SARDAR MUHAMMAD DOGAR, J- Mahmoodul Hassan alis Mahmood alias Mooda, aged 26 years, and his brother Khushnudul Hassan alias Shaukat Ali alias Khancha, aged 19 years, were tried by Addl. Sessions Judge, Lahore, for having murdered Izzat Beg at 12.45 noon o# lay a fine of Rs.3,000/- each, in defauIt whereof to undergo one year RJ/each. Fine, on recovery, has been directed to be paid as compensation the heirs of the deceased.
2. The convits have filed appeal. The learned trial Judge has made reference for confirmation of death sentences. Both the matters are being disposed of by the ensuing judgment.
3. FIR (Ex. PD/1) was registered at Police Station Lower Mall, Lahore at 2.15 p.m. On 11-8-1983 by Gulfraz, MHC(PW 4), on receipt of statement (Ex. PD) of Zulifqar Beg (PW 7), recorded by Abdur Rauf, SI (PW 10), on the same day at 2 p.m. In Mayo Hospital, Lahore.
According to the FIR, the deceased, who was working as an electrician in Jhelum had come to see his parents since 5/6 days prior to the occurrence. He had friendly relations with the appellants.
Mahmoodul Hassan had obtained Rs.1,000/- as loan from him 7/8 months before the occurrence.
The deceased and the appellants had quarrelled among themselves 2h months before the occurrence, over the repayment of the loan. The complainant and his brother Irshad Beg had got the matter patched up and Mahmoodul Hassan had promised to return the money.
On the day of occurrence, the deceased along with the complainant went to the house of Hassan at 12.45 p.m. For repayment of the loan.
Mahmood came out of his house. The deceased demanded the loan money, whereupon Mahmood fell with him. The complainant separated them. Mahmood immediately went inside his house and returned with his brother Khushnudul Hassan alias Shaukat Ali,_____ armed with Chhuris. Izzat Begran towards Street No.6 for safety. Both the appellants chased him and overtook him near Moon Academy. Mahmood gave the first blow on the chest of the deceased. Shaukat gave two blows on the abdomen and left thigh. He (deceased) fell down. Whereafter, the appellants gave five more blows, causing injuries on left thigh beneath the buttock, right thigh beneath the buttock and left calf. Iqbal Beg (PW 8), Nazir Hussain Butt (PW 9) and given up PW Aleem Beg reached the spot on hearing noise raised by the complainant and the deceased and witnessed the occurrence. The appellants ran away. The deceased was removed in a Rickshaw to Mayo Hospital by the complainant and Zahid Shabir where he died before being given any medical aid.
4. Abdur Rauf, SI after recording statement (Ex. PD) prepared the injury statement (Ex. PH) and inquest report (Ex. PJ) on the dead body of the deceased and sent the samg to the mortuary for postmortem examination. He inspected the spot and collected blood-stained earth from there vide memo. Ex. PG. He also recorded the statements of the witnesses present there.
Khusnudul Hassan was arrested by him on 15-8-1983. He led to the recovery of blood-stained Chhuri (P.3) from his house on 21-8-1983, which was taken into possession vide memo. Ex. PE.
Mahmoodul Hassan was arrested by him on 21.9.1983. He got recovered blood-stained Chhuri (P.4) on 24.9.1983 from the bushes in the Christian Graveyard. The Chhuri was taken into possession vide memo. Ex. PF.
After completion of necessary investigation, challan was put to court.
5. The statements of ten prosecution witnesses were recorded at the trial. Positive reports about human blood on earth and two Chhuris recovered at the instances of the appellants, from the offices of the Chemical Examiner and the Serologist, (Exs. PL, PM and PN and Exs. PO, PQ and PP, respectively) were also tendered in evidence.
6. Dr. Shahid Hanif, who had performed autopsy on the dead body of the deceased at 10.30 a.m. On 12-8-1983 appeared as PW-1. He noted eight stab wounds, i.e. On front of chest on the right side of nipple, on front of lower abdominal wall, on muscles of femoral triangle, on middle third of left lower leg, on upper part of back of left thigh, on back of Jeft thigh, on back of left leg, above the heel and on back of right thigh. The stab wounds have been enumerated as Nos: 2,3,'4,5,7,8,9 and 10. He had also noted an abrasion on the right side of front of chest and muItiple abrasions on the inner aspect of right ankle.The two abrasions were opined to have resuIted from blunt weapon, while the stab wounds were opined to have been caused by sharp-edged weapon. Death, according to his opinion, had resuIted from injury No.2 which was opined sufficient to cause death individually also.
