' KHIZAR HAYAT, J.--Tanwir Ahmad (23), his brother Muhammad Salim (20), his Khalazad Liaquat Ali
(20) and his maternal uncles Muhammad Asghar (32) and Muhammad Sarwar (45), all Rajpoot by caste, were tried for the offences of rioting, murder and murderous assault by Sessions Judge, Sialkot, who vide his judgment, dated 2-2-1981 convicted and sentenced them to 3 years' R.I., each under section 148, P.P.C., to 5 yeazs' R.I., each on two counts under section 307/149, P.P.C. And to suffer death and a fine of Rs,5,000 each or in default to undergo 6 months' R.I., each under section 302/149, P.P.C. Except Muhammad Sarwar who was sentenced to life imprisonment as being a tuberculosis patient. Half of the fine, if realized, was ordered to be paid to the heirs of the deceased as compensation under section 544-A, Cr.P.C. All the convicts have filed a joint appeal (Cr.A. No,93 of 1981) and the trial Court has sent the proceedings under section 374, Cr.P.C., for confirmation of death sentence. We propose to dispose of appeal as well as murder reference by this single judgment.
2. The occurrence took place on 18-11-1979 at 5 p.m., in village Butter, district Sialkot at a distance of 3 miles from Police Station Sadar, Sialkot, wherein Aziz Ahmad was killed and his father Muhammad Faqir and his mother Mst. Aisha were injured. The occurrence was reported to A.S.I. Hassan Akhtar (P.W.14) who was on patrol duty at Chowk Doburji by Muhammad Faqir the same day at 6 p.m., vide statement Exh.P.R. On the basis of which formal F.I.R. Exh.P.R. /1 was drawn up by M.H.C.
Mahmood Ahmad.
3. Briefly the prosecution case as disclosed at the trial is that Tanwir Ahmad and Muhammad Salim who lived in Kot Khawaja Saeed, Police Station Baghbanpura, Lahore, came to village Butter few days before the occurrence for attending marriage ceremony of their maternal aunt, i.e,, sister of Muhammad Asghar and Muhammad Sarwar, appellants.' On 17-11-1981 at 9 a.m., Tanwir Ahmad and Muhammad Salim, appellants,- while standing on the roof of the house of their maternal grand-father, made gestures to Mst. Ferzana, niece of Aziz Ahmad deceased and grand-daughter of Muhammad Faqir, complainant, who was then standing in her courtyard. Aziz Ahmad, deceased, resented it and restrained them from doing so but appellants abused him whereupon the deceased ascended the Kotha of his neighbour Muhammad Rafique and gave beating to Tanwir.
Muhammad Akbar P.W.11 and Muhammad Afzal P.W. (not produced) intervened and separated them. On account of this the appellants nursed a grudge against the deceased. On the following day, i.e,, 18-11-1979 at 5 p.m., Aziz Ahmad, deceased and his brother Bashir Ahmad P.W. (not produced) were returning home from their well and on the way their father Muhammad Faqir also joined them from the shop of Boots Masih where he had gone to purchase cigarettes. When they entered their street, Muhammad Sarwar appellant exhorted his co-appellants to take revenge of their yesterday's insult from them. At this all the appellants who were armed with Chhuris fell on Aziz Ahmad (deceased) and started giving him injuries. Tanwir Ahmad plunged Chhuri into the abdomen of the deceased, Liaquat Ali gave blow in his chest and Muhammad Salim in his flank.
Hearing the alarm Mst. Aisha Bibi (P.W.13), mother of the deceased also arrived. The deceased ran for life to his house but was chased by Tanwir Ahmad and Liaquat All and given further blows on his back and buttocks. Mst. Aisha Bibi and Muhammad Faqir P.Ws. When tried to save their son were injured- by Tanwir Ahmad and Liaquat Ali, respectively. The deceased entered his house and fell down and after a short while succumbed to his injuries. The appellants decamped with their weapons.
4. A.S.I. Hassan Akhtar who recorded Muhammad Faqir's statement Exh.P.R. Sent it to the police station for formal registration of the case. He sent Muhammad Faqir for medical examination and himself proceeded to the spot. Reaching there he prepared injury statement Exh.P.U. And inquest report Exh.P.T. Of the deceased and sent the dead body for post-mortem examination under police escort. He secured blood-stained earth from the spot vide memo. Exh.P.Q. He then sent Mst. Aisha P.W. For medical examination. On 18-11-1979, he handed over the investigation to S.I. Barkat Ali (P.W.15).
