Zafar Iqbal (33), resident of village Thro, Police Station Philaura, district Sialkot, was tried for having murdered Muhammad Din (47), his co-villager, on 2-7-1982, at 3 p.m., in the village street, in front - -of the house of given up P.W. Rehmat, by Sessions Judge, Sialkot. The learned trial Judge vide judgment, dated 15-3-1983; convicted him under section 302, P.P.C. And sentenced him to undergo imprisonment for life plus a fine of Rs.5,000, in default whereof to undergo R.I. For two years'. Whole of the fine, on realization, has, been directed to be paid as compensation to the heirs of the deceased.
2. The convict has filed appeal. The complainant has filed Criminal Revision No. 65 of 1986, for enhancement of the sentence of the accused from life imprisonment to death. As both the matters arise out of the one judgment" they are being disposed of by one judgment.
3. F.I.R. (Exh. P.A.) was registered at Police Station Philaura, at a distance of five miles from the place of occurrence, on the same day, at 5-40. p.m. It was recorded by Tariq Hanif, S.I./S.H.O. (P.W. 11), on the statement of Muhammad Nawaz complainant (P.W.1), son of the deceased.
4. According to the F.I.R., Muhammad Nawaz complainant was busy in construction of their house alongwith his deceased father Muhammad Din and brothers Shaukat and Snoba. At about Peshiwela, his younger brothers Iftikhar and Afzal entered the house while weeping On quern by their father, they told him that Zafar Iqbal had beaten them. W their Dera and was now following them to the village. The deceased accompanied by Shaukat and Sooba, his sons went out. A short- while later, complainant went out on hearing noise. When he reached near the house of Rehmat son of Allah Rakha, he saw Lafar Iqbal grappling with his father, in the presence of his brothers, Shaukat and Sooba and Mst. Sairan Bibi, were of Sadiq. The complainant proceeded ahead, to rescue his father. In the meantime, Muhammad Ismail son of Nawab Din also came there running, but before their reaching near the deceased, Zafar Iqbal brought out Khanjar (dagger) from his fold and plunged the same in the left flank of Muhammad Din. He fell down. Mst. Sairan wrapped her Dopatta on the wound by pushing the intestines inwards. Muhammad Din was taken to Civil Hospital, Chowinda on a tonga by the complainant and Muhammad Ismail, where he died soon after his arrival.
The motive given in the F.I.R. Is that 3/4 days prior to the occurrence Zafar Iqbal had complained to Rehmat Ali P.W. About deceased having out the common demarcation (Watt) and had given out that he will take revenge of this high-handed ness (Ziadti).
5. Tariq Hanif, S.I./S.H.O. (P.W. 11), after recording the F.I.R., went to Civil Hospital, Chowinda. He despatched the dead body of Muhammad Din for post-mortem after preparing necessary papers.
Post-mortem examination was performed by Dr. Muhammad Sarwar, Medical Officer, Tehsil Headquarters Hospital, Pasrur, on the following day at 2 p.m. He noted following injuries on the body of the deceased:-- (1)An incised wound, 4.5 c.m. x 1.5 cm, on the front of the left side of abdomen, in mid clavicular line, 8.5 c.m. From midline, and 10.5 c.m. From umbilicus. The wound was cavity deep and the intestines were protruded out through the wound. The edges of the wound were clean and the wound was transverse in direction.
(2)An abrasion 1 c.m. x .7 c.m, on inner side of left eye: According to the opinion of the doctor, deceased had died due to Haemorrhage, shock and peritonitis, caused by injury: No. 1, which was sufficient to cause death in the ordinary course of nature. The injury was opined to have been caused by a sharp-edged weapon. In cross- examination the doctor stated that the possibility of injury No on the deceased being result of a fall cannot be excluded.
6. The Sub-Inspector (P.W. 11) after being free from the hospital visited the spot, wherefrom he collected blood-stained earth vide memo. Exh. P.D.
Zafar Iqbal was arrested by him on 3-7-1982 from Civil Hospital, Pasrur, where he was admitted. As he was bearing injury the Sub-Inspector got him medically examined at 3-00 p.m. The same day.
