QURBAN SADIQ IKRAM, J.------This is an appeal by Muhammad Hanif (26) anti Khadim Hussain
(42) against their conviction under section 302/34, P.P.C. By learned Additional Sessions Judge, Lahore who, vide judgment, dated 19-9-1982 sentenced Muhammad Hanif to death and fine of Rs.1,000 or in default six months' R.I. And sentenced Khadim Hussein to imprisonment for life and fine of Rs.10,000 or in default six months' R.I. It was ordered that half of the fine, if recovered, be paid as compensation to heirs of Ijaz Ahmad deceased aged 19 years.
Muhammad Rafique (30), a co-accused of the appellants was acquitted by the same judgment.
Muhammad Hanif appellant having been sentenced to death, the proceedings are also before us for confirmation of sentence.
2. The occurrence in this case took place on 13-4-1981 at 6-30 p.m. On Abdul Ghani Road, Katchay Bagh, about 1-- Km. From Police Station Shalimar, Lahore. The F.I.R. Exh.P.N. Was recorded at police station by S.I. Ghulam Qamar P.W.14 on the same day at 8-30 p.m. At the instance of Muhammad Latif P.W.11.
3. It was stated by Muhammad Latif complainant in his First Information Report that he was a cultivator. On 13-4-1981 he alongwith Asghar All was present at his old house in Katchay Bagh and getting the foundations levelled. At about 6-30 p.m. He saw his son Ijaz Ahmad (deceased) coming on a motor-cycle. Allah Ditta who was betrothed to his daughter was sitting on the pillion seat.
When they reached near the shop of Ibrahim Machhi, suddenly Khadim Hussain accused came forward and stood in front of the motor-cycle. Ijaz Ahmad stopped. In the meanwhile Muhammad Hanif armed with Chhuri and Refique armed with Sooa came there. Khadim Hussain alias Khado shouted a Lalkara that today Ijaz should not be spared. Both Ijaz and Allah Ditta raised alarm for help. He (complainant) and Asghar Ali P.W. Rushed to that side. Muhammad Hanif gave a Chhuri blow on the front of chest of Ijaz. Rafique gave Sooa blow on the abdomen of Ijaz who fell down.
Thereafter Hanif accused gave repeated Chhuri blows on various parts of the body of Ijaz Ahmad.
The accused then ran away from the spot. The occurrence was witnessed by Asghar Ali, Muhammad Ramzan and Allah Ditta besides the complainant. Many other people also assembled there. Ijaz was taken to Mayo Hospital by the complainant with the help of Muhammad Sharif and Muhammad Ramzan where he died as a result of the injuries after medical examination and first aid treatment.
The motive was stated to be that in the year 1967 Abdul Latif a brother of Muhammad Hanif and Rafique accused was murdered and Khadim Hussain accused was injured in that occurrence for which Muhammad Latif complainant and 4, others were prosecuted and acquitted.
Ijaz Ahmad deceased, when still alive was taken to Mayo Hospital where he was medically examined by Dr. Abdus Sattar Chaudhy at 7 P.M. On 13-4-1981. The said doctor was not available for evidence during the trial. The prosecution, therefore, examined P.W 16 Muhammad Hussain who identified his handwriting and the medico--legal certificate, regarding the injuries of Ijaz Ahmad, Exh. P.W. He died shortly thereafter at 8 p.m.
4. The dead body of Ijaz Ahmad deceased was sent for post-mortem examination which was conducted by P.W.6 Dr. Sabir Ali on 14-4-1981 at 11-35 a.m. On external examination the medical officer found the following injuries on the dead body of Ijaz Ahmad:- (1)Incised wound 3 x 2 c.m. Bone deep; just outer and below the right eye. There was superficial cut on the bone.
(2)Incised wound 1-- x 1 c.m. Muscle deep, outer upper end right arm.
(3)Incised wound 2 -- x 1 c.m. Muscle deep outer end of right arm.
(4)Incised wound 1-- c. m. x 1 c. m. Going deep on the front of right chest 9 c.m. Above the nipple transversely at 1 o'clock.
(5)Incised wound 1-- x 1-- c.m. On the right chest, 1 c.m. Below injury No. 4, going deep.
(6)Incised wound 1-- x 1 c.m. Going deep on the right side of the abdomen 5 c.m. Above the navel at 11 o'clock.
(7)Incised wound 2 x -- c.m. Muscle deep on the back of right shoulder.
On dissection it was found that injury No. 4 had cut the second rib and had punctured the right lung. Injury No. 5 had entered through the second space and had punctured the right lung and right side of heart through and through. The right side of chest contained 70 oz. Of blood. The other injuries were non-penetrating.
