' Arshad Mahmood and Muhammad Yaqoob, both sons of Muhammad Hussain, were tried by the learned Sessions Judge, Gujranwala for the charge under section 302/307/324/34, P.P.C. For committing the murder of Muhammad Aslam deceased and causing injuries upon Muhammad Akram P.W., his brother-in-law, on 19-3-1988. Arshad Mahmood was convicted under section 302, P.P.C. And was sentenced to imprisonment for life, with a fine of Rs,20,000 and in default whereof to further undergo R.I. For three yeaRs, He was also convicted under section 324, P.P.C. And sentenced to undergo two years' R.I. All the sentences were directed to run concurrently. Muhammad Yaqoob was only convicted under Section 324, P.P.C. And was sentenced to undergo 6 months' RI.
2. Arshad Mahmood-appellant has filed Criminal Appeal N0.253 of 1990 against his conviction and sentence whereas Muhammad Yaqoob has not filed any appeal. On the other hand, the complainant, Muhammad Akram has filed Criminal Revision bearing No,175 of 1990; under section 439, Cr.P.C. For enhancing the sentence of Arshad Mahmood-appellant to normal penalty of death and regarding Muhammad Yagoob it was prayed that he be ordered to be re-tried for the charge of murder under section 302, P.P.C.
3. Criminal Appeal No, 253 of 1990 and Criminal Revision No, 175/90 both will be decided through this single judgment.
4. Briefly stated the facts of the case as they rear its head from the complaint Exh.P.B. Which Nasrullah Khan (P.W.12) Investigating Officer recorded while Muhammad Akram the first informant, who has appeared as (P.W.9) was present in the Civil Hospital, Gujranwala, are as follows:- "According to him Muhammad Aslam son of Allah Ditta, since deceased, caste Mughal was his sister's husband. He had installed a flour grinding machine in the village. A day before that day, at evening time, he was present on his machine while two bundles of wheat of his customers were stolen. His brother-in-law was able to certify that the same had been taken by Arshad accused.
Accordingly at 9 p.m. On 19-3-1988 the first informant alongwith his brother-in-law Muhammad Aslam and his father Sharif for complaining to the father of Arshad Mahmood alias Suda, went to his father. His father was not present at his house. Both the accused, who are brothers inter se, however, came out from the house and asked them as to what the matter was. On which Muhammad Aslam (deceased) replied that they had come to make a complaint against him to their father that they had done a bad deed and that they should mend their ways. On hearing it, Arshad Mahmood accused flared up. A bulb was on in the Gali. He brought out a double-edged khanjar from the dub of his shalwar, and rendered three blows to Aslam deceased in quick succession, which fell on his abdomen-above the umbilicus, on the back side of chest and on its left as also on the right side of the back of his chest. On receipt of the injuries he fell down. While he was lying fallen down Muhammad Yaqoob accused with his sota gave blow to Muhammad Aslam deceased in his upper side of the head. He gave another blow to him which fell on the right side of his nose. Arshad Mahmood accused also assaulted him with the Khanjar which fell on his forehead.
On his father's raising alarm, Muhammad Nazir P.W. Son of Imam Din, caste Mochi resident of village, P.W.10 reached the spot, who with great difficulty rescued them from the assailants. In injured condition, his father transported Muhammad Aslam and the first informant to Civil Hospital, Gujranwala, for treatment from where he obtained MLR No, 726/A-88 and 727/A-88. He claimed that the occurrence besides himself was seen by his father Sharif (not produced) and Muhammad Nazir (P.W.10). Muhammad Aslam, being in precarious condition was transported to Mayo Hospital, Lahore and for the same reason he could not come to the P.S. For making a report. He claimed action and certified that the statement recorded by the S.I. Was correct."
