MUHAMMAD RAFIQ TARAR, J--The F.I.R. Version of the occurrence is that on 16th July, 1979 at 3.15 p.m. Two guests of acquitted accused Nur Hussain Shah came to Basti Langriyal. Allah Diwaya deceased and Ahmad Bakhsh PW slapped them and asked them why they had visited the Basti for 'badmashi'. Both of them complained to Nur Hussain Shah that his co-villagers had insulted them.
On 18th July, 1979 at about evening time accused persons Mahmud, Jan Muhammad, Ata Muhammad (murdered during the trial), and Qutab Din came in the Chowk of the Basti where Muhammad Amin, Faiz Bakhsh and Muhammad Rafiq, P.Ws were already present. Aforesaid Ata Muhammad and Jan Muhammad accused held Allah Diwaya deceased by his arms while Mahmud took out a knife and plunged it into his chest. On receiving the injury, Allah Diwaya fell down. At that time Qutab Din accused and Ahmad Bakhsh PW were grappling with each other.
After causing injury to Allah Diwaya deceased, Mahmud accused gave a knife blow to Ahmad Bakhsh hitting his abdomen and he too fell down. Muhammad Amin PW, Faiz Bakhsh and Muhammad Rafiq saw the occurrence. Allah Diwaya and Ahmad Bakhsh injured were being taken to Nishtar Hospital in a richkshaw by Nur Muhammad complainant and Faiz Bakhsh PW (not produced), but Allah Diwaya expired on the way. His dead body was brought back while Ahmad Bakhsh was taken to the hospital by Faiz Bakhsh PW. Thereafter, Nur Muhammad complainant went to police station Mumtazabad and reported the occurrence to Muhammad Yusuaf Sub-Inspector at 11.05 p.m. Vide F.I.R. Ex.PF. In the F.I.R. It was also stated that the occurrence had taken place at the instance of Nur Hussain Shah accused.
2. After recording the F.I.R, Muhammad Yusuaf Sub-Inspector reached the spot. He prepared injury statement (Ex. PL) and inquest report (Ex.PM) of the dead body and despatched it to the mortuary for post-mortem examination. On 19th July, 1979 he secured some blood-stained earth from the spot and made it into a sealed parcel vide memo Ex.PG. On the same day Mahmud accused appeared before him wearing blood-stained shirt (Ex.Pl). The Sub-Inspector removed the shirt from his person and took it into his possession vide memo Ex.PH. He also produced blood-stained knife (Ex.P2) before the Sub-Inspector which was taken into possession vide memo. Ex.PJ. The shirt and the knife were made into separate sealed parcels. The Sub-Inspector arrested Ata Muhammad and Qutab Dm accused on the same day, i.e.19th July, 1979, and Jan Muhammad accused on 20th July, 1979. On 20th July, 1979 he made an application (Ex.PB) for getting Mahmud accused medically examined. After the investigation, the accused persons were challaned.
3. On 19th July. 1979 Dr. Munawar Tahir Hussain conducted the autopsy on the dead body of Allah Diwaya-deceased and found a stabbed wound 2 cm x 1 cm x chest cavity deep on the left side of front of chest, 4 cm medial to the left nipple and 5 cm outer to mid sternal line. The injury had penetrated the left ventricle on the left side of apex of the heart and through the left ventricle it had reached to the right side of the apex. The branches of anterior and posterior coronary arteries had been injured. In the opinion of the doctor, death was due to shock and haemorrhage resulting from the above injury which was sufficient to cause death in the ordinary course of nature.
On 18th July, 1979 Dr. Abdul Aziz Shah, CMO, Nishtar Hospital, Multan examined Ahmad Bakhsh PW and found an incised wound 1" x 1/2" in left lumber region, two inches above the iliac bone of hip with 1-1/2" omentum outside. The injury was grievous, caused by a sharp-edged weapon.
On 20th July, 1979 Dr. Allah Nawaz examined Muhammad accused and found a septic incised wound between right thumb and index finger. The injury was simple, caused by a sharp-edged weapon. Ex.PB/1 is the medico-legal report on application Ex. PB.
4. Mahamud, Qutab Din and Jan Muhammad accused were tried by the learned Additional Sessions Judge, Multan, under sections 302 and 307/34 PPC and their co-accused Nur Hussain was tried under sections 302 and 307/109, PPC. Vide judgment dated 30th June, 1983. He acquitted Qutab Din, Jan Muhammad and Nur Hussain, but convicted Mahmud accused under sections 302 and 307, PPC. Under section 302, PPC he sentenced him to death subject to confirmation by this Court and a fine of Rs. 5,000 or in default in the payment thereof to suffer rigorous imprisonment for three years. Under section 307, PPC he sentenced him to rigorous imprisonment for three years and a fine of Rs. 1,000 or in default in the payment of fine to suffer further R.I. For six months. Out of the fine, if recovered, a sum of Rs. 3,000 was ordered to be paid to the heirs of the deceased as compensation.
5. The convict challenged his conviction and sentence through this appeal and the learned Additional Sessions Judge submitted a reference under section 374, Cr.P.C. To this Court for confirmation of his death sentence. Both the matters were heard by a learned Division Bench consisting of my brothers Akhtar Hassan and Raja Afrasiab Khan, JJ. Mr. Justice Akhtar Hassan took the view that the motive alleged by the prosecution stood proved and the "desperado character of the deceased though remains considerably proved inasmuch as he was involved in a number of cases of violence, yet keeping in view the time and venue of occurrence there was little reason to doubt the prosecution case. "The learned Judge was of the view that there was no merit in the appeal nor any reason to alter the sentence because the injury caused on the chest destroyed almost all the vital organs of the deceased. Mr. Justice Raja Afrasiab Khan observed that the presence of the appellant at the spot was established by ocular account, the appellant gave only one blow to the deceased and one to Ahmad Bakhsh PW and did not act in a cruel manner, therefore, he was guilty under section 304 (Part I) of the Pakistan Penal Code. He, therefore, altered his conviction from section 302, PPC to section 304 (Part I), PPC and sentenced him to rigorous imprisonment for ten years and a line of Rs. 5,000 or in default in the payment thereof to undergo further R.I. For two years.