5. The police after registration of the case undertook investigation. S.I. Ghulam Qamar P.W.14 during inspection of the spot on 13-4-1981 collected blood-stained earth, vide memo. Exh.P.C. From the place of occurrence. He also found motor-cycle Exh.P.2 lying at the place of occurrence. It was taken in possession by him, vide memo. Exh.P.D. In presence of Abdul Karim P.W.5 and Muhammad Khalid P.W. Not examined.
The three accused were arrested on 16-4-1981.
On 18-4-1981 (wrongly printed in record as 14-4-1981) Muhammad Hanif accused, while in police custody led to the recovery of blood-stained Chhuri P.4 from his house which was taken in possession by S.I. Ghulam Qamar P.W.14, vide memo. Exh.P.G. In presence of Bin Yamin P.W.7 and Siraj Din P.W, not examined.
On 18-4-1981 Muhammad Rafique accused while in police custody led to the recovery of blood- stained Sooa P.3 from his house which was taken in possession, vide memo. Exh.P.H. By the Investigating Officer in presence of the same witnesses.
On 16-4-1981, at the time of his arrest Muhammad Hanif accused was found wearing blood-stained shirt P.1 which was taken in possession by S.I. Ghulam Qamar P.W.14 in presence of A.S.I.
Muhammad Hanif P.W.3 and H.C. Abdul Qayyum (not examined).
The shirt P.1, Sooa P.3 and Chhuri P.4 were found stained with human blood, vide report of the Chemical Examiner Exh.P.Q. And that of Serologist Exh.P.R.
The accused were challaned after completion of the investigation.
6. The prosecution during the trial examined 16 witnesses in all. P.W.11 Muhammad Latif P.W. 12 Muhammad Ramzan and P.W.13 Allah Ditta were examined as eye-witnesses. Asghar Ali another eye-witness named in F.I.R. Was given up as having been won over by the accused. The incriminating recoveries from the accused were witnessed by A.S.I. Muhammad Hanif P.W. 3 and Bin Yamin P.W.7. The recoveries from the place of occurrence were witnessed by Abdul Karim P.W.5.
The medical evidence was furnished by P.W.6 Dr. Sabir Ali. A.S.I. Noor Muhammad P.W. 1 proved the F.I.R. Exh.P.A. Pertaining to the year 1967 in support of the evidence on motive. The case was investigated by S.I. Ghulam Qamar P.W.14.
The accused when examined under section 342, Cr.P.C. Denied the charge and pleaded innocence.
Muhammad Rafique and Khadim Hussain accused denied their presence at the spot at the time of occurrence. The accused denied recovery of crime weapons at their instance. Muhammad Hanif accused admitted that in the year 1967 his brother Latif was murdered for which Abdul Latif P.W.
And others were prosecuted and acquitted. He denied of having any grudge on that account. He admitted that the police secured his shirt at the time of arrest but denied the same to be stained with blood. In answer to question as to why this case against him, he stated that on the day of occurrence he was eating some fruit at the shop of Khadim. Ijaz deceased came there on a motor- cycle and hit him. He remonstrated him. He (Ijaz deceased) picked up a Sooa from the Thara of Zulfiqar ice-seller and advanced towards him. He apprehended grievous hurt at the hands of the deceased. He picked up Chhuri from the Chhaba of Khadim Hussain and gave one Chhuri blow to the deceased who retreated and then again advanced towards him. He apprehended further harm from him and, therefore, caused the remaining injuries in his self-defence. It is stated by him that his co-accused were not present at that time nor the eye-witnesses were present. He stated that Sooa and Chhuri fell at the spot after the occurrence. He examined D.W. 1 Tariq Mahmood who claimed to be eye-witness of this occurrence and supported the story narrated by the accused in his statement. Tariq Mahmood D.W.1 is son of Khadim Hussain accused. The accused did not produce any other defence evidence.
The learned trial Judge placed reliance on the evidence on motive, eye witnesses, and recovery of Chhuri at the instance of Muhammad Hanif accused and convicted the two appellants as stated above. Rafique accused was acquitted because according to the medical officer no injury on the person of Ijaz deceased could have been caused by a Sooa.
7. We have gone through the evidence on record and have heard the learned counsel for the appellants and the State at some length.
