' RAJA MUHAMMAD KHURSHID, J.--- This occurrence took place at 8-30 p.m. On 4-10-1988 in the area of Niwan Mohalla, Chah Miran, Lahore at a distance of 1-1/2 kilometres towards south of Police Station, Shad Bagh, Lahore in which one Muhammad Akram was stabbed to death. .
2. The brief facts are that the complainant tethered a buffalo in a vacant plot situate on the back of his house at 8-00 p.m. On the unfortunate night. The deceased went to that site shortly thereafter and found Muhammad Mansha and Muhammad Latif accused at the spot. He complained to them that previously his buffalo was stolen and that they (accused) were suspected of its theft.
The accused however, were unable to satisfy the complainant side regarding the aforesaid allegation of theft till that date. The deceased also complained that the accused were present on that date with the object of stealing buffalo. This led to an altercation between the accused named above and the deceased, but the matter was pacified due to intervention made by Muhammad Farooq and Mahboob Hussain P.Ws. The accused thereafter left for their homes, but reappeared soon after, while out of them Muhammad Mansha and Muhammad Latif were armed with Chhuri each and Shaukat Ali alias Shoka (acquitted accused) was empty-handed. Muhammad Mansha accused raised Lalkara that the deceased be taught a lesson for falsely accusing and suspecting the accused persons for committing theft of their buffalo. Upon the exhortation of Muhammad Mansha, the deceased was held in Japha by Shaukat Ali alias Shoka accused from behind. The accused Muhammad Mansha plunged his Chhuri in the chest of deceased whereupon the latter fell on the ground. Muhammad Mushtaq P.W. Stepped forward in order to save the deceased, but Muhammad Latif accused attacked him with Chhuri causing an injury on the lower part of his chest and 2 injuries on right thigh. P.Ws. Muhammad Farooq and Mahboob Hussain tried to intervene but were threatened by all the accused to keep away if they wanted to remain alive.
3. On hearing the noise, people from the Mohalla were attracted to the spot and on seeing them, the accused ran away with their weapons.
4. The investigation linked all the 3 accused namely Muhammad Mansha, Muhammad Latif and Shaukat Ali alias Shoka with the occurrence. They were accordingly challenged under section 302/307/34, P.P.C. And were sent up to face the trial in the Court of Session.
5. Upon. The conclusion of trial Ch. Muhammad Saeed the learned Additional Sessions Judge, Lahore vide his judgment, dated 5.-6-1991 found Muhammad Mansha and Muhammad Latif guilty under section 302/307/34, P.P.C. But acquitted Shaukat Ali alias Shoka after giving him the benefit of doubt.
6. Vide aforementioned judgment Muhammad Mansha and Muhammad Latif accused were convicted and sentenced to death and imprisonment for life respectively with a fine of Rs,10,000 or in default to undergo one year's R.I. Both of them were further convicted under section 307/34, P.P.C.
And sentenced to 7 years' R.I. And a fine of Rs,4,000 each.
7. The fine if recovered was to be paid as compensation to the heirs of the deceased under section 544-A, Cr.P.C.
8. The impugned judgment was challenged in Appeal No,734 of 1991 filed by Muhammad Mansha and another Criminal Appeal No,702 of 1991 filed by Muhammad Latif convict. Murder Reference No,559 of 1991 was made by the learned Additional Sessions Judge, Lahore for confirmation of death sentence awarded to Muhammad Mansha as required by section 374, Cr.P.C. It was prayed in Criminal Revision No,600 of 1991 that fine should be enhanced on two counts; that sentence under section 307, P.P.C. Be also enhanced and that appellant Muhammad Latif be sentenced to death. Criminal Appeal No,1303 of 1991 filed by the State against acquittal of Shaukat Ali alias Shoka accused was dismissed by this Court vide order dated 14-6-1994. All the 4 matters will be decided by this judgment.
