1. ALLAH DINO G. MEMON, J: --Appellants Rafiq and Mukhtar Ali were charged under section 302/34, P.P.C. And tried before the learned IIIrd Additional Sessions Judge, East Karachi, who has convicted and sentenced them to death, subject to confirmation by this Court. Appellants have been further directed to pay compensation of Rs.10,000 to the heirs of deceased Muhammad Ibrahim, in default to suffer further R.I. For six months vide judgment, dated 1st January, 1990.
2. The brief facts giving rise to the present appeal are that on 26-4-1986 S.H.O. Mukhtar Ahmed was present at P.A.F. Shahrah-e-Faisal Base on security duty, when he received information that one person had expired at the hospital who was brought in injured condition. He immediately proceeded to Emergency Ward of J.P.M.C., where he found complainant Javed lqbal of this case present. He also found the dead body of deceased Ibrahim lying in the mortuary. S.I.P. Yaseen and H.C. Ashfaq were also found present in the J.P.M.C. And were busy in conducting 174, Cr.P.C.
3. Proceedings. He inspected the dead body and also verified the Mashirnama of dead body Ex.36, which was prepared by Yasin. He then recorded the statement of complainant Javed lqbal under section 154, Cr P.C. Which reads as under: "I reside on the above address alongwith my parents. I am serving in P.A.F. Tonight, after shah prayer, I was present at my shop. My deceased father Ibrahim Khan reached the house after prayers, one boy Mukhtar son of Jafer who sells heroin was bargaining with one person for sale of heroin, in front of our house, on which my father prohibited him and told him to go away from here.
4. Mukhtar was annoyed and observed that I am just coming and left the place. At about 9-30 p.m.
5. Mukhtar came to our house alongwith his other companion Rafiq who inquired from my father, as to what was the matter. On that I told him that he sells heroin on which both accused, with common intention, came prepared and were furious and caught hold from collar of my father.
6. Mukhtar caught hold of my father, I separated Mukhtar and while he was running away, accused Rafiq took out Chhuri from the fold of his Shalwar and caused three blows to my father with the intention to kill him. My father sustained grievous injury on left side of his chest and left side of his abdomen under the armpit, my father fell down and both the accused ran away towards Natha Khan Village through the street. I brought my father immediately to J.P.M.C. But he succumbed to his injuries and expired. My report is against Mukhtar and Rafiq who intentionally attacked my father to commit his murder. This incident was witnessed by Abdul Hadi and Faizur Rehman's besides many other persons."
7. The above statement was recorded,, by Inspector Mukhtar Ahmed at the hospital and it was sent to police station Shahrah-e-Faisal, Karachi, through H.C. Ashfaq Hussain for registration of the case.
8. The statement has been produced as Exh.9. After leaving Yasin at the hospital, S.H.O. Mukhtar Ahmed went to the place of incident alongwith the complainant and inspected the same in presence of Mashirs, and the Mashirnama has been produced as Exh.34. He, thereafter, recorded the statements of eye-witnesses available at the place of incident. He then went in search of the accused persons but they could not be found at their respective houses. On second day of incident, he arrested accused Mohammad Rafiq near Dalmian Cement Factory Gate, and prepared such Mashirnama, which has been produced as Exh.39. The F.I.R., incorporated in 154, Cr.P.C. Book has been produced as Exh.41. Thereafter, the investigation was transferred to C.I.A.
9. Centre for further investigation under the orders of Inspector-General Police Sindh.
10. On 27-4-1980 S.I.P. Abdul Rashid was directed by C.I.A. Centre to conduct further investigation of the present case. He went to police station Shahrah-e-Faisal and collected investigation papers from inspector Mukhtar Ahmed. He then went to the place of incident and examined the witnesses.
11. Thereafter, he arrested Mukhliar Ali under Mashirnama, which has been produced as Exh.36. On the pointation of accused Rafiq, a Chhuri was recovered,, by him in presence of the Mashirs, and the Mashirnama has been produced by the Mashir as Exh.22. He got the statement of P.Ws. Recorded under section 164, Cr.P.C. Before the Magistrate Mr. Abdul Rashid Hashmani. After completing the investigation, he submitted challan of the accused before the Court.