5. Dr. Abdur Rauf Saddal (P.W.1) examined Muhammad Faqir (P.W.12) at 10-15 p.m., on 18-11-1979 and on his person found an incised wound about 4 c.m. Above left eyebrow on the outer aspect measuring 1.5 c.m. x 1 c.m. x bone deep, caused with sharp-edged weapon within the duration of 3 to 6 hours. He also examined Mat. Aisha and found on her person an incised wound about 3.5 c.m. x 1 c.m. x bone deep on the right wrist joint on the posterior aspect, caused with sharp-edged weapon within the duration of 3 to 6 hours.
6. Dr. Capt. Muhammad Nawaz (P.W.2), at 11 a:m. On 19-11-1979, conducted autopsy on the dead body of Aziz Ahmad and found the following injuries on his person:-
(1) Incised wound 11/2 x 1/2on the middle side of left side of neck.
(2) Incised wound 21/2" x 1" on top of left shoulder.
(3) wound 1/2" x 1/2" on front lateral chest.
(4) Incised wound 1" x 1/4" on left chest about 11" below left nipple.
(5) Incised wound 1" x 1/2" on inner aspect of left upper arm.
(6) Incised wound 11/2" x /2" on outer aspect of left upper arm. Nos. 5 and 6 are through and through).
(7) Incised wound 1" x 1/2" on middle of right lateral part of chest.
(8) Incised wound 11/2" x 1/8" on the right inner aspect of right upper arm.
(9) Incised wound 3" x 11" on left iliac region. Herinating from the Intestine was wound.
(10) Incised wound 4" x 1/8" about 1" inner to injury No,9.
(11) Incised wound 11" x 1" on middle part of upper part of chest on back, about 2" inner to left scapula.
(12) Incised wound 1" x 1" on the left buttock.
' On dissection, left lung was found punctured at three places, under injury Nos. 3, 4 and 11, right lung was punctured under injury No,7, chest cavity contained about 12 ounces of dotted blood on left side and about 8 ounces on right side. Cuts were present on peritoneum and small intestine at its terminal part about 1" apart from injury No,9. In the opinion of the doctor, all the injuries were caused with sharp-edged weapon. Of them, injuries Nos.3, 4, 7, 9 and 11 were declared dangerous to life which had caused shock and haemorrhage resulting in death of the deceased. They were found sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was about 20 minutes and between death and postmortem about 17 hours.
7. On 19-11-1979 F.C. Abdul Ghafoor (P .W.3) produced blood-stained Shalwar P.1, shirt P.2, Sweater P.3 of the deceased before S.I. Barkat Ali P.W.15) who took them into possession vide memo. Exh.P.C.
The same day, Muhammad Faqir P.W.12 produced his blood-stained shirt P.9 and Mst. Aisha Bibi P.W.13 produced her blood-stained clothes P.10 to P.13 which were secured under separate memos.
Exhs.P.O. And P.P., respectively.
8. On 24-11-1979 all the accused appellants surrendered before S.I. Barkat All P.W.15 who arrested them. As Liaquat All and Tanwir Ahmad, appellants, were found injured, therefore, they were got medically examined. Dr. Muhammad Aslam Bhatti P.W.9 found one injury each on their persons.
Liaquat All had a lacerated wound 1" x 1/8" x scalp deep on the left parieto occipital region, with irregular margins. Tanwir Ahmad had one lacerated wound 21" x 1/8" x scalp deep on the right parietal region, with irregular and rounded margins. Both the injuries were caused with blunt weapon within the duration of 4 to 8 days and were simple in nature.
9. On 28-11-1979 Tanwir Ahmad and Liaquat Ali while in police custody individually led to the recovery of blood-stained Chhuris P.4 and P.5 which were secured under memos. Exhs.P.F. And P.G., respectively, attested by Muhammad Iqbal P.W.7 and Muhammad Munir P.W.10.
