' KHALIL-UR-REHMAN RAMDAY, J.--- One Saleem Baig, his brother Basharat and his brother-in-law Nadeem Baig were tried by a learned Additional Sessions Judge at Kasur for the murder of one Muhammad Akram. Through his judgment, dated 24-11-1992, the said learned trial Judge acquitted Basharat and Nadeem accused but found Saleem Baig guilty of the said charge and upon his conviction under section 302, P.P.C. Punished him with death and a Tine of Rs,20,000 or three years'
R.I. In default of payment of fine. Half of the amount of fine was directed to be paid to the legal heirs of the deceased by way of compensation.
2. Murder Reference No,445 of 1992 seeks confirmation of the said sentence of death while Saleem Baig convict filed Criminal Appeal No,997 of 1992 to impugn the above noticed conviction and sentences recorded against him. Muneer complainant approached this Court through Criminal Revision No,88 of 1993 to call in question the acquittal recorded in favor of Basharat and Nadeem accused. All these matter are being disposed of together through this single judgment.
3. The occurrence in question had taken place on 10-8-1987 at about 8-00 m. In the Main Bazar of Bhai Pheru near its main gate about six furlongs from olice Station Bhai Pheru of District Kasur and the said occurrence had been reported by Muneer Ahmad complainant to Muhammad Bashir, S.- I./S.H.O. (P.W.14) when the latter had reached the place of occurrence at about 9-45 a.m. After receiving information about the occurrence.
4. Narrating the occurrence and the background leading thereto, Muneer Ahmad complainant had mentioned that he and his elder brother, namely, Akram deceased were running a shop in the Main Bazar of Bhai Pheru and that a day prior to the present occurrence, one Malik Abdul Hafeez had got registered a criminal case for the offences punishable under section 307/506/294/324/34, P.P.C. At Police Station, Bhai Pheru against Basharat (acquitted accused of the present case) and one Jeeru Shah in which case, Akram deceased had been mentioned as an eye-witness. The complainant had added that at the time of occurrence he and his deceased brother were going from the Main Bazar of Bhai Pheru towards the G.T. Road and just as they had reached the main gate of the said Bazar, they found Basharat and Nadeem accused standing there with Danas who raised a Lalkara to teach a lesson to Akram for becoming a witness at which Saleem appellant who was also standing there took out a pistol from the Naifa of his Shalwar and fired a shot which landed at the abdomen of Akram deceased who consequently, fell down. The complainant had added that the three assailants ran away from the place of occurrence and that he carried his brother Akram to Bhai Pheru Hospital from where he was referred to May Hospital at Lahore. The complainant had further mentioned that they were present at the main road protesting against the incident when the police reached there and he reported the said murder to Muhammad Bashir, S.-I. (P.W.14).
5. Nothing had been recovered from the place of occurrence. During the course of investigation, Saleem Baig appellant while on pre-arrest bail, produced a .30 bore pistol P.6 on 27-8-1987 which had been taken into possession alongwith its licence vide memo. Exh.P.E. And on the same day, Basharat accused was alleged to have produced a Sota P.7 which was seized vide memo. Exh.P.F.
Nadeem accused had also allegedly produced a Danda P.8 on 28-10-1987 which had been collected by the Investigating Officer vide memo. Exh . P.G.
6. When confronted with the prosecution case under section 342 of the Cr.P.C. Saleem Baig appellant pleaded that on a day prior to the occurrence, a case had been registered at the instance of one Abdul Hafeez against the appellant's brother, namely, Basharat while on the same day, a case had also been registered at the instance of the said Basharat accused against the members of the present complainant party and, thus, there were cross-cases and the police did not arrest any one. He had added that Akram deceased was the President of General Merchants Association of Bhai Pheru and he and others arranged a procession and demonstrated against the police for registering a case against them at the instance of Basharat accused at which the police resorted to firing in order to disperse precisionists who were throwing brick bats at the police party and that the injury on the person of Akram deceased was the result of the shots fired by the police party. The appellant had further claimed that it was due to the registration of a cross-case abovementioned that the complainant party of the present case had falsely accused him and his co-accused of the murder of Akram deceased. Basharat and Nadeem accused adopted the statement made by Slaeem appellant. They produced Muhammad Anwar and Feroz Din in their defense whose statements were recorded as D.W.1 and D.W.2.
7. The main stay of the submissions of the learned counsel canvassing acquittal for Saleem appellant was that Akram deceased had in fact died as a result of a fire-arm injury caused by the firing of the police party and that the appellant and his co-accused had been falsely involved in the said occurrence and further that no case of murder punishable under section 302, P.P.C. Was made out because Akram deceased had died at least two months and ten days after the occurrence and that also as a result of septicemia.
