LEHRASAP KHAN J.- Muhammad Ashraf 55, Zahid Hussain alias Munna 17, Haroon-ur-Rchman alias Noni 23, Muhammad Arif alias Dana 19, Muhammad Musa 19, Nazir alias Jecra 24 and Muhammad Khalid 24, have been convicted by a learned Additional Sessions Judge, Lahore, vide his judgment dated 3-5-1988, under sections 302 and 148 PPC read with section 149 of the same Code for causing the murder of Muhammad Azam deceased 35. All the aforementioned accused have been sentenced to imprisonment for life and fine of Rs.10,000/- each, under section 302/149 PPC while under section 148 PPC, they have been sentenced to two years R.I. Each. The sentences, however, have been ordered to run concurrently. It has been ordered that in defauIt of payment of fine, the defauIters shall suffer three years R.I. It has also been directed that out of the fine, if recovered, a sum of Rs.50,000/- shall be paid to the heirs of Muhammad Azam deceased.
2 Muhammad Khalid and Muhammad Arif have challenged their convictions and sentences through Crl. Appeal No.541 of 1988. Muhammad Ashraf and Zahid Hussain have filed Crl. Appeal No.590 of 1988 to challenge their convictions and sentences. Haroon-ur-Rahman alias Noni, Muhammad Musa and Nazir alias Jeera have challenged their convictions and sentences through Crl. Appeal No.815 of 1988. Iftikhar Ahmad complainant has filed Crl. Revision No.45! Of 1988, seeking enhancement of sentences passed against the aforementioned convicts. All these matters shall be disposed of through the present judgment.
3. The occurrence in this case took place on 11-9-1986 at Shamwela on Sagar Road in Saddar Bazar, Lahore Cantt, at a distance of 1- 1/2 K.M. From the police station, North Cantt, Lahore. This occurrence was reported to the police by Iftikhar Ahmad PW9, a brother of Muhammad Azam deceased, through statement, Exh.PC, which he made before Sana Ullah S.I.PW16 on the same day at 8.30 p.m., in Mayo Hospital, Lahore.
Formal FIR Exh.PC/1 was recorded at the police station North CanIt by Muhammad Hanif ASI, PW7, at 8.55 p.m.
4. Regarding motive, it has been alleged that the deceased, in his capacity as Vice President of Cantt. Muslim League, opened an office of Muslim League in a room on the ground floor of his house.
Muhammad Ashraf appellant and his associates viz the co-accused harboured grudge against Muhammad Azam on account of opening of office of Muslim League and hence the occurrence.
5. About the main occurrence, it has been stated that at the fateful time, the appellants came to the place of occurrence. Khalid and Arif were armed with carbines while Haroon-ur-Rchman alias Noni,Nazir alias Jccra and Musa were armed with churris and Zahid alias Muna was carrying Bugda (chapper generally used by Butchers). Muhammad Ashraf appellant was allegedly empty handcd.Khalid and Arif accused fired in the air with their respective weapons and in the meanwhile Zahid alias Muna caused an injury on the head of Muhammad Azaam deceased with Bugda. After receiving this injury, Muhammad Azam fell down. In fallen condition, he was caused injuries with churris by Haroon-ur-Rchman and Nazir alias Jccra on his back. Muhammad Musa caused an injury to the deceased on his left wrist. Through out the occurrence, Muhammad Ashraf appellant has been raising lalkara that Muhammad Azam be taught a lesson for opening the office of Muslim League. After causing the injuries to Muhammad Azam deceased, the appellants made good their escape from the scene of occurrence. Besides Imtiaz Ahmad, the occurrence was witnessed by Tahir Masood PW10 and Muhammad Bashir, Zafar Iqbal, Haji Muhammad Saleern and Khalid Nadim, who of course, have not been examined during the trial. The deceased in injured condition was taken to Mayo Hspital, Lahorc, in a rickshaw by Iftikhar Ahmad PW9 and their brother Abdul Aziz (not examined) but he succumbed to the injuries before arrival in the hospital. Sana Ullah PW16, after coming to know about this occurrence, went to Mayo hospital, Lahore, where he recorded statement, Exh.PC, of Iftikhar Ahmad. Thereafter, he prepared the injury statement and inquest report in respect of the dead body of Muhammad Azam deceased. He handed over the dead body to Umar Farooq and Saleern Ullah constables, PW1 and PW5, respectively, for taking the same to the Mortuary.
