MUHAMMAD MUNIR KHAN, J.--This Criminal Appeal No. 629 of 1982 and the connected Murder Reference No. 169 of 1982 arise from the judgment of learned Additional Sessions Judge, Lahore, whereby he on 30-11-1982 convicted Iftikhar Ahmad alias Manna Butt (22) under section 302, P.P.C.
For the murder of Hakim Khan (24) and sentenced him to death and a fine of Rs.10,000 or in default thereof 3 years' R. I.
2. The occurrence took place on 6-11-1981 at 8-30 a.m. On Chah Meeran Road in (he area of Chowk Baba Hazuri Shah, 2 k.m. Away from P.S. Shad Bagh, Lahore. The F.I.R. Exh. P.E. Was lodged by Muhammad Saeed P.W.7 on the same day at 11-00 a.m. Which was recorded by Saghir Ahmad.
S.I/S.H.O. P.W.10.
3. The motive as alleged by the prosecution was that a few days before the present occurrence, Hakim Khan deceased had abused Nisar Ahmad, brother of the appellant, hence this occurrence.
4. As for the main occurrence, it has been stated that at the eventful time, Muhammad Saeed P.W.7 was standing at the shop of Manni fruit-seller situate in Chowk Baba Hazuri Shah, Maqsood Ahmad P.W.9 was reading newspaper in his sweet meet shop situate there. Khalil Ahmad D.W.1 was present at a cigarette shop. Iftikhar Ahmad alias Manna appellant also came there and stood near the Paan shop close to the Darbar of Baba Hazuri Shah. Meanwhile Hakim Khan deceased came from his house and exchanged greetings with Maqsood Ahmad P.W.9. On the call of the appellant, Hakim Khan went to him. The appellant told him that a few days back, he (deceased) had abused his brother and that he would avenge the insult. He then drew out a dagger from the fold of his Shalwar whereupon Hakim Khan tried to pick up brickbat to save himself but the appellant gave him a dagger blow in his abdomen. The appellant tried to inflict second blow to Hakim Khan who warded it with his hand resulting in injuries to the middle and right finger of his right hand and at the right flank. The alarm raised by Muhammad Saeed P.W.7 attracted Maqsood Ahmad P.W.9 to the spot who in order to save Hakim Khan hurled two brickbats at the appellant but the same did not hit him. The appellant then chased Maqsood Ahmad who ran away to roof top of nearby market. The appellant returned to the place where Hakim Khan was lying and inflicted more blows on the face and neck of the deceased. He then declared that he had avenged the insult of his brother and went away waiving dagger in the air. The occurrence was also witnessed by Khalil Ahmad D.W.1. Hakim Khan was removed to Mayo Hospital in a car but he succumbed to the injuries on his way to the hospital. The dead body was taken to P.S. Misri Shah but on coming to know that the place of occurrence falls within the limits of P.S. Shad Bagh, the complainant and others took the dead body of Hakim Khan to P.S Shad Bagh and lodged the report.
5. Dr. Muhammad Anees P.W.5 conducted post-mortem examination on the dead-body of Hakim Khan on 7-11-1981 at 11.15 a.m. He found the following injuries on his person:-- (1)"A transversely oblique incised wound 4 c.m. x 1 c.m. On the left mandible 3.5 c. m. In front of angle of mandible.
(2)Incised wound transversely oblique 1.5 c.m. x 1 c.m. x 3 c.m. In front of injury No.1.
(3)Vertically oblique incised wound 2.5 c.m. x 1/2 c.m. On the left side of chin.
(4)Incised wound 6 c. m. x 2 c. m. x 2 c. m. On the left side of neck close to the larynx.
(5)A transverscly oblique incised wound 3 c.m. x 1 c.m. Just lateral to injury No.4.
(6)Stab wound 0.75 c. m. Diamater below left lower lip.
(7)Incised wound 2.5 c.m. x 1 c.m. Vertical on the left upper lip.
(8)A contusion 2 c. m. Below the right eye.
(9)Transversely oblique incised wound 6 c.m. x 2 c.m. On the left outer side of the chest at the level of 3rd intercostal space.
(10)Vertically oblique incised wound 8 c.m. x 2, c.m. On the left upper abdomen, below the costal margin.
(11)Multiple cuts on the palmer surface of the proximal phalanx of the middle and ring finger of right hand."
The time between injuries and death was immediate and between death and post-mortem was from 24 to 36 hours.
