SH. RIAZ AHMAD, J.--- The appellant Abdul Latif aged 60 years and his two sons Abid Latif appellant aged 20 years and Zahid Latif appellant aged 18 years were tried by an Additional Sessions Judge, at Muzaffargarh on the charge under section 302/34, P.P.C. For having caused the murder of Khalid Mehmood aged 22 years. In the transaction, Mst. Aysha mother of the deceased was also injured but the learned trial Judge did not frame the charge as to the murderous assault upon her.
Vide judgment, dated 14th of November, 1987, the learned Additional Sessions Judge found all the appellants guilty on the said charge. Appellant Abid Latif was thus convicted and sentenced to death and to pay a fine of Rs.5,000 or in default to suffer rigorous imprisonment for a term of one year. Appellants Zahid Latif and Abdul Latif were sentenced to undergo life imprisonment each and to pay a fine of Rs.5,000 each or in default to suffer rigorous imprisonment for a term of one year's R.I. Each.
Aggrieved by their conviction, the appellants have preferred this appeal bearing No. 207 of 1987 while the case has also been referred to us under section 374, Cr.P.C. This judgment shall dispose of both the appeal and the reference.
2. The unfortunate occurrence resulting into the death of Khalid Mehmood and receipt of injuries by her mother Mst. Aysha took place on 17th of August, 1985 at 10-30 a.m. On a road leading to Layyah from Kot Adu. The F.I.R. Exh.P.C. Was lodged by Muhammad Shar, P.W.5, the father of the deceased and husband of Mst. Aysha at the police station at 11 a.m. And the same was recorded by Muhammad War, S.I. P.W.10.
The prosecution case as stated by the first informant Muhammad Shafi in the F.I.R. Was that he was running the business of sale of iron boxes at G.T. Road Kot Adu in front of the northern Eidgah. Two months before the occurrence, the daughter of first informant Mst. Jamila Bibi wife of Noor Din had come from Jhang to meet the first informant. On 16th of August, 1985, a day before the occurrence, Bashir Ahmad son of Salamat Ullah, father-in-law of Mst. Jamila Bibi came to Kot Adu for taking back Mst. Jamila Bibi. On the fateful day at about 10-15 a.m. Khalid Mehmood deceased, the son of the first informant, his wife Mst. Aysha and daughter Mst. Jamila Bibi and Bashir Ahmad proceeded to the bus stand to see off Mst. Jamila Bibi and Bashir Ahmad. According to the first informant when at 10-30 a.m. They reached near the shop of Abdul Wahid brother of Mst. Aysha, near the post office, his daughter Mst. Jamila Bibi went into the shop of Abdul Wahid to say good bye to her maternal uncle. Adjacent to the shop of Abdul Wahid, towards the southern side is the shop of the appellant Abdul Latif, a real brother of the first informant who was also engaged in the business of sale of iron boxes. Abdul Latif at that time started abusing the deceased Khalid Mehmood, Mst.
Aysha wife of the first informant intervened, whereupon, as planned, appellant Abdul Latif exhorted his sons appellants Abid Latif and Zahid Latif to bring Chhura so that Khalid Mehmood does not go alive. On this exhortation appellants Abid Latif at one brought out Chhura from his Nefa of his Shalwar and came forward to attack Khalid Mehmood, whereupon, deceased Khalid Mehmood took to his heels but was chased by the appellants. Abdul Latif and Zahid Latif overpowered the deceased near Habib Bank at G.T. Road Kot Adu and in the sight of Abdul Wahid, Aysha Begum and Jamila Bibi and her father-in-law Bashir Ahmad, appellant Abid Latif inflicted successive Chhura blows on the left side of the chest, on the second finger of the right hand on the left arm and left thigh. On the receipt of these injuries, Khalid Mehmood fell down. Her mother Aysha Begum stepped forward to rescue her son but appellants Abdul Latif and Zahid Latif injured her with iron rods. In the meanwhile, Fateh Muhammad another brother of Abdul Wahid also reached the spot and tried to rescue Mst. Aysha and Khalid Mehmood but the appellant Abid Latif threatened that whosoever came near would also meet the fate of Khalid Mehmood. Appellant Abid Latif while brandishing Chhura alongwith other appellants ran away. Abdul Wahid then proceeded to the shop of first informant and narrated him the entire occurrence. The first informant also reached the scene of occurrence and took away the deceased to the Civil Hospital, Kot Adu but on the gate of the hospital, Khalid Mehmood sdccumbed to his injuries.
