MUHAMMAD AMIR MALIK, J. --Muhammad Iqbal (30), Umar Draz (19), Mukhtar (22) and Imtiaz (18) appellants were convicted by the Special Court for Speedy Trials No.5, Multan vide judgment dated 20-2-1988 and sentenced as under:- Muhammad Iqbal: Under section 302/34, P.P.C. To death and a fine of Rs.10,000 or in default thereof two years' R.I.
Umar Draz Mukhtar and Imtiaz: Under section 302/34, P.P.C. Imprisonment for life and a fine of Rs.5,000 or in default thereof one year's R.I. Each.
All were also ordered to pay a compensation of Rs.10,000 each to the heirs of Muhammad Ashraf deceased (25 years) or in default thereof to undergo six months' R.I. Each.
They all were convicted under section 324/34, P.P.C. For causing injuries to Muhammad Irshad and Akbar Hamid (P.Ws. Nos.13 and 14) and each sentenced to three years' R.I. On two counts each.
Their sentences except that of lqbal were ordered to run concurrently.
2. Muhammad Iqbal, Umar Draz and Mukhtar have filed one appeal and Imtiaz a separate appeal.
Both are being disposed of by this single judgment.
3. The occurrence took place at 10-30 a.m. At Bus Stand Basti Malook at a distance of two furlongs from the police station over there on 24-6-1987. Abdul Hamid complainant (P.W.12) lodged F.I.R.
(Exh.P.M.) at 11-00 a.m. And was recorded by Fazal Hussain S.I. (P.W.15) the same day.
4. According to the F.I.R. Abdul Hameed complainant (P.W.12) had a spare-parts shop at Basti Malook where he was present at about 10-30 a.m. He heard alarm in the Chowk and reached running. There Muhammad Iqbal, Mukhtar alias Makha, and Imtiaz appellants armed with daggers with Umer Draz appellant empty-handed were present. Muhammad Ishfaq (the deceased) nephew of the complainant was standing on the eastern side of the Chowk near a Rehri. Iqbal appellant raised a Lalkara that he would be given a taste for insulting him. Umer Draz appellant caught hold of him from both the arms, Imtiaz gave a dagger blow in the left upper part of the buttock followed by a dagger blow in the abdomen by Iqbal appellant and he fell down. In the meantime Muhammad Irshad (P.W.13) reached to intervene. Iqbal gave him a dagger blow in the chest followed by Imtiaz who gave two dagger blows in his back and Mukhtar gave him a dagger blow in the right hand thumb. When Muhammad Akbar (P.W.14) intervened, he was given a dagger blow in the left armpit by Iqbal appellant. Many people collected at the spot. The appellants left the spot on Shujahbad Road by Wagon No.MNH-775. The occurrence was also witnessed by Muhammad 1drees and Muhammad Usman.
5. The motive given was that about 4 days prior to the occurrence, the deceased had demanded the amount of Rs.5,000 which Iqbal appellant owed him. There was exchange of hot words between them over it and the deceased had given slaps and fist blows to the appellant.
6. Dr. Akber Saeed (P.W.1) medically examined Muhammad Irshad (P.W.13) on 24-6-1987 at 11-29 a.m. And observed the following injuries on his person:--
(1) There was a raw area measuring 3 c.m. x 2 c.m. Over the back of proximal phalan of right thumb. Skin flap was cleanly chopped off in a tringular fasion with base still attached with the wound. It was partially bleeding.
(2) Stab wound 2-3/4 c.m. x 1/2 c.m. x depth not probed over the right back 3-1/2 to the right of spine and 8 c.m. Above the waist line.
(3) An incised wound (stabbed) 2-1/2 c.m. x 1/2 c.m. Depth not probed over the upper outer quardant of right buttock 9 c.m. To the left of anal cleft.
(4) A stab wound 1/2 c.m. x 1./2 c.m. Over the front of left chest 6 c.m. Above the nipple and 8 c.m.