10. On 30-11-1979 Muhammad Salim, Muhammad Sarwar and Muhammad Asghar, appellants, got recovered blood-stained Chhuris P.6, P.7 and P.8, respectively, which were sealed and secured under memos. Exhs.P.H., P.J., and P.K. Attested by Ghulam Nabi P.W. 8, Muhammad Ashraf P.W. (not produced) and S.I. Barkat Ali P.W.
15. Vide Chemical Examiner's report Exh. P.W. And Serologist's report Exh.P.X. All the Chhuris recovered from the appellants were found stained with blood of human origin.
11. At the trial the prosecution examined 15 witnesses in all. Muhammad Akbar P.W.11, Muhammad Faqir P.W.12 and Mst. Aisha Bibi P.W.13 furnished ocular account of the occurrence and also stated about motive; Muhammad Iqbal P.W.7, Ghulam Nabi P.W.8 and Muhammad Munir P.W.10 deposed about the recovery of blood-stained Chhuris; and Dr. Abdur Rauf Saddal P.W.1, Dr. Muhammad Nawaz P.W.2 and Dr. Muhammad Aslam Bhatti P.W.9 provided medical evidence. Umar Farooq Bhatti, Inspector of Police, was examined as C.W.1 who stated that he had verified the investigation conducted in this case as Station House Officer of Police Station Sadar, Sialkot. He admitted that about 10 persons had appeared before him to prove innocence of Muhammad Asghar, appellant.
He further stated that he had made secret inquiry also and found Muhammad Asghar and Muhammad Sarwar both as innocent but he did not place them in column No,2 of the challan because no documentary evidence in this regard had been produced by them.
12. When examined under section 342, Cr.P.C., Muhammad Asghar, Muhammad Sarwar and Muhammad Salim, appellants, denied their presence and participation in the occurrence while Tanwir Ahmad and Liaquat Ali, appellants, raised plea of self-defence. They did not admit to have made gestures to the niece of the deceased or that due to this any quarrel had taken place between them on a day before the occurrence. According to them, at the fateful time they were present on the roof of house of their maternal grand-father. The deceased started abusing them.
They came down in the street where the deceased had attacked them with an iron bar and then in the exercise of right of self-defence, they inflicted injuries to him. They further explained that Mst.
Aisha and Muhammad Faqir P.Ws were not injured in the occurrence, rather they simulated injuries on their persons. They did not, however, call any witness in defence to support plea of self-defence.
13. Muhammad Asghar, appellant, pleaded alibi. He stated that at the relevant time he was away to Lahore attending marriage of his father-in-law's maternal-nephew and maternal-niece where he has signed their Nikahnama Exh.D.F. He also stated that he had brought these facts to the notice of the Investigating Officer who demanded bribe from him which he did not pay and, therefore, he was falsely implicated. He examined 4 witnesses in his defence. Mian Muhammad Yasin D.W.1, his father-in-law, stated that Muhammad Asghar, appellant, participated in the marriage ceremony of Liaquat at Lahore on 18-11-1979 at 6 p.m. He further stated that he contacted and informed S.I.
Barkat Ali about Muhammad Asghar's presence at Lahore at the relevant time but he had demanded Rs,6,000 as bribe from him which he refused to pay and sent applications against him to the Superintendent of Police and Deputy Commissioner, Sialkot, on 16-1-1980. In cross- examination he admitted that he did not produce any witness about said marriage before S.I.
Barkat An during the investigation because the investigating officer promised that he would come to Lahore and record their statements. He also admitted that one can reach Sialkot in a wagon in about 21 hourstime from Lahore. Muhammad Yar D.W.2 stated that on 18-11-1979 he read the Nikah of Liaquat Ali and Sabiha at Rajgarh, Lahore, on 18-11-1979 and registered the same vide Nikahnama Exh.D.F. At 6 p.m., and that Muhammad Asghar, appellant, who was known to him personally had signed it in his presence. In his cross-examination, he stated that the original register had since been consigned in the office of Union Committee, Rajgarh, Lahore. He conceded that there is no column in the Nikahnama showing time of Nikah. He also admitted that he neither joined the investigation of the case nor produced the Nikah Register or the Nikahnama before the Investigating Officer. Muhammad Hanif D.W.3 and Hassan Din D.W.4 who are close relations of father-in-law of Muhammad Asghar, appellant, also stated that in their presence Muhammad Asghar had signed Nikahnama Exh. D.F.