According to the medicolegal report (Exh. P.H.), he was found have suffered a contusion, 13 c. m. x 3 c.m. On back of chest, over the vertebral column, oblique in direction. The injury was opined be simple, caused within 10 to 24 hours by a blunt weapon.
The Sub-Inspector at the time of arrest of Zafar Iqbal had taken into possession blood-stained shirt (P. 1) and blood-stair Shalwar (R. 2), worn by him, vide memo. Exh. P.B.
On the same day the appellant led to the recovery of blood-stained dagger (P. 3), from his residential house, which was taken into possession vide memo. Exh. P.C.
7. At the trial, prosecution in all examined eleven witnesses. The ocular account was deposed to, by Muhammad Nawaz (P.W. 1) and real brother Shaukat (P.W. 2).
Muhammad Nawaz re-narrated the facts given by him in the F.I.R. However, while stating about the incident of cutting of Watt by the deceased, he stated that, "my father Muhammad Din rectified the common Watt between the land .Of the accused and our land, whereupon the accused felt annoyed. The accused asked Rehmat Ali P.W. To direct my father Muhammad Din to resettle the Watt, otherwise he would kill him." He also explained that this fact was told to him by his father 3/4 days prior to the occurrence.
He did not state at the trial that appellant had grappled with his father before giving him the fatal injury. In cross-examination, he stated that Iftikhar and Afzal, who were given beating by the appellant at the Dera had suffered injuries as a result of brickbats thrown at them by the appellant when they had started for the village. He denied the suggestion that Shaukat was at the Dera at the time of occurrence and he was in village Akarpur at the time of occurrence.
Shaukat (P.W. 2) corroborated the statement made by Muhammad Nawaz in examination-in-chief.
However, he added that the appellant had first given fist blows to the deceased and had stabbed him when given up P.Ws. Rehmat, Mst. Sairan, Sooba and he (Shaukat) attempted to intervene. In cross-examination, on confrontation with his statement (Exh. D.A.), under section 161; Cr. P.C. He was not found to have stated that Iftikhar and Afzal had told them that they had been beaten by Zafar Iqbal. He was found to have stated in Exh. D.A. That he was busy in constructing the house alongwith his father Muhammad Din and his younger brother Muhammad Nawaz P.W. He was not found to have stated in Exh. D.A. That Iftikhar and Afzal had told them that the accused was following them to the village. On further confrontation he was found to have stated in Exh. D.A. That he alongwith Sooba was present on the day of occurrence at their Dera and Zafar Iqbal had abused them after telling them that their father had spoiled the common Watt and they had also returned the abuses. On further confrontation with Exh. D.A., he was also found to have stated that Zafar Iqbal had given them beating whereupon they had returned to their house.
He stated in cross-examination that Iftikhar and Afzal had appeared before the police and they were bleeding at that time. The police had examined their injuries and had got them treated from the hospital. He stated categorically in cross-examination that they had not given any beating to the accused on the spot. He denied the suggestion that he had not witnessed the occurrence.
The evidence of recovery of blood-stained dagger (P.3), on the pointing out of the appellant, was deposed to by Ehsanullah (P.W. 3). It was corroborated by Tariq Hanif, S.I./S.H.O (P.W. 11).
Ehsanullah also deposed about having witnessed the taking into possession of blood-stained shirt and Shalwar of the appellant by the police in the hospital on 3-7-1982. However, in cross- examination he stated that these clothes were with the accused and he had handed over the same to the police and that he was not wearing them at teat time. He denied that these clothes were got removed by the Thanedar from the person of the appellant. While admitting that he was an accused under section 307, P.P. C. In a case, he denied the suggestion that the appellant was a witness in that case. He admitted that at the time of recovery of dagger (P. 3), 200/250 persons were present. He denied the suggestion that he had made a false statement.