8. So far as the first submissions of the learned counsel is concerned, what needs to be considered is whether the complainant party had the kind of motive which could have prompted them to substitute the appellant party as the killers of Akram deceased. It was a persistent suggestion from the defence that he was a Nazim-e-Aala of Jamait-e-Islami at Bhai Pheru and that he was also the President of General Merchants Association of the said city. It was also the defence suggestion that Akram deceased had lost his life when he had received a bullet injury resulting from the shot fired by the police at the people who were protesting against the false registration of a criminal case against the deceased party and the non-arrest of the accused persons against whom, Malik Abdul Hafeez abovementioned had lodged a case which is mentioned as the motive case for the present case and in which, Akram deceased was an eye-witness. It does not appeal to reason that a party who were allegedly protesting against the police for their alleged misconduct, would spare the police party, if one of the leaders of the said party, as above described, Rs, Akram deceased had been killed by the police. The learned counsel for the appellant relied upon Exh.D.A. Which is F.I.R. No,259 of Police Station Bhai Pheru and which had been registered on the statement of Muhammad Yameen Khan, Inspector/S.H.O. Of Police Station Bhai Pheru in support of his above plea that Akram deceased had died as a result of firing by the police. Muhammad Bashir, S.- I./Investigating Officer (P.W.14) had been confronted with this F.I.R. No,259 according to which, 1000/1500 persons who were armed with Dandas and Hockeys had taken out procession and according to which, these persons had thrown brick bats on the police party and the precisionists had also attempted to snatch Kalashnikov from Muhammad Younas F.C. Whereupon, Muhammad Younas F.C. Had been directed to fire shots in the air to disperse the said precisionists who had accordingly fired four shots in the air at which, the demonstrators had retreated. Yameen Khan, Inspector mentioned the time of occurrence as 8-00 a.m. On 10-8-1987 which was the same time when according to the F.I.R. Of the present case, Akram deceased had been done to death. We do not feel persuaded to place any explicit reliance on the contents of this F.I.R. No,259 (Exh.D.A.) to hold that there was a definite possibility of Akram deceased having died at the hands of the police party. Bashir, S.-I./Investigating Officer (P.W.14) had mentioned that he was present with the D.S.P.
Of Pattoke in his office when they had received information from Police Station Bhai Pheru that firing had taken place in Bhai Pheru and that public had blocked the traffic as a protest against the same and it was on this information that the D.S.P. Proceeded to Bhai Pheru alongwith him and having reached the Main Bazar of Bhai Pheru, Muneer complainant had appeared before them and had made statement which formed the basis of the F.I.R. Of the present case. It is obvious from this statement that the demonstrators had come to the roads against the firing which had taken place and the firing which had taken place then was, what had killed Akram deceased. It is difficult to infer from this statement of Bashir, S.-I./Investigating Officer that the firing had been done by the police party after the said procession had taken place. Thus, what appears is that the procession in question had been taken out to protest against the firing in the main bazar resulting in the death of Akram deceased. The explanation of the taking out of the procession in question which is mentioned in Exh.D.A. By Yameen Khan, Inspector is that people had come out on to the streets because of a wrong reporting of the incident of motive in the daily Nawa-i-Waqt according to which report, Saleem Baig and others had caused serious injury to Akram deceased by fires shots at him. This explanation of taking out of the procession in question does not appeal to reason for more than one reasons:--
(a) Firstly, because the defence could have very conveniently brought on record a copy of the daily Nawa-i-Waqt of the day of occurrence which allegedly carried a twisted version of the incident of motive which had taken place a day prior to the occurrence and about which, an F.I.R. Had been lodged by Malik Abdul Hafeez and of which incident, Akram deceased was also a witness. This the defence obviously did not pick up the courage to do. Therefore, it remains established on record that the procession in question had been taken out to protest against the Nawa-i-Waqt for giving a twisted version of the incident of motive;
(b) Secondly, as submitted by the learned counsel for the complainant, one had never seen any protest procession having ever been taken out in that early part of the day Rs, before 8-00 a.m. In the morning because the occurrence of firing as per Exh.D.A. Which would have taken place some times after the police had tried to control this procession, is mentioned as 8-00 a.m. It is also on record, not challenged by the defence that D.S.P. Pattoke had suspended Yameen, Inspector of Police Station Bhai Pheru within the jurisdiction of which Police Station, Akram deceased had been done to death and within the jurisdiction of which Police Station the procession in question had been taken out, immediately on reaching Bhai Pheru and that also explains why the investigation of the murder case of Akram deceased had been entrusted to Bashir, S.-I. From the very inception who was the S.H.O. Of a different police station Rs, Sarai Mughal and who was the one who had even recorded the statement of Muneer complainant with respect to the present murder case which statement had then formed the basis of the F.I.R. Of the said case. This position further fortifies the conclusion that the procession in question was demonstrating not against Nawa-i- Waqt outside the agency where the daily Nawa-i-Waqt was sold but against the conduct of Yameen, Inspector of Police Station Bhai Pheru after the assault on Akram deceased of the present case.
