' MIAN ABDUL KHALIQ, J.--- Ghulam Mustafa (30 years), Muhammad Saced (32 years) and Mst.
Shehzadi (25 years) were tried for the murder of Muhammad Javaid deceased and the learned Additional Sessions Judge, Lahore, vide his judgment, dated 15-9-1990 acquitted Mst. Shehzadi, but convicted and sentenced Ghulam Mustafa and Muhammad Saeed appellants under section 302/34, P.P.C. To death each and a fine of Rs,10,000 each, in default whereof to undergo 2 years' R.I.
Each. The fine, if realized, half of it was directed to be paid to the legal heirs of the deceased as compensation. The convicts have appealed to this Court separately. Their case was referred for confirmation of death sentence. Both the matters shall be disposed of by this judgment.
2. Briefly, the prosecution case is that P.W.1 Muhammad Rafi on 16-5-1989 at 3-00 p.m. Made statement Exh.PA. Before P.W.10 Muhammad Rafique S.I. At Mohallah Namadgaran, Police Station Akbari Gate, Lahore. To the effect that his deceased brother Muhammad Javaid was living with him in Mohallah Kharadian. In their Mohallah accused Mustafa also lived who had borrowed Rs,30,000 from the deceased and up to the day of occurrence he had been avoiding the payment of the said amount. The deceased had many a time visited accused Ghulam Mustafa alongwith the respectables of the Mohallah and had demanded return of the amount. The deceased visited the house of accused Ghulam Mustafa alongwith P.W.3 Muhammd Ijaz and P.W. Muhammad Zarar (given up), but the same was not returned. Accused Ghulam Mustafa was not of good character and was involved in many criminal cases and due to his character P.W.1 Muhammad Rafi had strongly asked his brother to get back the money and should not have relations with him. About two/three days earlier to the present occurrence the deceased went to his house alongwith P.W.4 Muhammad Younus and P.W. Muhammad Sohail (given up). The deceased demanded back the money and Ghulam Mustafa appellant and the deceased had exchanged abuses, on which P.W.4 Muhammad Younus and P.W. Muhammad Sohail (given up) separated them, but accused/appellant Ghulam Mustafa alias Lala had threatened the deceased that he would take revenge of his insult and at that time Mst. Shehzadi, co-accused (since acquitted) also used harsh language with the deceased. On the day of occurrence at about 2-30 p.m. The deceased while going to his house passed from in front of the house of the accused. Ghulam Mustafa and Muhammad Saeed armed with Khanjers were standing beside the street and had ambushed and Mst. Shehzadi accused was also waiting for the deceased to infrom the appellants that the deceased was coming and when he passed from in front of their house, Mst. Shehzadi raised Lalkara that Javaid had reached and he should not be spared, on which Ghulam Mustafa appellant inflicted Khanjar blow on the chest of Javaid and second blow was given by Muhammad Saeed with a Khanjar on the ribs under the left armpit. The third blow was extended by appellant Ghulam Mustafa, which landed on the left thigh. Javaid fell down in front of the door of Ghulam Mustafa, appellant. The three accused lifted Javaid and took him in the house of Ghulam Mustafa to demolish the evidence. The occurrence was witnessed besides the complainant by Muhammad Azhar (P.W.2), P.Ws. Muhammad Tariq Sabri and Salahuddin (given up). The complainant alongwith the P.Ws. Went running in the house after the accused, but they escaped through the roof. The deceased had succumbed to his injuries. P.W.1 Muhammad Rafi was proceeding to the police station when on the way P.W.10 Muhammad Rafique, S.I. Met him, who recorded his statement Exh.P.A. And sent the same to the police station, where formal F.I.R. Exh.P.A./1 was registered by P.W.9 Farman Ali, Moharrir/H.C.