8. The appellant during his statement under section 342, Cr. P. C. Denied the prosecution allegations. He denied the factum of recovery of his blood-stained clothes and blood-stained dagger at his instance. In answer to the question, "do you want to say anything else", he stated as under:-- " . . My land is situated contiguous to the land of Muhammad Din deceased in village Thro. It so happened that on 2-7-1982, the --cattle heads belonging to Muhammad Din deceased and being attended by Shaukat and Sooba P.Ws. Trespassed into my land and caused tremendous damage to the mangoes and cherry trees belonging to me. I objected to it. Thereupon, Shaukat P.W. Hurled abuses at me. I exchanged blows and abuses with him. On account of that incident, I was falsely roped in this case by the complainant side. Muhammad Nawaz informant was working as tractor driver in village Akarpura in the days of occurrence. He was brought to the village by Yaqoob P.W.
He lodged a false case against me after full deliberations with the police."
Although he opted to produce defence on the day his statement was recorded under section 342, Cr.P.C. But on subsequent day, i.e. 2-3-1983, he refused to produce any defence evidence.
9. Learned counsel for the appellant contended that the prosecution has failed to prove motive in so far as it pertains to the incident of cutting of Watt and issuance of threats to avenge by the appellant is concerned, that the ocular account has been deposed to by only two real brothers, who are sons of the deceased and that there is evidence on record to consider that the eve- witnesses had not seen the occurrence. Alternately, learned counsel argued that even if their presence is admitted, conviction of appellant under section 302, P.P.C. Cannot be maintained, as they had not deposed true facts and their statements do not inspire confidence. Learned counsel argued that the evidence of recovery of blood-stained dagger and blood-stained clothes of the appellant is not credit worthy and so does not lend any support to th2 ocular account furnished by interested witnesses. Lastly, learned counsel contended that the prosecution evidence even on its face value at the best discloses a case under section 304, P.P.C.
10. Learned counsel for the State/ complainant, on the other hand, defended the judgment of the trial Court.
11. It may be of interest to note here that the parties are admittedly related inter se. According to Muhammad Nawaz complainant (P.W. 1), his paternal-grandfather and the paternal-grandfather of appellant were real brothers. It is also admitted that given up P.Ws. Rehmat Ali, Ismail and Mst.
Sairan are also related to both the parties.
12. The argument of the learned counsel for the appellant that the prosecution have failed to prove the motive in so far as it pertains to the threat alleged to have been issued by the appellant on cutting of Watt by the deceased, is not without force. The reason being, that A Rehmat Ali before whom this threat was allegedly issued by the appellant, was not produced at the trial. Muhammad Nawaz complainant did not claim that the threat was issued in his presence. In fact, he categorically stated at the trial that he had learnt it from his deceased father. Nowhere it has come on record that Rehmat Ali had ever informed the deceased about the threat issued by the appellant. In this view of the matter, no credence can be given to the statement made by Muhammad Nawaz complainant.
13. The argument of the learned counsel for the appellant that P.W. Muhammad Nawaz and Shaukat were not present at the spot at the time of occurrence, has not impressed me. Reference in this regard by the learned counsel to the statement of P.W. 6 that Muhammad Nawaz was called from an other village after the occurrence, does not carry any weight. Muhammad Yaqub (P.W. 6) was a formal witness. He was produced only to depose about the identification of the dead body at the time of autopsy. The concession extended by him to the defence cannot -be given any weight, particularly so when he was declared hostile at the request of the State counsel and was cross- examined also by him.
The reference of the learned counsel to the statement of other eye-witness, i.e. Shaukat, before the police in, Exh. D.A. That he was at the Dera and the accused had beater him there, again does not prove that Shaukat could not have been in the village at the time of occurrence, because if any credence has to be given to the confronted portions of his statement made by him during cross- examination, then regard will have to be given to his statement that he had returned to the village and had witnessed the occurrence. Even otherwise, while deposing at the trial on oath, he claimed that he had witnessed the occurrence.
For the aforesaid reasons, I do not feel inclined to grant the contention of the learned counsel for the appellant, that these two witnesses had not seen the appellant inflicting Khanjar blow to the deceased.