Injuries 3 to 5 and 7 to 10, in combination with injury No.2, were opined to be sufficient to cause death in the ordinary course of nature.
7. The ocular account has been deposed to by Zulifqar Beg (PW 7), father of the deceased, Iqbal Beg (Pw 8), cousin of the deceased and Nazir Hussain Butt (PW 9).
Zulifqar Beg repeated the facts given by him in the FIR. He, however, made improvement over his statement (Ex. PD) by stating that Mahmoodul Hassan had given one blow on the right buttock and two blows on the left buttock, after the deceased had fallen on the ground and Khushnudul Hassan had given two blows on the outer and inner sides of left calf. He also repeated the facts given by him about the loan taken by Mahmoodul Hassan from the deceased and the quarrel that had taken place between the appellants and the deceased two and a half nionthj before the occurrence.
His statement with regard to the actual occurrence has been corroborated by Mirza Iqbal Beg (PW 8) and Nazir Hussain Butt (PW 9).
Mirza Iqbal Beg while explaining his presence near the spot stated that he had gone to the house of Zulifqar Beg complainant to attend the function arranged by Zulifqar Beg in honour of his cousin Babar alias Bobi, who was to leave for Dubai on that day.
Nazir Hussain Butt also explained his presence near the spot by stating that he had gone to Aziz Manzil (the residence of Zulifqar Beg) to meet Bobi, who was son of his friend, as he was to go abroad.
The questions put to all these witnesses during crossexamination about their residences at places other than from near the place of occurrence were satisfactorily answered by them and nothing turns out from their statements to hold that they were not residing at the places they had mentioned or that they were not present at the spot at the time of occurrence. All the three witnesses denied the suggestions that the deceased was of a bad character and he used to tease the girls and that on the day of occurrence he had teased some girl and the unknown relative of that girl had quarrelled with the deceased, as a resuIt of which the deceased had suffered injuries and died.
The statement made by Zulifqar Beg complainant about the motive for the occurrence has been corroborated by Irshad Beg (PW 5), who is uncle of the deceased. He has claimed that he along with his brother Zulifqar Beg complainant had separated the deceased and appellant Mahmoodul Hassan when they had quarrelled about the return of loan of Rs.1,000/-, which Mahmoodul Hassan had taken from the deceased 7/8 months prior to the occurrence. He admitted during cross- examination that the loan had not been obtained by Mahmoodul Hassan from the deceased in his presence. In answer to another question, he stated that he had also reached the spot 10/15 minutes after the occurrence and had seen the dead body of the deceased lying there, which later was removed in a Rickshaw to the hospital. He did not mention the presence of any of the PWs near the dead body.
Mahmood Beg (PW 6) deposed about having witnessed the recoveries of Chhuris at the instances of the appellants. He admitted that the deceased was son of his brother Zulifqar Beg complainant.
Abdur Rauf, SI while giving account of registration of case and arrest of the appellants corroborated the statement made by Mahmood Beg about the recoveries of Chhuris at the instances of the appellants.
8. Both the appellant during their statements under section 342, Cr. P.C. Denied the prosecution case as a whole. Both of them pleaded that they had been involved falsely in the case. Mahmoodul Hassan pleaded that he was involved falsely in the case due to enmity with the police, while Khushnudul Hassan stated that he was involved in the case due to suspicion and some misunderstandings. Mahmoodul Hassan-also submitted a written statement (Ex. DD), in which he has taken the plea that he was at Karachi on the day of occurrence, that the police was inimical to him and they had earlier also involved him in two cases but he was acquitted.
Khushnudul Hassan have also submitted written statement (Ex. DE), wherein he has taken up the plea that the deceased was a man of bad character and he used to tease the school girls in the street that Mohalladars had stopped him many a times, as a resuIt of which they had exchanged hot words also. He took up the instance that he had also been taking side with the Mohalladars.
9. Learned counsel for the appellants, after taking us through the evidence, criticised the impugned judgment and contended that Zulifqar Beg complainnant does not appear to have witnessed the occurrence and that the occurrence does not appear to have taken place in the manner put forth by the prosecution that the occurrence appears to have taken place on account of something having happened, which complainants have not disclosed. Lastly, learned counsel submitted that in case the convictions of the appellants are maintained, the sentence of death awarded to Khushnudul Hassan be not confirmed as he obviously appears to have acted under influence of his elder brother and so deserves to be treated leniently.