To the left of middle sternum. Depth not probed. The X-Ray of the injury was advised.
Injury No.1 was declared simple. All the rest were kept under observation. All were by a sharp-edged weapon within a duration of about six hours. He was admitted in the hospital.
This very doctor medically examined Muhammad Akber (P.W.14) at 11-49 a.m. And found an incised stabbed wound 3 c.m. x 1/2 c.m. On outer side of the chest left side which was bleeding. Its depth was not probed. The injuries of the two injured P.Ws. Were declared as simple later on by the doctor.
7. Dr. Iyaz Ali (P.W.2) conducted the autopsy on the dead body of Ishfaq on 25-6-1987 at 10-30 a.m.
It was having the following injuries:-- (1)An incised wound 6 c.m. x 4 c.m. Abdominal cavity on the front and outer side of upper part of left groin 7 c.m. From interior superior ilac spine.
(2)An abrasion 3 c.m. x 1 c.m. Communicating with injury No.1.
(3)An incised wound (sic) x c.m. Into 2 c.m. Into muscle deep on the left buttock. This injury was 6 c.m. Below iliac crest.
(4)An abrasion 3 c.m. x 1 c.m. On the left side of forehead.
Under injury No.1, omentum had been cut and so was the big blood vessel on the left side. In the opinion of the doctor the death was due to injury No.1 which was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem. Injuries Nos.1, 2 and 3 were caused by sharp edged weapon and No.4 by a blunt object. The time between the injuries and death was about 3 hours and that between death and post-mortem examination about 24 hours.
8. Fazal Hussain S.I. (P.W.15) after recording the F.I.R. (Exh.P.M. j reached the spot. He examined Usman and Idrees, the eye-witnesses present there, and collected blood-stained earth vide memo.
(Exh.P.N.) and scaled it into a parcel. He left the spot in search of the accused and reached village Traggar wherefrom Iqbal, Mukhtar and Umer Draz appellants hailed. They were not present at their house. Wagon No.MNH-775 was parked in the lane of the village and it was secured vide memo.
(Exh.P.S.). He then reached Nisthar Hospital at 4-00 p.m. The dead body of Ishfaq was lying in the Emergency Ward. He prepared injury statement and inquest report (Exhs.P.U. And P.V.) and sent it to the mortuary. Lrshad and Akber P.Ws. Were admitted in the hospital and after inquiring from the doctor that they were fit to make statements, recorded their statements. He searched for the accused till 25-7-1987 but could not find their clue. He was transferred in the meantime and the case was further investigated by Akbar Ali Inspector (P.W.16). 1-1 c obtained the warrants of arrest from the Magistrate on 10-8-1987 which could not be executed as the appellants were not traceable. He later or, arrested Iqbal, Mukhtar and Imtiaz appellants on secret information on 23-9- 1987 and Umer Draz appellant on 10-10-1987.
9. At the close of the trial, Iqbal appellant stated that Ishfaq deceased and he were friends and had been challaned in many cases of dacoity. He further stated that Ishfaq deceased had demanded the share of the expense incurred by him in the previous dacoity cases about 3 months before the occurrence while sitting in the chamber of an Advocate. He (the appellant) had refused to make the payment on the plea that he (the deceased) himself had committed the dacoities and so should bear the expenses. He goes on to tell that a few days before the occurrence Abdul Hameed complainant had demanded the money from him spent in the previous cases and he had told him that let the matter be decided in a Punchayat. As to the main occurrence, his version was that on the day of occurrence, he was purchasing meat at the butcher's shop alongwith his wife and father when the deceased, Irshad and Akbar P.Ws. Came and demanded the expense of previous criminal cases from him. He claims to have told them that a Punchayat be convened to settle the matter but they snatched the ornaments of his wife, tore her shirt, removed her Burka and this provoked him and in sudden and grave provocation he picked up a Chhuri from the butcher's shop and caused Chhuri blows to all the three. He produced his wife Mst. Perveen (D.W.4) and made his own statement on oath. The other appellants denied their participation in the occurrence.