6. Autopsy on the dead body of Muhammad Azam deceased was performed at 11 a.m. On 12-9- 1986, by PW15 Dr. Saleh Yousaf. He noticed the following injuries on the dead body of the dcceased:-
1. "5x1.5 cm crescentic stab wound with concavity up-wards, cavity deep, horizontally placed on the back ol left chest, 3 cm from the mid-line and 11 cm below top of shoulder.
2 4.5 cm x 1 cm muscle-deep obliquely placed ellipitical stab wound in the midline at the lower back 25 cm below injury No.1.
3. 8 x 0.3 cm incised wound 2.5 cm to the right of mid-line and 18 cm below right shoulder at the back of right chest.
4. 6.5 x 0.7 cm incised wound longgitudinally placed on top of head 2 cm to the left of mid-line and 5 cm above left eye-brow.
5. 28 x 0.5 cm abrasion horizontally placed across upper part of front of chest, 4.5 cm below supra- stemal notch.
6. 1.25 x 0.5 cm bruiscd-arca on anterior aspect of right upper arm, 7 cm above elbow-joint.
7. 5 x 1 cm bruised area on antro-lalcral aspect of left upper arm, 15 cm below top of shoulder.
8. 1.5 x 0.3 cm incised wound on back of left wrist.
9. 1.5 x 0.7 cm abrasion over right tibial- tuberosity.
10 1.5 cm in dia-meter abrasion on front of left knee."
He opined that all the aforementioned injuries were ante-mortem. Injuries Nos. 1 to 4 were caused by sharp-edged weapon and the rest by blunt weapon. He further opined that the death occurred due to damage to lung and haemorrhage and shock which was sufficient to cause death in the ordinary couse of nature. Exh.PM is the carbon copy of the post mortem report, while Exh.PM/A and Exh.PM/B are the diagrams re:- pictorial presentation of the injuries.
6. Zahid alias Muna, Arif alias Dana and Musa were arrested on 12-9-1986 by Sana Ullah, SI PW16.
Haroon-ur-rehman alias Noni was arrested on 14-9-1986 by Latif Hussain Shah SI, PW17. Nazir alias Jeera and Khalid were arrested on 14-9-1986 by Nazar Hussain, Inspector/SHO PW8. Muhammad Ashraf applied for bail before arrest un-successfully and he was arrested on 29-9-1986 by Sana Ullah SI, PW16. On 11-9-1986, empty cartridge, Exh.P7, was recovered from the place of occurrence vide memo Exh.PJ, which has been attested by Muhammad Din PW11, Sana Ullah SI, PW16 and Muhammad Saleern (not examined). On 22-9-1986, Arif alias Duma led to the rcovery of Carbine, Exh.P3, from behind the northern wall of Government Transport Depot, Saddar, Lahore. This weapon was seized vide memo Exh.PD, which has been attested by Iftikhar Ahmad PW9, SI Sana Ullah PW16 and Khalid Nadeem (not produced). On the same day, Muhammad Musa led to the recovery of blood-stained Churri P4 from underneath a Keekar tree behind the grave-yard, which is located near the Government Transport Depot, Saddar. This Churri was taken into possession vide memo Exh.PE, which has been attested by Iftikhar Ahmad and SI Sana Ullah, PW9 and PW16 respectively.
The third attesting witness, namely, Khalid Nadeem has not been produced. On 26-9-1986, Nazir alias Jecra led to the recovery of blood stained Churri P5 from near the level crossing at Ghazi Road, vide memo Exh.PF, which has been attested by Iftikhar Ahmad PW9, SI Sana Ullah PW16 and Khalid Nadeem (not examined). On 28-9- 1986, Muhammad Khalid led to the recovery of Carbine P6 from near the grave-yard, which is closed to the G.T.S. Bus Stand, Saddar, vide memo Exh.PG, which has been attested by Iftikhar Ahmad PW9, SI Sana Ullah PW16 and Khalid Nadeem(not produced). Haroon-ur-Rchman alias Noni was produced by Usman Ghani and Abdul Javed Razakars(not produced), before Latif Hussain Shah SI, PW17 along with dagger P8, on 13-9-1986.
Dagger was seized vide memo Exh. PK, attested by Abdul Javed and Usman Ghani (not produced).