3. P.W.10 Muhammad Rafique S.I. After recording Exh.P.A. Forwarded the same to the police station for formal registration of the case, proceeded to the place of occurrence, prepared inquest report P.1 and despatched the dead body to the mortuary, inspected the spot and prepared rough site plan Exh.P.J. He secured blood from inside and outside the house of appellant Ghulam Mustafa with cotton vide memos. Exhs.P.B. And P.C. And had sealed the same in separate parcels. He arrested Ghulam Mustafa, Muhammad Saeed appellants and Mst. Shchzadi co-accused (since acquitted) on 22-5-1989 and 23-5-1989 respectively. On 27-5-1989 Ghulam Mustafa appellant led to the recovery of blood-stained Khanjar P.1 from his house which was secured vide memo. Exh.P.D. And on the same day Muhammad Saeed appellant led to the recovery of blood-stained Khanjar P.4 from the house of Ghulam Mustafa appellant, which was secured vide memo. Exh.P.E. The memos.
Were attested by P.W.1 Muhammad Rafi and P.W. Muhammad Tariq Sabri (given up). The crime Khanjers P.1 and P.4 allegedly recovered at the instance of Ghulam Mustafa and Muhammad Saeed appellants respectively were sent to the Chemical Examiner and were found to be stained with human blood vide reports Exhs.P.M. And P.N. As well as that of the Serogologist Exhs.P.R. And P.S. Reports of the Chemical Examiner P.K., P.L. And that of the Serologist Exhs.P.O. And P.Q. Are in respect of cotton with which the blood was secured from two different places i,e. From the first place in the street where the deceased was given injuries and from the upper storey of the house of appellant Ghulam Mustafa where the dead body of the deceased was found. After completion of the investigation the appellants alongwith the acquitted co-accused were challaned and sent up for trial. They were charged under section 302/34, P.P.C. To which they denied and claimed trial.
4. The prosecution examined 10 P.Ws. In all to substantiate its case. Its case rests on motive, ocular account, medical evidence and the recoveries. The evidence of motive was furnished on record by P.W.1 Muhammad Rafi complainant, P.W.3 Muhammad Ijaz and P.W.4 Muhammad Younus. The ocular account was brought on record by P.W.1 Muhammad Rail and P.W.2 Muhammad Azhar Waheed. Medical evidence was furnished by P.W.8 Dr. Tajammal Hussain and recovery aspect of the case was stated by P.W.10 Muhammad Rafique S.I. And the attesting witness P.W.1 Muhammad Rafi.
5. P.W.8 Dr. Tajammal Hussain Chaudhry on 17-5-1989 at 9-00 a.m. Conducted autopsy on the dead body of Muhammad Javaid and found the following injuries on his person:--
(1) Stab wound obliquely placed 2.5 c.m. x 1.00 c.m. Cavity on the outer aspect of left chest 5 c.m.
Below left axilla and 11.5 c.m. To the left of nipple. On exploration, weapon after entering the body through injury No,1 had cut soft tissues, muscles of fourth inter costal space, left pleura were perforated and the left lung was cut, precardium and pulmonory artery (left pleural space had 2.5 litres of blood and clots, pericardial space had 50 c.c. Blood and clots.
(2) Stab wound 2 c.m. x .7 c.m. Obliquely placed, cavity deep on the right side of abdomen 1.5 c.m.
To the right of midline and 11.5 c.m. Above umbilicus.
' On exploration underlying soft tissues of anterior abdominal wall muscles and left lobe of liver were cut (paritonial cavity had 50 c.c. Blood and clots.
(3) Stab wound 2.5 c.m. x 1.5 c.m. Obliquely placed on the medial side of left thigh 8.5 c.m. Above left patella, 3.7 c.m. Below anterior spine (superior of illium), muscle deep.
(4) Multiple abrasions measuring 5 x 1.5 c.m. In the mid line 12.5 c.m. Above start of natal cleft, 43.5 c.m. Below nape of neck at the back.
' In his opinion, injuries Nos.1, 2 and 3 were caused by sharp-edged pointed weapon and injury No,4 by blunt means. According to him cause of death was injury No,1 damaging left lung and pulmonory artery, and injury No,2 damaging liver leading to profused haemorrhage and shock, and the injuries individually as well as collectively could cause death in the ordinary course of nature.