9. The learned counsel for the appellants challenged the judgment on the ground that the prosecution had failed to prove its case. In this context, it was urged that interested and discrepant evidence was examined at the trial, which was wrongly believed by the learned trial Judge. The recoveries of weapons of offence were also alleged to be doubtful because those were proved through interested witnesses. Since there was no intrinsic corroboration of the interested witnesses by the circumstantial or the medical evidence, therefore, the same allegedly remained highly doubtful throughout. In this regard, it was alleged that according to the F.I.R., only one injury was given to the deceased whereas according to post-mortem report Exh.P.N. There were two injuries on the person of the deceased. Those injuries have been shown in diagram Exh.P.N./1 separately and were the result of two blows instead of one as alleged by the complainant. This allegedly showed that the complainant was not present at the spot and was falsely set up to become a witness being brother of the deceased. The other eye-witness namely Mahboob Hussain and Muhammad Mushtaq were also stated to be interested because they were related to the deceased and were also allegedly present at the spot per chance. The only independent witness namely Muhammad Farooq was given up on the plea that he had been won over so that the truth may not come to light.
10. The learned counsel for the appellants also submitted that the accused never committed the offence nor there was any common intention between the two to commit the murder of the deceased because Muhammad Latif accused/appellant caused no injury to the deceased and that according to the prosecution he had assaulted Muhammad Mushtaq P.W. Only.
11. Lastly it was contended that in fact the motive was not proved as alleged in the F.I.R. And that the deceased was done to death during the night by some unknown persons and the appellants were implicated out of suspicion. The police station was stated to be at a distance of 1-1/2 kilometres but the report was not lodged there as the statement of the complainant was recorded in the hospital at about 10-30 p.m., when the police had reached there. The formal F.I.R. Was recorded on the basis of the aforesaid statement at 11-00 p.m. This delay gave sufficient time to the prosecution to make deliberations and consultation to implicate the accused falsely in this case.
12. Finally the learned counsel for Muhammad Mansha appellant urged that even if the story of the prosecution was believed ipso dicso, the case would fall within section 304, P.P.C. As it was a sudden flare up without any premeditation. The sentence of death or imprisonment for life was therefore, not warranted under the situation.
13. The learned counsel for appellant Muhammad Latif was also of the view that it was a false case based on suspicion for the reasons alluded to above and the case would not fall within the ambit of section 302/307/34, P.P.C. As community of purpose between the two accused was not established nor the common intention could be inferred under the given situation. Even if the prosecution was believed with reservation, the case of the prosecution would fall under section 324, P.P.C. As the injured P.W. Did not suffer any grievous injury.
14. The learned counsel for the State however, supported the judgment of the learned trial Court on the ground that mere relationship of the witnesses with the deceased would not disqualify their testimony nor would it be considered that they were telling lie, when admittedly there was no enmity between the parties. The natural urge on their part would be to bring the real culprits to book and as such there was no possibility of substitution in this case. The motive having been proved ocular occurrence rendered without any flaw, by the witnesses supported by the circumstantial and medical evidence, would show that the prosecution had proved its case against the accused beyond any reasonable doubt. The learned trial Court had already applied the principle of sifting the grain out of chaff and had acquitted one of the accused against whom the case was found doubtful. To this proposition the learned counsel for the appellants stated that the evidence, which was disbelieved qua one accused would not.Be believed in respect of other accused.
15. We have considered the above submissions from both sides. It is to be seen if the prosecution has been successful to prove its case against the accused persons. It appears that the learned trial Court proceeded with great care and caution to see that the evidence produced by the prosecution is appreciated critically so that no innocent person could be sent to gallows and that the guilty persons should get their due in accordance with law. It is for that purpose the co- accused of the appellants namely Shaukat Ali alias Shoka was given the benefit of doubt and acquitted. Tilt question would now arise if the same evidence could be believed against convict appellants. The proposition has become very simple because keeping in view the unfortunate tendency in our society to implicate and include the names of some innocent persons alongwith real offenders has become almost a common practice. It is for that reason that the principle of "sifting the grain out of chaff" has been recognized for the safe administration of criminal justice.