10. Learned counsel for the State/complainant defended the judgment of the trial court.
11. The contention of the learned counsel for the appellants that Zulifqar Beg PW does not apppear to have witnessed the occurrence, is based on the statement made by Irshad Beg (PW 5), wherein, while answering a question during cross-examination, he did not mention the presence of Zulifqar Beg at the spot, where he had reached 10/15 minutes after the occurrence and on Ex. DC, the chit sent to the police by the CasuaIty Medical Officer, Mayo Hospital, Lahore, on 11-8-1983, about the death of Izzat Beg, wherein the name of Zulifqar Beg is not mentioned in the relevant column provided for mentioning the name of the person, who brings-- the person (injured or deceased) to the CasuaIty Ward. Therein, the name of, Zahid Shabir is, only mentioned.
We have considered this contention after going through the statement of Irshad Beg and after examining the chit (Ex. DC). Irshad Beg had not made any positive statement about having witnessed the occurrence and about the presence of the witnesses at the spot. In fact, while answering a question in cross-examination, he had stated that he had also reached the spot 10/15 minutes after the occurrence. Obviously, he was answering the questions being asked. He was not expected to name therein the persons who had witnessed the occurrence or even, of persons present round about. He was examined by the prosecution about the motive for the occurrence.
The non-mentioning of the presence of Zulifqar Beg, therefore, by this witness, cannot be taken to mean that he (Zulifqar) had not witnesed the occurrence.
No doubt the name of Zulifqar Beg is not mentioned in the chit (Ex. DC) sent by the doctor to the police, in the relevant column, but it is worth mentioning that Zahid Shabir whose name is mentioned in the chit to have brought the deceased to the hospital, had according to Zulifqar Beg, taken the deceased along with him to the hospital. His name finds mention in the FIR as well. It is quite understandable that Zulifqar Beg would not be in so good shape, after coming to know of the death of his son and Zahid Shabir would have provided the information to the CasuaIty Medical Officer and the Medical Officer would not have considered it so important as to hold an inquiry whether Zahid Shabir alone had brought the deceased to the hospital or any body else had also accompanied him. In this view of the matter, we do not find any force in the argument of the learned counsel for the appellants that the presence of Zulifqar Beg at the spot was doubtful and so his statement should be excluded from consideration.11. None of the eyewitnesses including the complainant, or for that matter even the witnesses who appeared to depose about the motive and the recoveries was asked any question of being inimical to the appellants in any manner. They were no doubt all related to the deceased except Nazir Hussain Butt, but they had admittedly no bias against the appellants. The occurrence had taken place at mid-day and it cannot be believed that all of them would have substituted the appellants for the actual culprits. The suggestion put to the witnesses about unknown person having caused the death of the deceased, apart from having been denied by the witnesses, also appears to be incongruous with the number of injuries and the place and time where and when the occurrence had taken place. It seems had to believe that a stanger would have attacked the deceased and could have run away after inflicting so many injuries.12. The ocular account finds sufficient corroboration from the medical evidence and the evidence of recoveries of weapons of offence, which were later found stained with human blood.
The evidence of motive also appears to be genuine and so lends support to the prosecution case. 1 In the circumstances, no case has been made out for interference in the judgment of conviction of the appellants under section 302/34 PPC. The same is maintained.
13. The prayer made by the learned counsel for the appellants for aIteration of the sentence of death of Khushnudul Hassan alias Shaukat Ali alias Khancha to imprisonment for life, in our view, possesses substance. It is prosecution's own case that on the day of occurrence, the deceased had asked for the return of loan from Mahmoodul Hassan and it was he who had started quarrelling with the deceased and it was he who had run inside his house and came back with Khushnudul Hassan, his younger brother, armed with Chhuris. Khushnudul Hassan was 19 years of age at the time of trial. It means that he would be 18years of age at the time of occurrence.
Obviously, he might have acted under the influence of his elder brother. The sentence of death awarded to him (Khushnudul Hassan), therefore, is aItered to imprisonment for life. He shall be given the benefit of the provisions of section 382-B, Cr.P.C.
The sentence of death awarded to Mahmoodul Hassan is confirmed.
The sentences of fine awarded to both the appellants are maintained.