' George Masih (appellant), aged 17/18 years, was tried along with Iqbal Masih, Inderyas and Allah Rakha, for having murdered Anwar Masih, at 7 a.m. On 31-10-1984 in Khokharke, Sialkot Road, Gujranwala, at a distance of one kilometer from Police Station Satellite Town, Gujranwala. The learned trial Judge convicted him under section 302 P.P.C. And sentenced him to undergo imprisonment for life, plus to pay a fine of Rs,8,000 in default whereof to undergo further R.I. For two years. He has also been directed to pay a sum of Rs, 10,000 as compensation to the legal heirs of the deceased in default whereof to undergo R.I. For six months, vide judgment dated 17-3-1986. His co-accused were acquitted vide the same judgment.
2. F.I.R. (Ex. P.D.) was recorded at Police Station Satellite Town, Gujranwala, at 7-30 a.m. On 31-10- 1984 by Abdul Shakoor, Inspector/S.H.O. (P.W. 10), on the statement of George Masih son of Dania Masih (P.W. 7).
' According to the F.I.R. Allah Rakha (acquitted accused), who is maternal-uncle of the complainant due to relationship connections had demanded the hand of Mst. Nasreen, sister of the complainant, for his son Iqbal (acquitted accused). The proposal was turned down by the complainant, his father and other family members. Anwar deceased had spearheaded the refusal.
Allah Rakha and his sons Iqbal and Inderyas (acquitted accused) as well as George Masih (appellant), their relation, had felt annoyed over that. They had issued threats of dire consequences.
' On the day of occurrence, the complainant was washing his taxi car alongwith his brother Javid and Anwar deceased, in Abadi Khokharke, on Sialko Road, Gujranwala. Anwar deceased was bringing water in a bucket from the water pump near Kothi Salsi Council. When Anwar reached near the car along with the bucket, full of water, George Masih appellant armed with a Chhuri, Iqbal Masih armed with Nan Chaqu and Inderyas empty handed came there raising Lalkaras that they will teach a lesson to Anwar (deceased) for having refused the hand of Mst. Nasreen. Inderyas took Anwar into clasp from behind. Iqbal gave a blow with the Nan Chaqu on right temple; George Masih (appellant) gave a Chhuri blow on the right side of the abdomen. Anwar started bleeding and fell down. Given up P.W. Javid and Rafaqat (P.W. 8) tried to catch the accused but they ran away hurling abuses and raising Lalkaras. Anwar was lifted for being taken to hospital but he died on way. It is stated in the F.I.R. That the above-named three accused had launched attack at the instance of Allah Rakha. The complainant, leaving the dead body of Anwar in the hospital in the care of Javid (given up P.W.) and Khalid (P.W. 5), went to the police station to lodge the report.
3. Abdul Shakoor, Inspector/S.H.O. (P.W. 10) after recording the F.I.R. Visited D.H.Q. Hospital, Gujranwala. He entrusted the dead body for postmortem examination to Sanaullah and Muhammad Arshed constables, after preparing injury statement (Ex. P.H.) and inquest report (Ex.
P.J.). Thereafter, he went to inspect the spot, wherefrom he collected blood-stained earth and Nan Chaqu (P.5), vide memos. Exs. P.F. And P.E.
' All the accused were arrested by the S.H.O. On 31-10-1984. The appellant led to the recovery of blood-stained Chhuri (P. 4) on 3-11-1984 from the house of Allah Rakha with whom he was residing.
It was taken into possession vide memo. Ex.P.C., which was attested by Ijaz Masih (P.W. 6) and given up P.W. Saleem Masih, besides the Inspector.
' After completion of necessary investigation challan was put to Court.
4. Statements of eleven prosecution witnesses were recorded at the trial. Positive reports (Exs.P.L.
And P.L./1) from the offices of the Chemical Examiner and the Serologist were also tendered in evidence.
5. The ocular account was deposed to by George Masih (P.W. 7) and Rafaqat Masih (P.W. 8). Javid Masih, brother of the deceased, who had also witnessed the occurrence was given up as unnecessary.
