SHAFIUR RAHMANJ--Two petitions have been filed seeking leave to appeal against the judgment of the Lahore High Court dated 30-10-1979, The first petition is by eight convicts, all brothers, the first three convicted of the offences under section 302/149, P.P.C. And under section 148, P, P, C. And the other five petitioners convicted of the offences under sections 307/149 and 148 P.P.C. The other petition has been filed by the complainant and is directed against Abdul Shaheed convict alone in so far as the sentence of death awarded to him by the trial Court was not confirmed and substituted by the High Court by the sentence of life imprisonment.
2. The deceased Malik Muhammad suspected Abdul Shaheed of maintaining illicit relations with his aunt Mst. Nekan. He had on 15-1-1976 picked up a quarrel with the petitioner Abdul Shaheed for having come to the bazar in spite of having been asked by him not to do so. The deceased gave blow with a cycle pump, which he was then holding, hitting Abdul Shaheed on the face. The first three convict petitioners sought the intercessions of Muhammad Rafiq P.W. 12 the same day in order to get appropriate amends for the beating and the insult to one of them. They got no satisfaction. The next day at about 3-30 p.m. Malik Muhammad in the company of his brother Muhammad Shafi P.W.6 came to the Chowk in front of the mosque. The first three convict petitioners appeared on the scene, all armed with knives, gave Lalkara and attacked the deceased.
Abdul Shaheed gave a knife blow on the chest of the deceased. Abdul Rashid gave a blow on the abdomen and Sattar gave knife blows on the back of the deceased. On the alarm of Muhammad Shafi P.W. 6 Muhammad Ibrahim P.W.8 and Muhammad Siddique P.W.9 were attracted to the spot as also the other convict petitioners who came armed with Soties. They attacked Muhammad Ibrahim P.W.8. Muhammad Siddique went to his house and brought out the licensed gun of his nephew which was dropped at the spot, picked up by Abdul Majid and later recovered from him.
The deceased expired at the spot. A report was lodged by Muhammad Shafi at 6-30 p.m. The same day at Police Station Jehanian, the distance being 15 miles from the spot.
3. The petitioners were arrested on 18-1-1976 and a knife EXh.P.6 was recovered from Abdul Shaheed, another Exh.P.7 from Abdul Rashid, and the third Exh.P.8 from Abdul Sattar. All these were blood-stained. The blood-stained clothes of these convicts were also taken into possession. Abdul Majid produced 12 bore gun P.16 which was licenced in the name of Irshad a nephew of Muhammad Siddique P.W.9.
4. The convicts, except Abdul Shaheed and Abdul Majid, denied their presence or participation in the occurrence. Abdul Majid stated that when he came out of the mosque after Juma prayers the deceased ridiculed him, dragged him, beat him and placed his foot on his neck. At this stage Shaheed, Siddique and Ibrahim P.Ws. Also came there to his rescue. Shaheed stated that he went forward to save his brother, was given a stick blow by Malik Muhammad and he used a pocket knife for preventing the attack of the deceased. He stated that he with the knife and his brother Abdul Majid with the stick of deceased inflicted blows in exercise of the right of private defence of their person.
5. The trial Court believed the motive, the ocular evidence provided by the to injured witnesses, Muhammad Ibrahim P.W.8 and Muhammad Siddique P.W.9 and the complainant Muhammad Shafi supported by Muhammad Akbar P.W.10. The trial Court also believed the recoveries. The plea of self-defence was found untenable in view of the strong and consistent evidence to the contrary.
Abdul Shaheed was on conviction under section 302/149, P.P.C. Sentenced to death. The other to to life imprisonment and to pay a fine of Rs.2,000. On conviction under section 148, P.P.C., all the three convicts were sentenced to one year rigorous imprisonment. The other five convicts were sentenced to three years imprisonment under section, 307/149, P.P.C., and a fine of Rs.500 each which on realisation was to be paid as compensation to Muhammad Ibrahim and Muhammad Siddique P.Ws. They were also convicted and sentenced to one year's rigorous imprisonment under section 148, P.P.C.
6. While deciding the appeals filed by the convicts and the murder reference, the learned Judges in the High Court believed the evidence of motive, the ocular evidence with regard to the occurrence itself and the recoveries and upheld the conviction of the petitioners. All the same the death sentence of Abdul Shaheed was not confirmed as "it was not clear as to which of the four injuries was responsible for the death of Malik Muhammad". It was also held that his case could not be distinguished from the case of other to convicts Rashid and Sattar who had been awarded lesser sentence. The sentence imposed on the other five convicts under sections 307/149 and 148, P.P.C.
