' Muhammad Hanif Shah alias Malang (62) was tried by the Additional Sessions Judge, Lahore for having murdered Liaquat All on 30-4-1985 at 4-00 a.m. near the shop of the deceased in Block No.2-II-2, Green Town, at a distance of 5-1/2 k.m. from Police Station Township, Lahore.
' Vide judgment dated 4-3-1992, he was convicted under section 302, P.P.C. and sentenced to imprisonment for life, plus to pay a fine of Rs.10,000, in default whereof to undergo R.I. for one year.
Half of the fine, on realisation, was directed to be paid as compensation to the heirs of the deceased.
2. The convict had filed appeal through jail. At his request, Mr. Muhammad Rafi Siddiqui, Advocate was appointed to represent him.
3. F.I.R. No.79/85 was registered at the Police Station on 30-4-1985 at 6-05 a.m. by Muhammad Ashraf, Inspector/S.H.O. P.W.13, on receipt of statement Exh.PG of Shafaquat Ali P.W.10, recorded by Hamid Ahmad, S.I. (since dead) at 5-30 a.m. at Bagarian Road, Green Town.
'According to F.I.R. Shafaquat Ali resident of Nagor, Police Station Daska, District Sialkothad come to Lahore, along with Muhammad Ashraf co-villager, to see his brother Liaquat Ali (deceased) on 29- 4-85. He was sitting at the Building-material Store of Liaquat All alongwith Muhammad Ashraf, at noon. Zulfiqar Ali was also sitting there. Muhammad Hanif Shah alias Malang (appellant) came there. He asked Liaquat All that some misunderstanding had arisen between him and Zulfiqar and that he should intervene for a compromise. Zulfiqar told him that Hanif Shah Malang wanted to compromise with him with the intention of committing sodomy with him, whereupon Liaquat Ali lost temper and beat Hanif Shah Malang with kicks and fist blows. Hanif Shah Malang left the place saying that he (Liaquat Ali) had beaten and insulted him publicly so he will avenge that. The complainant, Liaquat Ali (deceased) and Muhammad Ashraf slept at the shop for the night. At about 4-00 a.m. Hanif Shah Malang came there armed with a cane, on the one end of which, iron nail ({{URDU TEXT}} ) was affixed. Soon after reaching there he gave cane blow on the right side of head of Liaquat Ali, as a result of which his right ear started bleeding. The complainant and Muhammad Ashraf tried to catch Hanif Shah Malang but he succeeded in running away. Liaquat All fell unconscious. The complainant proceeded to the Police Station to lodge the F.I.R.
4. Liaquat All was removed to General Hospital, Lahore. He was medically examined there by Dr. Zafar Alam P.W.12, at 6-15 a.m. He died there on the same day at 5-00 p.m. The case initially was registered under section 307, P.P.C. Offence under section 302, P.P.C. was added after the expiry of Liaquat Ali.
5. Hamid Ahmad, S.I. after despatching statement Exh.PG to the Police Station for registration of case, proceeded to the spot and collected blood stained earth from there vide memo Exh.PE.
' On 1-5-1985 the S.I. went to Darbar Baba Jhand Pir in search of the accused. He was not present there. The S.I. broke open the lock of the room where the accused used to reside and during search took into possession blood stained shirt P.7 and blood-stained Shalwar P.8 vide memo Exh.PF. As the accused could not be arrested for having absconded, challan was submitted to Court under section 512, Cr.P.C.
6. The accused was arrested by Fazal Hussain, S.I. on 18-12-1987. Cane, being carried by him at the time of arrest, was taken into possession vide memo Exh.PB. Complete challan was thereafter submitted to Court.
7. Statements of thirteen P.Ws. were recorded at the trial. Dr. Zafar Alam, who had medically examined Liaquat All (deceased) whilst alive on 30-4-85 at 6-15 a.m., appeared as P.W.12. He had noted following injuries on his persons:-
(1) Bleeding right ear.
(2) Lacerated wound 5 c.m. x 1 c.m. middle part of right ear.
(3) Swelling on both eyes, with black eyes both.
' Injuries Nos.1 and 3 were kept under observation, while injury No.2 was declared simple. All the injuries were opined to have been caused by a blunt weapon, within 4 hours.
8. Dr. Saeed Ahmad who had performed autopsy on 1-5-1985 at 2-15 p.m. appeared as P.W.5. He had noted following injuries on the body of the deceased:-
(1) Abrasion size 1.3 x 0.5 c.m. on the skull just above the forehead in the centre, 9 c.m. from the base of nose.
(2) Abrasion size 1.2 x 0.5 c.m. present on the right side of the head, 10 c.m. above the right eye- brow and 13.5 c.m. from the right ear.
