' Arshad (22/23) was tried alongwith his father Manak and brothers Nasarullah and Zulfiqar by Additional Sessions Judge, Bhalwal, for having murdered Muhammad Azam on 15-7-1989 in front of the house of Bashir Lohar, Mohallah Luckanwala, in Kot Moman, at a distance of three furlongs from Police Station, Kot Moman, District Sargodha.
' Vide judgment, dated 26-11-1990, he was convicted under section 302, P.P.C. And sentenced to undergo imprisonment for life plus to pay a fine of Rs,50,000 in default whereof to undergo R.I. For five years. On recovery of fine, a sum of Rs,40,000 was directed to be paid as compensation to the heirs of the deceased. Benefit of section 382-B, Cr.P.C. Has been extended to him.
' His father and brothers, who were tried alongwith him, were acquitted vide the same judgment.
2. The convict has filed appeal.
3. F.I.R. Exh.P.D. Was registered at the police station on 15-7-1989 at 10-45 a.m. By Sardar Muhammad Hanif S.I. (P.W.8), on the statement of Muhammad Amir (P.W.6).
' According to F.I.R., Muhammad Azam deceased while going to his shop reached, in the street in front of the house of Bashir Lobar at 10-00 a.m. The appellant armed with a Chhuri accompanied by his brothers Zulfiqar armed with a hatchet and Nasarullah empty-handed and Manak, father armed with a Sota came there. Manak raised a Lalkara that Azam should not be spared alive.
Nasarullah took Azam into clasp. Zulfiqar hurled a hatchet blow but he missed the target.
Thereafter, Arshad (appellant gave a blow with the Chhuri on his (deceased) abdomen on the left side. He fell down. The complainant, Ahmad Yar (P.W.7) and given up P.Ws. Sher Muhammad and Ahmad reached the spot hearing alarm and witnessed the occurrence. Azam was removed to Civil Hospital, Kot Moman, where he died before any medical aid could be given to him.
' About motive for the occurrence, it is stated therein, that Arshad (appellant) etc. Suspected Azam of having illicit relations with Mst. Fatima alias Phaphi, daughter of Manak (sister of the appellant).
4. Muhammad Hanif S.I. After recording F.I.R., reached hospital and despatched the dead body for post-mortem after preparing injury statement Exh.P.H. And inquest report Exh.P.I. Thereafter, he went to the spot and collected blood-stained earth from there vide memo. Exh.P.J.
' All the accused including the appellant were arrested by him on 16-7-1989. Blood-stained dagger P.3 got recovered by the appellant on 18-7-1989 was taken into possession by him vide memo.
Exh.P.E. Hatchet P.4 got recovered by Zulfiqar and Sota P.5 got recovered by Manak on the same day were taken into possession by the I.O. Vide memos. Exhs.P.F. And P.G. Challan was submitted to Court after completion of necessary investigation.
5. Statements of 8 P.Ws. Were recorded at the trial.
' Dr. Naseer Ahmad Raja, who had performed autopsy on 15-7-1989 at 4-30 p.m. Appeared as P.W.S. He had noted, a linear cut 6 c.m. x 4 c.m. x cavity deep 2 c.m. Above the umblicus in the midline, 5 c.m. From the iphisternum below. Intestine was coming out from the wound alongwith blood. The injury was going deep into abdominal cavity cutting all the structures lying in the way.
' On opening the abdomen, he had found walls and peritoneum punctured and cut. Small as well as large intestines were also found punctured and cut. Right kidney was found damaged.
' Death was opined to have occurred due to the damage caused by the above-noted injury, which was opined to have been caused by a sharp-edged weapon. Probable time between injury and death was opined to be half an hour while the time between death and post-mortem was opined to be within 4 to 6 hours.
' During cross-examination, he admitted that he had conducted the post-mortem on 15-7-1989 but had entered in the post-mortem register on 17-7-1989 as the register was not available in the hospital on 15-7-1989.
6. Ocular account was deposed to by Muhammad Amir (P.W.6) and Ahmad Yar (P.W.7).
' Muhammad Amir while repeating the facts given by him in the F.I.R. Also claimed to have witnessed the recovery of dagger P3 at the instance of appellant, hatchet P.4 at the instance of Zulfiqar and Sota P.5 at the instance of Manak. During cross-examination, he stated that excepting the suspicion of illicit connections of the deceased with Mst. Phaphi, there was no other enmity between them and the accused. He, however, categorically stated that the allegation of illicit intimacy was also incorrect. While admitting that Zulfiqar accused was a Taxi Driver and he owned a car, he denied the suggestion that he had exchanged two tyres of his car with the two tyres of Zulfiqar's Taxi and received a sum of Rs,300 from Zulfiqar as difference in the price of the tyres. He further denied the suggestion that he had cancelled the deal and had sent his son Jahangir to bring back his tyres. The suggestion that Azam deceased , was removing the wheels of the car, when Arshad came there and they quarrelled with each other, during which the deceased suffered injury. He gave out that the occurrence had taken place on the following day of Eid-ul-Azha and so the shops were not opened as the shopkeepers keep the shops closed for three days on Eid-ul- Azha.
