Khadim Hussain (45), Nazar Muhammad (42), Muhammad Anwar (55) and Khan (40) appellants were tried for the murder of Muhammad Hussain deceased and murderous assault on Khalid and Mst. Naziran, the injured P.Ws. By the learned Additional Sessions Judge, Sheikhupura, who vide his judgment, dated 29-4-1989 convicted all the appellants and sentenced them to imprisonment for life, alongwith a fine of Rs.5,000 each, in default to undergo R.I. For further period of 2 years each.
They were also ordered to pay Rs.10,000 as compensation under section 544-A, Cr.P.C. To the heirs of the deceased. Khadim Hussain and Nazar Muhammad appellants were also convicted and sentenced under section 323/34, P.P.C. For causing simple injuries to Mst. Naziran P.W. For a period of six months' R.I. Each.
2. The convicts have filed this appeal.
3. The prosecution story as disclosed in the F.I.R. Is that Khalid Ali complainant was married to Mst.
Jameela, daughter of Muhammad Hussain deceased. About two years back Mst. Zahida daughter of Muhammad Anwar accused, eloped with Muhammad Sarwar, son of the deceased. In this regard, a case under Article 11 of Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), was registered against Muhammad Sarwar, Muhammad Anwar, Muhammad Akbar and Muhammad Arshad (brothers), Mst. Naziran (mother) and Muhammad Hussain (deceased) father of complainant's were. All of them were challaned and Mst. Zahida is still living with his brother-in- law, Muhammad Sarwar. On account of this enmity the in-laws of the complainant shifted their residence from Raza Abad to Awan Town at Lahore and locked their native house in Raza Abad. On the day of occurrence all of them and the complainant Khalid Ali, were going to see their native house in Raza Abad when in the way all of the accused, four in number, while armed with Sotas embushed them and injured Muhammad Hussain deceased and Mst. Naziran with their respective Sotas. Then the accused dragged both of them and confined them in their house. On their hue and cry the residents of the village assembled and rescued them from the clutches of the accused. The complainant and Nazir Ahmad P.W. Tried to intervene but the accused injured the complainant also. They were taken to hospital where they were admitted. Later on, Muhammad Hussain succumbed to his injuries and died in the hospital.
4. The occurrence took place on 4-11-1987 at 7-50 p.m. Muhammad Ali complainant lodged the F.I.R. Exh.P.E./2. After recording the F.I.R. The investigation of this case was conducted by Nazeer Ahmad S.I. Police Lines Sheikhupura. He prepared the rough site plan Exh. P.J. Of the place of occurrence. He took into possession blood-stained earth from the spot vide memo. Exh. F.K. And sealed the same into a sealed parcel. On 25-11-1987 Nazar Muhammad accused while in police custody led to the recovery of Sota P.5 from his house, which he took into possession vide memo.
Exh. P.R. On the same day Khadim Hussain accused while in police custody led to the recovery of Sota P.2 from his house, which was taken into possession vide memo. Exh. P.B. On 2-12-1987 Muhammad Anwar accused while in police custody led him to the recovery of Sota P.1 from his house and the same was taken into possession vide memo. Exh. PA. He recorded the statements of the P.Ws. After completing the investigation the challan was submitted in the Court.
4-A. On 4-11-1987 at 4-40 p.m. Dr. Mubashir Ahmad (P.W.8) medically examined Khalid Ali the injured and found two simple injuries on his person.
On the same day at 4-45 p.m. The above-said doctor medically examined Mst. Naziran Bibi were of Muhammad Hussain deceased and found five injuries on her person. Injuries 2 and 3 were kept under observation. Rest were declared simple.
On 12-11-1987 at 12 noon Dr. Rizwan Mahmood Mufti (P.W.9) conducted the post-mortem examination on the dead body of Muhammad Hussain deceased and found eleven injuries on his person. In the opinion of doctor injury No.1 (reproduced below) was sufficient to cause death in the ordinary course of nature:-- "Surgical stitched wound 5 c.m. x .1 c.m. With entaged black stitches 3.5 c.m. Above left eyebrow, and 3 c.m. To the left of mid-line."
5. All the appellants in their statements under section 342, Cr.P.C. At the close of the trial when asked, `why this case against you and why the P.Ws. Depose against you', replied: "Due to enmity and party faction and suspicion."
6. Placing reliance on the ocular version furnished by Khalid (P.W.6) and Mst. Naziran Bibi (P.W.7), the learned trial Judge convicted the appellants as indicated above.