7. Vide Chemical Examiner's report, Exh.PQ, and Serologist's report Exh.PT, stains of blood on Churris.
Allegedly recovered from Muhammad Musa and Nazir alias Jeera, were of human origin. No report has been obtained regarding the dagger allegedly recovered from Haroon-ur- Rehman.
Empty cartridge recovered from the spot and carbines allegedly recovered at the instance of Khalid and Arif were sent to Forensic Science Laboratory on one and the same day, viz 5-10-1986.
Vide report Exh. PV, empty recovered from the spot wedded with carbine recovered from Muhammad Khalid. At the trial, Iftikhar Ahmad PW9 and Tahir Masood PW10 testified as eye witneses to furnish ocular account of the prosecution version. Both these PWs have fully supported the prosecution case. The appellants pleaded denial simpliciter but no evidence has been led in defence nor they have been examined under section 340 Cr.P.C.
8. The learned counsel representing the State and the learned counsel for the complainant, while supporting the judgment in appeal, maintained that FIR in this case has been lodged very promptly; the motive part stand proved from the contents of application made at the police station by the deceased, shortly before the occurrence, and the testimonies of the eye witnesses are consistent and confidence inspiring. It has further been averred that there is nothing on the record that the eye witnesses had any motive against the appellants for false involvement on the charge of murder. Learned counsel for the appellants, however, contended that a) . In this case, innocent persons have been involved; b) . The ocular account has been furnished by two wintnesscs who were closely related to the deceased. The occurrence took place in the Ba/ar in the presence of many persons but no independent person has been examined; c) . The testimonies of the eye witnesses have not been supported by the medical evidence; d) . The alleged motive has not been proved; e) . There was no occasion of firing in the air; f) . And the crime empty and carbine were sent to the Forensic Science Laboratory on one and the same day aIthough empty was allegedly recovered on 11-9-1986, while the carbine was recovered on 28-9-1986, and no explanation has been offered for not sending the empty to the Laboratory earlier.
9. The contentions raised on behalf of the learned counsel for the parties have been thoroughly considered and fully analysed. Admittedly, the eye witnesses are the close relatives of Muhammad Azam deceased but on account of mere relationship, they are not dis-qualified for being relied upon as eye witnesses particularly, when there is nothing on the record to suggest that they were inimically disposed towards the appellants. It has, however, been noticed that as per prosecution version, as contained in the statement Exh.PC, only 4 injuries were caused to the deceased with sharp- edged weapon by Zahid alias Muna, Haroon-ur-Rchman alias Noni, Nazir alias Jeera and Musa. Dr.Salch Yousaf, who conducted the post mortem examination on the dead body of Muhammad Azam deceased, noticed 10 injuries on the dead body of the deceased, out of which five were opined to have been caused by sharp edged weapon and rest by blunt weapon. Injuries caused by blunt weapon found on the dead body, at the time of post mortem examination, do not find mention in the statement Exh.PC.In view of the nature of these injuries, which are simple abrasions and burised areas, it may be observed that these injuries might have been suffered while falling on the ground and struggling during the course of occurrence. It has, however, been noticed that SI Sana Ullah PW16 who conducted the investigation of this case, testified at the trial that according to his investigation, the motive of the murder was fight between Muhammad Musa accused and Khalid Nadeem and the occurrence was given a political complexion. He conceded that he made no enquiry about the political affiliation of Muhammad Ashraf and Zahid Hussain and no evidence was produced before him during the investigation that Zahid Hussain and his father Muhammad Ashraf have affiliation with People's Party. He also admitted that many persons, including respectables like Councillor and M.P. As, appeard before him to vouch-safe the innocence of Muhammad Ashraf. In their statements, recorded under section 342 Cr.P.C., it has been stated by Muhammad Ashraf and Zahid Hussain that 3/4 days prior to the present occurrence, Muhammad Musa had come to the Sweet Meat Shop of Muhammad Ashraf, which is adjestcent to the house of Muhammad Azam deceased, for purchasing Pooris. Khalid Nadeem, a nephew of Muhammad Azam deceased, had also come there for the same purpose. Muhammad Musa and Khalid Nadeem had quarrelled with each other over the turn of purchasing pooris.