The motive for the commission of crime as narrated in the F.I.R. Was that the first informant and Abdul Latif appellant, both real brothers, were litigating with each other over the dispute as to the inheritance and the civil suits were pending in the Court of Civil Judge at Kot Adu. A day before the occurrence, the appellants had picked up a quarrel with the deceased on account of the litigation but due to the intervention of the people of the area, the matter was hushed up. According to the first informant, on account of the Sid grouse, the appellants had killed his son.
It was stated by the first informant that during this fight, Abdul Latif appellant also received injuries.
3. On 17-8-1985 at 5-05 p.m. Dr. Saeed Ullah conducted the post--mortem examination on the dead body of Khalid Mehmood deceased and he noted the following injuries on it:--
(1) One slightly oblique stab wound 3-1/2 c.m. x 1 c.m. x going deep on the left side of chest in the fifth inter costal space 1-1/2 c.m. From the midline. The blood was oozing out. Cut mark present over the shirt and Bunvan.
(2) One horizontal incised wound 4 c.m. x 1-1/2 c.m. x muscle deep on the back of lower part of left upper arm. Cut mark present over the shirt.
(3) One horizontal incised wound 1-1/2 c.m. x 1/4 c.m. Muscle deep on the front of middle of left finger.
(4) One vertical incised wound 4 c.m. x 1/4 c.m. Skin deep on the back of proximal part of left index finger.
(5) Ouu incised wound 1 c.m. x 1/4 c.m. x muscle deep at the middle of left buttock. The cut mark present on the Shalwar.
(6) One incised wound 1/2 c.m. x 1/4 c.m. Muscle deep at the right loin area. Cut mark present on the shirt and Bunyan.
(7) One abrasion 1 c.m. x 1/2 c.m. On the front of middle of left knee joint.
(8) One abrasion 1 c.m. x 1/2 c.m. On the front of middle side of right knee joint.
(9) One abrasion 2 c.m. x 1/2 c.m. On the front of lower part of right knee joint.
(10) One abrasion 1/2 c.m. x 1/2 c.m. On the back of right elbow joint.
Under injury No.1, ribs walls, cartilages, pleurae, and pericardium were cart. Right ventricle of the heart was also cut. In the opinion of the doctor, death occurred due to the bleeding from heart and shock. Injuries Nos.1 to 6 were caused with sharp-edged weapon and rest with blunt weapon. Injury No.1 was declared to be sufficient to cause death in the ordinary course of nature.
At the trial, Dr. Saeed Ullah Khan, could not appear because he had died and thus P.W.11 Dr. Abdul Hameed Chughtai proved the post-mortem report Exh.P.P. And also identified the signatures of Dr. Saeed Ullah Khan on it as he had been working with him.
On the same day i.e. 17-8-1985 late Dr. Saeed Ullah Khan also medically examined Mst. Aysha and the medico-legal report in respect of the injuries of Mst. Aysha was also proved by P.W.11 Dr. Abdul Hameed Chughtai. According to the medico-legal examination, Mst. Aysha received the following injuries:-
(1) One contusion mark 11 c.m. x 2 c.m. At postero lateral aspect of left upper arm at the middle.
(2) Multiple contusion marks on the back of the sides of middle of the left forearm.
(3) One contusion mark 6 c.m. x 2 c.m. On the back of left hand corresponding to the index finger and it goes to the under linger.
(4) One contusion mark 5 c.m. x 2 c.m. Below the right eye.
On 19-8-1985 late Dr. Saeed Ullah Khan also medically examined appellant Abdul Latif vide medico-legal report Exh.P.R. This report was also proved by Dr. Abdul Hameed Chughtai, P.W.11.
According to the medico--legal examination, Abdul Latif received the following injuries:--
(1) One lacerated wound 1 c.m. x 1-1/4 c.m. x muscle deep on the back of the lower part of right forearm. It is painful. The serum is oozing out and X-Ray advised.
