Liaqat Ali 20/22 was tried by the Sessions Judge, Sargodha, for having murdered Zafar Iqbal at the Behk of Mukhtar Ahmad in Square No.38 in the area of Chak 100/SB 11 kilometres from Police Station, Kirana during night between 13/14-5-1987.
The learned trial Judge vide judgment dated 4-7-1988 convicted the appellant under section 302.
P.P.C. And sentenced him to undergo imprisonment for life and a fine of Rs.15,000 or in default of payment to undergo further R.I. For three years. The amount of fine, if realized, has been directed- to be paid to the heirs of the deceased.
2. F.I.R. E&P.B. Was recorded at the police station by Syed Masheer Ali, inspector/S.H.O., on 14-5-1987 at 6-15 a.m. On the statement of Muhammad S1rafi. According to the contents of the F.I.R., the complainant was sleeping alongwith his brother Zafar Iqbal (deceased) at the Behk of Mukhtar Ahmad. During the night between 13/14-5-1987 Mahmood Ahmad, P.W was sleeping at Behk of his cattle. The complainant got up at mid-night on tile barking of dogs and saw, Liaqat Ali standing on head side of the cot of Zafar Iqbal. He identified him in tile moonlight. Within his view, he gave a Kassi blow on the throat of Zafar Iqbal. He raised hue and cry. Mahmood Ahmad came running to the spot.
Within their view, Liaqat gave two more Kassi blows to Zafar Iqbal hitting him on the left wrist and right check. Liaqat started running. The P.Ws. Attempted to catch him but failed. Zafar Iqbal died at the spot.
Motive for the occurrence was suspicion of Liaqat about illicit relations of Zafar Iqbal and his were.
3. Syed Masheer Ali Shah, Inspector, after recording F.I.R. Went to the spot. He despatched the dead body for post-mortem examination after preparing injury statement Exh. P.G. And inquest report Exh. P.F. Blood-stained earth was collected from there. The appellant was arrested on 15-5-1987.
Blood-stained Kassi P.3 got recovered by him on the same day was taken into possession vide memo. Exh. P.E.
Challan was submitted to the Court after completion of the investigation.
Statements of 8 P.Ws. Were recorded at the trial.
4. Dr. Muhammad Aslam Chaudhry, who had performed autopsy on 14-5-1987, appeared as P.W.7.
He had noted the following injuries on the dead body:-- (1)An incised wound 4-1/2" x 5" across the neck 2" above the sterno clavicolour joint. All the structures in the way i.e. Oesophagus, trachea veins upto cervical spine were cut.
(2)An incised wound 2" x 1/2" muscle deep on the lower part of right cheek from mandible to angle of mouth.
(3)An incised wound 5" x 2" just above the left wrist joint. Both bones i.e. Radius and ulna were cut.
Hand was hanging with just a tag of skin.
(4)An incised wound 1" x 1/4" bone deep on the centre of forehead, starting just below the hair margin.
The injuries were opined to have been caused by sharp-edged weapon. The death was opined to have occurred due to shock and haemorrhage resulting from injuries Nos.1 and 3. Time between injuries and death was opined, to be immediate, while the time between death and post-mortem was opined to be immediate while the time between death and Post-mortem was opined to be 28 hours.
Ocular account was deposed by Muhammad Shafi, P.W.3 and Mahmood1 Ahmad, P.W.6.
5. Muhammad Shari, while repeating the facts given by him in the F.I.R., stated that he and his brother were serving with Mukhtar Ahmad. According to him, Mahmood Ahmad, P.W. Was a first cousin of Mukhtar Ahmad. 'During cross-examination, he admitted that Mukhtar Ahmad, their employer, owned only 8 acres of land. According to him, the appellant was serving with 'Chaudhry Ahmad Hussain and was residing at his Dera which was at a distance of 1/1-1/2 Killa from the place of occurrence. While admitting that he had corrie to appear in the Court from 'the hotel at Bridge No.11 where he was employed, as a servant, he denied the suggestion that he was employed at Crusher of Munir Khokhar at Bridge No.11 during the days of occurrence and was on duty there on the night of occurrence. He denied the suggestion that the appellant had taken up plea before the police that he had killed the deceased on having seen him in compromising position with his were.
The suggestion that a large number of persons had appeared before the police in support of that, was denied by him.
Mahmood Ahmad, P.W.6, while corroborating the statement made by Muhammad Shafi about the actual occurrence also claimed to have witnessed the collection of blood-stained earth by the Investigating Officer from the spot. He also claimed to have witnessed the collection of blood- stained Kassi P.3 at the instance of the appellant. During the cross-examination, he stated that he used to remain at the Crusher of his father which was placed at a distance of two squares from Bridge No.11. After stating so, he volunteered that he was running a show room for the sale and purchase of tractors and cars at Bridge No.11 and used to work there during day. According to him, half square of land owned by his father was being cultivated by his brother Maqsood. He admitted that he was married and had children who were residing in the Abadi of village. He gave out that he had seen only the infliction of two injuries.