(3) Lacerated wound, 1.6 x 0.5 c.m. and scalp deep present on the right side of head, 5 c.m. posterior to right ear with contusion around 3.2 x 3 c.m.
(4) 3 c.m. long with four stitches intact wound horizontally placed on the middle of right ear pinna.
(5) Abrasion size 0.5 x 0.7 c.m. present on right knee, 2.7 c.m. front of right ear.
(6) Abrasion 2.6 x 1 c.m. present on right cheek, 1.6 c.m. front of Injury No.5.
' On opening, clotted blood was found on the right side of head, right temporal bone was fractured.
The fracture line extended to right anterior cranial fossa, right mid-cranial fossa, through sclla- tercica to left mid-cranial fossa and left temporal bone.
' Death was opined to have occurred due to Injury No.4, which had resulted in injury to the brain.
Time between the injuries and death was opined to be 10-15 hours while the time between death and post-mortem was opined to be within 16 to 24 hours.
' During cross-examination he stated that injuries Nos.3 and 4 could have resulted from one blow.
9. Ocular account was deposed to by Shafaquat All P.W.10 and Muhammad Ahsraf P.W.7.
' Shafaquat All while repeating the facts given by him at the time of lodging the report, specifically stated that Zulfiqar All had disclosed to the deceased about intention of the accused to commit sodomy with him, on the insistence of the deceased. He also gave out that Muhammad Ashraf P.W. was his nephew. During cross-examination he claimed that he knew the name of the appellant prior to the occurrence as he (appellant) had visited the shop of the deceased in his presence. He admitted that Zulfiqar P.W. had been taken into custody by the Police in connection with this case.
However, he denied the suggestion that the appellant was involved in this case to save Zulfiqar P.W.
The suggestion that he had not witnessed the occurrence was also denied by him.
10. Muhammad Ashraf P.W.7 corroborated the statement made by P.W.10. He also claimed to have witnessed the collection of blood-stained earth from the spot by the Investigating Officer and of having identified the dead body at the time of post-mortem examination. During cross- examination he admitted that he used to reside in district Sialkot during the days of occurrence.
However, he added that he had come to Lahore to see Liaquat Ali. He gave out that earlier also he used to visit Liaquat Ali. He claimed that he had seen the appellant prior to the occurrence also at the shop of the deceased. He stated that Zulfiqar P.W. was in the custody of the Police when the police had visited the house of the accused. He denied the suggestion that Zulfiqar P.W. was suspected of having committed the murder. The suggestion that they had involved the appellant falsely was also denied by him. He also denied the suggestion that he had not witnessed the occurrence.
11. Zulfiqar P.W.9 corroborated the statement made by P.W.10 about the story that the appellant had asked the deceased to get a compromise effected between him and Zulfiqar and, that when he (Zulfiqar) disclosed that the accused wanted to compromise with him for committing unnatural offence with him, the deceased had insulted the accused and beat him also. He also corroborated the statement made by P.W.10 that the accused while leaving the shop of the deceased had threatened that he will take revenge. He stated that he had accompanied the police party to the Darbar and that the police had broken open the room of the accused and taken into possession blood-stained shirt and blood-stained Shalwar belonging to the accused.
' During cross-examination he admitted that he had been taken into custody by the police but was never handcuffed. He stated that the police had taken him into custody as a suspect. He denied the suggestion that he had quarrelled with Liaquat Ali and had killed him on that account. The suggestion that the accused had never desired to commit unnatural offence with him, was also denied by him.
12. Muhammad Sarwar, Constable who was entrusted the warrants of arrest of the accused on 25- 5-85, appeared as P.W.6 and verified that fact. He added that as he could not serve the warrants, due to non-availability of the accused, he had returned the same. He admitted that the warrants of arrest were not before him.
13. Muhammad Akram, S.I. who had also partly investigated the case, while appearing as P.W.4 stated that he had submitted an application to the Magistrate for proceedings under section 87/88, Cr.P.C. after the warrants issued against the accused had been returned unserved. During his statement, the application vide which prayer was made to the Magistrate for initiating proceedings under section 87/88, Cr.P.C. and the order of the Magistrate thereon, were produced as Exh.PC and PC/1 respectively.
14. Hamid Ahmad, S.I. who had recorded statement Exh.PG and had initially investigated the case, was reported to have died. The documents written and prepared by him were proved by examining Muhammad Ashraf, S.H.O. as P.W.13, who claimed that Hamid Ahmad, S.I. had been working with him and so he could identify his handwriting and signatures.
15. Fazal Hussain, S.I. who had arrested the appellant on 1842-87 and had taken into possession the cane ({{URDU TEXT}} ) (stick) at the time of arrest, appeared as P.W.3 and verified that fact. The statements of the remaining P.Ws. are more or less of a formal nature.