7. Ahmad Yar (P.W.7) corroborated the statement made by P.W.6 in so far as it pertained to the actual occurrence. While stating that the accused were `Moeens' of one Sardara, he also added that they were the `Moeens' of the entire land-owners of the village. He admitted the suggestion that he was accused in a case registered about the occurrence that had taken place in the house of Sardara, but claimed that he was acquitted in that case as a result of compromise between them. He denied the suggestion, that the deceased was removing the wheels of the car on the day of occurrence and that a quarrel had taken place there, between him and Arshad, over that, during which he had suffered injury.
' Both the witnesses while narrating the ocular account claimed that they were sitting under the Chhappar owned by the complainant. They were confronted with their previous statements, where they were not found to have stated so.
8. Muhammad Hanif S.I., who had registered the case, arrested the accused, taken into possession, the weapons got recovered at the instance of the appellant, Zulfiqar and Manak, and had submitted challan to Court after completion of necessary investigation, appeared as P.W.8 and gave the details of the investigation done by him. During cross-examination, he stated that Arshad at the time of arrest had stated that motive given in the F.I.R. Was false and that actually the occurrence had taken place on a flare-up over the dispute of exchange of tyres between him and the deceased. The S.1. Added that he had found that version of the accused incorrect during investigation. He denied the suggestion that no recovery had been effected from the appellant and that he had planted the weapon oh him.
8. Statements of the remaining witnesses are more or less of a formal nature.
' Positive reports Exhs.P.K and P.L. From the offices of Chemical Examiner and Serologist respectively were also tendered in evidence.
9. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence.
10. Learned counsel for the appellant after having gone through the evidence, criticised the impugned judgment and contended that the prosecution has failed to prove the motive; that the eye-witnesses do not appear to have witnessed the occurrence; and that the occurrence appears to have taken place when the deceased was found removing the wheels of the car of the brother of Arshad (appellant) and he had stopped him. Learned counsel submitted that the only injury which resulted in the death of the deceased cannot be deemed to have been inflicted with the intention to kill him. According to him, the case of the appellant fell within fourth exception of section 300, P.P.C.
11. Learned counsel for the State defended the judgment of the trial Court.
12. Father of the appellant was first cousin of the complainant and the deceased. The complainant declared during cross-examination, that excepting the suspicion of the accused about the illicit intimacy of the deceased with Mst. Phaphi, sister of the appellant, there was no other quarrel or dispute between them. No question was put to the complainant during cross-examination about any other previous enmity existing amongst them except, of course, the fact that a quarrel had taken place between the deceased and the appellant on the day of occurrence when the deceased was found removing the wheels of the car of Zulfiqar. Such fact was categorically denied by the complainant. The Investigating Officer had also found such fact to be incorrect during investigation.
' In the circumstances, it cannot be believed that the complainant would have made a false statement against his own relatives.
13. Ahmad Yar (P.W.7) was not inimical to the appellant, in any manner. In fact, both the parties being `Moeens' were equal to him, as he was one of the land-owners of the village. Although he had uttered a sentence that the accused were `Moeens' of Sardara yet simultaneously, had declared that they were his `Moeens' too. He was thus, by all means, an independent witness. His testimony, therefore, cannot be brushed aside.
' Apart from all that that, both the witnesses were present, quite close to the place of occurrence, they could have easily reached the place of occurrence and witnessed the same.
14. Learned counsel for the appellant tried to make a capital out of the fact that Ahmad Yar admitted that he was challaned in the case of throwing a grenade in the house of Sardara, whose `Moeens' the accused were, but, in my view, there is no force in the argument, as apart from the fact that the witness had clarified that the accused were as good his `Moeens' as that of Sardara, the other fact is that Ahmad Yar was acquitted in that case as a result of the compromise (Sardara and Ahmad Yar had compromised) and started living peacefully, why should Ahmad Yar then have gone out of the way to punish the accused just for being `Moeens' of Sardara?
15. The ocular account which has been furnished by reliable witnesses finds support from the recovery of blood-stained dagger at the instance of the appellant, which has not only been deposed to by P.W.6 but was also deposed to by P.W.8, who had investigated the case. He was not inimically disposed towards the appellant. The medical evidence, in turn, also lends support to the ocular account.
16. The contention of the learned counsel for the appellant that the prosecution had failed to prove the motive for the occurrence is also, in my view, without any force. The forthright statement made by the complainant that excepting the suspicion of illicit connections, there was no other dispute or quarrel between them and the accused, was not challenged during cross-examination. In that, they did not state that there was no dispute amongst them. As noted above, both the parties were related to each other and unless some such thing had happened, an occurrence of a nature which happened between the parties would not have occurred.
17. The contention of the learned counsel for the appellant, that the deceased had suffered injury at the hands of Arshad where a quarrel had arisen amongst them on Arshad having found him removing the wheels of car of his brother, does not find support from the evidence on record. Apart from that no weight has been found in the argument of the learned counsel for the appellant that it was an unwitnessed occurrence and that a false case was registered on a concocted version of the occurrence.
For all the reasons noted above, I find no merit in this appeal. The same is hereby dismissed.
18. However, the sentence of fine appears to be excessive. In that, there is nothing on record to hold that he was a man of sufficient means to pay that amount as fine, rather there is evidence on record that the appellant was only a `Moeen'. The sentence of fine of Rs,50,000 is, therefore, reduced to Rs3,000, in default of payment of which he will undergo R.I. For six months. Whole of the fine, on recovery, shall be paid as compensation to the heirs of the deceased.