(2) An abrasion 1/2 c.m. x 1/4 c.m. On the front of the base of right thumb.
Injury No.1 was kept under observation through X-Ray while injury No.2 was declared simple.
4. In defence Dr. Ghulam Shabbir appeared as D.W.1 who stated that in September, 1985, he was posted as Medical Officer, D.H.Q. Hospital, Muzaffargarh. In the said capacity, he received a letter written by Superintendent District Jail, Muzaffargarh, Exh.D.G. Through the Medical Superintendent, Muzaffargarh. Appellant Abdul Latif was referred to him as patient and Dr. Hafeez-ur-Rehman, obtained the X-Ray of the left forearm of the appellant. On the basis of this report, the doctor wrote the medico-legal report Exh.D.G./1. According to the said report distal part of the shaft of left ulna was fractured and plaster was pasted on the injury.
D.W.2 Dr. Muhammad Hafeez-ur-Rehman was also produced by the defence who stated that on 5- 9-1985, he was posted as a Radiologist and was holding temporary charge of Medical Superintendent and received letter Exh.D.G. From the Superintendent, Central Jail, Muzaffargarh and thus, appellant Abdul Latif was referred to Dr. Shabbir for examination and advice and on the advice of the said doctor, X-Ray of the arm was taken and the distal part of the shaft of ulna was found fractured.
5. On 18-8-1985 appellants Abid Latif and Abdul Latif were arrested while Zahid Latif was arrested on 20-8-1985. At the time of the arrest of Abdul Latif, his Shalwar P.4 and Kurta P.5 had stains of blood which were got removed and were taken into possession vide memo. Exh.P.E. Similarly, Shalwar P.6 and Kurta P.7 worn by appellant Abid Latif were also found to have stains of blood, therefore, these clothes were also got removed and taken into possession vide memo. Exh.P.F. Both these memos were attested by Fateh Muhammad P.W.7 and Abdul Wahid, P.W.8 besides the Investigating Officer S.I. Muhammad Zafar P.W.10.
On 18-8-1985, appellant Abid Latif in custody led the police and got recovered blood-stained Chhura P.8 from the roof of his shop which was taken into possession vide memo. Exh.P.G. Appellant Abdul Latif while in custody led the police and got recovered Sarya P.9 from the southern wall of his shop, which was taken into possession vide memo. Exh.P.H. Both these memos were also attested by the aforementioned witnesses.
On 20-8-1985 at the time of the arrest of appellant Zahid Latif, his Shalwar P.?.0, Kurta P.11, were found to have stains of blood and thus, they were got removed and were taken into possession vide memo. Exh.P.J. On the same day, appellant Zahid Latif in custody led the police and got recovered Sarya P.12 from his shop which was taken into possession vide memo. Exh.P.K. These memos were also attested by the same aforesaid witnesses.
The blood-stained clothes of the appellants and the weapon of offence recovered at the instance of the appellant Abid Latif i.e. Blood-stained Chhura were sent to the Chemical Examiner who found that all these articles had stains of blood and vide report of the Serologist, all the articles were found to have stains of human blood.
6. To prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by P.W.6 Mst. Aysha mother of the deceased, Fateh Muhammad P.W.7 and Abdul Wahid P.W.8 both maternal uncles of the deceased and brothers of Mst. Aysha. Mst. Jamila Bibi and her father-in-law Bashir Ahmed were given up as unnecessary but during the trial, the Court summoned them as Court witnesses and they appeared as C.W.1 and C.W.2 respectively. In addition to the ocular testimony, the prosecution also placed reliance upon the corroborative evidence in the form of the recovery of blood--stained Chhura and the blood-stained clothes worn by the appellants. The prosecution also substantiated its case through motive and the medical evidence.
7. When examined under section 342, Cr.P.C. The appellants Abid Latif and Zahid Latif denied the charge and also their presence at the scene of occurrence and stated that they had been involved on account of enmity due to the pendency of litigation between their father and the father of the deceased. Appellant Abdul Latif, however, admitted the occurrence and took up the plea of self- defence. It will be appropriate to reproduce the plea of his self defence which runs as under:-- "Khalid Mehmood deceased had come to my shop on the day of occurrence and attacked on me.
