SARDAR MUHAMMAD DOGAR, J.--- Shabbir Hussain alias Shabba (25) was tried by the Sessions Judge, Kasur, for having murdered Faisal Majeed on 5-4-1990 at 2-45 a.m. In front of the Punjab Cooperative Bank, Railway Road, at a distance of 5/6 furlongs from Police Station "A" Division, Kasur.
' Vide judgment, dated 28-11-1990, he was convicted under section 302, P.P.C. And sentenced to death, plus to pay a fine of Rs,50,000 in default whereof to undergo R.I. For 2 years. Out of the fine, on recovery, a sum of Rs,40,000 has been directed to be paid as compensation to the heirs of the deceased.
2. The reference made by learned trial Judge and the appeal filed by the convict are being disposed of together.
3. F.I.R. Exh.P.H./1 was registered at the police station by Muhammad Ramzan, M.H.C. P.W.12 at 3-30 a.m. On 5-4-1990 on receipt of statement Exh.P.H. Of Qaisar Majeed P.W.8, recorded by Ifzal Ahmad, S.I. P.W.9, on the same day at 3-15 a.m. At Police Post No,2, Lorry Adda.
' According to F.I.R. The complainant accompanied by his brother Faisal Majeed (deceased), Malik Muhammad Iqbal and Burhan-ud-Din P.Ws., went to the Railway Road for stroll. They reached in front of the Punjab Cooperative Bank at 2-45 a.m. Shabbir Hussain (appellant) came from the opposite direction. He demanded a sum of Rs,100 from Faisal Majeed deceased. On the refusal of Faisal Majeed, he brought out a Chhuri from the fold of his Shalwar and inflicted a blow on the right thigh of Faisal Majeed. The complainant and his companions raised alarm. The appellant gave another blow on the left buttock of Faisal Majeed while chasing him. Faisal Majeed fell down. The appellant ran away.
' The occurrence, apart from complainant was witnessed by Malik Muhammad Iqbal and Burhan- ud-Din. The complainant went home to inform his father. He (father) came to the spot. Faisal Majeed was removed to Civil Hospital, Kasur.
4. Ifzal Ahmad, S.I. After despatching statement Exh.P.H. To the police station for registration of case, went to the hospital, wherefrom he learnt that the injured had been shifted to the General Hospital, Lahore. He came to the spot alongwith the P.Ws. And after collecting blood-stained earth from there, vide memo. Exh.P.F. Recorded their statements.
' On coming to know about the expiry of Faisal Majeed at 10-30 a.m. On the same day, he went to the hospital and despatched the dead body for postmortem after preparing statement of injuries and inquest report. Blood-stained Shalwar P.4 of the deceased produced before him by Sh. Abdul Majeed, father of the deceased, was taken into possession vide memo. Exh.P.G.
' The investigation, thereafter was taken over by Muhammad Ashraf, Inspector/S.H.O. He arrested the appellant on 6-4-1990 and took into possession blood-stained Chhuri P.3 got recovered by him on 10-4-1990. Challan was submitted to Court by him after completion of necessary investigation.
5. Statements of twelve P.Ws. Were recorded at the trial. Positive reports from the offices of the Chemical Examiner and the Serologist were also tendered in evidence.
' Dr. Rashid Ahmad, who had medically examined the deceased whilst alive on 5-4-1990 at 3-15 a.m. Appeared as P.W.1. He had noted following injuries on his person:--
(1) Incised wound 7 c.m. x 4 c.m. x muscle deep on antro-medial aspect of right thigh at junction of upper and middle third.
(2) Incised wound 2-1/2 c.m. x 1 c.m. x muscle deep postero-lateral aspect of left thigh upper part.
' At the time of medical examination the deceased was unconscious, irritable and pulseless. Both the injuries were opined to have been caused by a sharp-edged weapon, within approximately 4 hours.
' Dr. Zulfiqar Ahmad, who had performed autopsy on 5-4-1990 at 4-40 p.m. Appeared as P.W.2. He had noted following injuires on the body of the deceased:--
(1) A contusion 2-1/2 c.m. x 1 c.m. On right cheek below right eyeball.