5. To substantiate the charge against the accused, the prosecution examined P.W.1 Muhammad Hanif Constable, who escorted the dead body. P.W.2 Muhammad Azam Constable who took the sealed parcels pertaining to the blood-stained earth and a dagger and deposited the same in the office of the Chemical Examiner. P.W.3 Habib Ullah A.S.I., recorded formal F.I.R. Exh.P.B./1 on the basis of complaint Exh.P.B. Muhammad Saeed (P.W.4) is a witness of recovery of blood-stained earth whereas P.W.5 Dr. Abdul Aziz medically examined Muhammad Akram complainant on 19-3-1988 at about 10 p.m. And found three injuries on his person. He also medically examined Muhammad Aslam at about 10 p.m. On the same day and found four injuries on his person. Exh.P.E. Is the medico-legal report regarding Muhammad Aslam deceased. Dr. Muhammad Farooq (P.W.6) did the post-mortem examination of Muhammad Aslam deceased on 21-3-1988 at 11-30 a.m. And found eight injuries on his person including the surgical stitched wound. Exh.P.G. Is the copy of the post-mortem examination report and Exh.P.G./1 and Exh.P.G./2 were the sketches of injuries prepared by this Doctor. In his opinion the cause of death was injury No,1 of M.L.R. No,727/A/88 dated 19-3-1988 of D.H.Q. Hospital, Gujranwala. P.W.7 Arif Hussain is the Draftsman who prepared the site plan of the place of occurrence. P.W.8 Abdul Hameed is the recovery witness before whom Muhammad Yaqoob respondent got recovered sota Exh.P.2 from his house which was stained with blood and similarly on the same day Arshad Mahmood appellant got recovered dagger Exh.P.3 which was taken into possession vide memo. Exh.P.K Muhammad Akram (P.W.9) and Muhammad Nazir (P.W.10) are the eye-witnesses of the occurrence. P.W.11 Safdar All is a formal witness whereas Nasrullah Khan S.I. (P.W.12) is the Investigating Officer of this case.
6. When Arshad Mahmood appellant was confronted with the prosecution evidence while being examined under section 342 and under section 340(2), Cr.P.C. He traversed the allegations of the prosecution and while professing his innocence took up the following plea:- "At the time of occurrence, he was not present at the spot, Muhammad Aslam deceased suspected him of having illicit intimacy with his sister Mst. Naheed. At the time of occurrence he came to their house and entered the same while he was armed with a dagger in order to attack him for the said reason. At that time there was load-shedding in the village and it was all dark. Aslam deceased after arriving at their house attacked his brother Muhammad Yaqoob co-accused and inflicted him injuries. As it was dark Aslam deceased also sustained injuries at the hands of his co-accused Muhammad Yaqoob."
7. Muhammad Yaqoob co-accused being examined under section 342, Cr.P.C. And appearing as his own witness under section 340, Cr.P.C. Took up the following plea:- "that he was innocent. On 19-3-1988 while load-shedding was in progress and it was all dark, Aslam deceased, P.W. Akram and his father P.W. Muhammad Sharif came to their house. On arriving there the said persons started abusing them. They also inquired about his brother Arshad Mahmood co- accused and told him that he had concealed him somewhere in the house. Thereafter they started beating him. In order to defend himself, he also had given injuries to Aslam deceased. In the days of occurrence, he used to study in the college in First Year Class."
8. The learned counsel appearing on behalf of the appellant contended that the learned trial Court erred in law while relying upon the conviction against the appellant under section 302, P.P.C. When the prosecution had failed to prove its case against him beyond reasonable doubt. It was also argued that the impugned judgment is against facts and law and the learned trial Court has misread and misconstrued the prosecution evidence. It was argued that both the eye-witnesses were the interested witnesses so their testimony was not worth to be relied upon.
9. Conversely, the learned counsel appearing on behalf of the complainant while arguing the criminal revision submitted that when the learned trial Court once having believed the motive, ocular and medical evidence inasmuch as that of recoveries ought to have punished the respondents Nos.1 and 2 to normal penalty under section 302, P.P.C. i,e. Of sentence to death, and should not have acquitted Muhammad Yaqoob under section 302, P.P.C.
10. I have given my earnest considerations to the arguments advanced by both sides and have also gone through the evidence adduced on record very minutely, with the assistance of the learned counsel for the appellant. I find that the prosecution has placed explicit reliance on the statement of Muhammad Akram (P.W.9) when he stated that two bundles of wheat had been stolen by Arshad Mahmood-appellant from the Grinding Machine of the deceased. The deceased alongwith Muhammad Akram (P.W.9) and his father went to the house of the appellant to lodge protest. On their asking that why he had committed the theft, Arshad Mahmood appellant being infuriated brought out a double-edged dagger from his dub and caused injuries to the deceased in quick succession. In my considered view the prosecution has fully proved the motive against Arshad Mahmood respondent which perpetrated him to commit this crime. No exhaustive legal definition of the motive is available but according to the dictionary it means "the facts as motivate a person to commit the crime". However, as is generally understood "has an element of premeditation". Many murders are committed without motive. However, while taking the facts of this case which resulted in this occurrence and caused motivation to the appellant to open an assault on the deceased and his companions then undeniably the motive stands proved and shall be taken to be present in this case.