6. In view of the difference of opinion between the learned Judges, the case was referred to me.
7. In support of its case the prosecution examined three eye-witnesses, namely, Nur Muhammad complainant, Muhammad Amin and Ahmad Bakhsh. It also relied on the evidence relating to motive and recovery.
8. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. When asked why this case against him, he made the following statement:-- "Few days before the occurrence, Allah Dewaya deceased, Ahmed Bakhsh P.W. And myself were present near the shop of Sufi Noor Muhammad. Two unknown scooter riders came there. My cycle was with me. The scooter struck with my cycle and damaged it. Hot words followed and Allah Dewaya, Ahmad Bakhsh and myself gave slaps to scooter riders. One day prior to the occurrence, Allah Dewaya deceased, Ahmad Bakhsh PW and myself arranged for the distribution of food as charity. We collected funds from the locality and cooked two Daigs of Pullaow, and distributed the same to seek the mercy of Allah, as conditions of drought were prevailing during those days, in the Ilaqa. Allah Dewaya deceased and Ahmad Bakhsh P.W. Were desperate persons of the locality.
Many criminal cases stood registered against them. Allah Dewaya deceased always remained armed with a `Lore'. By temperament he was law breaker. The night of occurrence was dark. The village was enveloped in darkness due to the breakdown of the electricity. Ata Muhammad co- accused since murdered, passed by Allah Dewaya and Ahmad Bakhsh, unfortunately Ata Muhammad gave out a loud cough (Khangoora), which infuriated them and they attacked Ata Muhammad. Allah Dewaya was armed with a `Lore' and he tightened his grip. Fearing death, Ata Muhammad snatched `Lore' from Allah Dewaya and gave injury each to Allah Dewaya and Ahmad Bakhsh, with that Lore. Nobody witnessed. The occurrence. Allah Dewaya died at the spot and Ahmad Bakhsh P.W. Remained unconscious till 21st July, 1979 when Investigating Officer recorded his statement. Main feature of the occurrence remained shrouded in mystery as there was nobody to narrate the story. According to the evidence of the I.O., I.O. Went to the hospital, only on 19th July, 1979 to record the statement of Ahmad Bakhsh but he was unconscious. The I.O. Did not visit the hospital on 20th July, 1979 and even on 21st July, 1979 I.O. Did not obtain the opinion of the doctor, as to whether Ahmad Bakhsh was fit to make the statement. After the occurrence, Ata Muhammad came to his house and narrated the occurrence. Persons belonging to the Jhabail castes assembled and gave the occurrence a sharp-twist and made it a case question, against (Awan) of the locality by voicing, that Awans had killed Allah Dewaya and injured Ahmad Bakhsh. I belonging to Awan case and due to that reason, I was falsely roped into the present case by the leaders of the Jhabail case. They colluded with the noble family and after preliminary investigation and deliberation, fabricated the present story which is contained in the F.I.R. Due to tribal sentiment and insistence of the people belonging to Jhabail case, Ahmad Bakhsh, P.W. Was persuaded to support the F.I.R. He brutally ignored his friendship with me simply to support the version concocted with the leaders of the Jhabail community. Ata Muhammad co-accused was released on bail in the instant case and he was murdered by Ahmad Bakhsh P.W. And others, after 2-3 days of the release. A case under sections 302, 148, 149, P.P.C. Was registered against Ahmad Bakhsh P.W. And others. They are facing trial in the Court of Malik Shahbaz, Additional Sessions Judge, Multan(sic)."
He examined Iqbal Hussain, Muharrir Head Constable, as his defence witness. This witness appeared with the F.I.R. Register pertaining to the year 1980 and stated that F.I.R Ex.DG prepared by him was the correct copy of the original.
9. Learned counsel for the appellant contended that the occurrence took place in the dark hours of night when identification of the assailant was not possible, therefore, the appellant is entitled to acquittal. In the alternative, he submitted that the facts and circumstances were consistent with the assumption that there was no premeditation and the occurrence took place in the heat of the moment, in which the appellant gave only one blow each to the deceased and Ahmad Bakhsh PW, therefore, Exception 4 of Section 300, Pakistan Penal Code is attracted. The learned State counsel, however, supported the judgment of the learned trial Court.
10. At the trial Nur Muhammad complainant (PW.9), Muhammad Amin (PW.10) and Ahmad Bakhsh (PW.11) supported the prosecution version as detailed in the earlier portion. Of this judgment. Nur Muhammad complainant is the brother of the deceased. Muhammad Amin is the father-in-law of Ramzan PW (not produced) a cousin of the deceased. Ahmad Bakhsh PW is the brother of the husband of the sister of the deceased. Faiz Bakhsh and Muhammad Rafiq, who were also named as eye-witnesses in the F.I.R., were given up as unnecessary. Ahmad Bakhsh PW had the stamp of injury on his person and his presence at the spot is not open to any doubt. Nur Muhammad complainant and Muhammad Amin PW claimed to have seen the occurrence when they were present at the shop of Sufi Nur Muhammad. In examination-in-chief Nur Muhammad complainant stated that he was present at the shop of Nur Muhammad when Mahmud (appellant) armed with a knife came there alongwith his co-accused Ata Muhammad (since dead), Jan Muhammad and Qutab Din. Ata Muhammad and Jan Muhammad caught hold of the arms of Allah Dewaya deceased while Mahmud appellant gave him a knife blow in the chest and thereafter another blow in the abdomen of Ahmad Bakhsh. He asserted having stated in the F.I.R. That at the relevant time he was present at the shop of Nur Muhammad. He was confronted with the F.I.R. Wherein it was not so recorded. In examination-in-chief Muhammad Amin PW also stated that Nur Muhammad complainant was present at the shop of Sufi Nur Muhammad. He was also confronted with his statement, EX. DD, wherein it was not so recorded. When further cross-examined, he stated that he was sitting at the shop of Sufi Nur Muhammad alongwith Faiz Bakhsh and Muhammad Rafiq while Allah Diwaya deceased was at his own Tharra and Ahmad Bakhsh PW was standing in front of the shop of a barbar. In this statement he did not name Nur Muhammad complainant as one of the person sitting at the shop of Sufi Nur Muhammad. Ahmad Bakhsh PW claimed to have stated before the police that the occurrence was also witnessed by Muhammad Amin, Rafiq, Nur Muhammad complainant and Faiz Bakhsh as they were present at the spot. He was confronted with his statement before the police (copy EX.DF) wherein it was riot so recorded.
