This judgment shall also dispose of Criminal Revision No.168 of 1991.
2. Tabir Hussain appellant alongwith his father Nanr Hussain and Anwar-ul-Haq was tried by a learned Additional Sessions Judge at Faisalabad for committing the murder of his co-villager Mukhtar Ahmad in front of his house at Chak No.200-R.B., District Faisalabad, in furthurence of their common intention. On the conclusion of the trial, vide his judgment dated 11-1-1989, Tahir Hussain appellant was convicted under section 302, P.P.C. And sentenced to imprisonment for life and fine of Rs.20,000 or in default to further undergo one year's R1 In case of recovery of fine, half of it was directed to be paid to the heirs of the deceased as compensation. His two co-accused were acquitted on benefit of doubt.
3. The brief facts of the case are that Anwar-ul-Haq acquitted co--accused was allegedly carrying on with the wife of Nazar Hussain acquitted co--accused and the mother of Tahir Hussain appellant. Mukhtar Ahmad (deceased), being immediate neighbour, often asked Nazar Hussain co-accused to stop his wife from indulging in immorality. This caused annoyance to him and his son Tahir Hussain appellant, who alongwith Anwar-ul-Haq committed his murder.
4. In this background, on 25-7-1987 at about Mughrab prayer time when Mukhtar Ahmad (deceased) and his brother Muhammad Siddiq complainant were present in their house in the village, the former was called out by one Jamil. In response to the call when Mukhtar Ahmad (deceased) went out of the house, the appellant and his acquitted co-accused confronted him.
Nazar Hussain and Anwar-ul-Haq acquitted co-accused, who were empty-handed, caught hold of the deceased and Tahir Hussain appellant gave a `Sofa' blow on his head. Nazar Hussain co- accused gave him fist blow. Meanwhile Tahir Hussain appellant repeated the second blow with `Sots', hitting the deceased on the chest. As a result of these injuries, he fell down on the ground and became unconscious. The assailants then ran away. The occurrence was also witnessed by Ali Muhammad, Abdul Hameed and Altaf P.Ws. The injured was removed to the Civil Hospital, Faisalabad, where he died on 1-8-1987.
5. The matter was reported by Muhammad Siddiq to the police on 27-7-1987 at 5-30 p.m. And the case was registered against the appellant and his acquitted co-accused, initially under section 307/34, P.P.C. And on the death of the injured it was converted under section 302/34, P.P.C.
6. The case was investigated by Muhammad Aslam S.I. (P.W.8) and then by Inspector Muhammad Asghar. On the completion of investigation, all the three accused were sent up for trial. However, Anwar-ul-Haq was placed in Column No.2 of the challan.
7. On the commencement of the trial the prosecution produced as many as nine witnesses. To be a little more precise, Muhammad Siddiq complainant (P.W.3) and Ali Muhammad (P.W.4) gave the eye-witness account. Dr. Abdul Sattar (P.W.4), who had medically examined Mukhtar Ahmad injured and later on his death had carried out his post-mortem examination, gave the details of the injuries and proved his medico-legal report as also post-mortem report. According to him, injury No.' l located on the head of the deceased had proved fatal while injury No.2 on the chest of the deceased was found to be simple. S.I. Muhammad Afial (P.W.8) gave the details of the investigation. Rest of the witnesses were formal.
8. On the completion of prosecution evidence the appellant and his co--accused were examined under section 342, Cr.P.C. They denied their participation in the occurrence and alleging their false implication, professed innocence. They did not adduce any evidence in defence nor did they appear as their own witnesses under section 340, Cr.P.C.
9. On the conclusion of trial the appellant was convicted in the manner aforesaid while his two co- accused were acquitted on benefit of doubt.
10. Aggrieved by the impugned judgment of the trial Court where the appellant came up in appeal, Muhammad Siddiq complainant filed Criminal Revision No.168 of 1991, requesting for the enhancement of the sentence of the appellant to that of death and for retrial of the acquitted accused for awarding them capital punishment.
11. Before proceeding further, it may be mentioned here that the learned counsel for the petitioner, after arguing the revision petition for some time, has eventually submitted that he would be satisfied if the sentence already awarded to the appellant is maintained. In other words, he only wants to avail of the opportunity of being heard in respect of the impugned judgment and does not press the revision petition.
12. It is argued on behalf of the appellant that there was unexplained--delay of 26 hours in the registration of the case despite the fact that the distance between the place of occurrence and the police station was only a few miles; that Muhammad Jamil, who allegedly called out the deceased from his house, was neither produced as a prosecution witness nor he was arraigned as an accused; that both the eye-witnesses who were examined at the trial, were near relations of the deceased and no independent witness was produced by the prosecution; that had these eye- witnesses been present at the time of occurrence, they would not have allowed the assailants to cause fatal injuries to the deceased; that the motive alleged by the prosecution was flimsy and it was not believed by the trial Court and in fact the motive was not ascertainable; and that with the acquittal of the two co-accused the prosecution story to a greater extent stood disbelieved. Lastly, it is urged that if the above contentions do not find favour with this Court and it comes to the conclusion that the appellant did cause the death of Mukhtar Ahmad (deceased), then it was a sudden affair and the appellant may be convicted and sentenced under section' 304, P.P.C.
12-A. The learned State counsel and the learned counsel appearing for the complainant have tried to support the impugned judgment by contending that the appellant annoyed by the advice of the deceased, not to allow Anwar-ul-Haq co-accused access to their house as he was having illicit relations with his mother, intentionally caused his death by giving a fatal `Sota' blow on his head and also causing injury on his chest. According to them, the appellant was rightly convicted and sentenced.