The time between injuries and death was within few minutes and the time between death and post-mortem was within 12 to 24 houRs, Exh.P.H. Is the carbon copy of the post-mortem report.
6. Appellant Ghulam Mustafa when examined under section 342, Cr.P.C. Denied the charge against him and stated that he was innocent and on the day of occurrence the deceased while armed with Chhuri reached on the first floor of his house, and wanted to attack him. He in self-defence injured the deceased and at that time he was all alone. He further stated that the P.Ws. Were related inter se and also friends of the deceased and for the said reason they had made false statements against him. He also submitted written statement Exh.D.B. He also made statement on oath as envisaged under section 340(2), Cr.P.C. And had denied the prosecution evidence against him and repeated his statement under section 342, Cr.P.C. And also denied owing of Rs,30,000 to Muhammad Javaid deceased as well as recovery of Khanjar P;1 at his instance.
7. Appellant Muhammad Saeed denied the prosecution evidence against him and also recovery of Khanjar P.4 at his instance and stated that he was innocent. He had been falsely involved in the case for the reasons given in his written statement Exh.D.E. He neither made statement on oath nor produced evidence in defence. It was argued by the learned counsel for the appellants that the prosecution had failed to establish its case and the witnesses examined by it arc interested, and the motive does not stand proved.
8. The motive was stated by P.W.1 Muhammad Rail in his statement Exh.P.A., on the basis of which F.I.R. Exh.P.A./1 was recorded, to the effect that appellant Ghulam Mustafa had borrowed Rs,30,000 from the deceased one year earlier to the present occurrence and was avoiding payment of the amount. The deceased Muhammad Javaid had visited Ghulam Mustafa appellant many a time alongwith the respectables as well as P.W.3 Muhammad Ijaz and P.W.4 Muhammad Younus, but appellant Ghulam Mustafa had refused to repay his amount and two/three days earlier to the present occurrence, the deceased visited Ghulam Mustafa appellant alongwith P.W.4 Muhammad Younus and P.W. Muhammad Sohail (given up) and demanded money, but again the same was refused and the deceased and Ghulam Mustafa appellant exchanged abuses. Appellant Ghulam Mustafa had also threatened to teach him a lesson. P.W.3 Muhammad ljaz had stated that about five/six days prior to the occurrence he had accompanied the deceased to the house of appellant Ghulam Mustafa and in their presence he had promised to return the amount of Rs,30,000 within 2/3 days. P.W.4 Muhammad Younus had stated that 2/3 days prior to the occurrence he accompanied the deceased to the house of the accused Ghulam Mustafa and demanded Rs,30,000 and the accused promised to return the amount. The deceased had exchanged hot words with Ghulam Mustafa appellant, who refused to return the amount and they grappled with each other. P.W.4 had intervened and separated them.
9. Muhammad Rail (P.W.1) complainant is the brother of the deceased, while P.W.2 Muhammad Azhar Waheed is not related to the deceased, but was his Mohalladar as well as that of the accused. P.Ws.1 and 2 have furnished the ocular account of the occurrence and had unanimously stated that appellant Ghulam Mustafa had given Khanjar blow to the deceased near his chest, appellant Muhammad Saccd inflicted Khanjar blow on the left flank of the deceased and third blow was also given by appellant Ghulam Mustafa on the left thigh of the deceased. The deceased fell down and the accused carried the deceased into their house. They had followed the deceased and the accused inside the house of the accused. They found the deceased lying in the room of first floor of their house and when they entered, the accused escaped. The medical account has been furnished on record by the statement of P.W.8 Dr. Tajammal Hussain Chaudhry, who found three sharp-edged and one blunt weapon injuries on the person of the deceased.
10. The recovery aspect of the case has been furnished on record by P.W.1 Muhammad Rafi and P.W.10 Muhammad Rafique. Appellant Ghulam Mustafa while in custody led to the recovery of blood-stained Khanjar P.1. Appellant Muhammad Saeed also led to the recovery of blood-stained Khanjar P.4. Reports of the Chemical Experts regarding crime Khanjars arc positive.