People present at the shop separated them but after a short-while Khalid Nadeem and Muhammad Azam came to the shop of Muhammad Ashraf and enquired from Nazir alias Jeera appellant, who was employee of Muhammad Ashraf, about the whereabouts of Muhammad Musa.
Nazir expressed his ignorance but Muhammad Azam and Khalid Nadeem gave beating to Nazir alias Jeera. Zahid Hussain s/0 Muhammad Ashraf tried to intervene but he too was beaten by Khalid Nadeem and Muhammad Azam deceased. It is in regard to this occurrence that SI Sana Ullah stated that according to his ivestigation, the motive of the murder was the dispute between Muhammad Musa accused and Khalid Nadeem and the occurrence was given a political complexion.
10. It has been alleged in the statement Exh.PC that Khalid and Arif fired in the air with their respective carbines at the time of occurrence to deter the persons present at the place of occurrence to come near the scene of occurrence. At the time of spot inspection, it has not been noticed that any missile, thus fired, struck against any wall at or near the place of occurrence. Only one crime empty was allegedly recovered from the scene of occurrence but this empty, as already stated, was not sent to the Forensic Science Laboratory within a reasonable time after the recovery.
It was sent to the Ballistic Expert after the recovery of carbine which was admittedly, recovered on the last day of the remand of Khalid i. e. On 28-9-1986. The recovery of crime empty from the spot and the Forensic expert's report that it wedded with the carbine recovered from Khalid appellant are, therefore, of no consequence. In case of Arif, a carbine was allegedly recovered at his instance but this carbine is not connected with the crime, as no crime empty allegedly fired from this carbine, was recovered from the spot. There is nothing on the record to suggest that Khalid and Arif had any previous enmity against the deceased or they had any motive to murder him. They arc not also connected with the incident in which Khalid Nadeem and Muhammad Azam deceased gave beating to Nazir alias Jcera and Zahid Hussain appellants, which incident, according to the Investigating Officer, furnished motive to the present occurrence. As a matter of fact, the prosecution has not been able to bring home the guiIt to Khalid, Arif and also to Ashraf to whom no overt act except raising of Lalkara has been attributed. It, therefore, transpires that this is a case in which innocent persons have also been involved alongwilh those who were actually liable for the crime and in this view of the matter, it is for the Court to sift the grain from the chaff.
11. In the light of the above discussion, it is concluded that motive of the crime in this case was not the political rivalry, as alleged in the FIR Exh.PC/1 but, in fact, the motive for the murder was fight between Muhammad Musa appellant and Khalid Nadeem, the nephew of the deceased, which took place 3/4 days prior to the present occurrence on the turn of purchasing Pooris. After that fight, Khalid Nadeem and Muhammad Azam deceased also gave beating to Nazir alias Jeera, servant of Muhammad Ashraf and to Zahid Hussain s/o Muhammad Ashraf, who were present on the sweet-meat shop of Muhammad Ashraf at the relevant time. It is further concluded that charge against Muhammad Ashraf, Khalid and Arif appellants has not been proved beyond doubt.
The remaining appellants namely Zahid Hussain, Haroon-ur-Rehman alias Noni, Muhammad Musa and Nazir alias Jeera have rightly been found guiIty by the learned trial Court. The charge of murder stands established against them beyond any reasonable doubt, on the basis of ocular evidence, which is corroborated by recoveries of blood-stained knives and daggef. The medical evidence also supports eye witness account furnished by Iftikhar Ahmad PW9 and Tahir Masood PW10. In view of the young ages of these appellants, the learned trial Court was justified in not imposing capital punishments. In the light of these findings, appeal is allowed to the extent of Ashraf, Khalid and Arif appellants. Their convictions and sentences are set aside and they are acquitted and directed to be released forthwith, if not required to be detained in any other case.
11. In case of appeals of remaining appellants viz. Zahid Hussain alias Muna, Haroon-ur-Rehman alias Noni, Muhammad Musa and Nazir alias Jeera, their convictions are aItered to sections 302/34 PPC instead of sections 309/149 PPC but their sentences, i.e. Imprisonment for life and fine of Rs.l0,000/-each or in defauIt 3 years R.I. Are maintained. They are however, acquitted of the charge under section 148 PPC. The fine, if realized, shall be paid to the heirs of the deceased as compensation. But for the aIteration as indicated above, their appeals are dismissed.
12. Criminal revision filed by Iftikhar Ahmad complainant is dismissed.