(2) A contusion 3 c.m. x 1-1/2 c.m. In front of left elbow joint.
(3) An abrasion 2 c.m. x 1 c.m. On left forearm on front in the middle.
(4) A contusion 2 c.m. x 1-1/2 c.m. On the back of left wrist.
(5) An incised wound 6 c.m. x 3 c.m. In size and 4 c.m. Deep on the front of right thigh in upper part at the junction of upper 1/3rd and lower 2/3rd underlying muscles and vessels were cut.
(6) An incised wound 3 c.m. x 1-1/2 c.m. In size 3-1/2 c.m. Deep on the outer part of left thigh in its upper part, underlying muscles and vessels were cut.
(7) An abrasion 1 c.m. x 1 c.m. Below left knee in front.
(8) 2 incised stitched wounds 1 on each ankle joint (for venesection).
' Death was opined to have occurred due to excessive haemorrhage and shock resulting from injuries Nos.5 and 6, caused by sharp-edged weapon. Time between injuries and death was opined to be about 8 hours, while the duration between death and post-mortem was opined to be about 7 hours.
6. Ocular account was deposed to by Qaisar Majeed P.W.8 who had lodged the F.I.R. And Malik Muhammad Iqbal P.W.6.
' Qaisar Majeed while repeating the facts given by him in the F.I.R., also claimed to have attested the collection of blood-stained earth from the spot. During cross-examination, he stated that the police post and his house were at a distance of one furlong from the place of occurrence. He stated that he had not told the P.Ws. That he would take his brother to the hospital and that they should inform his father. While stating, that he had met Burhan-udDin P.W. By chance, he denied that his meeting with Malik Muhammad Iqbal was by chance. He stated that it was their routine in the month of Ramazan to go out after taking Sehri. According to him the house of Malik Iqbal was at a distance of 200 feet from his house. He denied the suggestion that the deceased was an addict or had ever been reported for being in possession of heroin. He also denied that he was treated in any hospital for addiction. He stated that his clothes were stained with blood. He denied the suggestion that he had not witnessed the occurrence. He also denied the suggestion that his father had many enemies and someone of them had killed his brother and upon information of the occurrence his father had taken the deceased to the hospital in injured condition. The suggestion that he had named the accused in the F.I.R. On the direction of his father, was also denied by him.
7. Malik Muhammad Iqbal P.W.6, while corroborating the statement made by Qaisar Majeed P.W.8, admitted during cross-examination that Qaisar Majeed while going to bring his father had not asked him to carry Faisal Majeed to the hospital. He admitted that the deceased was bleeding profusely but they could not do anything, as no transport was available. He did not deny that usually Tongas were available at the Railway Station but stated that at that time no Tonga was present there. While giving out that he was a tailor by profession, he stated that due to rush of work because of Eid, he had returned from the shop at 2-00 a.m. And had gone out with the deceased and Qaisar Majeed at 2-15 a.m. After taking Sehri. He denied the suggestion that he had not witnessed the occurrence and had become a false witness due to being neighbour of the deeased.
8. Sh. Abdul Majeed, Advocate father of the deceased and the complainant while appearing as P.W.7 stated that his both sons had gone out of the house for walk after taking Sehri. He verified the fact that Qaisar Majeed had returned to the house and informed him that his son had been injured by Shabbir with Chhuri and that he was lying at the spot. He also stated that Qaisar Majeed had told him that Shabbir appellant had launched attack on the deceased when the latter had refused to pay him a sum of Rs,100. He also claimed to have taken the deceased first to the Civil Hospital, Kasur and then to the General Hospital, and of having produced blood-stained Shalwar of the deceased before the police during the investigation. During cross-examination he expressed ignorance about the Bar Association, Kasur having passed any resolution that no Advocate shall accept the brief of the accused. He stated that only two Advocates were appearing in Court on his behalf. He denied that he used to do the business of usury. He denied the suggestion that the accused had engaged him as a counsel for a case under section 307, P.P.C., pending trial before the Magistrate. The suggestion that a day prior to the occurrence the accused had quarrelled with him for not appearing for him in Court was denied by him. He also denied the suggestion that he had threatened the accused that he will get him arrested in case he agitated against him. He denied the suggestion that none had witnessed the occurrence and that on having learnt that his son was lying injured at the place of occurrence, he had gone there and removed him to the hospital. He stated that there was no litigation between him and his brother Latif.
