MAZHARUL HAQ, J.--Ghulam Shebbir (17), Maqbool Hussain (23), Muhammad Ayub (23) and his brother Muhammad Rafiq (22) were tried for the murder of Ishtiaq Hussain by the Sessions Judge, Sargodha. On 22-5-1983, Ghulam Shabbir and Maqbool Hussain were sentenced under section 302/34, P.P.C. To life imprisonment with a fine of Rs.1,000 each in default to undergo one year's R.I.
Further. Muhammad Rafiq and Muhammad Ayub were convicted under section 323, P.P.C. And each sentenced to one year's R.I. Appeal of convicts Ghulam Shabbir and Maqbool Hussain, the connected revision for enhancement of sentence of all convicts in which notices were issued are before us:
2. Maqbool Hussain accused suspected Ishtiaq Hussain, deceased, of Illicit intimacy with his sister Maryam. On 9-10-1981 i.e. Eid-ul-Azha day at about 11 a.m. Ishtiaq had gone to deliver Qurbani meat to Sibtain Shah, on his way back passed through Naulakha Bazar, Shahpur. Just then, Maqbool Hussain and Shabbir armed with knives, Rafiq and Ayub with hockey sticks appeared there.
Maqbool raised a Lalkara that Ishtiaq should not be spared, simultaneously he inflicted a knife blow in the left side of his chest. Ghulam Shabbir inflicted the second blow on the left side of his neck.
Maqbool inflicted another blow which hit him on the back of his left hand, thereafter, Ishtiaq fell down. The alarm attracted deceased's father P. W.9 Muzaffar Ali, P. W. Sibtain Shah (since dead).
P.W.9 Muhammad Hussain, P.W.10, Arshad Mahboob who were a few paces behind, ran to the spot and witnessed the occurrence. They tried to intervene upon which Muhammad Ayub and Muhammad Rafiq beat up Muhammad Hussain and Arshad Mahboob with hockey sticks. On the hue and cry of the witnesses, the accused fled away. Ishtiaq who had been seriously injured was carried to the Civil Hospital, Sargodha, but he succumbed to the injuries on reaching there.
Thereafter, P.W.9 Muzaffar Ali went to Police Station, Saddar, Shahpur and reported the occurrence to P.W.11 Ahmad Hassan, S.I., at 2-30 p. m. The same day. After recording the F.I.R., the S.I., went to the D.H.Q. Hospital, Sargodha, prepared the necessary documents and sent the dead body for its post- mortem examination. The S.I. Then went to the place of occurrence and collected blood-stained earth from there.
3. On the same day at 12-45 p.m. Autopsy was held by P.W.7 Dr. Muhammad Mazhar Munir, Medical Officer, D.H.Q., Hospital, Sargodha, who found the following injuries on the dead body of Ishtiaq:- (1)Stab wound 2 c.m. x -- c.m. Muscle deep on the left side of neck about 5 -- c.m. Above the clavical.
(2)A stab wound on the upper part of left chest 3 c.m. Below left clavical 5 c.m. x 1 --c.m. x cavity deep.
(3)Incised wound 1 -- c.m. x 1 c.m. Bone deep on the dorsal aspect of left hand close to wrist joint.
(4)Contused abrasion l --c.m. x 1 -- c.m. On the middle part of the nose.
(5)Contused abrasion 1 -- c.m. x 4 c.m. On the outer part of left knee.
(6)Abrasion 4 c.m. x -- c.m. On the outer middle part of left thigh.
According to the doctor, jugular vessels were cut on the left side of the neck between 2nd and 3rd ribs, the pleura and upper lobs of left lung were ruptured. Stomach contained semi-digested food.
There was some liquid in the small intestine and large intestine contained faecal matter. Bladder was empty. Death in the opinion of the doctor was due to shock and haemorrhage caused by injuries 1 and 2 which were individually fatal. The remaining injuries were simple.
4.Same day at 1-30 p.m. The doctor also examined P.W. Muhammad Hussain and found the following injuries on him:- (1)Contusion 9 c.m. x 3 c.m. On top of left shoulder.
(2)Contusion 13 c.m. x 2 c.m. On the back of left shoulder.
(3)Contusion 12 c.m. x 2 c.m. On back over the right scapula.
(4)Contusion 13 c.m. x 5 c.m. On the outer middle part (back of right chest).
(5)Contusion 10 c.m. x 3 c.m. On the left buttock.
(6)Contusion 4 c.m. x 2 c.m. On the right upper thigh.
(7)Contusion 4 c.m. x 1 c.m. On left neck.
All injuries were simple, caused by a blunt weapon. At 1-40 p.m. The same day he examined Arshad Mahboob and noticed a contusion 7 c.m. x 3 -- c.m. On the front of left forearm and small abrasion -- c.m. x -- c.m. On the left knee joint front. These injuries were also simple.