16. Six C.Ws. were also examined. Their statements are also of a formal nature.
17. The appellant during his statement under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence. In answer to the question that 'you were declared proclaimed offender', he stated, 'I do not know about it.'
' He made following statement in answer to the question, 'why this case against you and why the P.Ws. have deposed against you?':--- "The police had originally arrested Zulfiqar All P.W. in connection with this case and actually it was he who had committed the murder as I was a helpless man I was made a scapegoat in this case and have been substituted for the real culprit. The P.Ws. have deposed against me falsely on the behest of the police in order to save the actual culprit, i.e. Zulfiqar All P.Ws."
' He did not opt to produce evidence in defence and declined to make statement on oath as well.
18. I have gone through the record with the assistance of learned counsel for the appellant and considered the contentions raised by learned counsel for both the parties.
' The deceased alone was residing at Lahore. His brother Shafaquat All P.W.10 had come to see him a day before the occurrence. Muhammad Ashraf P.W.7 had accompanied him. Muhammad Ashraf is nephew of Shafaquat Ali and the deceased. The argument of learned counsel for the appellant that claim of the complainant and Muhammad Ashraf P.W. being present at the time of occurrence, is a fabricated story, and that they appear to have been put as witnesses after being called from their village in tehsil Daska, is obviously a vain attempt, as there is confidence inspiring evidence on the record, which makes their claim of being eye-witnesses, worth placing reliance upon. In that, the occurrence had taken place at 4-00 a.m. The report was lodged with the police at 5-30 a.m. It is highly improbable, may be impossible that presence of these two witnesses could have been procured in so short a time, from their village in District Sialkot.
' The claim of the complainant that the police had reached the spot after he had lodged the report, finds support from the documentary evidence. In that Exh.PH, medico-legal report regarding injuries of the deceased, prepared at the hospital at 6-15 a.m. whilst alive, shows that he had been taken to the hospital by the police. (The name of Muhammad Arif, Constable No.915 of Police Post Green Town is noted in the column, 'name of relative or friend'). Had the police not been informed at 5-30 a.m. the Constable could not have been deputed by the S.I. to take the injured (deceased) to the hospital for medical examination, before 6-15 a.m.
19. The claim of presence of Muhammad Ashraf P.W. is also substantiated from the fact that he had attested Dxh.PE, the recovery memo vide which blood-stained earth and the cot alongwith the bedding, were taken into possession. This document was also prepared round about 6-00 a.m.
' In view of the aforementioned facts, there remains no room for doubting the claim of P.W.10 and P.W.7 of being with the deceased when he was attacked and caused injuries.
20. Both the witnesses stated categorically that they knew the accused before the occurrence as they had seen him earlier sitting at the shop of the deceased. The accused had no enmity whatsoever, with the complainant or Muhammad Ashraf P.W. They could not have, even thought of naming him as accused if they had not seen him injuring the deceased.
21. The suggestion that Zulfiqar P.W. had actually committed the murder and that the appellant was substituted for him, was just a kick in the darkness, because if Zulfigar had committed the murder, the complainant and Muhammad Ashraf who was nephew of the deceased, would not have let him off and chosen another person, who was innocent, as accused.
' Zulfigar P.W.9 was neither related nor had any special connections with the deceased or the complainant. He would not have exposed himself to the society, by coming out with the story that the appellant was after him and was chasing him to commit sodomy. If at all, he had to become a false witness, for any interest or compulsion, he could well have agreed to become an eye-witness, but he did not claim having witnessed the occurrence. He only stated about, whatever had happened with him and also gave out that it was on account of the disclosure of ill motives of the appellant qua him that the deceased had quarrelled with the appellant and had insulted him.
In the circumstances of this case, the nature of statement made by Zulfigar P.W. leaves no room to doubt that the motive for the occurrence was a concocted or fabricated story.
22. The ocular account thus, finds sound corroboration from the testimony of Zulfiqar P.W. The case was registered on 30-4-85. The appellant had absconded. He was arrested on 18-12-1987. During that period warrants of arrest had also been .obtained and proceedings under section 87/88, Cr.P.C. had also been taken. The police officials who were deputed to execute warrants of arrest and the proclamations, were examined at the trial. Both of the them verified those facts. The evidence of abscondence, therefore, also fully supports the ocular account. The appellant had failed to give any plausible reason about abscondence.
Having considered all aspects of the case and screening the evidence, I am convinced that the prosecution had succeeded in proving the case against the appellant beyond reasonable shadows of doubt. There is no merit in the appeal. The same is, therefore, dismissed.
' The appellant shall be given benefit of the provisions of section 382-B of the Code of Criminal Procedure.