12. A formal charge was framed against the accused to which they pleaded not guilty.
13. At the trial prosecution examined complainant Javed lqbal P.W.1, he has produced his statement under section 154, Cr.P.C. As Exh.9. Sajjad Ahmed son of deceased Muhammad lbrahim P.W.2, an eye-witness, he has produced his 164, Cr.P.C. As Exh.11. Sher Afzal Khan an eye-witness P.W.3, he has produced his 164, Cr.P.C. Statement as Exh.13. Abdul Hadi an eye-witness P.W.4, he has produced his 164, Cr.P.C. Statement as Exh.15. Sardar Bahadur an eye-witness P.W.5. He has produced his 1(4, Cr.P.C. Statement as Exh.17. Muhammad Hasan an eye-witness P.W.6. He has produced his 164, Cr.P.C. Statement as Exh.20. Mashir Shaukat Zaib P.W.7, he has produced N-lashirnama of recovery of Chhuri at the pointation of accused Rafiq as Exh.22. Mashir Fateh Muhammad P.W.8. He has produced Mashirnama of dead body as Exh.26 and inquest report as Exh.27. Dr. Iqbal Ahmed P.W.8, he has produced the post-mortem notes as Exh.30. Mr. Abdur Rashid the then A.C.M. Karachi, P.W.10, he has produced 164, Cr.P.C. Statements of P.Ws. Sajjad Ahmed, Sher Afzal Khan, Abdul Hadi, Sardar Bahadur and Muhammad Hasan recorded under section 164, Cr.P.C. E---ar.11, Exh.13, Exh.15, Exh.17 and Exh.20. Bashir Muhammad,, Zahid P.W.11 he as --Mashir of Mashirnama of the place of incident, which has been produced as Exh.34. S.I.P. Abdul Rashid P.W.12, he has produced Mashirnama of arrest of accused Mukhtar Ali as Exh.36 and chemical report as Exh.36. A.S.I. Mehboob Ahmed, the then H.C. Of Police Station Shahrah-e-Faisal P.W.13, he has produced Mashirnama of arrest of accused as Exh.39. Mukhtar Ahmed, the then S.H.O. Shahrah-e-Faisal P.W.14, he has produced the F.I.R. As Exh.41.
14. After close of the prosecution case, the statements of the accused were recorded in which they have denied the allegations. However, accused have examined themselves on oath as envisaged under section 340(2), Cr.P.C.
15. After taking into consideration the evidence produced by the prosecution and the statements of the accused, the learned trial Judge has been pleased to convict the appellants as described above. The present appeal is directed against the above judgment, of conviction, and the learned trial Judge has also referred the case for confirmation of death sentence.
16. We have heard Mr. Rafiq Khanzada, learned counsel appearing for the appellants, Mr. Hayat Qureshi, learned counsel appearing for the State; Mr. Syed Amir Hasan Shah Agha, learned counsel appearing for the complainant, and have gone through the R&P of the case.
17. Dr. Iqbal Ahmed P.W.9 had carried on post-mortem on the dead body of deceased Ibrahim Khan on 26-4-1980, he had found the following external injuries on the person of the deceased. ,
(1) Incised wound 3/4" x 1/2" x cavity deep vertical in direction on left lateral side of the chest. 3" below exile.
(2) Incised wound 3/4 x 1/2" cavity deep horizontal in direction on left sidechest mid axillaries line 4- 1/4" below exile.
(3) Incised wound 1/2" x 3/4" muscle deep on left lateral side of upper abdomen.
18. Injury No.1 was grievous/fatal. Injuries were ante-mortem in nature. Time between death and post- mortem was two to six hours.
19. On the internal examination he found the following damage: Thorax cavity was full of blood, left lung and aorta were cut.
20. It was contended by Mr. Rafiq Khanzada,, learned counsel appearing for the appellants that the ocular evidence is interested, contradictory and unreliable. The evidence of complainant does not show as to who inflicted Chhuri blows to deceased Ibrahim Khan. It was further contended that witness Sher Afsar has acted as Mashir of arrest in respect of Mashirnama Exh.36, but he has failed to say a word about the arrest in his 164, Cr.P.C. Statement. It was further contended that the fact that appellant Mukhtar Ali was empty-handed and did not cause any injury to deceased Ibrahim goes a long way to show that he did not share common intention to kill deceased Ibrahim and, therefore, he was entitled to acquittal. That since appellant Rafiq had no motive to kill deceased Ibrahim and the fight was sudden and, therefore, the conviction may be altered from section 302 to section 304 Part 1, P.P.C.