8. It is contended on behalf of the appellants that Khadim Hussain appellant was not involved in this occurrence and even if his presence is admitted, then also there is nothing to show that he shared common intention with his co-accused Muhammad Hanif. Secondly, that the prosecution witnesses are interested and, therefore, not reliable. Thirdly, the recovery of Chhuri from Muhammad Hanif accused has not been proved and as such the same cannot furnish corroboration to the eye-witness account of this case. Fourthly Muhammad Hanif accused acted in the exercise of the right of his self-defence and finally, that even if the prosecution evidence is accepted then also it was not a case of award of death sentence because the immediate motive was shrouded in mystery. The learned counsel for the State controverted the contentions on behalf of the appellants. The prosecution case rests on the evidence on the motive, recovery of Chhuri P.4 from Muhammad Hanif accused and three eye-witnesses.
It was stated by Muhammad Latif P.W.11 that in the year 1967 Latif a brother of Muhammad Hanif appellant was murdered. In that occurrence Khadim Hussain accused was injured. A case was accordingly registered against him (Muhammad Latif P.W.) and four others. They were prosecuted and acquitted. Muhammad Latif P.W. 11 is supported by the copy of the F.I.R., dated 19-8-1967 Exh.P.A. This motive was admitted by Muhammad Hanif accused in his statement under section 342, Cr.P.C. The prosecution has, therefore, proved motive against the accused in this case.
9. The accused Muhammad Hanif was arrested on 16-4-1981. He was found wearing blood-stained shirt P.1 at the time of his arrest. It was taken in possession by the Investigating Officer. The accused in his statement has admitted the recovery of shirt though he has denied that the same was at that time stained with blood. He has thus, admitted the ownership and possession of the shirt P.1. It was found stained with human blood, vide the report of Serologist Exh.P.R. The recovery of this shirt lends corroboration to the three eye-witnesses.
The accused Muhammad Hanif, on 18-4-1981 while in police custody led to the recovery of blood- stained Chhuri P.4 from his house. It was contended by the learned counsel that this recovery should not be believed because firstly, it was recovered after 3 days; secondly, that the recovery witnesses joined investigation when he went to inquire about the progress of this case which means that he was interested and finally, that he was a resident of a place 5/6 miles from the place of recovery. We have considered these contentions and find them without any force. It is correct that Bin Yamin P.W.7 was a resident of a place 5/6 miles from the place of recovery of Chhuri P.4 but he was an independent witness. He had no relationship with the complain is nor any enmity with the accused. The distance of 5/6 miles was not much. It was not stated by this witness that he had gone to inquire about the progress of this case. It was stated by him that Siraj (given" up P.W.) was his friend and had taken him to the police station where he had some business and they joined the police investigation oil the asking of the police. We do not find anything unusual in his statement. This witness accompanied Siraj, given up P.W., to the police station and joined investigation of this case. This witness, as held above was, an independent witness and we do not find anything to disbelieve him. The recovery was effected at the instance of Muhammad Hanif accused.) It is correct that his father lived with him in the said house but the, recovery was effected on his pointing out and the place of recovery was within his special knowledge. The Chhuri was stained with human blood and, therefore, provides corroborating circumstance in this case.
10. The ocular account has been furnished by P.W.11 Muhammad Latif, P.W. 12 Ramzan and P.W. 13 Allah Ditta. It was contended on behalf of the appellants that these three witnesses were interested; that the presence of the witnesses was not mentioned in the site plan: that their clothes did not get stained with blood when they took Ijaz Ahmad deceased to the hospital and that they were disbelieved by the trial Court as against Muhammad Rafique acquitted accused because the medical officer did not support them by deposing that no one of the injuries on the person of the deceased could be caused by a Sooa. We have considered these contentions in the light of the evidence on the record.
Muhammad Latif P.W. Was father of Ijaz Ahmad deceased. Allah Ditta P.W. Had been betrothed to a daughter of Muhammad Latif complainant. These two witnesses are, therefore, related to the deceased. Ramzan P.W. Is not in any way related to the deceased. It was stated by Muhammad Latif complainant that Ramzan lived in two rooms of his house for some time as tenant which fact was denied by this witness. C Even if Ramzan was a tenant of Muhammad Latif complainant for some time this would not mean that he was hostile or a person interested to make false statement against the accused. There is no evidence that Ramzan was a tenant of Latif complainant during the days of occurrence. He had no enmity with the accused and was, therefore, in our view, an independent witness. We have seen the site plan. The presence of the eye-witnesses was shown with points B, C, D and E. It was pointed out by the learned counsel that the names of the witnesses I were not mentioned in the inspection note prepared by the Investigating Officer on his arrival at the place of occurrence. This argument is without any substance. It was not necessary for the Investigating Officer to mention the presence of the eye-witnesses in his inspection note. The said inspection note is required to contain the condition /position of the place of occurrence noted/observed/seen by the Investigating Officer when he for the first time arrives at the place of occurrence. The places where the eye-witnesses were present were indicated in the site plan Exh.P.J. Which was the proper document to indicate their presence at a particular place at the time of occurrence.
