Zulfiqar alias Zulfi, Nazir alias Nida sons of Ahmad Din, Muhammad Siddiq alias Bohli son of Qadir Bakhsh and Muhammad Siddiq son of Gharibu, were tried for the murder of Muhammad Rafiq. By his judgment, dated 28-7-1981 Muhammad Rafiq Shah, Additional Sessions Judge, Lahore, convicted the aforesaid accused under section 302/34, P.P.C. And: sentenced each to imprisonment for life. They were also fined Rs.7,000 each or in default to undergo one year's R.I.
Further. Half of the fine, if realised, was ordered to be paid to the legal heirs of the deceased. Jail appeal of Zulfiqar and of the remaining three convicts as also the revision (Criminal Rivision 670 of 1981) are disposed of by this judgment.
2. About seven years before the occurrence in this case, Mst. Hameeda, sister of Muhammad Siddiq alias Bohli accused was married to Muhammad Siddiq informant. Their married life was not happy and the informant was contemplating to divorce his were. On the intervention of the Baradari, there was a patch up. A day before the occurrence the couple quarrelled with each other. Mst. Hameeda complained against her husband to her parents. Her relations Siddiq Bohli, Zulfi, Nazir alias Nida and Siddiq son of Gharibu went to the house of the informant. They threatened him and his relations, saying that they would take the revenge of the insult to their sister.
3. On 12-9-1980, at about 4-00 p.m. Muhammad Siddiq informant and his brother Muhammad Rafiq were standing in the street near the Oxygen Factory. As they sat down the four accused jumped over the wall and appeared there. Zulfi had a Churri with him and the others were empty handed. Siddiq son of Gharibu raised Lalkara that they should not be spared upon which Siddiq Bohli and Nazir alias Nida caught hold of Siddiq informant. His brother Muhammad Rafiq tried to rescue him. Zulfiqar attacked him with the knife hitting him in the chest. On the alarm raised by Siddiq informant the accused fled away. The occurrence was also witnessed by P.Ws. Hassan Din and Mahmood. Siddiq took his brother Rafiq to the Mayo Hospital but on reaching there Rafiq succumbed to the injuries.
4. P.W. 10 Rehmat Khan S.I. Police Station Moghalpura was on patrol duty at Sehr Road near Crown Park, he received information about the occurrence upon which he went to the hospital and sent some constables to the place of occurrence. On reaching the hospital he recorded statement Exh.
P.A. Of Muhammad Siddiq at 5-45 p.m. On the basis of which formal F.I.R. Exh. P.A./1 was registered at P.S. Moghalpura the same day. The place of occurrence was half a mile from the police station.
After preparing the necessary documents, S.I. Sent the same to the police station. From there he went to the place of occurrence and inspected the spot, took into possession blood-stained earth and articles of the deceased.
5. P.W. 8 Dr. Tahir Anis, Deputy Police Surgeon, Lahore, held the autopsy on the dead body of Muhammad Rafiq on 13-9-1980 at 1.00 p.m. And found a stab wound 2 x .5 c.m. Over upper right front part of chest extending vertically oblique. There was a stab in the right front chest which caused a cut in the aorta, and was sufficient to cause death. Stomach contained semi-digested food.
6. P.W. 10 Rehmat Khan, S.I. Arrested all the accused on 13-9-1980. The same day Zulfiqar accused got recovered Churri P.3 from near the graveyard of Darbar Barey Mian. It was sealed into a parcel vide memo Ez. P.C. Attested by Muhammad Ishfaq P.W. 4 and Muhammad Rafiq (given up).
According to the Serologist's report it was stained with human blood.
7. At the trial all accused denied guilt and ascribed the case to enmity. Explaining the case against him, Zulfiqar said that his cousin Siddiq Bohli had a family dispute with Siddiq P.W., therefore, he has been falsely roped in due to suspicion. Muhammad Siddiq Bohli stated that his sister Mat.
Hameeda was married to Siddiq informant and he was married to informant's sister in Watta. There being a family dispute and enmity, he has been falsely roped in. The remaining accused took up the same position. According to Muhammad Siddiq son of Gharibu since Siddiq P.W. Did not pay him the instalments of the Committee, which he had been demanding, therefore, he has been falsely roped in. Moreover, there was a dispute over a donkey race. No accused produced defence Relying on the evidence of the prosecution witnesses, trial Court came to the conclusion that all accused after premeditation attacked the deceased. Learned counsel for the appellants criticised trial Court's finding and contended that Nazir alias Nida, Muhammad Siddiq alias Bohli and Muhammad Siddiq son of Gharibu did not take any active part in the occurrence and according to the prosecution case itself they were empty handed. He added that they have been falsely roped in by the interested prosecution witnesses. Siddiq informant had strained relations with the accused who was married to the sister of Siddiq Bohli,whereas, Hassan Din was closely related to Siddiq informant. Hassan Din P.W. 9 is admittedly a Khalu of the informant. It was further argued that the draftsman stated that it was a dilapidated wall which at places was not high at all as such accused could have scaled over it and could easily cross over it. It is in the cross-examination of Muhammad Siddiq that when the accused came there, the informant and the deceased were not expecting an attack from them at that time. This circumstances clinches the matter because it showed that when the accused appeared at the scene the Churri could not be in the hand of Zulfiqar at that time. Had Zulfiqar's knife been visible then the informant would not have said that he did not expect any foul play as the accused appeared. He rightly felt so. Had there been a knife in his hand at that time, then the informant would have taken to heels. In view of these circumstances of the case, it cannot be said with certainty that the accused Zulfiqar had an open knife in his hand when he entered the plot where the deceased and his brother were sitting. In this view of the matter, it would, therefore, not be safe to apply section 34, P.P. C. In this case. It is also noteworthy that after having attacked Rafiq, no attempt was made to attack Siddiq informant with whom there was the main grudge. As such what transpired between them immediately before the attack is not clear. In these circumstances, consider the prosecution case doubtful in so far as Siddiq Bohli Nazir alias Nida and Muhammad Siddiq son of Gharibu. They are, therefore, acquitted of the charge. They are on bail. Their bail bonds shall stand cancelled.
9. The fatal injury is attributed to Zulfiqar which is fully corroborated by the informant, Hassan Din, the medical evidence and the other circumstances of the case. I have no reason to doubt the presence of Hassan Din at the spot. They all live in the same locality. E The knife recovered from Zulfiqar was found to be stained with human blood. The case against him is over-whelming. I, therefore, see n force in his appeal, which is dismissed, with the modification that the sentence of fine is reduced to Rs.2,000 in default to undergo six months' R.I. Further.