6. The appellant was arrested on 6-11-1981 by Saghir Ahmad S.I F.W.10. On 9-11-1981, he led to the recovery of blood-stained dagger Exh.P.4 and dug it out from the ground by the side of road, which Has taken into possession vide memo. Exh .P.C. Attested by Tariq Saeed F.W.6 and Muhammad Saeed P.W.7. The Serologist's Report Exh. P.K. Reveals that the dagger was stained with human blood.
7. To prove its case, prosecution examined 10 witnesses in all Muhammad Saeed P.W.7 and Maqsood Ahmad P.W.9 have given the ocular account of the occurrence. They claim to have seen the appellant causing injuries with dagger on the person of Hakim Khan deceased. Muhammad Saeed P.W. Has also deposed about the motive which was disclosed by the appellant himself at the time of occurrence. Dr. Muhammad Anees, F.W.5 has proved the post-mortem report of Hakim Khan deceased. Saghir Ahmad, S.I. Had effected the recovery of blood-stained dagger from the appellant and had also investigated the case. The rest of the evidence is more or less of formal nature.
8. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. In reply to question, "Do you want to say anything else," he stated:-- - "I am innocent. The deceased was a bad character and criminal. He used to gamble with Saeed, Maqsud P.Ws. And others at the Dera of Shafiq Pakoranwala. The night preceding the occurrence these persons gambled for whole of the night and fought with their gamblers in the morning over the distribution of money when Hakim Khan was injured by his co-gamblers and he came from the Derv of Shafique Pakoranwala situated nearby and fell in the Chauk Chah Miran and died. The Police from P.S. Shad Bagh and Misri Shah came to the spot and had a dispute over the jurisdiction.
Then it was settled by the D.S.P. Of the Circle at about 11 a.m. Saghir Ahmad S.H.O. Links with the aforesaid gamblers who called Saeed, Maqsud and made them false witnesses against me. Khalil Ahmad D.W. Refused to support the false version put forward by Saeed, Maqsud and Saghir Ahmed S.H.O and has been given up by the prosecution. I surrendered myself before the police on the day of occurrence when they called me as I was innocent but I was arrested because the co-gamblers of the deceased were not disclosed by Maqsud and Saeed P.Ws who had injured the deceased and I have been victimized in this case by fabricating a false motive."
9. The learned trial Court while believing the ocular evidence and the recovery of dagger from the appellant has convicted and sentenced him as stated above.
10. Mr. Aftab Farrukh, the learned counsel for the appellant has contended that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt, in that, the eye- witnesses are not reliable that they were not present on the spot and had not seen the occurrence; that Muhammad Saeed P.W. Is a gambler and that there is a reasonable possibility of the defence version being true. Conversely, the learned counsel for the State has supported the judgment of the trial Court.
11. We have carefully considered the arguments advanced by the learned counsel for the parties with care and have reviewed the entire evidence which has been produced by the prosecution, the statement of the accused/appellant recorded under section 342, Cr.P.C., the defence evidence and the attending circumstances. We have not been able to persuade ourselves to agree with the learned counsel for the appellant. We find that it is a case of single accused, daylight occurrence and promptly lodged F.I.R. Wherein the name of the appellant, the weapon used by him, the manner of the occurrence and the names of the eye-witnesses are mentioned. The F.I.R. Was lodged after 2-- hours of the occurrence. There is nothing in evidence to show that the F. I. R. Was not recorded at the time and place as it purports to be. It seems to us that F.I.R. Exh. P.E is a genuine document which can safely be used to corroborate the statement of its maker namely, Muhammad Saeed P.W.7.
12. Adverting to the crucial evidence i.e. Ocular account of the occurrence given by Muhammad Saeed P.W.7 and Maqsood Ahmad P.W.9, W find that they are neither related to the deceased nor were inimical towards the appellant. They have given plausible cause of their presence near the spot at the time of occurrence. They were subjected to lengthy cross-examination but nothing damaging their veracity and integrity could be elicited. The statements made by them are in consonance with probabilities and materially fit in with the rest of evidence. The statement do not suffer from infirmities such as material contradictions, major discrepancies and dishonest improvements. We do not see any legal infirmity in their statements. They claim to have seen the appellant opening the attack on the deceased and caused him injuries with dagger. We do not see any reason to disbelieve their statements which also stand corroborated by recovery of dagger P.4 stained with human blood and supported by reliable witnesses namely, Tariq Pervaiz P.W.6 and Muhammad Saeed P.W.7. Tariq Pervaiz is a quite independent witness having no ill-will with the appellant. His house is at a distance of 50/60 yards from the place wherefrom the appellant dug out the dagger and produced before the police. So we are of the view that the prosecution case and the evidence produced by it cannot be discarded.