5. Maqbool Hussain, accused, was also examined the same day at 2-50 p.m. The doctor found two stab wounds; one on the lower chest 2 -- c.m. x 1 c.m. x cavity deep with swelling around it and another 2 -- c.m. x 1 c.m. Bone deep just below and inner side of left illiac spine. He was in semi- conscious condition. The injuries were caused by sharp--edged weapon.
6. On 10-10-1981 the S.I. Found Maqbool Hussain, accused, admitted in the hospital, therefore, he did not arrest him on that date. On 18-10-1981, he arrested Ghulam Shabbir, Muhammad Rafiq and Muhammad Ayub, accused. Maqbool Hussain was arrested on 21-10-1981 after he was discharged from the hospital.
7. On 23-10-1981 Ghulam Shabbir accused in custody led to the recovery of blood-stained knife P.9 from underneath his bedding in a residential Kotha. It was made into a sealed parcel vide memo.
Exh.P.C. Same day Rafiq got recovered hockey stick P.5 from his residential Kotha which was made into a sealed parcel vide memo. Exh.P.D. Muhammad Ayub also got recovered his stick P.6 which was made into a staled parcel vide memo. Exh.P.E. Same day Maqbool Hussain, accused, got recovered knife P.7 from over a rafter of his residential Kotha, which was made into a sealed parcel vide memo. Exh.P.F. The aforementioned recoveries were attested by P.E.6 Gul Muhammad and the Investigating Officer besides one Ijaz who was given up as unnecessary after completing the investigation, the accused were sent up for trial.
8. All accused denied guilt. They denied their presence at the spot except Maqbool Hussain who made the following statement:---- "Ishtiaq deceased was of Goonda type and a desperado. He used to extort Jugga tax from the people and was also in the habit of drinking. On the day of occurrence, when he was drunked I saw him demanding Jugga tax from Riaz Maken and beating him. I tried to reprimand him on this, when I passed from there in the bazar and an altercation took place between the deceased and myself.
The deceased stabbed me with a knife. I turned back to run and he gave me another knife blow. In the meanwhile Riaz Maken managed to get hold of a knife and stabbed the deceased in order to avenge his beating and insult and protect me. Muhammad Hasnain and Arahad Mahboob P.Ws.
Were not present at the spot at the time of occurrence. They had a fight with Ghulam Shabbir and Muhammad Rafiq co-accused and injured them Ghulam Shabbir and Muhammad Rafiq were medically examined by Dr. Masher Khan Awan of D.H.Q Hospital, Sargodha, who may be summoned in our defence."
Explaining the case against them, the remaining accused said that they have been falsely roped in because of their relationship with Maqbool Hussain. Explaining his injuries, Ghulam Shabbir made the following statement:--- "I was injured by Arshad Mahboob and Hasnain Shah P.Ws. In D.H.Q. Hospital, Sargodha, on the day of occurrence, when we came there to get Maqbool medically examined. They attacked us and injured us and we also injured them in self-defence in the hospital. I produce my injury statement Exh. D.B. And that of Muhammad Rafiq accused Exh. D.C. I was not present at the time of occurrence."
Shabbir and Maqbool accused produced Dr. Mazhar Khan Awan, Medical Officer. D. H. Q., Hospital, Sargodha in defence. This Witness had examined Ghulam Shabbir and Muhammad Rafiq on 9-10- 1981 at about 2-40 p.m. And found seven injuries on the person of Ghulam Shabbir and eight on Muhammad Rafiq. Injuries of both the accused were found simple in nature.
9. Disbelieving the defence version, trial Court came to the conclusion that the prosecution had satisfactorily proved the motive story, relying on the statements of eye-witnesses and evidence of recoveries against the accused, it came to the conclusion that the prosecution had satisfactorily proved its case against the accused.
10. Criticizing the finding, learned counsel for the appellants contended that the motive story was a got up one and was put up by the informant alone. None of the other witnesses mentioned about the motive. In the absence of any other evidence, the story of motive was not satisfactorily proved.