It is in evidence that Ijaz Ahmad when still alive was immediately removed to Mayo Hospital, Lahore in injured condition after the occurrence. It was not necessary that in the said process the clothes of all the eye-witnesses should have got stained with blood. Even if the clothes had received some bloodstains then also those being not incriminating articles were not required to be taken in possession by the Investigating Officer. The absence of bloodstains on the clothes Of the eye- witness would not mean that they were not present at the spot at the time of occurrence.
It was argued by the learned counsel that the conduct of Allah Ditta P.W. Was unnatural because after the occurrence and before the death of Ijaz Ahmad he went away from the place of occurrence and slept in his house. It was argued that he should have reported the matter at Police Station Shalimar instead of going back to his house. We do not find the conduct /behaviour of Allah Ditta P.W. In any way unnatural. It is stated by him that he went to village to inform his relatives and then slept in his house during the night. This was a proper conduct of Allah Ditta. He was not to inform his relatives only the death of Ijaz Ahmad had to inform his relatives about the occurrence which was very natural conduct for villagers. It was pointed out by the learned counsel that Ramzan P.W. Stated that the police did not record his statement during investigation of this case.
This argument is also without any substance. Ramzan witness seems to have made this statement under some wrong impression. It is a fact that he was examined by the Investigating Officer during investigation. .
11. The medical officer did not support the prosecution case that Muhammad Rafique accused gave Sooa blow to Ijaz Ahmad deceased. The benefit of this has already been given to Muhammad Rafique who was acquitted by the trial Court. This disparity in no why helps Muhammad Hanif appellant because he admitted to have caused all the injuries on the person of Ijaz Ahmad deceased during this occurrence. There was no incident between the parties after the murder of Latif ink the year 1967. The eye-witnesses have consistently supported the prosecution case. The learned counsel for the appellants has not beet, able to point out any improbability in their statements or any contradiction to in the statements of these witnesses. They have been supported by the recovery of Chhuri P.4 and shirt P.1. The motive was admitted by Muhammad Hanif accused. We therefore, find no reason to disbelieved the three eye-witnesses of this case. We have considered the defence: version set up by the accused Muhammad Hanif. Tariq Mahmood D.W.21 is the son of Khadim Hussain accused. The fruit shop was run by Khadim Hussain. There is no evidence that Tariq Mahmood was ever seen vending fruit at the said shop. Muhammad Hanif accused did not receive any injury on his person. There was no mark of injury on account of the striking of motor-cycle of the deceased as claimed by him. We are not impressed by the defence version in this case. Muhammad Hanif accused did not have any right of self defence. It was contended on his behalf that the Sooa was picked up by the deceased from the shop of Zulfiqar ice-vendor, that deceased did not inflict any injury with the said Sooa and that the evidence of blood on the said Sooa was fabricated by the police to create evidence against Muhammad Rafique acquitted accused. This defence version is not supported by any circumstance appearing on the record of this case. Zulfiqar ice-vendor was not examined during the trial. The defence story is supported only by the interested witness and is accordingly discarded from consideration.
12. The evidence in this case shows that the motive in this occurrence dated back to the year 1967.
No incident/occurrence/fight/quarrel took place between the parties from 1967 till this occurrence.
It is not known as to how the occurrence started on the day of occurrence. There is no evidence as to why Muhammad Hanif accused decided to launch an attack on Ijaz Ahmad deceased on the day of occurrence. The immediate motive is shrouded in mystery. As such we are of the view that the sentence of death was uncalled for.
Khadim Hussain accused was empty-handed at the time of occurrence. He did not cause any injury to the deceased. He was any injured witness in the year 1967 in the case pertaining to the murder of Muhammad Latif brother of Muhammad Hanif accused. Even if he was present alongwith Muhammad Hanif accused at the time of occurrence, it cannot be said that he shared common intention with him to cause I the death of Ijaz Ahmad. We therefore, as abundant caution give him benefit of doubt and acquit him of .The charge. We accept the appeal of Khadim Hussain and set aside his conviction and sentence under section 302/34, P.P.C. He shall be released from prison forthwith if not required in any other case.
13. As a result of the above discussion the appeal of Muhammad Hanif accused-appellant is dismissed. His conviction under section 302, P.P.C. Is maintained. However, we alter his sentence of death to imprisonment for life and fine of Rs.5,000 or in default six months' R.I. The entire amount of fine if recovered will be paid as compensation to heirs of the deceased. Muhammad Hanif will be allowed benefit of section 382-8, Cr.P.C. The sentence of death of Muhammad Hanif is not confirmed.