Was reduced to one already undergone.
7. The learned counsel for the convicts has contended that the motive put forward by the prosecution for the occurrence was preposterous. Mat. Nekan was residing elsewhere, was an aged lady with children and there was no point of contact between Shaheed and the said Mat. Nekan to give rise to any such suspicion. It was contended that the deceased was a notorious man of the locality and had threatened the life of Abdul Majid petitioner and the plea of private defence of person advanced by the petitioners has not received the attention which it deserved for determination the guilt of the petitioners.
8. As regards the complainant's petition the learned counsel stated that it was manifest on the face of record that the injury on the left side of the chest in the region of the heart had caused the damage to the heart causing instantaneous death. All the witnesses attributed this injury to Shaheed convict. The learned Judges, according to the learned counsel for the petitioners were in error in concluding that the damage to the heart was not attributable to any particular injury out of the four inflicted. According to the learned counsel, it was in fact attributable to Shaheed and Shaheed alone and other injuries caused in the flank or at the back could not have caused the damage to the heart and this should have been clear to any Court administering criminal justice.
9. So far as the convict petitioners are concerned we find that Nabi Baksh a disinterested witness has stated about the quarrel that had taken place a day earlier, Muhammad Rafiq P.W.12 has stated about the grievance brought to him the same day. This part of the prosecution case has been believed. It cannot be doubted merely on conjectures. As regards the suspicion of illicit relations, the mere fact that she had issues or had remarried or had been residing for some the elsewhere is not decisive. Similarly, the ocular account in the case has been found to be credit worthy as out of the four eye-witnesses to had injuries on their person and the convicts who gave an explanation for the occurrence admitted their presence. In the face of such ocular evidence the recovery becomes secondary.
10. The plea of self-defence taken up by Abdul Majid and Abdul Shaheed was considered by both the Courts. The learned trial Court observed that:-- "Self-defence was never available to the accused party in the circumstances of the case."
The learned Judges in the High Court also examined this plea and came to the conclusion that: "the defence version was available be rejected on the grounds besides others that the to persons could not inflict as many as 22 injuries with sharp-edged weapon and blunt weapon to three persons who were . Armed with sticks and gun. No cross-case was registered against the complainant party at the instance of the appellants nor any complaint was lodged. For reasons stated above, we reject the defence plea as being false."
We find that all the aspects of the convicts case have been examined in great detail and the evidence has been believed for good reasons IB There is, therefore, no merit in their petition.
11. As regards the complainant's petition we find that the first three convicts were all found guilty of murdering Malik Muhammad in furtherance of their common intention. Each inflicted blow with a knife on vital part of the body. The learned trial Court considered Abdul Shaheed only deserving of death penalty because "all real brothers are involved".
12. The learned Judges in the High Court found that the trial Court had given no reason for singling out Shaheed for death penalty and then found that the doctor had not identified the particular injury which led to the damage .To the heart resulting in the death of the deceased and on that account did not confirm the death sentence. We find that both these reasons were in the circumstances of the case not sufficient to justify the imposition of the lesser sentence.
Nevertheless, there are certain features of the case which do indicate that leave to appeal in the case may not be very fruitful. For example, it was prosecution's own case that the deceased had warned Abdul Shaheed against passing through or being seen in the Chowk of the bazar.
This was the most unjustified demand seriously curtailing the liberty of the individual. He had not stopped only at that. He had assaulted and abused Shaheed a day earlier to the occurrence for coming to the Chowk. Again, according to the prosecution case itself the concerned convicts had tried to obtain the intercessions of Muhammad Rafiq P.W.12 but it appears that they had received no immediate relief. An unjust at of the deceased was the immediate and exciting cause of the occur--rence. Besides according to finding of the Courts, the three brothers who came armed with knives and attacked the deceased all equally shared the common intention and each inflicted knife injuries. The responsibility in the matter of sentence could not be related to the individual blow given by each. This aspect of the case has certain features which are common to the case of Shahab Ali v. The State PLD 1970 SC 447 where in spite of disapproval of the principle on which death sentence was not imposed, the sentence of death imposed against one of the convicts was reduced to life imprisonment.
13. In the circumstances and for the reason given we refuse leave to appeal in both the petitions.