14. The learned trial Court on examination of the material on record discarded the defence version and believing the motive, ocular testimony and recoveries of blood-stained Chhuris, convicted and sentenced all the appellants as indicated above.
15. Learned counsel appearing on behalf of the appellants contended that the recoveries of Chhuris from the appellants are fake and fabricated; the eye-witnesses are closely related to the deceased as such their evidence cannot be relied upon without corroborative evidence coming from unimpeachable and independent source which is lacking in this case; that there exists reasonable possibility of plea of self-defence raised by Tanwir Ahmad and Liaquat Ali, appellants, being true, particularly because the prosecution witnesses have deliberately concealed their injuries, therefore, they are entitled to acquittal; and that the occurrence had taken place all of a sudden at the spur of moment without any premeditation, therefore, the offence committed at the most falls under section 304 and not 302, P.P.C. Lastly, he submitted that if the conviction is maintained then in the circumstances of the case, the appellants are entitled to lesser penalty. As against this, learned State counsel assisted by learned counsel for the complainant have supported the impugned judgment.
16. We have carefully considered the arguments advanced by learned counsel for the parties and also perused the record with their assistance.
17. First of all, we take up the recovery of blood-stained Chhuris from the appellants to see if it can be used as incriminating circumstance against the appellants. It is in evidence that all the appellants were arrested on 24-11-1979, i.e,, about 6 days after the occurrence and blood-stained Chhuris P.4 and P,5 were recovered from Tanwir Ahmad and Liaquat Ali, appellants, on 28-11-1979 and blood-stained Chhuris P.6, P.7 and P.8 from Muhammad Asghar, Muhammad Sarwar and Muhammad Salim, appellants, on 30-11-1979 at their potation. It is hard to believe that the appellants kept their Chhuris without cleaning blood thereon despite having full one week's time at their disposal before they courted arrest. We are not, therefore, persuaded that Chhuris were stained with blood at the time of recovery and, therefore,' we do not consider it safe to rely on these recoveries.
18. As for the motive, the prosecution case is that the deceased seeing that Tanwir Ahmad and Muhammad Salim were making gestures to his niece Mst. Ferzana had restrained them from doing so which culminated into a quarrel between them wherein the deceased gave beating to Tanwir who in order to take revenge of this beating with other appellants made a concerted attack on the deceased armed with Chhuris next day when the latter was returning from his well. The plea of Tanwir Ahmad and Liaquat Ali appellants is that they did not make any gesture to Mst. Ferzana.
However, their presence on the roof of their maternal-grandfather's house was resented by the deceased and he had abused them whereupon they came down in the street and were attacked by the deceased with an iron bar and it was then that in order to save themselves they had inflicted injuries to the deceased. So, there are two versions of the incident. We would, therefore, first of all discuss the ocular evidence in order to come to an independent finding as to the truth or falsity of prosecution story and the credibility of eye-witnesses. In case the ocular evidence is not excluded from consideration then we shall judge the case of the appellants by placing it in juxtaposition with prosecution version and shall see whether the defence has succeeded in establishing plea of self-defence or that there exists reasonable possibility of their plea being true.
19. It is true that the two eye-witnesses, namely, Muhammad Faqir P.W.12 and Mst. Aisha P.W.13 are the parents of the deceased while the third one, namely, Muhammad Akbar P.W.11 is their distant relation. Excepting Tanwir Ahmad and his brother Muhammad Salim, the remaining appellants lived in village Butter in the same street where the complainant party resided, for many years. They appear to have been living in peace with each other and there is no evidence that any ill-will or animosity existed between them prior to the occurrence. Therefore, the testimony of these witnesses cannot be discarded merely because they are closely related to the deceased, particularly for the reason that the occurrence had taken place in the street near their houses and thus they are the natural witnesses. Again, the injuries on the persons of Muhammad Faqir and Mst.
Aisha P.Ws. Are the hallmarks of the occurrence which substantiate their presence at the spot beyond any reasonable doubt. The medical evidence as well as the evidence of motive provide added strength to their version. We are, therefore, convinced in our minds that these witnesses were present at the spot and the occurrence had taken place in the manner as narrated by them.