The conduct of Nur complainant was also highly unnatural. He stated that they neither raised any hue and cry nor tried to follow and catch hold of the accused persons. The appellant was armed only with a knife white his co-accused were empty-handed. If this witness had been present at the spot, he must have raised alarm and tried to catch hold of the accused. In doing so, there was no risk involved because none of the accused was armed with any firearm. While giving the details of actual occurrence he stated that two injuries were inflicted or. Ahmad Bakhsh PW. He was confronted with the FIR wherein it was not so recorded. According to the medical evidence, there was only one injury on the person of Ahmad Bakhsh PW.
The delay in lodging the F.I.R. Also suggests that he might have been imported as a complainant at a belated stage. The occurrence took place at about evening time and the F.I.R. Was lodged at 11.05 p.m. The complainant tried to explain the delay saying that the cycle on which he was going to the police station, had gone out of order and, therefore, he proceeded to the police station on foot as he had no money to hire a rickshaw although rickshaws were available at that time. The explanation is unconvincing and finds no mention in the F.I.R. The facts and circumstances, detailed above, create a doubt about his presence at the spot and I do not feel inclined to place any reliance on his evidence.
11. Muhammad Amin PW claims to have remained at the spot with the dead body till the arrival of the police and then stayed there for the whole night. He stated that the investigating officer reached the spot at mid-night when he was sitting near the dead body and after its despatch to the mortuary he remained there throughout the night. He further stated that his statement was recorded on the following morning. He expressed ignorance why the investigating officer did not record his statement on the same night. Had he been an eye-witness to the occurrence and available at the spot on the arrival of the police, there was no reason for the investigating officer to postpone the recording of his statement to the following morning.
This witness stated that he and Nur Muhammad PW put Allah Dewaya in 'he richshaw and made him to lay on the seat while Ahmad Bakhsh PW got seated beside the richshaw driver; rickshaw had hardly travelled a few paces when Allah Dewaya expired; when Allah Dewaya and Ahmad Bakhsh were being. Taken to the hospital, Faiz Bakhsh was holding Allah Dewaya by standing in the richshaw. The description given by his counterpart Nur Muhammad complainant is entirely different. He stated that both Allah Diwaya and Ahmad Bakhsh were made to sit on the seat while Faiz Bakhsh PW sat in the feet of two injured behind the back of the driver. In view of the above infirmities, his statement too does not inspire confidence.
12. Now I proceed to examine the evidence of Ahmad Bakhsh PW. As already stated above, he had a severe injury on a very vital part of the body and his presence at the spot is fully established. He had no enmity with the appellant and had rather friendly relations with him. The prosecution version is that few days prior to the occurrence two guests of acquitted accused Nur Hussain Shah came to Basti Langriyal on a scooter who were beaten up by Allah Dewaya deceased and Ahmad Bakhsh PW. They complained to acquitted accused Nur Hussain Shah and the accused party had attacked the complainant party to take revenge of that incident. However, this version remains unsubstantiated. In cross---examination Ahmad Bakhsh PW admitted that a day before the occurrence the arranged for the distribution of food as charity. Two 'dogs' of 'pullaow' were cooked and distributed by them to the poor to seek the mercy and blessings of Almighty Allah because "it was drought---------.." He further admitted that they collected the amount for the preparation of food from the people of the locality and this collection was made by him, Allah Dewaya and Mahmud alias Sultan Mahmud accused (appellant herein). Had there been any truth in the prosecution version regarding motive there was absolutely no occasion for the appellant to have joined the deceased and Ahmad Bakhsh PW for collection of funds and distribution of food as charity. The appellant's version about the earlier incident is more reasonable. He stated that two unknown persons visited the Basti on a scooter. The scooter hit his cycle and damaged it, upon which he, Allah Dewaya deceased and Ahmad Bakhsh PW slapped them. All the three were together for collecting the funds a day prior to the occurrence and their participation in the earlier incident is quite plausible. Ahmad Bakhsh PW had absolutely no motive to attribute his injury and that of the deceased to the appellant. There is evidence that due to some defect in the electric pole which was being repaired there was no light and on the basis of this statement it was contended that the occurrence had taken place during the dark hours, therefore, identification of the real assailants was not possible. There is no substance in the contention because the occurrence had taken place at about evening time when it was not very dark and furthermore the blow was given with a knife which could be effectively used by the assailant on coming very close to the victim. The evidence of Ahmad Baksh PW, therefore, can safely be accepted. I am, therefore, satisfied that it leas the appellant who injured Allah Dewaya deceased and Ahmad Bakhsh PW.
13. The only question that now remains to be considered is as to what offence was committed by the appellant. According to the prosecution, the occurrence took place in the evening. In cross- examination Ahmad Bakhsh PW stated that on the day of occurrence at evening time he and Allah Diwaya deceased were present m the Chowk where an electric pole was being repaired in order to remove some 'electric defect'. Other people also assembled there. He complained to acquitted accused Jan Muhammad that they were responsible for their insult and disgrace at the hands of Nur Hussain Shah. This resulted in an exchange of hot words between them but the people intervened and the matter was hushed up. There is abundance of evidence on the record indicating that prior to the occurrence there was grappling and exchange of hot words. Even in the F.I.R. It was stated that acquitted accused Qutab Din and Ahmad Baksh PW were grappling with each other. From the evidence it appears that the deceased was a desperado. He remained involved in one murder case, two cases under section 307, P.P.C. And one case under section 324, P.P.C. It appears that something happened all of a sudden resulting in a quarrel during which the appellant gave one blow to the deceased and one to Ahmad Bakhsh PW in the heat of the moment. He did not repeat the blow on either of them. Therefore, Exception 4 of Section 300 of the Pakistan Penal Code is attracted in this case and he is guilty under section 304 (Part 1), Pakistan Penal Code. His conviction is, therefore, altered from section 302, P.P.C. To Section 304 (Part 1) P.P.C.