9. Abdul Majid son of Muhammad Siddiq who had witnessed the recovery of Chhuri at the instance of the appellant, appeared as P.W.5 and deposed that fact. During cross-examination he stated that his house was adjacent to the house of Sh. Abdul Majid father of the deceased and that he had gone to the police station alongwith P.W. Naseer Clerk of Sh. Abdul Majid, to inquire if the weapon of offence had been recovered from the accused or not. He denied the suggestion that he had made a false statement about the recovery, for being neighbour of father of the deceased.
10. Ifzal Ahmad, S.I. Who had recorded complaint Exh.P.H., had taken into possession blood-stained earth from the spot, and had despatched the dead body for post-mortem after preparing necessary papers, appeared as P.W.9 and deposed those facts. He added that investigation of the case was taken over by Muhammad Ashraf, S.H.O. On 6-4-1990. He claimed that during the period, the investigation remained with him, he had searched for the accused but he was not available. He also disclosed that blood-stained Shalwar P.4 of the deceased produced by Sh. Abdul Majid, P.W.
Was taken into possession by him, vide memo. Exh.P.G. While admitting that he had not recorded the statements of the eye-witnesses in the hospital, he denied the suggestion that they were not present there. He stated that the clothes of Qaisar Majeed P.W. Were stained with blood but he had not taken the same into possession. He denied the suggestion that during the investigation it was brought to his notice that grappling had taken place between the deceased and the assailant and that the abrasions found on the body of the deceased were the result of the said grappling. He denied the suggestion that the case, actually was registered at 4-00 p.m. After getting advice of the Advocates belonging to Kasur.
11. Muhammad Ashraf, S.H.O. Who had taken over the investigation on 6-4-1990, appeared as P.W.10. He stated that Chhuri P.3 got recovered by the appellant, while being in his custody on 10-4- 1990 was taken into possession by him vide memo. Exh.P.E. He also claimed to have submitted the challan to Court after completion of necessary investigation.
' During cross-examination he stated that he had not interrogated the P.Ws. As to what for, the appellant had demanded Rs,100 from the deceased. He denied the suggestion that he had not investigated on that line for the reason that the allegation was fake. He stated that he had mentioned in the case diaries that father of the deceased had remained counsel for the accused, on the statement of the accused and not as a result of his own investigation. He admitted that the Railway Godown was near the place of recovery of Chhuri and a Chowkidar was available there. He conceded that he had not joined any person to witness the recovery from the surrounding places.
12. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. He denied to have led to the recovery of Chhuri. He stated as follows in answer to the question Why the P,Ws. Have deposed against you and why this case is against you"?
"Due to strained relations with the father of the deceased. Father of the desceased Sh. Abdul Majeed, Advocate was my counsel in a case under section 307, P.P.C., registered against me. The father of the deceased used to send his Clerk on every date to which I protested. On the night of occurrence I went to the father of deceased and requested him to conduct my case. But he refused and he asked his Munshi to turn me out of his office. I had warned him that I would make complaint against him before the President of the Bar Association. In return, Sh. Abdul Majeed, Advocate threatened to involve me in a false case. Sh. Abdul Majeed, Advocate has enmity with many persons in Kasur as he was involved in cheating the persons by advancing money on the basis of gold ornaments. Someone killed his son and I have been involved falsely in this case due to above enmity. The deceased was addict of heroin."