He fractured my wrist and injured me. In order to save my life I had acted in my self-defence and gave him 2/3 blows with one part of scissors meant for cutting the G.P. Sheets whereafter he ran away from my shop. The occurrence did not take place near Habib Bank. The police did not go to the place of occurrence and site plan was also not prepared. I had myself appeared before the police on 17-8-1985. Nothing was recovered from me. I am innocent."
8. With the assistance of the learned counsel for the appellants, State and the complainant, we have carefully gone through the entire evidence on the record and we have also heard the various contentions raised on both sides.
The learned counsel for the appellants has strenuously argued that the enmity of both sides is deep-rooted and has been admitted and, therefore, the hostile testimony merits to be rejected in toto. It was further urged that the complainant side has strong motive to involve the entire family i.e. The appellant Abdul Latif and his two sons appellants Abid Latif and Zabid Latif so that it could take possession of the disputed property. It was further argued that since the appellants were in possession of the disputed property hence they were implicated in this false case so that conveniently, the possession of the disputed property could be obtained by the complainant. It was next contended that it was unnatural to believe that Jamila Bibi, her mother Mst. Aysha, her deceased brother Khalid Mehmood and her father-in-law Bashir Ahmed would all be going to the bus stop. It was also urged that per admission of Jamila Bibi, the straight route to the bus stop is from a Gali and, therefore, it was unnatural for this party to adopt the route of the metalled road to board a bus. The learned counsel for the appellants added that if at all the appellants intended to murder the deceased, they would have selected better time and better venue rather than to have committed the offence in the early hours of the morning in the crowded bazar on G.T. Road and, therefore, the participation of the appellants is doubtful. It was further contended that in fact the complainant side was aggressor and they had ignited the occurrence because Jamila Bibi stated that before the actual occurrence parties had exchanged abuses and hot words. The learned counsel also urged that if at all Zahid Latif and Abdul Latif had caught hold of Khalid Mehmood by his arms, then, he would not have received injuries on the index finger and on his buttock. It was thus argued that the story was unnatural and even assuming it to be correct, Zabid Latif and Abdul Latif, who were armed with Saryas had only caused injuries to Mst. Aysha and, therefore, they could not have shared the common intention in furtherance of which, they would have killed Khalid Mehmood. Lastly, it was argued that the plea of self-defence was more probable because Abdul Latifs ulna was fractured and he had injured Khalid Mehmood from a scissors lying in his shop in order to save himself.
9. Before proceeding further, we will first deal with the defence plea raised by the appellants which was reproduced above. In our view the plea is based upon conjectures and surmises and is in conflict with the existing and admitted facts on the record.
Injury No.1 on the person of Khalid Mehmood deceased proved to be fatal while the rest of the injuries are skin deep. The injury No.1 could not have been caused with a blade of the scissors as attempted to be argued and proved by the learned counsel for the appellants. Furthermore, the defence plea also stands belied by the venue of the occurrence. The occurrence took place near the Habib Bank at G.T. Road Kot Adu from where blood-stained earth was also collected and if at all Khalid Mehmood had injured Abdul Latif appellant, then he must have run away and hence the right of self-defence could not have accrued because the apprehension, if any, had vanished with the running away of the deceased.
It is further pertinent to mention that there is nothing unnatural or odd for Jamila Bibi, Mst. Aysha, Khalid Mehmood and Bashir Ahmed, proceeding towards bus stand in a group. It is customary that when the daughter goes to the house of her husband, the near kith and kin accompany her to see her off and that is why, the mother Mst. Aysha and the deceased brother of Jamila Bibi had gone alongwith her towards the bus stand, and such a solemn occasion could not have been chosen by the complainant side to pick a row with the appellant Abdul Latif. Even otherwise, every body would avoid C to enter into a dispute, quarrel or to pick a row when accompanied by mother and sister.
The injuries received by Abdul Latif appellant have also been explained in the F.I.R. Which were received during the scuffle and, therefore, we are of the -view that capital is being made out of these injuries for raising the plea of self-defence to avoid liability. In this view of the matter, we have no hesitation in rejecting the defence plea.