13. It appears that the parties in this case are not only co-villagers but also immediate neighbours.
According to the prosecution, since Anwar-ul-Haq co--accused was on visiting terms with the appellant and his father and was statedly carrying on, with the mother of the appellant, the deceased as a neighbour, having a number of females in his own house, naturally worried for their morality, advised the father of the appellant to stop Anwar-ul-Haq co-accused from coming to his house. This piece of advice instead of having sober effect on the accused party, caused annoyance to that party, which calling the deceased out of his house through one Jamil belaboured him to death. This was a straight narration of the events leading up to the mishap and in the absence of any other cause having been brought on the record, it was the real motive having been deposed by the two eye-witnesses who being near relations of the deceased, in the normal course of things could have its knowledge and they should have been believed but the trial Court for no valid reason, disbelieved them on this point. Therefore, in my opinion, the motive stood proved and the learned trial Judge came to a wrong conclusion that it was shrouded in mystery.
14. No doubt, there was sufficient delay in the registration of the case but it stood amply explained by Muhammad Siddiq complainant. His explanation was that the accused party had been persuading the complainant party for a compromise and this caused delay in reporting the matter to the police. In our society, particularly when there is no previous enmity of serious nature between the parties, the elders in the locality do make an effort for bringing about a patch-up between the parties in order to save them from the scourge of enmity and its after-math, including expensive protracted litigation, and some time their efforts in this regard do succeed. In this case it was, therefore, possible that the respectables bring about a reconciliation between the parties and the complainant party in negotiating the deal must have naturally delayed the reporting of the matter.
Therefore, there could be no other reason for the delayed registration of the case as the parties were known to each other and there could be no doubt in the identity of the accused and the police station was situated at a distance of only a few miles. The delay in the registration of the case in these circumstances was, therefore, not fatal to the prosecution case and, to my mind, this factor in a criminal case should not be given so much importance. The registration of the case is only a means or method to set the criminal law in motion and it should not be equated with substantive evidence, particularly with the deposition of eye-witnesses. If the eye-witness account coupled with the medical evidence inspires confidence, the delay in the registration of the case becomes a secondary factor. It is generally said that the prompt registration of the case excludes the possibility of false implication and the delay in the registration of the case is utilized by the complainant party for weaving out a case for the false implication of innocent persons. So, many malpractices having crept in the working of the police, the prompt registration of the case and its advantage has become only a myth. Even otherwise the human mind is not so slow that it would not think any mischief if the matter is immediately reported to the police. I, therefore, find no substance in the contention of the learned counsel for the appellant that the delay in the registration of the case materially affects the veracity of the prosecution case and the appellant should be acquitted on this score.
15. As regards the next contention, as per prosecution case, one Jamil had called out the deceased from his house in order to enable the accused party to attack him in the street. In these circumstances, he could obviously not be cited as a prosecution witness. His only role was that of an accused and it was for the police to arraign him as an co-accused but, for the reason best known to it, he was let off despite his having abetted the offence. Therefore, the complainant party is not to blame for not citing him as a witness.
16. Muhammad Siddiq complainant was real brother of the deceased while Ali Muhammad was his distant relation. Two other eye-witnesses mentioned in the F.I.R. Were given up as unnecessary.
There was no previous enmity of serious nature between the parties though they may not be good neighbours. Therefore, in the absence of any previous enmity between the parties, the testimony of Muhammad Siddiq and Ali Muhammad P.W. As eye--witnesses did not suffer from any legal infirmity. The occurrence took place almost in front of the house of the parties in the evening when the people are generally present in their houses and there could be every possibility of both the witnesses being present in the vicinity of the place of occurrence and having seen it. They gave true account of the occurrence and they were rightly relied upon by the learned trial Judge. The appellant gave two blows to the deceased, one on his head and the other on his chest. These blows could be given in quick succession before any rescuer could intervene. Therefore, the eye- witnesses even if they had tried to rescue the victim from the assailants, could not extend him arty help.
17. As regards acquittal of co-accused and its effect on the prosecution case, in my opinion, it had none. For the safer administration of justice the co--accused were acquitted on benefits of doubt, particularly when their role was innocuous and on account of their acquittal the appellant cannot derive any benefit. So far as the alternate prayer of the learned counsel for the appellant is concerned, I find no force therein either. The parties were immediate neighbours, having a number of rights and obligations towards each other. For good neighbourly relations which is also a requirement of Shariah, they had to keep in view the convenience or inconvenience of each other.
Therefore, if the visits of Anwar-ul-Haq co-accused, who appeared to be a stranger to the house of Nazir Hussain and his son, the appellant, caused any inconvenience to the deceased on account of their activities in the neighbourhood, the accused party should have taken his advice in good stead, instead of belabouring him to death. No doubt, the accused party in the context of privacy had a right to ask the deceased not to interfere in their private affairs but at the same time this right in our society does not extend to the indulgence of immoral activities without any demur or protest from the complainant party as neighbours. In any case, the advice or protest of the deceased did not confer, any right, or give any justification, to the appellant to pick up a `Sota' and, after calling the deceased out of his house on some pretext, deal him a fatal blow on his head. He was, therefore, rightly convicted under section 302, P.P.C. As he had committed the murder of Mukhtar. So far as his sentence is concerned, he has already obtained sufficient concession in the form of lesser penalty on account of the deceased having blamed his mother for an immorality.
18. In view of the above, there is no substance in the appeal as also in the revision and both are dismissed.