' He made statement on oath also, under section 340(2), Cr.P.C. In that, also, while repeating the stance put up during statement under section 342, Cr.P.C., he added that he had paid a sum of Rs,1,500 as fee, to Sh. Abdul Majid, Advocate and that he had visited him, on the night of the occurrence also at 8-30 p.m. And requested him to conduct his case but he had refused to do so and had asked his Munshi to turn him out of the office. He stated he had told him that he will file a complaint against him before the President of Bar Association and in turn Sh. Abdul Majid had threatened that he drill get him involved in some false case. He took up the stance that Sh. Abdul Majid, Advocate had many enemies as he was involved in cheating the persons by advancing money on the basis of gold ornaments, and someone of them might have killed his son. During cross-examination he admitted that Shaukat and Arif were his co-accused also in the case under section 307, P.P.C. While admitting that Mr. Farrukh Riaz, Advocate appeared for him in the bail petition, he claimed that he had thumb-marked the Wakalatnama in favour of Sh. Abdul Majid, Advocate. He denied the suggestion that he had not engaged Sh. Majid, Advocate, and in fact Farrukh Riaz, Advocate had appeared for him. He also denied the suggestion that he had demanded a sum of Rs,100 from the deceased in the presence of Qaisar Majeed, Malik Iqbal and Burhanud-Din P.Ws. At the time and place of occurrence and that on his refusal he had launched murderous assault on him. He also denied that he had got recovered Chhuri P.3 while being in police custody.
' He also examined in defence Mansab Ali, A.S.I. Police Station "A" Division, Kasur as D.W.1. He produced copy of F.I.R. No,219, dated 24-4-1986, purported to have been lodged by Abdul Majid son of Haji Khushi Muhammad against Muhammad Islam son of Siddiq under section 406/420/ 485/486/487, P.P.C., Police Station "A" Division, Kasur. He also produced copy of F.1.R. No,582, dated 26-10-1987, Police Station "A" Division, Kasur purorted to have been registered against Faisal Majeed son of Sh. Abdul Majeed under Article 11 of the Prohibition (Enforcement of Hadd) Order, 1979. He disclosed that the case against Muhammad Islam was cancelled while Faisal Majeed was acqitted under section 249-A, Cr.P.C. In the other case.
' He also produced in defence Exhs.D.E., D.F., D.G., D.H. And DJ., copies of some documents. Exh.D.E. Is purported to be the copy of resolution passed by the Municipal Committee that Sh. Abdul Majeed in connivance with one Muhammad Islam were indulging in usury. Exhs.D.F. And D.G. Also contain similar allegations and grievances. Exh.D.H. Is copy of petition for bail filed on behalf of Faisal Majeed in case F.I.R. No,382, dated 26-10-1987 under Article 11 of the Prohibition (Enforcement of Hadd) Order, 1979 by Sh. Abdul Majeed, Advocate while Exh.DJ. Is copy of F.I.R. No,267 dated 20-5- 1987, in which Faisal son of Majid is named as accused. The case was registered under section 3/4 of the Prohibition (Enfocement of Hadd) Order, 1979.
13. We have gone through the evidence with the assistance of learned counsel for the appellant and considered the contentions raised by learned counsel for the parties.
' The argument of learned counsel for the appellant that the claim of the eye-witnesses that they had gone for stroll at 2-00 a.m., looked not only unnatural but unbelievable too, has not impressed us, for the reason that the occurrence had taken place during the month of Ramazan at 2-45 a.m.
When the people at large are awake for taking Sehri etc. The occurrence had not taken place, far away from the house of the deceased and the claim of the eyewitnesses that they were at the place for stroll, cannot, therefore, be brushed aside as unnatural. According to the complainant his house was only at a distance of one furlong from the place of occurrence. Apart from that, the statement of Malik Muhammad Iqbal P.W. That he was a tailor and had returned from his shop at 2-00 a.m. Due to rush of work, so had joined the deceased and the complainant for stroll after taking Sehri, also in our view possesses substance. It is known that tailors are awefully busy from near about the middle of Ramazan-ul-Mubarik and they have to work till late hours in the night.
14. Still another important aspect, is, that the deceased was medically examined in the hospital at 3-15 a.m. Had the P.Ws. Been not present alongwith him and had he been injured while being alone, he could not have been taken to the hospital so quickly.