7. I have examined the record with the able assistance of the learned counsel for the parties.
8. The learned counsel for the appellants has vehemently contended that the prosecution has miserably failed to prove the motive in this case. He further submitted that the ocular version furnished by Khalid (P.W.6) and Mst. Naziran Bibi (P.W.7) is contradictory in nature and no reliance can be placed on this version, which is even belied by the medical evidence. The learned counsel further submitted that Khalid (P.W.6) deposed before the Court that Muhammad Anwar accused opened the attack by giving Sota blow on the head of Muhammad Hussain deceased whereas this fact has not been mentioned in the F.I.R., even P.W.7 Mst. Naziran Bibi has not supported this version.
She deposed that Muhammad Anwar and Nazar Muhammad accused gave Dang blows to Muhammad Hussain deceased. According to the learned counsel, there is discrepancy between the statements of P.W.6 and P.W.7 regarding the date of occurrence, which makes the prosecution case further doubtful. According to P.W.6 the occurrence took place on 4-11-1987 whereas P.W.7 deposed that the occurrence took place on 5-11-1987. The learned defence counsel submitted, that the statements of these two eye-witnesses are at variance with each other on many points, hence their evidence is not worth believing, and placed reliance on the following portions of their evidence:-- "Khalid (P.W.6) deposed that the appellants then dragged my mother-in---law and father-in-law to their house, whereas Mst. Naziran (P.W.7) contradicts him on this point, because she stated that the appellants started giving them beating, then her deceased husband was dragged to the house of the accused persons, thereafter, she was locked in their haveli, from where she was got released through the intervention of the police.
According to Khalid (P.W.6), the accused put the two injured in the Suzuki Van bat this fact has not been mentioned in the statement of P.W.7."
9. The learned counsel for the State has supported the judgment of the learned trial Judge on the same grounds, which prevailed with the learned trial Judge while passing the impugned order.
10. I have carefully examined the respective submissions of the learned counsel for the parties referred above.
11. The crucial point for decision of this case is whether the two eye--witnesses who sustained injuries during the transaction were actually present at the time of occurrence or not, and if they were present, are they deposing correct facts before the Court or not.
12. Admittedly, the occurrence took place in the broad daylight in the village Abadi and two P.Ws.
Sustained injuries at the same time and place, hence their presence at the scene of occurrence cannot be disputed. As Mst. Naziran (P.W.7) knew the assailants previously, hence it cannot be said that it is a case of mistaken identification. The ocular version given by the aforesaid two eye- witnesses gets ample support from the medical evidence brought on the record. In the absence of any background of enmity, I find, no legal justification to discard the confidence inspiring evidence of the aforesaid two eye-witnesses.
The contention of the learned counsel that the ocular version be discarded due to the above- mentioned discrepancies appearing in their statements is devoid of force, hence repelled, as these minor discrepancies do occur in the statements of the most truthful and straightforward witnesses due to the lapse of time and difference in the perception of an object seen by the different persons at the same time. The discrepancies pointed out by the learned defence counsel are too insignificant to be taken seriously. Mere fact that one appellant dragged or the other also dragged Muhammad Hussian deceased by itself is not sufficient to disbelieve the ocular version when presence of the eye--witnesses has been established beyond reasonable doubt at the time of occurrence.
13. I have given my anxious consideration to this aspect of the case, whether in the given circumstances, the application of principle of vicarious criminal liability by the learned trial Judge is in accordance with law or not. As I find, the occurrence took place all of a sudden due to the motive mentioned in the F.I.R. On account of the chance encounter between the parties, hence every appellant would be responsible for his own acts and the. Court has to see which of the appellants caused the fatal blow to the deceased in this case.
14. From the testimony of the eye-witnesses, it has been proved beyond reasonable doubt that it was Muhammad Anwar appellant whose daughter was abducted by Muhammad Sarwar son of the deceased who caused fatal blow with Dang to Muhammad Hussain deceased, hence his conviction under section 302, P.P.C. As recorded by the learned trial Court is maintained. He should also pay the compensation under section 544-A, Cr.P.C. To the heirs of the deceased as directed by the learned trial Judge. The benefit of section 382-B, Cr.P.C. Is extended to the appellant.
The case against the other three appellants for committing the murder of Muhammad Hussain deceased is of doubtful character, their appeal is accepted, and their conviction under section 302/34, P.P.C. Is set aside, so they are acquitted of the charge.
Khadim and Nazar appellants have only caused simple injuries to Mst. Naziran P.W., hence their conviction under section 323/34, P.P.C. Is maintained but their sentence is reduced to one already undergone, and I direct that they should be acquitted forthwith, if not required to be detained in any other case. With this modification, this appeal stands disposed of.