And he is sentenced to rigorous imprisonment for ten years and a fine of Rs.10,000 or in default in the payment thereof to undergo further R.I. For two years. The fine, if recovered, shall be paid to the legal heirs of the deceased as compensation. His conviction under section 307, P.P.C. Is altered to section 308, P.P.C. But sentence of rigorous imprisonment for three years and a fine of Rs.1,000 is maintained. Both the substantive sentences shall run concurrently. These sentences have been passed after considering the provision of section 382-B, Cr.P.C. The appeal stands disposed of accordingly.
The death sentence of Mahmood alias Sultan Mahmood convicted is not confirmed.
AKHTAR HASSAN, J--This judgment shall simultaneously dispose of Murder Reference No.191/84 and Criminal Appeal Nos. 163 and 164 of 1983 as all these arise from the conviction of the appellant Mahmood alias Sultan Mahmood (26/27) recorded by the learned Additional Sessions Judge, Multan, in his judgment dated 30th of June, 1983, awarding him (i) under section 302, P.P.C., the capital sentence of death and a fine of Rs.5,000 or in default R.I. For three years for having killed Allah Dewaya deceased (27); (ii) under section 307 P.P.C., R.I. For three years and a fine of Rs.1,000 or in default further R.I. For six months for having murderously assaulted Ahmad Bakhsh P.W. (30); and
(iii) under section 13 of the Arms Ordinance, 1965, R.I. For six months for having kept in his possession a prescribed 'Chaqoo' P.2. Out of the fine, a sum of Rs.3,000 was to be paid to the heirs of the deceased Allah Dewaya. Of the remaining four accused, Ata Muhammad was killed soon after he was released on bail while the other three were acquitted.
2. The occurrence took place at `Shamwela' on the 18th of July, 1979, when the appellant with his three companions, namely Jan Muhammad, Ata Mohammad and Qutab Din suddenly appeared at a Chowk of village Langerial, Thana Mumtazabad, District Multan, where among others were already present Mohammad Amin, Faiz Bakhsh and Mohammad Rafiq. Allegedly the co-accused Ata Mohammad and Jan Mohammad held Allah Dewaya deceased from his arms while the appellant Mahmood stabbed knife in his chest. The other co-accused Qutab Din started grappling with Ahmad Bakhsh P.W. Whom the appellant gave knife blow in his abdomen. Both the injured fell down. The occurrence was seen by the aforementioned Mohammad Amin, Faiz Bakhsh and Mohammad Rafq. The assailants ran away while the informant Noor Mohammad being a real brother of the deceased Allah Dewaya took both the injured in a rickshaw to the Nishtar Hospital.
On the way, however, Allah Dewaya succumbed to the injury. His dead body was taken back to the place of occurrence. The injured P.W. Ahmad Bakhsh was brought in the hospital for treatment.
Noor Mohammad lodged the report (Exh. PF) at 11.05 p.m. Disclosing that the assault was committed at the instance of Noor Hussain Shah, the fifth accused. He explained further that two days earlier at 3.15 p.m. Two guests of the said accused came in the village on a scooter. They were slapped by the deceased Allah Dewaya and the injured P.W. Ahmad Bakhsh on the ground that they had come there for debauchery. On having been so manhandled they went to their host Noor Hussain Shah in order to complain that they had been gravely insulted and beaten by the deceased.
3. Muhammad Yousaf S.I. (P.W.12) recorded the F.I.R. Exh.PF, went to the spot and sent the dead body for post-mortem examination after preparing the injury statement and inquest report, arrested the appellant took into possession the blood-stained knife P.2 as produced by him and also his blood- stained shirt P.1 which he was wearing. He got the appellant medically examined by making an application Ex.PO.
4. The autopsy of the deceased as conducted on 19th July, 1979 at 12.45 p.m. By the Doctor (P.W.7) showed that he sustained a stab wound on the left side of the front of chest of the duration of within 24 hours by a sharp-edged pointed weapon having the fifth rib costal cartilage, pleaura, upper lobe of the left lung, pericardium and the left ventricle of the heart penetrating deep into it.
This injury was held sufficient to cause immediate death in the ordinary course, of nature. The time between death and post-mortem was within 24 hours. Ahmad Bakhsh P.W. Was medically examined by Dr. Abdul Aziz Shah (P.W.5) on 18th July, 1979 at about 9.00 a.m. An incised wound 1" x 1/2" on the left lumber region above the left aliac bone with omentum projecting outside was found on his person. It was held to be grievous with a sharp-edged weapon of the duration of within 6 hours. The appellant's shirt and the knife were found by the Serologist to have been stained with human blood. Khadim Hussain, Dispenser (P.W.2) proved the medico-legal examination of the appellant as conducted by the late Dr. Allah Nawaz vide his writings Exh. PB/1 and Exh. PB/2
5. The appellant alongwith his co-accuse was charged under Sections 302/34 and 307/34, P.P.C. He was further charged separately under the Arms Ordinance. He pleaded not guilty and claimed to be tried.
6. During the trial the informant Noor Muhammad (P.W.9) reiterated what he stated in the F.I.R. Exh.
PF. He was supported by eye-witnesses Muhammad Amin (P.W.10) and Ahmad Bakhsh injured (P.W.11). The recovery of the appellant's blood-stained shirt P.1 and the knife P.2 was supported by Noor Muhammad (P.W.9), Muhammad Amin (P.W.10) and the Investigating Officer Muhammad Yousuf (P.W.12). The reports of the Chemical Examiner and the Serologist were tendered in evidence to show that those were stained with human blood. The Doctors P.W.5 and P.W.7 respectively proved the medico-legal certificates of the injured P.W. Ahmad Bakhsh and the post-mortem report of the deceased. P.W.2 dispenser proved the opinion expressed by late Dr. Allah Nawaz given m Exhs. PB/1 and PB/2, regarding simple nature of the injury sustained by the appellant on his hand with a sharp-edged weapon of the duration of within 48 hours.