On the contrary, the circumstances appearing in the evidence of this case showed that it was an unpremeditated occurrence and sudden in which both sides were injured. Further, contended that the prosecution witnesses admitted under cross examination that there was a fight between the complainant party and the Injured-accused Shabbir and Rafiq but according to the eye-- witnesses, these two accused were injured in the hospital after the occurrence. It was contended that this admission supported the defence version with the only difference that according to the defence, P.W.s Muhammad Hussain and Arshad Mahboob were not present in the main occurrence and they may have been injured in the fight in the hospital. Further commenting upon the ocular testimony, it was also argued that other improvements was also made by the eye-witnesses at the trial which made their story doubtful. He further contended that it was not the prosecution case in the F.I.R. That the deceased had snatched the contrary, Maqbool and inflicted two injuries to him with it. On the defence the prosecution case in the first instance was that in his Ishtiaq also injured Maqbool Hussain. In this regard, the expression used in the vernacular is "Hate P.1 Karts Raha" When confronted with thus improvement, the informant stated that when the F.I.R. Was read over to him, he pointed out to the Investigating Officer that it was not the true representation of what he had told him and thereafter he recorded his supplementary statement. It may be mentioned that the F.I.R., is the only statement which the prosecution relied upon at the trial and there was nothing in the evidence of this case to show that the witness had asked for a correction then and there. It was further argued- that in all probability after having learnt about the injuries of the accused, in order to meet this, the witnesses tried to put up a new story but this was not at all. Even otherwise, there were other improvements from the story put up by the informant in the F.I.R.; for instance, the informant did not say in the F.I.R. That' the eye-witnesses were present in the house of Sibtain Hussain Shah and had come out with him.
11. We have considered the submissions of both sides and have come to the conclusion that at the trial, prosecution for the first time in 'their anxiety to explain away the injuries of the accused have gone to the extent of creating contradictions with the medical evidence for instance deceased's father Muzaffar Ali, informant, said that Meqbool Hussain inflicted knife injuries or, the left chest of Ishtiaq who grappled with him and was able to snatch the knife with which during the struggle, he gave two blows to Maqbool Hussain. It was, thereafter, that Shabbir Hussain gave a knife blow to Ishtiaq on his left neck after which he staggered and the knife fell down which Meqbool Hussain picked and tried to again attacked him but he warded of the attack and suffered injuries on the back of his hand. According to the doctor the chest injury had pierced through the second and third ribs. The pleura and upper lobe of the left lung was ruptured. We are of the view that after the fatal injury in the chest, for the deceased to have snatched away the knife from Maqbool Hussain and thereafter given two injuries to him was a doubtful matter. On the other hand, we also find that according to the F.I.R., Maqbool Hussain was said to have inflicted the knife blow on the chest, thereafter, Shabbir gave him a blow in the neck. The third injury was again inflicted by Maqbool Hussain on the back of Ishtiaq's left hand after which he fell and the alarm raised by him attracted his father Muzaffar (informant), Sibtain Shah (since dead) and P.Ws Muhammad Hussain Shah and Arshad Mahboob who rushed towards that side. It is noteworthy that the snatching away the knife from Maqbool Hussain by the deceased is not at all mentioned in the F.I.R., although, at the close of the narration in the F. I. R., the informant did mention that in order to save himself, Ishtiaq grappled with Maqbool Hussain. It appears that this grappling may have been the beginning of the occurrence which the prosecution is trying to put up in a different manner because. It does not stand to reason that after having suffered a serious fatal injury in the cheat, the deceased would have been in a position to overpower his assailant and snatch the knife from him. Taking account of this part of the case, trial Court observed that the deceased may have also had a knife with him which he might have used after Maqbool Hussain had attacked him. Trial Court, however, further observed that Shabbir Hussain had not attacked the deceased, he may have been successful in giving more injuries to Maqbool Hussain. We are not inclined to accept the story which the trial Court has tried to reconstruct because when Shabbir was said to have inflicted the knife injury, at that time according to the prosecution case at the trial, the deceased was already armed with a knife, therefore, Shabbir would not have risked going nee him. In all probability, the occurrence in this case took place over some sudden incident in which both sides were armed and injured each other.
12. We now take up the motive in this case. According to the informant, Maqbool Hussain had a suspicion against Ishtiaq of a liaison with his sister Maryam. None of the other eye-witnesses who are collaterals of the deceased or any other witness deposed to corroborate the motive story given by the informant. The informant, as we have earlier observed had made exaggeration in his statement, therefore, it would be unsafe to place reliance upon his solitary statement. With regard for the motive story, we may add here that the reasoning of the trial Court in accepting the motive story is to sound because while accepting that the deceased was a man of bad character, the trial Court concluded that he would be making advances towards Maqbool Hussain's sister. On the contrary, we find that being a desperate, character, he was likely to flare up over anything, which most probably happened in this case. Reading between the lines that the accused and the deceased grappled and that both had received sharp-edged weapon injuries, coupled with the fact that the motive is not satisfactorily proved, we are inclined to hold that it was a case of sudden fight. As we have earlier observed that the circumstances in which Shabbir Hussain was said to have inflicted an injury do not appeal to reason because H the deceased was himself armed with a knife at that time. Moreover, the subsequent incident in the hospital is admitted by both sides. We, therefore, give him the benefit of doubt and acquit him.
Criminal Revision No. 560 of 1983 MAZHARUL HAQ, J.--For the reasons recorded in the connected Criminal Appeal No. 366 of 1983, this petition is dismissed.