15. The contention of learned counsel that conduct of the complainant of having decided first to go to the house to inform his father instead of taking his brother to the hospital, was unnatural, has also not impressed us. The occurrence obviously had taken place unexpectedly and the complainant in that state of situation must have thought it necessary to inform the father, particularly so when the house was not far away.
' After having gone through the testimony of the eye-witnesses minutely, we feel convinced that their claim of being with the deceased at the time of occurrence cannot be disbelieved for any reason.
16. The argument of learned counsel that the stance of the appellant that he was involved in this case falsely due to his quarrel with the father of the deceased for having not appeared in Court to represent him, in spite of having been engaged and paid for that, has been considered by us, in the light of suggestions put to the P.Ws., statements made by the appellant under sections 342, Cr.P.C.
And 340(2), Cr.P.C. And in the light of the copies of documents placed on record. The nutshell of the stance, is, that the father of the deceased had many enemies and two cases had been registered against the deceased as well and that someone of the enemies of father of deceased, might have done him to death, and that he (appellant) was involved in the case due to his quarrel with the father of the deceased, for having failed to perform his professional duties.
' We fail to understand that if the father of the deceased was to lodge a false F.I.R. Against someone with whom he was annoyed or inimical, why should he have spared his known enemies and picked up the appellant only with whom, according to his own self, he had neither any animosity nor annoyance? If the allegations mentioned in the documents placed on record against the father of the deceased were true, there must be many who would be after him for getting back their money and those with whom he had criminal litigation, also would be inimical to him. He could easily have picked up anyone or more of them for naming as accused for the murder of his son. Mere fact that he did not do so, shows that he had not tried to take any undue benefit from catastrophe that had fallen.
' We are of the view that even if the stance of the appellant that father of the deceased, used not to appear, for him in spite of having charged fee, was correct, it must have been, himself who would have felt aggrieved and not the father of the deceased. That grievance itself might have provoked him to have committed the murder.
In the circumstances, we are convinced that the stance of the appellant IA does not advance his case in any manner.
17. The evidence of the recovery of blood-stained Chhuri at the instance of the appellant, which has been deposed to by an uninterested witness from the public and corroborated by the Investigating Officer, lends complete support to the ocular account. The testimony of both the eye-witnesses inspires confidence. The medical evidence in turn, also lends support to the ocular evidence.
Although there is slight disparity between the number of injuries noted by the doctor who had medically examined the deceased whilst alive, and the doctor who had performed autopsy, but the same is not of much importance as the abrasions and contusions noted by the doctor who had performed autopsy, might have resulted from fall of the deceased, and due to movements on earth, while writhing in pain. In the circumstances, no doubt is left in our mind that the prosecution has been able to prove the case against the appellant beyond any reasonable shadows of doubt. His conviction under section 302, P.P.C. Is, therefore, maintained.
18. We are, however, not inclined to confirm the sentence of death. Our reason, for not doing so, is, that although both the eye-witnesses stated that the appellant had launched attack on the deceased after the latter had refused to pay a sum of Rs,100 to him, but none of them could explain as to how and for what, such a demand was made? They also failed to state anything as to how and in what manner the deceased had refused to pay the amount?
19. Learned counsel for the State also failed to explain as to in what connection such a demand was made and why the said demand was refused? But for that fact, the prosecution brought nothing on record to hold that the appellant had a prior motive or grievance to commit the murder and he did so to avenge the said grievance. The sentence of death awarded to him is, therefore, altered to imprisonment for life.
20. There is nothing on record to hold that the appellant was a person of considerable means. He was a young man and was already facing trial in a criminal case. We feel that the sentence of fine of Rs,50,000 was excessive. The same is, therefore, reduced to Rs,25,000 (Rs, twenty-five thousand), in default of payment of which, he shall undergo R.I. For 2 years. Whole of the fine, on recovery, shall be paid as compensation to the heirs of the deceased.
' Benefit of the provisions of section 382-B of the Code of Criminal Procedure shall be extended.
Sentence reduced.