from the knife instead of wrapping it up in a piece of cloth and placing it under the bridge of the saim Nullah. There is force in the submission. It seems highly improbable that the accused would let the blood remain on the knife. Moreover, it was recovered from an open place accessible to all.
11. As to the delay in the F. I. R., the investigating officer said that the doctor had sent information to him upon which he went to the hospital and recorded the statement of P. W. Shabbir at 8 p.m. The same evening. Admittedly the police station was not far away from the hospital. It was hardly half a mile from there and the statement of P. W. Shabbir was recorded late at 8 p.m. In the evening, whereas the occurrence took place at about 11 in the morning. It may be mentioned here that though the informant is not a witness of having seen the three accused conspiring together, yet this part of the prosecution story found mention in the F. I. R. P. W. 9 Feroze said at the trial that he had mentioned about the conspiracy to Shabbir P. W. In the hospital. But according to P. W. 11 Bashir Ahmad, he remained in the hospital so long as Feroze P. W. Remained there and in his presence Feroze did not have any talk with the two injured in the hospital. No doubt, under these circumstances, the delay in making the report would have a bearing on the case of Sarwar and Maqbool, but there is no reason to disbelieve informant, P. W. Feroze and P. W. 11 Bashir in so far as the attack by Sardar Muhammad was concerned. It was a broad daylight occurrence. P. W. Shabbir is an injured witness and he also has a shop near the place of occurrence. His statement about the attack on him and his brother was fully corroborated by P. W.
11. Bashir Ahmad who is not related to either side and also has a shop near the place of occuFrence.
Not only that P. W. Bashir was a disinterested witness, but he was also a natural witness. Moreover, substitution is a rare phenomenon. It is also noteworthy that Sardar Muhammad appellant in his statement said that he had no enmity with P. W. Shabbir and his brother slam deceased who were his paternal, cousins. In fact his own case was that his co accused had enmity with him and that P.
W. Feroze had got his engagement broken which of course, was denied by the witness. Under these circumstances the prosecution case was satisfactorily proved against Sardar Muhammad appellant. Keeping the aforementioned circumstances in view, the benefit of the delay in making the F. I. R. In this case can only be extended to Sarwar and Maqbool, but not to Sardar Muhammad.
Since he had no motive against the deceased, his death sentence is altered to life imprisonment.
12. These are the reasons in support of the short order by means of which the appeal of Sarwar and Maqbool was accepted, their conviction and sentence was set aside. They were acquitted of the charge and were ordered to be released. The conviction of Sardar Muhammad was maintained.
Entire fine was ordered to be paid as compensation to heirs of the dead. His death sentence was not confirmed and was altered to life imprisonment. His sentence of fine was also maintained. His conviction and sentence under section 324, P. P. C. Was also maintained, but it was ordered to run concurrently with the sentence under section 302, P. P. C. The other learned member of the Bench has ceased to remain on the Bench.