The Courts have refrained to strictly apply the principle of falsies in Uno falsies in omnibus so that some innocent persons may not suffer due to unhealthy practice of involving as many number of persons from the accused side as could be possible in order to bring maximum harm to that side.
16. Keeping in view the above discussion, we will have to see whether in the instant case the evidence produced by the prosecution was trustworthy and confidence-inspiring. It is true that the complainant i,e, P.W.1 is the real brother of the deceased, but on that account alone his evidence cannot be discarded. He is also living in the same place and being a blood relation of the deceased, it will be his genuine instinct to see that the real killers of his brother should be got convicted. It is admitted fact that there was no previous enmity though there was a lurking doubt against the accused that they were instrument in the theft of a buffalo in the past and since they were seen again near the buffalo of the complainant, therefore, it was but natural for the deceased to say as to what they were doing, at the spot at that time of the night particularly when they had failed to satisfy the complainant side regarding the previous theft of buffalo. This had led to an altercation, but due to intervention of the P.Ws., _the accused went to their home and reappeared with the grudge while armed with Chhuri to teach a lesson to the deceased for accusing them for theft. After raising Lalkara Muhammad Mansha accused opened attack upon the deceased and stabbed him to death, while causing injury on his chest. Muhammad Mushtaq P.W. Was injured by Muhammad Latif when the former tried to intervene. In such a situation, the motive raised by the prosecution cannot be thrown away particularly when in evidence it is said that there was some trouble over some buffalo, although the witnesses were not specific as to what had happened or as to what words were exchanged during the altercation between the deceased and the assailants. However, that would not make the testimony of the eye-witnesses doubtful particularly when there was a patent proof of Muhammad Mushtaq P.W. To be present at the spot having sustained injuries on the vital part of his body during transaction at the hands of Muhammad Latif appellant/convict. This would establish his presence at the spot. The witness was not inimical towards the accused and in that sense he would be an independent person though a caste-fellow.
He may have some relationship as during cross-examination, he stated that the deceased was not related to him, but might be related to his father. However, there is nothing on record to show as to what was the exact relationship except that he was staying there as a paying guest being a student of M.Sc. This reveals one important factor that he is a young man with sound educational background and therefore, the quality of his evidence should be given due weight, while appreciating his statement particularly as stated above, he had been one of the victims during the unfortunate incident resulting into the murder of the deceased. The 3rd eye-witness namely Mahboob Hussain is brother-in-law of the deceased. Though he lived in a different locality and had claimed to be present as his wife had come to the house of his in-laws. This visit of his wife to her parent's house is not unusual and as such presence of the witness would not become doubtful as alleged by the learned counsel for the appellants/convicts by terming him as a chance witness.
17. In view of the above situation, the evidence of the eye-witnesses is not only trustworthy, but is intrinsically truthful because there is no background of any enmity between the parties. It is, therefore, not likely that the eye-witnesses will go to such an extent that they would leave out the real culprits and would substitute the present appellants/convicts.
18. There is no contradiction between the ocular account of occurrence and the injuries found on the person of the deceased as well as on the person of Muhammad Mushtaq P.W. All the witnesses have described injuries on the persons of the victims corresponding to the medical evidence given by the Medical Officer namely Dr. Muhammad Afzal (P.W.9) and Dr. Moeen-ud-Din (P.W.10).
Although it is stated in the F.I.R. By the complainant that Muhammad Mansha accused had given Chhuri blow on the chest of the deceased, but that by itself would not create any doubt in his testimony particularly when the other witnesses supported the version that 2 injuries were' given by the aforesaid assailant to the deceased out of which the second injury was near the armpit It may be noted that F.I.R. Is not an exhaustive document so as to contain each and every minor detail of the occurrence. Similarly it is not expected that a photogenic version, with the computer like exactness will be given in the F.I.R. There is no doubt that such like occurrences take place in a flash of moment and some time it is not possible for a witness to go into minor details regarding the number of injuries, but one thing is clear that the complainant was confident enough that attack was opened by Mansha upon the deceased by plunging Chhuri into his chest. The medical report also contained both the injuries, one on the chest and other near the armpit, and as such there is no fatal contradiction, particularly when the other two witnesses as stated above, were clear enough to say that the deceased was given two injuries on the chest which were also side by side, to each other. The three injuries suffered by Muhammad Mushtaq P.W. Were also clearly stated by all the P.Ws. To have caused by co-appellant Muhammad Latif.