' The plea of the appellant was that actually the sister of Muhammad Aslam deceased had developed liking for him and wrote love letters to him, some of which fell into hands of the deceased, who duly armed with a dagger entered their house and started giving blows to Muhammad Yaqoob accused, thereby leaving room for suggestion that it was in the exercise of right of his defence that the injuries were caused by Muhammad Yaqoob to the deceased. I find that no medical evidence has been produced to show that the injuries, in fact, were received by Muhammad Yaqoob. Even two letters allegedly written by the sister of the deceased to Arshad Mahmood-accused-appellant have not been produced in the Court which goes a long way to suggest that the suggestion was without substance. It was vehemently argued that it was a load- shedding at the time of occurence, but the Executive Engineer, Operation Division, Wazirabad, has been produced by the defence as D.W.1 who has stated that the load-shedding was over at 20-55 hours which means 5 minutes earlier than 9 o'clock. This defence evidence even belies the arguments of the appellant; that this occurrence took place in the darkness.
11. I also find that P.Ws.9 and 10 have been produced as the eye-witnesses of the occurrence.
Muhammad Yaqoob co-accused has accepted the occurrence but in a manner different than that given by these two P.Ws. Muhammad Akram (P.W.9) is admittedly an injured witness in the case.
Muhammad Nazir (P.W.10) is an independent witness who had arrived at the spot after hearing his alarm. Muhammad Akram (P.W.9) has remained admitted in the hospital for eight days. "The question in this case is whether Arshad Mahmood-appellant has actually participated in this occurrence and whether the occurrence took place within the house or outside his house and whether the defence pica of the appellant and Muhammad Yaqoob is true when they state that Muhammad Yaqob acted in exercise of right of his defence or that of the P.Ws. Is worth to be relied upon; when Muhammad Akram had also received injuries on his person. I have already turned down the defence plea taken up by Arshad Mahmood-appellant regarding his having liaison with Mst. Naheed sister of the deceased while dealing with the motive. I thus have no choice but to reject the plea for the same reason. On the point whether the occurrence had taken place within the house or in the street; I fully endorse the findings of the learned trial Court. The presence of P.W.9 at the spot is not disputed, whose statement has fully been supported by Muhammad Nazir (P.W.10) who is most certainly an independent witness and has nothing to his discredit to disbelieve him. He is certainly an independent and natural witness of the occurrence having no relations with either of the parties. He has fully supported the version given by P.W.9, so in my view the ocular account furnished by P.Ws.9 and 10 is consistent, cogent and natural and there is nothing on record to suggest that their testimony cannot be believed. From the evidence of two P.Ws. It is proved to hilt that with the sharp-edged weapon of the type of dagger, Muhammad Aslam, deceased was done to death by Arshad Mahmood-appellant in a quick succession and Muhammad Akram also received injuries. So far as the medical evidence is concerned, it is proved that the deceased had died due to injury No,1 of M.L.R. No,727/A/88 dated 19-3-1988 of D.H.Q. Hospital, Gujranwala and in this respect two doctors corroborated with each other. There is nothing to suggest that the injuries given by the doctor were not correctly stated. The medical evidence stands un-impeached on the record. Even otherwise, it is not the case of defence that the deceased and Muhammad Akram did not receive the injuries at the alleged time and place of occurrence.
12. The learned counsel appearing on behalf .Of the complainant contended that the learned trial Court while reducing the sentence of the appellant-Arshad Mahmood had acted illegally when he took into consideration the age of the appellant which has no basis for not giving him the normal penalty of death in 302 case. He also disputed with the consideration of the learned trial Court that the occurrence took place at the spur of moment which according to him is based upon misreading of evidence and law. I do not agree with this argument of the learned counsel for the complainant. Certainly the case of Muhammad Akram is that the deceased alongwith him and his father had gone to the house of the appellant to lodge the protest of the theft of wheat bags allegedly committed by the appellant. They had not taken any arm even with them. It is the prosecution case that due to the exchange of hot words, the altercation took place and Arshad Mahmoodappellant whipped out a dagger from his Dub and caused injuries to the deceased as well as to Muhammad Akram (P.W.9). It is, therefore, a case where the occurrence took place at the spur of moment. The prosecution by necessary intendment actually claims admonishment to Arshad Mahmood appellant by the deceased and as such I also feel persuaded, as held by the learned trial Court, that the sentence of life imprisonment to Arshad Mahmood appellant is sufficient to meet the ends of justice in this case, so the same is maintained. I also uphold the remaining part of the sentence regarding Arshad Mahmood-appellant and endorse his findings regarding Muhammad Yaqoob co-accused.
' Resultantly, Criminal Appeal No,253 of 1990 and Criminal Revision No,175 of 1992 both fail and are hefeby dismissed.