Both the witnesses, i.e. P.W.3 and P.W.6 denied the suggestion that they had not witnessed the occurrence.
6. Amir Khalid, P.W.4, who had prepared the site plans Exh. P.C. And P.C./1, stated during cross- examination that he had not shown the pegs and mangers in the site plans.
7. Syed Masheer Ali Shah, Inspector/S.H.O., who had registered the case, arrested the accused and submitted the challan to the Court after completion of investigation, appeared as P.W.8 and gave the details of the investigation. During cross-examination, he admitted that he had not mentioned the presence of second cot in the inspection note of the spot and nor had mentioned the fact of tethering or presence of the cattle there. He gave out that Katcha Kotha, near which the occurrence had taken place, was without a roof and a courtyard. While admitting that Dera of Iqbal Ahmad Chatha was across the road in front of the spot, he denied the suggestion that it was inhabitated. He admitted that in the inspection note, he did not mention that the Dera of Iqbal Ahmad was abandoned one. He denied the suggestion that he had recorded the F.I.R. After going to the spot and holding preliminary investigation. The suggestion that he had falsely planted Kassi was also denied by him.
The statements of the remaining witnesses are more or less of formal nature.
8. The appellant during the statement under section 342 of the Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. He did not produce any evidence in defence.
9. I have gone through the record with the assistance of the learned counsel for the appellant and considered the contentions raised by the counsel for the parties.
10. Muhammad Shafi, P.W.3, real brother of the deceased, admitted during cross-examination that lie was serving at a hotel on 3-4-1988 when he had come to make statement before the Court. He claimed that during the days of occurrence, he was serving with Mukhtar Ahmad alongwith his brother Mukhtar Ahmad owned only 8 acres of land. It seems queer that a person, who was himself cultivating the land, could have afforded to employ two persons as servants for the cultivation of a small piece of 8 acres of land. In the circumstances, notwithstanding the fact that he denied the suggestion during cross-examination that even during the days of occurrence, he was serving at the hotel at bridge No.11, there appears to be weight in the suggestion.
There was no residential place or even a cattleshed at the place of occurrence. The only Kotha which existed there was without a roof and without compound walls. In fact, the S.H.O. Did not find the cattle and mangers even at the spot. He also had not noted second cot lying at the spot. In the circumstances, the argument of the learned counsel for the appellant that this witness does not appear to have been present at the spot seems to possess considerable force.
11. Mahmood Ahmad, P.W.6, is a cousin of Mukhtar Ahmad with whom the deceased was serving. It is his own case that he used to remain at the Crusher installed by his father at a place two squares away from the main bridge. His were and children used to remain in the village. The land owned by his father, was being cultivated by his brother. In the circumstances, his claim of having slept on the night of occurrence at the Behk of their cattle seems to be highly improbable. In fact, the same stands belied also by the notes on site plans. In the site plans, point No.3 is shown in Killa No.22 owned by Mukhtar Ahmad etc. This witness allegedly was sleeping at point No.3. If Killa No.22 was owned by Mukhtar Ahmad etc., the claim of the witness that he was sleeping at his own Behk falls flat. In the circumstances enumerated above, the argument of the learned counsel for the appellant that this witness was also not around the place of occurrence and does not appear to have witnessed the occurrence also appears to possess weight.
For the above noted reasons, the presence of both the eye-witnesses stands excluded. Since the presence of both the eye-witnesses has not been believed, the conviction of the appellant under section 302, P.P.C. Cannot be maintained merely on the evidence of recovery of Kassi at his instance particularly when it was deposed by Mahmood Ahmad only from the public.
12. In spite of the fact that the ocular account has not been believed and the conviction of the appellant under section 302, -P.P.C. Has not been considered to be maintainable, the necessary corollary is not, that the appellant should be acquitted. In view of the fact that it was his own case during the trial that he had killed the deceased on having seen him in compromising position with his were. Although he did not lead evidence in that regard, but the said statement finds support from the prosecution stance itself. In that it was the prosecution's own case that he suspected the illicit intimacy of the deceased with his were. It is also on record that he used to reside at the Dera of Ahmad Hussain with whom he was serving. The Dera of Ahmed Hussain was near the place of occurrence across the road. The possibility, as such, of the appellant's were having gone to the deceased on the night of occurrence cannot be ruled out. The probability of the appellant's version, being true, in the circumstances noted above, cannot be ruled out.
13. The conviction of the appellant, in the circumstances enumerated above, under section 302, P.P.C. Is set aside. He is instead convicted under section 304, Part I, P.P.C. And sentenced to undergo R.I. For five years plus to pay a fine of Rs.1,000 or in default whereof to undergo R.I. For three months.
He shall be given the benefit of the provisions of section 382-B of the Cr.P.C. As well.