' Complainant George Masih (P.W. 7) repeated the facts given by him in the F.I.R. During cross- examination, he stated that his house was at a distance of four acres from the place of occurrence and that car cannot go in the street where their house was situated and so it has to be parked at some distance. The house of Allah Rakha, according to him, was situated at a distance of two killas from their house. He stated that they had not yet started washing the car when the occurrence took place. In answer to another question, he stated that his brother Saleem was murdered prior to the present occurrence, the accused of which, except one, who was sentenced to imprisonment for life, were acquitted. Allah Rakha (acquitted accused) according to him, was suspected for the murder of Saleem also. He stated that Javid Masih, his brother, used to work at the Workshop of Iqbal Masih (acquitted accused). He denied that he was turned out by Iqbal Masih from the workshop. The suggestion that George Masih had an altercation with Javid at the workshop was also denied by him. He denied the suggestion that Allah Rakha had refused to become a witness for the prosecution in the murder case of Saleem. The suggestion that they were not on visiting terms with Allah Rakha prior to the present occurrence was also denied by him. He added that some persons might have gathered at the spot after they had left the place of occurrence. He denied that Mst. Nasreen was a T.B. Patient and so was not fit for marriage. He admitted that Allah Rakha had not prompted his sons to murder his brother in his presence.
' Rafaqat (P.W. 8) corroborated the statement made by P.W. 7 with regard to occurrence. He did not state anything about the motive. During cross-examination he admitted that a brother of the deceased was married to his sister. He admitted that there were shops along the road near the place of occurrence. According to him, they had tried to apprehend the accused by following them upto a distance of 18/19 feet.
' Both the witnesses, i,e, P.Ws. 7 and 8, denied the suggestions that Anwar deceased had trespassed into the house of Hidayat Masih a few days before the occurrence and had molested his daughter and that a Punchayat was convened in that connection which had imposed penalty, as a result of which hair of the head and the eyebrows of the deceased were shaved and he was moved in the streets on a donkey after blackening his face. It was denied by them that the deceased was a vagabond and that he was murdered by some unknown persons before sunrise. The suggestion that appellant was involved in the case because of his relationship with Allah Rakha was also refuted by P.W.B.
5-A. The evidence of recovery of Chhuri at the instance of appellant was deposed to by Ijaz Masih (P.W. 6). During cross-examination he stated that he had gone to the police station to see Allah Rakha (acquitted accused) who was his paternal uncle. He admitted that appellant was resident of Shanti Nagar, district Khanewal. The statement made by this witness has been corroborated by Abdul Shakoor, S.H.O. (P.W. 10).
' The S.H.O. (P.W. 10), who gave the account of investigation, denied the suggestion that no Chhuri was recovered at the instance of the appellant or that it was planted by him by way of paddings.
6. All the accused, including the appellant, denied their participation in the occurrence during statements under section 342, Cr.P.C. The appellant also made statement under section 340, Cr.P.C.
He took up the plea that he was involved falsely due to his relationship with Allah Rakha (acquitted accused). He admitted during cross-examination while making statement under section 340, Cr.P.C., that he was working at the workshop of Iqbal Masih (acquitted accused) since a year before the occurrence and used to reside in the house of Allah Rakha during those days.
7. Learned counsel for the appellant, after taking me through the evidence, criticised the impugned judgment and contended that the prosecution has set up false motive, that in any case the appellant had no direct connection with that even, that the ocular account has been furnished by interested and related witnesses and so no reliance can be placed on their testimonies, that in spite of the fact that there were shops around the place of occurrence, neither anybody was named in the F.I.R. To have witnessed the occurrence, nor anybody was produced at the trial, that the evidence of recovery of Chhuri is unreliable and as such was not worth acting upon and that the prosecution evidence as a whole oes not warrant conviction of the appellant.
8. Learned counsel for the State defended the judgment of the trial Court and contended that there was no previous enmity between the parties and as such there is no reason to discard the testimonies of the prosecution witnesses.
9. The motive for the occurrence was the refusal of the complainants to marry Mst. Nasreen (sister of the deceased) with Iqbal Masih (acquitted accused) a cousin of the appellant. The deceased, according to the complainants, had spearheaded the decision to refuse the hand of Mst. Nasreen for Iqbal Masih. Although it was denied by the defence at the trial that any such proposal had been made, but it was not their case that there was no sister of the deceased named Mst. Nasreen or that she had already been married. The suggestion rather was put during cross-examination that Mst. Nasreen was suffering from T.B. And so was not fit for marriage.