20. Now we shall consider the plea of self-defence raised by Tanwir Ahmad and Liaquat Ali, appellants. They pleaded that the deceased had abused them when they were present on the roof of the house of their maternal-grandfather. They came down in the street and were attacked by the deceased with an iron bar whereupon they acting in self-defence had caused injuries to him. It may be noted that on this point we have only bald statement of the appellants. They have not produced any evidence whatsover to support this plea which they would have been able to do provided :heir story was true. Secondly, if the appellants had come down from the roof after they were abused by the deceased then it were the appellants who had motive to attack and not the deceased, therefore, the appellants' story that the deceased had attacked them in the street with an iron bar does not appear to be true. Again, two simple injuries found on their persons, according to the doctor, could be suffered by a friendly hand or by fall and the fact that the appellants did not get themselves examined medically for 7/8 days makes it doubtful that they received injuries during the occurrence. Furthermore, presence of one dozen incised wounds spread all over the body of the deceased suggests that the deceased was' unarmed and the number of assailants was more than two and that is why they were able to cause so many injuries before the deceased could reach his house which was not far away from the place of initial attack. In these circumstances, we find that the trial Court had rightly discarded the plea of self-defence. We are further of the view that there does not exist reasonable possibility of the defence version being true either.
21. Muhammad Sarwar, Muhammad Salim and Muhammad Asghar, appellants, have stated that they did not participate in the occurrence. They have not produced any defence evidence to prove their alibi excepting Muhammad Asghar who produced four defence witnesses to show that he was attending a marriage at Lahore on the day of occurrence and there he signed Nikahnama Exh.D.F. At 6 p.m. It is not understood that when such documentary evidence supporting his alibi was available with him then why it was not produced during investigation. Mian Muhammad Yasin D.W.1, father-in-law of Muhammad Asghar, is a contractor and appears to be a man of means. If the Investigating Officer had not received the evidence of alibi because his demand of bribe was not met with then a complaint against him should have been made to his higher officers particularly about demand of bribe. Mian Muhammad Yasin claimed to have made a complaint but he candidly admitted in his cross-examination that he did not mention this fact in his application. We have, therefore, grave doubts as to the genuineness of Nikahnama Exh.D.F. Relied upon by the appellant in support of his plea of alibi.
22. It is in evidence that Muhammad Sarwar and Muhammad Asghar, appellants, are maternal- uncles of other three appellants. They are of mature age. Muhammad Sarwar was a tuberculosis patient and for that reason the learned trial Court awarded him lesser penalty. They lived as good neighbors of the complainant. Therefore, we have an inkling in our minds that they might have not approved their nephews' conduct of making gestures to complainant's young girl and might have also not joined them in the attack. It is not worthy that they have not been specifically attributed any injury to the deceased particularly by Muhammad Faqir and Mst. Aisha P.Ws., the parents of the deceased, who were also injured in the incident. In these peculiar circumstances of the case, therefore, without disbelieving the eye-witnesses, we are tempted to give benefit of doubt to Muhammad Asghar and Muhammad Sarwar, appellants, by way of abundant caution and hereby acquit them. They shall be released forthwith if not required to be detained in any other case. Now the number of accused having been reduced to three the conviction and sentence under section 148, P.P.C. Of the remaining appellants cannot be sustained and the same is set aside. The conviction of Tanwir Ahmad, Liaquat Ali and Muhammad Salim under section 307/149, P.P.C. Is also altered to section 324/34, P.P.C. And are sentenced to 2 years' rigorous imprisonment on each count for the reason that injuries on the persons of Muhammad Faqir and Mst. Aisha P.Ws. Are simple in nature, they are not on vital parts of their bodies and also the injury was not repeated However, their conviction under section 302/34, P.P.C. Is upheld. This brings us to the question of sentence. It appears to us that the parties tied exchanged abuses in the earlier incident a day before the occurrence, therefore, the appellants were somewhat provoked and treating this as a mitigating circumstance for awarding lesser penalty, we alter their sentence of death to imprisonment for life. Sentences of imprisonment shall run concurrently with life imprisonment.
23. In the result the appeal is partly accepted in the terms indicated above. The appellants shall also get benefit of provision of section 382-B, Cr.P.C. The death sentence is NOT confirmed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.