10. At the trial Abdul Hameed complainant, Muhammad Irshad and Muhammad Akber (P.Ws.12, 13 and 14) have given the ocular account of the occurrence, the complainant also stated about the motive. The medical evidence was supplied by Drs. Akbar Saeed and Ayyas Ali (P.Ws. 1 and 2). The case was investigated by Fazal Hussain S.I. And Akbar Ali Inspector (P.Ws.l5 and 16). Relying upon the evidence thus produced, the charge was concluded against the appellants, by the learned trial Judge.
11. Learned counsel for the appellants contended that the motive part of the story was not proved, rather lqbal appellant and the deceased were friends and involved in dacoity cases together. Thus, the version of the occurrence given by lqbal appellant was probable perhaps if not fully correct and that there was no corroborative evidence as to the eye-witness account. On the other hand the learned counsel for the State pointed out that it was a broad day occurrence, in inhabited place on the road, and the matter was soon reported to the police, the police station being nearby.
Previous to the occurrence, according to him, there was no enmity or illwill between the appellants and the complainant rather as per the plea of lqbal appellant he and the deceased were involved in dacoity cases together and so the eye-witness account was but the truth.
12. According to the complainant, Iqbal owed Rs.5,000 to the deceased which was demanded about 4 days before the occurrence leading to the exchange of hot words between them and slaps and even fist blows to the appellant. The case of the appellant on the other hand is that the share of the expenses in the previous dacoity cases was demanded from him not only by the deceased but the complainant as well. Thus one thing is clear that there was dispute between the complainant and the deceased on the one side and lqbal appellant on the other regarding some money. It seems to be an admitted fact that lqbal appellant and the deceased were involved jointly in some cases. It is also an admitted fact on the record that previous to the occurrence, there was no illwill or enmity or any sort of grudge between the appellants and the complainant family. Hence the motive part of the version as given by the complainant is believable. The three eye-witnesses arc also independent and disinterested and there is no reason not to place reliance upon them. The occurrence took place in an inhabited place and the matter was soon reported A to the police. The deceased and lqbal appellant being partners in crime as per his own version, it is not believable that just after demanding the share of the expenses from the appellant, his wife would have been so insulted as to remove her clothes and deprive her of ornaments. The plea in this regard is not believable. The contention is, therefore, rejected.
13. In spite of the rejection of the contention raised by the learned counsel for the appellants, we arc put on guard so far as Umer Draz appellant is concerned. According to the F.I.R. And the eye- witnesses, he was empty handed. The only part attributed to him is that he caught hold of the deceased from both the arms. There being his three co-appellants well armed attacking g the deceased, there was perhaps no necessity on the part of Umer Draz to catch hold of the deceased from his arms, all the more so when one of the injuries was caused to the deceased in front. So as a measure of abundant I caution we arc inclined to grant him the benefit of doubt.
14. Learned counsel for the appellants finally argued that the case of lqbal, appellant was just like his co-appellants namely Mukhtar and Imtiaz. Even if he had caused the fatal blow to the deceased the fact remains that he and the deceased were jointly involved in criminal activities and might be when they confronted each other in the Bazar at Basti Malook, something at the, spur of the moment happened leading to the occurrence. Possibility that the deceased uttered some such words to the appellant that he attacked him cannot be entirely ruled out. We are inclined to accept the contention and to extend equal treatment to all the three.
15. The upshot is that Umer Drat, appellant is granted the benefit of doubt as a measure of abundant caution. His appeal is accepted, conviction and sentence set aside and he is hereby acquitted. The appeals on behalf of the p others arc dismissed. But the sentence of death passed upon lqbal appellant is altered to imprisonment for life. The sentence of fine and compensation as well as the sentence under section 324/34, P.P.C. As awarded by the learned trial Judge are maintained. The sentences would run concurrently.
H.B.T./M-3059/L