21. Mr. Hayat Qureshi, learned counsel appearing for the State has contended that since the appellant Mukthiar Ali was empty-handed and did not cause any injury to deceased, therefore, he was entitled to benefit of doubt with regard to common intention. As far as appellant Rafiq was concerned, it was contended by Mr. Hayat Qureshi, that the prosecution evidence was independent, straightforward, and natural and, therefore, he was rightly convicted. However, since appellant Rafiq had no intention/motive to kill the deceased, his sentence may be reduced from hanging to imprisonment for life.
22. Mr. Syed Amir Hussain Shah, learned counsel appearing for the complainant has contended that since appellant Rafiq was brought by appellant Mukhtar due to earlier altercation between him and the deceased, he had common intention with appellant Rafiq to commit murder of deceased Ibrahim and, therefore, he was equally liable.
23. We have considered the contentions. The ocular evidence is furnished by as many as six witnesses out of which complainant Javed Iqbal and P.W. Sajjad are sons of deceased, but Sher Afsar Khan, Abdul Hadi, Sardar Bahadur, and Muhammad Hasan have no relationship with the deceased or the complainant. Neither the complainant nor any of the witnesses had any enmity with the appellants and, therefore, they had no reason to implicate the appellants falsely. The evidence of complainant Javed lqbal P.W.1, Sajjad Ahmed P.W.2, Sher Afsar Khan P.W.3, Abdul Hadi P.W.4, Sardar Bahadur P.W.5, and Muhammad Hasan P.W.6, appear to be independent, straightforward and natural and reliable. They have fully supported the prosecution case and their evidence has not been shaken in any way in cross-examination. The fact that they do not implicate appellant Mukhtar Ali as far as causing of injuries was concerned, further shows that they are witnesses of truth.
24. As far as appellant Rafiq is concerned, the above ocular evidence is further corroborated by recovery of Chhuri from Rafiq. Mashir Zaib Sheikh 1'.W.7, anal A.S.I. Abdul Rashid have fully supported the recovery of Chhuri from appellant"Rafiq. Even the evidence of A.S.i. Abdul Rashid was not challenged in cross-examination as far as recovery of Chhuri was concerned. The chemical report Exh.34 shows that Chhuri was blood-stained.
25. 1980 SCMR 176; wherein there was some altercation between the deceased and the appellant, and no motive was advanced against the accused and, therefore, the trial Judge considered it as a mitigating circumstance and awarded lesser sentence of imprisonment for life and fine to the accused. Father of deceased filed Revision before the High Court for enhancement of sentence but the same was dismissed. The convict as well as the complainant filed petitions for leave to appeal before the Honourable Supreme Court, but the same were dismissed. It was observed that: "Reason given by the trial Court for awarding lessor penalty was not contrary to the law relevant on the subject and, therefore, the petition filed by the, complainant was also dismissed."
26. However, ~he order regarding payment of compensation of Rs.10,000 to the heirs of deceased Muhammad Ibrahim and in default to suffer further R.I. For six months is maintained. The appellant shall be entitled to benefit of provisions of section 382-B, Cr.P.C. In respect of the period he has remained as under-trial prisoner, and after his conviction.
27. With this; modification in sentence, the appeal of appellant Rafiq is dismissed.
28. As far as appellant Mukhtar Ali was concerned, no doubt there was altercation between him and the deceased before the actual incident took place, it was appellant Mukhtar Ali who threatened the deceased that he is coming back, and after some time he came alongwith accused/appellant Rafique who inquired from the deceased as to what was the matter. However, there is no evidence that appellant Mukhtar and Rafiq were related inter se or they were on friendly terms. There is also no allegation that on his return to the place of incident Mukhtar had brought some weapon or attacked the deceased except that he caught deceased from his collar. There is no evidence that there was any conspiracy between the two accused nor there is allegation that appellant Mukhtar instigated appellant Rafiq to attack or kill deceased. There is also no evidence to show that appellant Mukhtar knew that co-accused/appellant Rafiq was having a Chhuri in the fold of his Shalwar, therefore, it is doubtful, whether appellant Mukhtar shared common intention with appellant Rafiq to commit murder of deceased Ibrahim. Therefore, while extending benefit of doubt to appellant Mukhtar Ali, his appeal is allowed, conviction and sentence are set aside and he is acquitted of the charge. He shall be released forthwith if not required m any other case. The reference for confirmation of death sentence is rejected.