11. Appellant Ghulam Mustafa had raised the plea of self-defence and had stated that on the day of occurrence, the deceased while armed with Khanjar reached on the first floor of his house and wanted to attack him, when he in self-defence injured the deceased and at that time he was alone. He also stated almost in the same terms in his statement on oath. He submitted his written statement Exh.D.B. Too, wherein he had stated that Muhammad Saeed, co-accused was previously friend of the deceased, who left friendship of the deceased and developed friendly relations with the appellant, which were not approved by the deceased, and on the day of occurrence, the deceased reached armed and started abusing and called Ghulam Mustafa downstairs, but he did not come down, then the deceased armed with Khanjar reached upstairs in the room of first floor and stepped forward towards the appellant, but his foot was entangled in the ventilator, he tried to get up to attack the appellant, who from the nearby kitchen took out a Chhuri and in self-defence inflicted injuries to the deceased. He further stated that no occurrence had taken place outside the house in the street. The Khanjar had been planted on him. Muhammad Saeed appellant had denied his presence at the spot at the relevant time, his participation in the occurrence and also the recovery of blood-stained Khanjar P.4 at his instance.
12. The plea raised by appellant Ghulam Mustafa was considered by us after placing the same in juxtaposition with that of the prosecution case, and the same is not spelt out from the evidence on record and the circumstances appearing in the case. It is also pertinent to mention here that as stated by appellant Ghulam Mustafa, .The deceased neither caused any injury to appellant Ghulam Mustafa nor made any attempt in this behalf. No Khanjar whatsoever was found by P.W.10 at the spot or near the dead body of the deceased or produced by Ghulam Mustafa accused.
Appellant Ghulam Mustafa has not satisfactorily explained the plea raised by him. P.Ws.1, 3 and 4 had stated that the deceased had advanced Rs,30,000 to appellant Ghulam Mustafa, but on demands he had refused to return the same. The motive was established against Ghulam Mustafa appellant. It was vehemently contended that how the deceased could give Rs,30,000 to appellant Ghulam Mustafa who was involved in many criminal cases. It is possible that a person even involved in many criminal cases, can borrow money from the Mohallandars for his urgent needs and the statements of P.Ws.1, 3 and 4 qua motive were also not seriously challenged by the defence before the trial Court as well as before this Court. There was motive against appellant Ghulam Mustafa only. The blood collected from the street where the deceased was given Khanjar blows as well as from the room of first floor of the house of Ghulam Mustafa appellant where the dead body of the deceased was lying, was found to be human blood as per reports of the Serologist Exhs.P.O. And P.Q. The learned defence counsel vehemently contended room no blood was secured by P.W.10 from in between the street and the room on the first floor of the house where the dead body was lying. It is pertinent to mention here that P.W.10 Muhammad Ralique categorically stated during cross-examination that he had noticed the drops of blood between the street and the room where the dead body of the deceased was found as well as on the staircase, but did not collect the same.
13. The place of recovery of the dead body of the deceased is the room of house of appellant Ghulam Mustafa, and appellant Muhammad Saeed was not resident of the same house. P.Ws.1 and 2 had stated that the accused after the occurrence escaped from the scene. One aspect of the case is important qua the recovery of blood-stained Khanjar P.1 at the instance of appellant Ghulam Mustafa from his house, which he got recovered from the wooden Doli (Almirah) lying in the room of upper storey. How an accused can conceal weapon of offence in the house of his co- accused? Appellant Muhammad Saccd is stated to have escaped from the scene alongwith his co-accused after the occurrence and he could not think of concealing his Khanjar P.4 in the house of his co-accused Ghulam Mustafa. Appellant Ghulam Mustafa even after the commission of murder could reach his house and conceal the weapon of offence, but it could not be in the case of Muhammad Saeed appellant.
14. For the foregoing reasons, as a principle of abundant caution, giving benefit of doubt to Muhammad Saced appellant we acquit him of the charge, who shall be released forthwith if not required in any other case. The appeal filed by Ghulam Mustafa appellant fails and the same is dismissed. The death sentence to his extent is confirmed.