7. At the close of trial, the appellant claimed to be innocent showing that he had sustained the injury on his hand while cutting a Miswaak from a tree with a knife. His explanation had many dimensions. Firstly he subscribed to the prosecution version of the incident taking place a couple of days earlier when two unknown Scooterists visiting the village were slapped. He stated that they were slapped not only by the deceased or P.W. Ahmad Bakhsh but also by himself. The reason given by him was that they had damaged his cycle after having struck against it. The second dimension of his statement was that a day earlier than the occurrence he had distributed charity alongwith the deceased and Ahmad Bakhsh P.W. After having raised collection. The third aspect was that the deceased and the P.Ws being desperadoes involved in many criminal cases had enemies around suggesting that during the pitch dark night they may have been assaulted by any of their enemies. The fourth view expressed by him was that the deceased and the P.Ws. Were pitted against the co-accused Ata Mohammad who while passing tauntingly coughed on them; that they were provoked to attack him; and that in the assault Ata Mohammad snatched away `lore' of the deceased and applying the same caused them injuries in self-defence. He observed that the occurrence so taking place was witnessed by none and thus it remained to be shrouded in mystery. According to him, P.W. Ahmad Bakhsh was unconcious till the 21st of July, 1979 and that the F.I.R. Lodged earlier was just cooked up. The fifth contention was that Ata Mohammad was a Jhabail by case while he himself being Awan was falsely implicated in this case due to strained relations between the two tribes. Lastly, he pointed out that Ata Mohammad co-accused was killed soon after he was released on bail by none else. Than Ahmad Bakhsh P.W. Who earlier faced a trial for the same and was recently condemned on that account. In defence he produced copy of F.I.R.
(Exh. DG) m regard to the murder of Ata Muhammad to show that he was subjected to reprisal for having been earlier involved in the present incident.
8. Qazi Muhammad Salim, Advocate, for the appellant basically stressed five points, namely (1) there was no motive; (2) the witnesses were not independent; (3) the deceased had many enemies around being himself a desperado; (4) it was a blind murder taking place during pitch dark night; and (5) the post facto murder of the co-accused Ata Muhammad by none else than Ahmad Bakhsh injured P.W. Was proof positive of the reprisal for the present occurrence.
9. There was indeed some confusion about the motive. Two strangers visiting co-accused Noor Hussain Shah, a retired Inspector of Police, were not named, nor were they produced, nor could it be shown as to how they committed debauchery in this village in which they were beaten down.
But any misgivings about it would be of no consequence. We find that the appellant in his statement under Section 342, Cr.P.C. Subscribed to it. His version, however, was a little different, involving himself also in slapping them. Not only that, he claimed that his own cycle had been damaged by them. P.W.11 tried to show that instead they had hit against his cycle. In a way, therefore, the incident of slapping those persons was a common case between the parties. While the P.Ws indicated them to be guests of Noor Hussain Shah co-accused, the appellant did not controvert it and in a way shall be deemed to have accepted their character as such. The contention that the appellant had nothing to do with those visitors was in fact belied by his own statement, wherein he claimed to have had manhandled them. The second reason advanced in this context was that only a day earlier, the appellant the deceased and the injured P.W. Had conjointly raised subscription to offer charity invoking God's mercy due to the long persistent drought. It is true that one of the P.Ws admitted that such a charity was arranged by all of them, but was that a common cause where all may be taking part in equal fervour- Drought was a calamity affecting everyone, and if they all took a step to beseach God---s mercy, that may not necessarily show any warmth of passions for each other individually. In other words, it was an elaborate arrangement in cooking up quite a few Daigs for poor people where probably no one could afford to keep oneself away. Any collaboration on such occasions may be offered with impunity notwithstanding nourishing bad blood in the back of mind against ones foes. The contention that the motive was not proved, cannot be accepted, particularly when it had become. a common case. Reliance was placed upon Ghulam Muhammad v. The State PLD 1982 Lah. 428; Hakim A.I and 4 others v. The State and another 1971 SCMR 432 and Muhammad Sadiq v.
Muhammad Sarwar and 2 others 1979 SCMR 214 for the views that conviction may not be safe where motive was feeble or flimsy; or when the motive set up in the F.I.R. Fails, the prosecution must suffer for it; or that failure of motive will react against the prosecution, but the same will have no bearing in the case in hand particularly when the appellant in his own typical version conceded the motive advanced by the prosecution.
10. The second objection was that the P.Ws were not independent. Their relationship inter se or with the deceased was not denied, but it looks to be far fetched. Additionally they had no personal axe to grind against the appellant. The record shows that they were residents of the same place, and had further claimed to be present in one shop or the other located around the chowk where the occurrence took place at the evening time. I do not think their presence in the shop of a grocer or a barbar was in any way an exceptional event. Since they were not shown to be residents of any far- off place, their availability at the locale was quite probable. It is true that neither the grocer Sufi Noor Muhammad nor the barber nor any of the other shopkeepers of the market came forth to support the prosecution, but that was not by itself enough to disbelieve the PWs particularly when one of them was grievously injured. Shamvela may not be the time for deep darkness in spite of the failure of electricity. The meantime of duration of injuries shown in the medical evidence coincided with almost sunset or a little thereafter when the occurrence took place. It was no time to miss the identity of the assailants and, therefore, all arguments raised in that context were of no consequence.
11. The recoveries of the blood-stained shirt and knife, P.1 and 2 were assailed on the ground that the notable who allegedly produced the appellant before the police alongwith those items was not examined. This omission cannot destroy the testimony of P.Ws. 9 and 10 who claimed to have had witnessed the recovery thereof. If their version as eye-witnesses could be believed, a fortiori they will have to be believed even on this count.
12. The defence plea being quite variegated reveals its own weakness. The version that the co- accused Ata Muhammad killed the present deceased and injured the P.W. In his defence was not raised at the earliest stage either before the police or while making a plea to the charge. Nothing prevented the appellant from so doing and, therefore, raising it subsequently was an afterthought.