19. The plea that F.I.R. Was not prompt cannot be accepted because it will be natural on the part of the relatives of the deceased to take him to the hospital to make frantic efforts to save his life rather than to rush to the police station to lodge the report and leaving the victim unattended. In this case, both the victims were taken to the hospital and the police had reached there and the statement was made at 10-30 p.m. Though the occurrence had taken place at 8-30 p.m. It is, therefore, obvious that keeping our present system of working of the police, it cannot be successfully urged that there was any delay in lodging the F.I.R. Rather it will appear that the F.I.R.
Was prompt and there was no time for deliberations or concocting a false story as alleged by the defence. The F.I.R. Being prompt would be considered as convincing circumstance of corroboration to the story given by the eye-witnesses.
20. The recovery of weapons of offence i,e, Chhuri from each of the accused cannot be doubted only because the recovery witness was a relative of the deceased. There is no enmity between the aforesaid witness and the accused, nor did he have any animus to implicate the accused persons falsely in this case. It can be noticed with great concern that the people are very reluctant to poke their nose in the blood of others by becoming a witness thereby putting their lives in danger and misery at the hands of the assailants and their supporters. The tendency for procuring independent and disinterested witnesses is, therefore, becoming out of fashion due to certain compulsions identified above. A witness though related should not be disbelieved until and unless it is shown that he is interested or inimical. In the instant case, one of recovery witnesses though related is neither inimical nor interested to implicate the accused persons falsely in this case.
Blood-stained Chhuris were got recovered separately by each of the accused namely Muhammad Mansha and Muhammad Latif and as such this is yet another circumstance to corroborate the truthfulness of the eye-witnesses regarding the occurrence. As such the version as given by the eye-witnesses regarding the occurrence is corroborated by the circumstantial as well as medical evidence. Hence they can be safely believed.
21. Now a question would arise as to what offence has been committed by the appellants. In respect of Muhammad Mansha there is no doubt that he had a clear intention to kill the deceased Muhammad Akram as he had chosen the vital part of the body by selecting the weapon like Chhuri to finish his life. He also challenged deceased by raising Lalkara followed by attack upon him. The learned counsel for the appellant contended that in fact Muhammad Mansha was extremely provocated after hearing the false allegation of theft from the mouth of deceased and therefore, he committed the offence under an extremely agitated state of mind and as such provisions of section 304, P.P.C. Would be attracted instead of section 302, P.P.C. This argument however, does not appear to be convincing because motive about the occurrence was there, though it was not clearly spelt out by the eye-witnesses at the trial. Except the complainant the other two witnesses mentioned that there was some dispute regarding some buffalo and as such the motive remained weak and shrouded in mystery, but it would not provide any justification to the appellant Muhammad Mansha to be enraged to an extent to lose his balance of mind so as to take the life of the deceased or to open an attack resulting into his murder. There is evidence that after altercation with the deceased, he had gone to the house and had brought the Chhuri, with which he caused fatal injury to the deceased. It is therefore, obvious that he had a clear intention to finish the deceased and had come prepared to the spot with that object. It, therefore, cannot be said that element of premeditation was missing in the instant case qua Muhammad Mansha accused. He is, therefore, rightly convicted under section 302, P.P.C. By the learned trial Court for causing death of the deceased, intentionally. This will bring us to the question of sentence to be awarded to the appellant. As noticed above there was no direct evidence on the motive except that the witnesses mentioned that there was some dispute over the buffalo. In that way the immediate cause of murder and the actual motive as alleged in the F.I.R., remained shrouded in mystery and 'would call for a lesser sentence being a mitigating circumstance. The ends of justice will be satisfied if the sentence is converted into imprisonment for life instead of sentence of death as awarded to Muhammad Mansha appellant by the learned trial Court. The aforesaid accused had only attacked the deceased and admittedly did not cause any injury to Muhammad Mushtaq P.W.