10. The learned trial Judge with a view to arrive at the truth summoned both Jamila Bibi and her father-in-law Bashir Ahmad who entered the witness --box as C.W.1 and C.W.2. Bashir Ahmed no doubt, is father-in-law of Jamila Bibi sister of the deceased but his posture in our view is independent because he has no axe of his own to grind, he is a resident of Jhang and is not involved in any manner in the litigation between the first informant and his brother appellant Abdul Latif. He narrated the version of the occurrence faithfully by swearing on Holy Qur'an, his testimony impressed the learned trial Judge and we have no reason to depart from the view taken by the learned trial Judge 4 because he had the opportunity to see the demeanour and behaviour of the witness in Court and, therefore, his testimony cannot be lightly brushed aside.
Besides the motive as to the litigation, immediate motive was also mentioned by the first informant that a day before, a quarrel had taken place between Khalid Mehmood and the appellants. This statement has gone unchallenged and therefore, we are of the view that blood was boiling when the appellants abused and attacked Khalid Mehmood deceased.
We are also impressed by the testimony of the first informant, Mst. Aysha, Abdul Wahid and Fateh Muhammad, P.Ws. The presence of Mst. Aysha P.W.6 cannot be doubted because in the incident she received injuries which proved her presence, being mother, she would not permit the real culprit to go scot free and to substitute him with another. Hence the false implication in this case does not at all arise. The testimony of Mst. Aysha inspires confidence and in our view, her testimony alone is sufficient to believe the prosecution case.
11. We are also not prepared to believe that the occurrence took place in the shop and the deceased also received injuries in the shop as alleged by appellant Abdul Latif and thereafter, the deceased ran towards Habib Bank at G.T . Road. No trail of blood was found between the shop and the Habib Bank, the distance of the two places is only 47 feet, therefore, the prosecution version is true to the effect that the occurrence took place where the prosecution wants us to believe. The intervention on the part of Mst. Aysha in G the occurrence was natural, and her testimony, speaks volumes and is nothing but truth.
Furthermore, if at all, the prosecution wanted to fabricate its case, the first informant could have volunteered to become an eye-witness but he has faithfully stated that the occurrence was reported to him by Abdul Wahid, --P.W.8 and, therefore, without loss of time, the matter was reported and the F.I.R. Was prompt. There was no room for deliberation and, therefore, the prosecution case stands amply proved on the record of this case.
12. Adverting to the corroboration, the recovery of blood-stained Chhura and blood-stained clothes of all the three appellants having been found to be stained with human blood furnish ample corroboration to the prosecution case. In this view of the matter, we are of the view that prosecution has been successful to bring home guilt to the appellants.
13. Another important question falling for determination is, what is the role of Abdul Latif and Zahid Latif, whether, in fact, they had caught hold of the deceased to facilitate the infliction of injuries by Abid Latif. If at all, the prosecution story is believed on this score, then in the said event, the deceased would not have received injuries on the fingers and on the buttock. One of the eye- witnesses stated that both Abdul Latif and Zahid Latif had twisted the arms of the deceased. If this aspect is considered, even then receipt of injuries belies the prosecution on the question of holding the deceased by Zahid Latif and Abdul Latif, although, their clothes were stained with blood which only shows that they were present on the scene of occurrence. Abdul Latif had also received injuries and the blood could have oozed from the injuries but for the safe administration of criminal justice, we will give benefit of doubt to the appellants Abdul Latif and Zahid Latif and acquit them.
They are already on bail they are discharged from their bail bonds.
14. Adverting to the case of Abid Latif, we are of the view that his participation in the occurrence and infliction of fatal injuries to the deceased .1 have been proved beyond any shadow of doubt. It was a cold-blooded murder and no mitigating circumstance exists to justify lesser penalty.
In this view of the matter, the appeal preferred by the appellants is accepted to the extent of Zahid Latif and Abdul Latif appellants while the appeal of Abid Latif is rejected. His conviction and sentences are maintained. Resultantly, the appeal to the extent of Abid Latif is dismissed and the reference is answered accordingly.