There was considerable justification in the contention that the post facto incident of the murder of Ata Muhammad after coming out of the jail on bail was being exploited by the appellant in his favour. It may mean substitution of the appellant for Ata Muhammad. The law does not look at it favourably because it is rare phenomenon. The desperado character of the deceased though remains considerably proved inasmu ch as he was involved in a number of cases of violence, yet keeping in view the time and the venue of occurrence there was little reason to doubt the prosecution case. If the deceased and the P.W. Really attacked their co-accused Ata Muhammad, there should have been some injuries on the latter, but admittedly he had none, because he was not medically examined after his arrest. Conversely the appellant had one injury on his right hand with sharp-edged weapon. Though it was simple, yet it was ascribable to him while using the knife in injuring the deceased and the P.W. The desperado character of the deceased compelling him to keep the lore with him all the time was not much inspiring and if he had any, the same may not have been easily snatched away from him especially by any empty handed person like Ata Muhammad and that too without any injury on him. In a way it was abnormal to so suggest.
Further, there was no plausible reason for the deceased to quarrel with Ata Muhammad only because the latter made a Khangoora while passing by. Indeed it was something too flimsily to arouse such a drastic reaction on their part and practically without any previous bad blood toward him. The story was least convincing. Similarly unimpressive was the statement that the appellant being an Awan by case was falsely arrayed in this case because of his tribe's friction against the tribe of Ata Muhammad. Nothing to support such a deep-rooted aversion between the two tribes was brought on the record and the mere catch words obviously did not suffice to prove the same.
13. For all these reasons we see no force in Appeal No.163 of 1983 and dismiss the same. There is equally no reason to alter the sentence because the injury caused or, chest destroyed almost all vital organs of the deceased. We confirm the sentence of death passed against the appellant by the lower Court. We equally uphold the sentences passed against him under Section 307, P.P.C However, we accept Criminal Appeal No.164 of 1983 relating to his conviction under Section 13 of the West Pakistan Arms Ordinance, 1965 (Ordinance XX of 1955). The case was triable under Section 14- A of the Arms Ordinance by a Magistrate and the learned Sessions Judge was not competent to try the same. It was a proceeding coram non judice and cannot be maintained. His conviction is set aside on this technical ground. The accused may not be retried as retrial in criminal cases is a rare phenomenon. He is acquitted thereof.
RAJA AFRASIAB KHAN, J.--I have the privilege to read the illustrious judgment delivered by my learned brother Mr. Justcie Akhtar Hassan while disposing of Murder Reference No.191 of 1984 and Criminal Appeal No.163 of 1983, whereby his Lordship was pleased to confirm the death sentence imposed upon the appellant Mahmood alias Sultan Mahmood and to dismiss his appeal referred to above vide his Lordship's judgment. With profoundest and utmost respect I say that I am not persuaded to agree with his Lordship in the matter of sentence awarded to the appellant. I, therefore, propose to give my own reasons for conviction of the appellant and the question of offence having been committed by him and to award the sentence by my separate judgment, which is as follows:
2. The appellant Mahmood alias Sultan Mahmood, aged 26/27 years, armed with knife P.2 was convicted under section 302, P.P.C. For the murder of Allah Dewaya, aged 30 years, by the learned Additional Sessions Judge, Multan, vide his judgment dated 30th June, 1983 and was sentenced to death plus-fine of Rs.5,000 and in default thereof to suffer rigorous imprisonment for three years.
He was also convicted under section 307, P.P.C. For having made murderous assault on Ahmad Bakhsh (P.W.11) and was sentenced to three years' rigorous imprisonment plus fine of Rs.1,000 and in default thereof to suffer further six months' rigorous imprisonment. It was ordered that in case of the recovery of fine, a sum of Rs.3,000 shall be paid to the legal heirs of the deceased.
3. The occurrence took place on 18th July, 1979 at Shamwela, whereas the matter was reported to Police Station Mumtazabad, District Multan, on the same day at 11.05 p.m. By Noor Muhammad (P.W.9) the real brother of the deceased. The complainant Noor Muhammad stated while making the report before the police that a day before yesterday at 13.15 p.m. Two guests of Noor Hussain Shah, acquitted co-accused came in village Langrial while riding on a scooter. The guests were given a thrashing by fist blows by the deceased Allah Dewaya and Ahmad Bakhsh (P.W.11) as to why they had come there in the village for debauchery. The guests went to Noor Hussain Shah and made a complaint before him that the people of his area had given them a beating and disgraced them. On the day of occurrence at Shamwela, the appellant alongwith the other acquitted co- accused, reached the Chowk of village Langrial, where Noor Muhammad complainant (P.W.9), Muhammad Amin (P.W.10), Faiz Bakhsh and Muhammad Rafique (both not produced) were present. The deceased Allah Diwaya was caught hold of by Ata Muhammad and Jan Muhammad, acquitted co-accused, by his arms whereupon the appellant gave a single knife blow which landed on the chest of the deceased. The appellant also caused a single injury on the person of Ahmad Bakhsh (P.W.11). Both the deceased and the injured fell down on the ground and the appellant alongwith the acquitted co-accused disappeared from the scene of offence.
4. Muhammad Yusuf S.I. Police Station Mumtazabad (P.W.12) recorded the statement of complainant Noor Muhammad (P.W.9) and visited the spot. The witness collected the blood- stained earth and took the same into a sealed parcel vide Memo. Ex.P.G. The appellant appeared before him while wearing the blood-stained shirt P.1. Which was taken into possession vide Memo.
Ex.P.H. The appellant also produced the blood-stained knife P.2 on the same day which was taken into possession vide recovery memo. Ex.P.J. Statement of Ahmad Bakhsh (P.W.I1) could not be recorded by the witness because he was not declared fit to make such a statement. The witness in cross-examination admitted that the complainant Noor Muhammad came to him at about 11.00 p.m. At the police station and he himself reached the place of occurrence at about 11.45 p.m. The witness further disclosed that Muhammad Bakhsh headman and one Mumtaz Hussain at about 8.15 a.m on 19th July, 1979 produced the appellant while he was holding knife P.2 in his hand. The witness conceded that Muhammad Bakhsh headman and Mumtaz Hussain were not cited as attesting witnesses of the recovery memo. Of knife Ex.P.J. He admitted as correct that a Zimni was recorded by the S.H.O. Wherein it was stated that in the statements Faiz Bakhsh and Muhammad Rafique (both not produced) stated that Allah Diwaya deceased, Ahmad Bakhsh (P.W.11) and the appellant gave a beating to the two scooter riders before the occurrence. The reports of the Chemical Examiner and the Serologist disclosed that the articles referred to them were found to be stained with human blood.