Likewise Muhammad Latif appellant-convict did not cause any injury to the deceased and had only opened attack upon Muhammad Mushtaq P.W. If he had common intention with Muhammad Mansha to kill the deceased, then instead of attacking Muhammad Mushtaq P.W., he would have proceeded to assault the deceased, as was done by appellant Muhammad Mansha. It, therefore, follows that Muhammad Latif appellant did not share common intention with his co-accused I Muhammad Mansha appellant, convict so as to commit the murder of the deceased. The circumstances and the evidence brought on record will strongly imply that both the accused initiated separate actions at the time of occurrence and, therefore, had no community of purpose so as to hold them vicariously liable for each other. Both of them will, therefore, be liable for their individual acts. The conviction of Muhammad Mansha appellant has already been upheld under section 302, P.P.C. And he is sentenced to imprisonment for life, instead of sentence of death. Since Muhammad Latif appellant is not held vicariously liable with the aforesaid Muhammad Mansha accused for causing death of the deceased, therefore, the benefit of doubt is extended to him and he is acquitted on the charge of section 302, P.P.C. His conviction and sentence under the aforesaid section is set aside, but his conviction under section 307, P.P.C. Is maintained for causing murderous assault upon Muhammad Mushtaq P.W.
22. The argument of the learned counsel for the aforesaid appellant is not convincing that since injuries, on the person of victim Muhammad Mushtaq were not proved grievous through direct evidence by examining the doctor who had carried the operation, therefore, the appellant could not be held liable under section 307, P.P.C. In this respect, it is enough to say that the appellant had given the Chhuri blow to the victim Muhammad Mushtaq P.W. On his chest, which is a vital part of the body, therefore, he had been rightly convicted by the learned trial Court for the murderous assault under section 307, P.P.C. The conviction and sentence of Muhammad Latif appellant under section 307, P.P.C. Is, therefore, maintained. The co-accused Muhammad Mansha is however, not vicariously liable as held above for causing injury to Muhammad Mushtaq P.W. Therefore, he is acquitted on the charge under section 307, P.P.C. And the sentence awarded to him under that section is set aside.
23. In view of the above finding, the Criminal Appeal No,734 of 1991 filed by Muhammad Mansha is partly accepted and his-conviction and sentence under section 307, P.P.C. Is set aside. The conviction under section 302, P.P.C. Passed against the appellant by the learned trial Court is maintained and the appeal to that extent is dismissed with the modification that the sentence of death is converted into imprisonment for life. As such death sentence is not confirmed. Murder Reference No,559 of 1991 also stands disposed of accordingly. The sentence of fine of Rs,10,00 is maintained and if realized, shall be paid as compensation to the heirs of deceased under section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C. Is also extended to the appellant.
' The Criminal Appeal No,702 of 1991 filed by Muhammad Latif is also partly accepted and his conviction and sentence under section 302, P.P.C. As indicated above is set aside, and the appellant is acquitted on that charge. His conviction and sentence under section 307, P.P.C. And fine of Rs,4,000 is maintained and his appeal to that extent is dismissed with the modification that the fine if realized shall be paid to Muhammad Mushtaq injured P.W. As compensation under section 544-A, Cr.P.. He is on bail and shall be arrested and committed to prison for undergoing the above sentence. Criminal Revision Petition No,600 of 1991 is accordingly disposed of in the light of above observations.
25. The benefit of section 382-B, Cr.P.C. Shall be extended to both the appellants namely Muhammad Mansha and Muhammad Latif.