14. However, the argument of the learned counsel that both the eye-witnesses did not come up with true version of the occurrence needs examination. The other thing which requires serious consideration is, whether the appellant can be held liable, for having committed the murder of Muhammad Din, or was he liable for having committed the offence of lesser gravity, i.e. Under section 304, P.P.C., as contended by the learned counsel for the appellant.
15. Apparently, Muhammad Nawaz never claimed as to what happened prior to infliction of injury to the deceased with the dagger by the appellant. His stance categorically, before the trial Court was, that his father on having been told by Iftikhar and Afzal, his younger brothers, of having been beaten by the appellant, went out alongwith Shaukat P.W. And when he had gone out, on hearing noise and was yet at some distance, the appellant brought out Khanjar from his Dub and plunged the same in the flank of the deceased. In fact, he had not even witnessed the grappling of the deceased and the appellant, as deposed to, by Shaukat Ali. The fact of the two witnesses, being not at one, in this regard is enough to grant the contention of the learned counsel for the appellant that Muhammad Nawaz did not know as to what had happened prior to his having witnessed infliction of injury.
16. According to the evidence on record, the deceased on being told that his two minor sons were beaten by the appellant, had gone out in the street in search of appellant alongwith his son Shaukat even knowing the fact that the appellant was coming to his hours, which is contiguous to their house (deceased's house). It is also record that he had met the appellant in front of the house of Rehman's Ali given up P.W., where this occurrence took place. Nobody including the two eye- witnesses, who are sons of the deceased, have come up to say as to what transpired between the appellant and the deceased. Of course, Shaukat has stated that the deceased and the appellant had grappled with each other before infliction of injury by the appellant to E the deceased. It is in the light of these circumstances that the argument of the learned counsel for the appellant beholds weight that the eye--witnesses have not come out with true account of what had actually happened at the spot. The possibility cannot be ruled out Oat the deceased having felt annoyed over the treatment with his minor sons might have gone after the appellant to pay him in the same coins. But ever, if that probability is excludes, it will have to be granted that he must have gone to remonstrate the appellant, otherwise, there was no fun for him to have gone after him.
Now the factual position is that the appellant was found injured. At the time of arrest he was admitted in the hospital. The Sub-Inspector noted an injury on his person. He got him medically examined. The duration of the injury coincides with the time of occurrence. The existence of injury on the appellant not only speaks of some aggressive acts having been done by the deceased or his companion accompanying him against the appellant, but is also evidence of the fact that the prosecution had kept back something. The argument of the learned counsel for the State/complainant that merely for this reason no adverse view can be taken about the depositions of the eye-witnesses, has not impressed me.
The above analysis of the situation brings one to a conclusion that the appellant had inflicted the only injury with the dagger to the deceased under some apprehensions. The statement of Shaukat P.W. That the appellant had brought out the dagger from his Dub when they had tried to intervene, on seeing tote deceased and the appellant grappling with each other, again speaks of the fact that the appellant had not come there to commit murder of the deceased. He only brought out the dagger from his Dub and used the same when he sound himself in some apprehensive situation. In this view of the matter, he cannot be held liable for committing culpable homicide amounting to murder. His conviction under section 302, P.P.C., therefore, cannot be maintained. The same is set aside.
17. However, the seat of injury, the weapon and the force with which the injury was found to have been caused abundantly speaks of the knowledge which he must have that such an injury could normally cause the death. He is, therefore, held liable for having committed the H offence under section 304, Part 1, P.P.C. He is convicted accordingly and is sentenced to undergo R.I. For ten years, plus a fine of Rs.5,000. In default whereof to undergo R.I. For two years. Whole of the fine, on realization, shall be paid as compensation to the heirs of the deceased.
18. I have not reverted to the contention of the learned counsel for the appellant about the evidence of recovery of blood-stained dagger and the evidence of taking into possession of the blood-stained clothes of the appellant, keeping in view tae fact that I have not disbelieved the prosecution evidence about appellant having inflicted the fatal injury to the deceased.
19. The appellant shall be given the benefit of the provisions of section 382-B, Cr.P.C.
20. Since the conviction under section 302, P.P.C. Of the appellant has not been maintained, the question of enhancement of sentence, does not arise. The revision petition is, therefore, dismissed.