5. Dr. Munawar Tahir Hussain (P.W.7) conducted the post-mortem examination on the dead body of Allah Diwaya on 19th July, 1979 at 12.45 p.m. And found the following single injury on his person:-
(1) A stab wound 2 cm x 1 cm x chest cavity deep on the left side of front of chest 4 cm medial to the left nipple and 5 cm outer to mid-sternal line. Corresponding cut in the shirt and the bunyan was present, which were bloodstained.
Dr. Abdul Aziz Shah (P.W.7) medically examined Ahmad Bakhsh (P.W.11) on 18th July, 1979 at 9.00 p.m. And found the following injury on his person:
(1) An incised wound 1" x 1/2" on left lumber region 2" above the left iliac bone of hip with 1-1/2" omentum outside, bleeding was positive.
The nature of the injury was grievous which was caused with a sharp-edged weapon within the duration of 6 hours.
6. The prosecution in order to prove its case against the appellant produced as many as three eye- witnesses, namely, Noor Muhammad complainant (P.W.9), Muhammad Amin (P.W.10) and Ahmad Bakhsh (P.W.11). Noor Muhammad (P.W.9) is the real brother of the deceased Allah Diwaya. The mother of Allah Dewaya deceased is the aunt of Muhammad Ramzan. Muhammad Ramzan is the son-in-law of Muhammad Amin (P.W.10). A sister of Allah Diwaya deceased is the wife of Haq Nawaz who is the brother of Ahmad Bakhsh (P.W.I1). Thus, all the eye-witnesses inter se are related to one another.
7. Noor Muhammad (P.W.9) while making his statement disclosed that two guests of acquitted co- accused Noor Hussain Shah teased the women of the village and for this reason the deceased and Ahmad Bakhsh (P.W.11) slapped them and told them as to why they had come to the village for immoral purposes. Both the persons made a complaint to acquitted co-accused Noor Hussain Shah that his co-villagers had insulted them. The witness submitted that on the day of occurrence, the appellant alongwith other acquitted co-accused came at the spot where all the witnesses were present. Ata Muhammad and Jan Muhammad acquitted co-accused caught hold of the deceased whereupon the appellant gave a single knife injury on the chest of-the deceased.
Similarly, the appellant gave a single injury with the knife on the abdomen of Ahmad Bakhsh (P.W.11). According to the witness, the occurrence had taken place at the instigation of Noor Hussain Shah, acquitted co-accused. The witness stated that the appellant was produced by one Zamindar while he was wearing the blood-stained shirt P.1 and was also holding a knife in his hand which was open and was also blood--stained. The witness in cross-examination stated that he did not know that Ata Muhammad, acquitted co-accused was murdered after his release on bail in the instant case. He also did not know that Ata Muhammad was murdered two days after his release on bail. It was admitted as correct by the witness that Ahmad Bakhsh (P.W.11) etc. Were the accused persons in the murder case of Ata Muhammad accused. The witness admitted as correct that he was not present when the first incident of motive took place. The witness maintained that he started to report the matter to the police station after the sunset. However, on the way, his cycle became out of order and thereafter he went on foot and reached the police station at about 10.45 p.m. Muhammad Amin (P.W.10) had outrightly told a new story about the occurrence.
He submitted that the deceased made a complaint to Jan Muhammad acquitted co-accused that he (Jan Muhammad) was responsible for his disgrace and upon this there was an exchange of hot words between them. As a consequence of the hot words exchanged between parties Jan Muhammad and Ata Muhammad, acquitted co-accused caught hold of deceased Allah Diwaya; while the appellant gave knife injury to the deceased. Ahmad Bakhsh (P.W.11) has clearly stated in his statement that on the day of occurrence in the evening time, he as well as the deceased were present in the chowk of village Langrial when an electricity pole was being set in order by removing the defects. There was also an assembly of people. The acquitted co-accused were present. The witness stated that he lodged a complaint to Jan Muhammad, acquitted co---accused, that in fact they were responsible for their insult and disgrace. On this, there was an exchange of hot words between them and consequently the people intervened and the matter was hushed up. The witness maintained that he did not produce the damaged cycle before the investigating officer during the investigation of the case. He candidly admitted in his cross-examination that a day More the occurrence the deceased Allah Diwaya and the appellant raised funds and then arranged the cooking of rice which were later on distributed amongst the poor. The prayers were offered for rainfall as there was severe drought. He deposed that the acquitted co-accused Noor Hussain Shah was out of village Langrial as his son-in-law had died earlier in Basti Sanawan, District Muzaffargarh. The witness admitted as correct that there was no electricity before the occurrence had taken place because there were some defects in the electric pole.
8. The appellant, while making statement under section 342, Cr.P.C. Denied the allegations levelled against him. However, the appellant gave his own version of occurrence inasmuch as he stated that the deceased was a desperado and was always armed with a 'lore'. He was a law-breaker by temperament. The occurrence took place during the darkness of night. There was complete darkness prevailing in the village because of total failure of electricity supply. The appellant submitted that in fact the deceased was done to death by Ata Muhammad co---accused and further the appellant submitted that the deceased as well as Ahmad Bakhsh P.W.11 and he himself collected money, got the food prepared and distributed the same amongst the poor and sought the mercy of Allah Almighty for the disappearance of the drought.
9. The learned counsel for the parties were heard at considerable length. The learned counsel for the appellant in short submitted that there was no reliable evidence to prove the guilt of murder against him. The learned State counsel defended forcefully the conviction and sentence of the appellant as awarded by the trial Court.
10. I have carefully gone through the evidence deposed by the eye-witnesses in the case. I am of the view that the prosecution has wholly failed to prove the premeditated murder of the deceased by the appellant inasmuch as it is established beyond reasonable doubt that there was absolutely no enmity between the appellant and the complainant party. It had adequately been demonstrated by the most important witness of the prosecution, namely, Ahmad Bakhsh (P.W.11) that a day before the occurrence he as well as the appellant and the deceased collected money from the people and made arrangements for cooking of rice and distributed the same amongst the poor of the locality. They together offered prayers and sought the mercy and blessings of Allah Almighty because the area was hit by drought due to shortage of rainfall. In view of the categorical statement of Ahmad Bakhsh P.W., no doubt whatsoever has been left that there was any criminal intention on the part of the appellant to commit the murder of the deceased a day before the occurrence. Thus the story of the prosecution about the motive disappears automatically with the aforesaid statement of the star witness of the prosecution case. This means that the deceased and the injured Ahmad Bakhsh (P.W.11) were on friendly terms with the appellant and there was absolutely no ill-will or enmity between them till the time of occurrence.