' The contention that false motive was set up appears to be without any force, the reason being that the complainant would not have brought in the name of his young sister for creating a motive for the occurrence. If he had to fabricate a false story, he could have come up with anything else.
People are shy to bring in the names of their ladies, particularly unmarried girls, and so I do not think the complainant in this case would have come up with a false story.
' The argument that the appellant could have no grievance even if the proposal had been made and turned down is not of much weight. Iqbal Masih is his first cousin. He was working at his workshop. He was living in the house of Allah Rakha, father of Iqbal Masih, since over a year like a family member and must have felt the same grievance as others would have. In the circumstances, I do not find any merit in the argument that the motive in this case appears to have been set up falsely.
10. Admittedly P.W. 7 is real brother of the deceased while P.W. 8 is also related to the deceased through marriage of his sister with a brother of the deceased. But mere relationship of the witnesses with the deceased is not now recognised enough reason to discard their testimonies, unless some sort of animosity creating in the mind of a P.W. To the extent of going in for involving innocent person is brought on record. The safe course in such circumstances has often been considered to look for independent corroboration to pass or maintain conviction. In this case no previous outstanding enmity between the parties has been brought on record. Leaving aside the incident of refusal of the hand of Mst. Nasreen for Iqbal Masih, the parties otherwise were living in amity so much so that Javid Masih, a real brother of the deceased, named as an eye-witness for the occurrence used to work at the workshop of Iqbal Masih before the occurrence. If they had any cause or enmity or strained relations, Iqbal Masih would not have given employment to Javid.
11. The criticism that no independent witness was produced nor named in the F.I.R. In spite of the fact that there were shops around the place of occurrence, is also without any foundation because there is nothing on record that those shops were open at the relevant time or that there were customers present at the shops and all of them or any of them had witnessed the occurrence. The occurrence had taken place at 7 a.m. On 31st of October. 7 a.m. On 31st of October is quite early.
The shops might not have opened till then. It cannot be presumed that there were independent witnesses, who had witnessed the occurrence but were excluded. No presumption can be drawn that shops must ' have been opened by that time. It would rather be a surmise and surmises cannot! Take the place of proof.
' There is another important aspect of the case. In that two sons of Allah Rakha, i,e,, Iqbai Masih, for whom the hand of Mst. Nasreen had been demanded and one Inderyas, were also named as accused to have participated in the occurrence. Inderyas was shown to have been empty handed while Iqbal Masih was assigned the role of having inflicted a simple injury. The fatal injury was assigned to the appellant. The grievances and the annoyances of the complainants would have been more directed against Allah Rakha and his sons than the appellant, because of the annoyance they had shown on the refusal of hand of Mst. Nasreen by the complainants. If the complainant or his brothers had any intention of fabricating a case, he or they would have assigned the role of infliction of fatal injury to either of the sons of Allah Rakha and would not have chosen the appellant. There is apparently no reason to consider that the complainants specifically had chosen the appellant for the gravest part of the occurrence. In fact, the role assigned to him shows that the complainants did not try to take benefit of the occurrence to bring in any person whom they hated most or considered enemy.
12. The statements of the eye-witnesses against the appellant find corroboration from the recovery of blood-stained Chhuri, at his instance, from the house where he was residing. The witness from public who testified the recovery of blood-stained Chhuri at the instance of the appellant, is related to the appellant through paternal-aunt's husband, i,e, Allah Rakha. He is not directly related to the complainant. His testimony, in turn, also finds corroboration from the deposition of the Inspector/S.H.O. (P.W. 10). Medical evidence also lends corroboration to the ocular account.
13. The upshot of the above discussion is that there appears to be no merit in the appeal. The same is dismissed. However, the amount of fine of Rs, 8,000 and the direction of payment of Rs,10,000 as compensation, is reduced to Rs,2,000 and Rs,5,000 respectively, considering the fact that the appellant is a young boy and had come all the way long from a different district to Gujranwala to work at the workshop of a relative and so he might not be in a position to pay such an amount of fine and compensation. The sentence for non-payment of fine, is reduced from two years' R.I. To one year R.I. And sentence of six months' R.I. In lieu of non-payment of amount of compensation is maintained.