13. This brings us to the version of the occurrence told by the appellant. The appellant's case is that Hakam Khan deceased was a bad character and criminal. He used to gamble with Saeed and Maqsood eye-witnesses and others at the Dera of Sharif and that at the time of occurrence there was quarrel between them over the distribution of money and Hakam Khan was injured by the two eye-witnesses and other gamblers. Thereafter Saghir Ahmad S.H.O. P.W.10 who had links with the gamblers concocted a false story and involved him in the murder. Khalil Ahmad D.W.1 who was originally prosecution witness and was given up as having been won over while supporting the version of the occurrence given by the appellant stated that at the time of occurrence he had seen Hakam Khan deceased, Maqsood and Saeed eye-witnesses and others gambling in a room and that these ensued dispute between them over the distribution of the gamble amount and three out of them caused injuries to Hakam Khan who on receiving the injuries came out of the room and fell down at a distance of about 100 yards. The witness also stated that Muhammad Saved complainant was a inimical with the appellant because the latter was responsible for raids conducted on the gambling den. We have not been impressed by the statement made by the defence witnesses. Khalil Ahmad D.W.1 was originally a prosecution witness and that he was given up as having been won over. In cross-examination he admitted that he had not disclosed the statement made by him in the Court as D.W. Before any private person or before the police although he had appeared before it on 6-11-1981. Abdul Hameed D.W. Had a reason to make false statement because Muhammad Saeed complainant had lodged a case under section 307, P.P.C, against him. He was arrested in that case and the appellant had pursued his case and had helped him in bail including the filing of bail bonds. The witness admitted in the cross-examination that during the days of his arrest in case under section 307, P.P.C., the appellant used to supply him eatables in the jail and also used to provide cash. Khan Bahadur Head Constable has stated about the two cases registered under the gambling Act but Hakam Khan deceased was not mentioned as accused in those cases. Khurshid Ali D.W. 4 brought original F.I.R. No. 291, dated 28-8-1981 under section 365, P.P.C. Against Muhammad Saeed complainant. In cross-examination he admitted that Iftikhar Ahmad L appellant was neither a witness nor a complainant in that case. It is very much obvious that the appellant has raised the plea of substitution in place of Muhammad Saeed, Maqsood Ahmad the two eye-witnesses and others. It is well-settled that substitution is a thing of rare occurrence and cannot be assumed and he who sets of the plea of substitution has to lay the foundation for it. We feel that the appellant has neither been able to establish the plea of substitution through reliable witnesses or circumstances appearing in the case nor has been able to lay concrete foundation for it. Had Muhammad Saeed P.W.7, Maqsood Ahmad P.W.9 and other gamblers murdered Hakam Khan deceased and the occurrence taken place in the manner as stated by the appellant then in the ordinary course of events Khalil Ahmad D.W.1 who according to the prosecution and defence as well, was present at the time of occurrence would have stated so before the Police at proper time. The failure on his part to disclose the real culprits and the manner of E occurrence before the police, as admitted by him, shows that the plea taken at the time of trial is false and afterthought. For all these reasons, we are convinced that Iftikhar Ahmad alias Manna and none else had caused the death of Hakam Khan and as such he has rightly been convicted under section 302, P.P.C. By the trial Court.
14. This brings us to the question of sentence. We find that there are circumstances for lesser penalty in his favour inasmuch as the motive for the murder of the deceased is shrouded in mystery. Prosecution has not produced any witness of the motive incident. The motive had come out of the mouth of the appellant at the time of occurrence. Muhammad Saeed P.W.7 has stated: "The motive of occurrence we had come to know from the mouth of the accused as he had stated that Hakim Khan had insulted his brother."
We do not know the nature of aforesaid insult and as such it would be in accordance with the safe administration of justice in criminal cases that benefit of doubt is given to the appellant in the matter of sentence.
15. The upshot of the above discussion is that there being satisfactory basis to uphold the conviction of the appellant under section 302, P.P.C. , we maintain the same but alter the sentence of death to imprisonment for life. The sentence of fine or imprisonment in default thereof awarded by the trial Court is maintained.