11. In my considered view in all probability, the occurrence in hand had taken place at the spur of moment for variety of reasons. The trend of the eye--witness account is that the appellant as well as the other acquitted co-accused assembled at the chowk of village Langrial as if they had not come to commit any offence whatsoever. They came there peacefully. Muhammad Amin (PW.10) stated that the appellant and other co-accused also reached the place of occurrence. The witness did not state that the appellant and others came at the spot while shouting or for that matter the appellant displayed his knife at the spot. The witness stated that on the complaint having been lodged before .Ian Muhammad co-accused that the complainant party was disgraced and they were responsible for their disgrace and immediately thereafter there was an exchange of hot words between the parties and this is the way how the occurrence took place. The statement of this witness Muhammad Amin (P.W.10) finds further support from the testimony of Ahmad Bakhsh (P.W.11) who said that there was an exchange of hot words between the parties and that a complaint was made to Jan Muhammad co-accused for the disgrace meted out to them earlier because of them. This evidence of the prosecution has persuaded me to come to the conclusion that the appellant had no premeditation whatsoever to kill the deceased Allah Diwaya. From the prosecution evidence itself it is established that there was an exchange of hot words which followed a quarrel between them and as a result thereof, in the heat of passion, the appellant attacked and caused injuries to the deceased and the witness.
12. There is nothing on the record to show that the appellant had come there with the motive of murder. The motive part of the prosecution story has not at all been proved by the prosecution. The complainant Noor Muhammad (P.W.9) has vividly stated that he was not present at the time of the earlier occurrence of motive. This being so, there is no evidence whatsoever produced by the prosecution to prove the existence of the first occurrence providing motive to the appellant to commit the murder. Therefore, the only evidence of the prosecution witnesses is that on the day of occurrence, the parties exchange hot words and this is how the occurrence took place suddenly.
Additionally, as observed earlier, admittedly the complainant party as well as the appellant were working together for a common cause and both the parties alone arrange the whole function which took place only a day before the occurrence. The money was collected by them together.
They made arrangements for cooking rice at the spot and then they together distributed the cooked rice amongst the poor. All these facts taken together will prove beyond any shadow of doubt that there was no mens rea with the appellant to commit the murder. I, therefore, believe this evidence and come to the conclusion that the occurrence had taken place because of heat of passion and upon a sudden quarrel which ensued between the parties because of exchange of hot words between them. Therefore, the facts and circumstances of the instant case will attract the provision contained in Exception 4 to section 300, P.P.C. This being so, I do not find any lawful justification to convict the appellant fur an offence under section 302, P.P.C. And to confirm his death sentence.
13. It may be noted that the appellant did not repeat the knife blow to the deceased as well as to the injured witness. It can be observed that the appellant did not act in a cruel manner in causing injuries to the deceased as well as the injured P.W. Ahmad Bakhsh (P.W.11) deposed that the occurrence took place in a minute or so Therefore, the attack by the appellant ended in the least possible time. This is a common knowledge that sometime friends may fight with one another and may cause injuries to one another. This is exactly what has happened in this case. If the appellant had in fact nourished any grudge against the deceased, he had better opportunities available to him to finish the deceased while they were together in collecting the money from the people and were likewise busy in cooking the rice only a day earlier to the occurrence. However, he did not do so all the time. This circumstance will lead to the irresistible conclusion that the complainant party and the appellant were having cordial relations with each other even a day before the occurrence.
It is the duty of the prosecution to prove its case against the appellant. It is well-settled that the prosecution has to stand on its own strength. The prosecution, of course cannot take benefit out of the weakness or defects in the defence version as pleaded b the appellant in his statement made by him under section 342, Cr.P.C. Even otherwise, there is nothing in the statement of the appellant to inculpate him the commission of this offence. After all, the statement of the appellant is not the nature of a confessional statement. This does not mean that the appellant has' committed no offence.
14. His presence at the spot is established by the eye-witness account. Additionally, he was found injured and he could not explain the injury on his person. There is nothing on the record to show that the appellant was falsely involved in the case. The appellant has tried to prove in his statement that he was implicated in the case because of tribal bias. In my view, this is wholly inadequate to prove the fact of false implication of the appellant.
15. I also do not believe the recovery of knife P.2 from the appellant in the manner as relied upon by the prosecution. It is in the evidence of Muhammad Yusuf S.I (P.W.12) that the appellant was produced before him by Muhammad Bakhsh Headman and Mumtaz Hussain with the weapon of offence knife P.2. However, it may be noted that the aforesaid two persons were not cited as attesting witnesses. The above-said witnesses were the independent witnesses and as such, their non-production will seriously cast doubt upon the recovery itself. Thus, the recovery of knife P.2 becomes highly doubtful. The appellant in the circumstances of the case appears to have picked up the knife from the very shop of Allah Diwaya deceased who used to sell ice and cold drinks and had thus used that knife in causing injuries to the deceased and the P.W. The vendors like the deceased, commonly possess knives at the place of their business.
16. The upshot of the above discussion is that the prosecution has not been able to successfully prove its case under section 302, P.P.C. Against the appellant. Accordingly, I alter the conviction and sentence of the appellant from section 302, P.P.C. To one under section 304, Part 1, P.P.C. And sentence him to ten years' P rigorous imprisonment and also to pay a fine of Rs.5,000 or in default to undergo further two years' - rigorous imprisonment. The whole amount of fine, if recovered, shall be paid to the legal heirs of the deceased. I maintain the conviction and sentence of the appellant under section 307 P.P.C. The sentences shall run concurrently.
17. The appellant shall also be given the benefit of section 382-B, Cr.P.C. At the time of computation of his sentence of imprisonment. The sentence of death is not confirmed.
18. The appeal is accepted to the above extent.
N.H.Q./M-1561/L