9. As has been mentioned above, there should have been a rather strong motive for the complainant party of the present case to falsely substitute Saleem Baig for the actual killers of Akram deceased. As has been noticed above, no previous enmity or existed between the complainant party and the appellant party of the present case till a day prior to the occurrence Rs, till the incident of motive which incident had taken place on 9-8-1987 at about 1-30 p.m. According to F.I.R. Exh.D.C., as has been mentioned above, Malik Abdul Hafeez complainant of the said case had claimed that he was a shopkeeper in Faisal Market which market was rather frequently visited by females and that at the time of occurrence, Basharat Tipu and Jeeru Shah were teasing these females and on being stopped from doing so by Abdul Hafeez, an altercation and abuses had been exchanged between Hafeez complainant and the said accused of the said case whereupon, Jeeru Shah had taken out a dagger and had inflicted a blow on the said Abdul Hafeez complainant which was followed by a Sota blow by Basharat accused. The only mention of Akram deceased of the present case in the said F.I.R. Exh.D.C. Of the motive case was that the said incident had taken place in his presence and in the presence of one Tariq Mehmood, another shopkeeper of the area.
A reading of this F.I.R. Relating to the incident of motive demonstrates that the main character from the accused persons of the said case was Jeeru Shah who had allegedly taken out a dagger and had attacked Hafeez complainant of the said case with the same. He was accompanied by Basharat Tipu who had given a Sota blow to the said Abdul Hafeez. It may be mentioned here that this Basharat Tipu accused is the same Basharatullah who is one of the accused persons of the present murder case and who is a brother of Saleem Baig appellant. It would be noticed that Saleem Baig appellant of the present case who stands burdened with the fatal fire-arm injury on the person of Akram deceased did not figure in anywhere in the incident of motive. Presuming that Akram deceased had died at the hand of the police party and also presuming that the complainant party did not wish to accuse the police party of the said murder and instead wanted to maliciously implicate someone else to weak their vengeance on account of the incident of motive then the real target of the complainant party should have been Jeeru Shah who had inflicted a dagger blow or Basharat Tipu who had given a Danda blow in the incident of motive.
Needless to mention here that Jeeru Shah was never involved in the present murder case and Basharat Tipu does stand involved but without any effective role in the present occurrence whereas, the fatal role stands ascribed to Saleem Baig who, as has been mentioned above, was not at all involved in the incident of motive. Thus, the defence plea that the appellant party of the present case had been maliciously accused of Akram's murder because of the incident of motive, is a plea, without any merit.
10. Muneer Ahmad complainant despite being a brother of the deceased had no reason to falsely.
Involve Saleem Baig appellant in the occurrence in question and similar is the position of Sardar Noor Ahmad (P.W.8) and Muhammad Shafiq (P.W.9) who were not even related to the deceased and were the shopkeepers of the Bazar in question where the occurrence in question had taken A place.
11. Having, thus, examined the entire material available on record in the present case and having considered all aspects of the matter, we find that Saleem Baig appellant had been rightly found guilty of causing the death of Akram deceased.
12. This brings us to the next question whether the death of Akram deceased did or did not amount to murder punishable under section 302 of the P.P.C. As the said provision existed on the day of occurrence.
13. What is available on record through Dr. Noman Matloob (P.W.4) who had examined Akram deceased in an injured condition on the day of occurrence at about 8-15 a.m. Is that the said deceased had a gun shot wound to his left para umbilical region with an exit wound on his left buttock. This doctor had further found that these injuries were dangerous to life and the patient was immediately referred to Mayo Hospital at Lahore after first aid. As per Dr. Javed Hayat (P.W.11) who had conducted the post-mortem examination of the dead body of Akram deceased on 20-10- 1987 at 1-00 p.m., Akram deceased had been operated twice to rectify the damage done to him by the fire-arm injuries and that he had finally died on account of septicemia and toxic shock. Dr. Muhammad Javed Akhtar who was the Senior Registrar of West Surgical Ward of Mayo Hospital, Lahore in August, 1987 appeared as C.W.1 and stated that when Akram deceased had been received in Mayo Hospital on 10-8-1987, he had been operated upon by a team of four doctors, including him. He had found five large perforations in the small gut and mesenteric tears at three sites. He had also found two perforations in the traverse coin and wounds in an area of two inches in the posterior abdominal wall. According to this doctor, the iliac bone was found fractured and further that this team of doctor had taken steps to repair the above noticed damage. The said Dr. Javed was of the further opinion that the above noticed injuries were sufficient to cause death in the ordinary course of nature because of loss of 1.5 to 2.0 liters of blood as also because of the perforations in the small and large guts and further because of the loss of blood because of the fractured iliac wound. He had further mentioned that Akram deceased had to have two further operations. Thus, we have the opinion of one doctor who had found the injuries in question as dangerous to life and who had wasted no time in referring the injured person in question to Mayo Hospital at Lahore and we have the opinion of another doctor according to whom, these injuries were sufficient to cause death in the ordinary course of nature. A reference at this stage may be made to Explanation 2 of section 299 of the P.P.C. As the said provision existed at the relevant time according to which explanation, where death is caused by a bodily injury, the person who causes such bodily injury is to be deemed to have caused the death although the death might have been averted by resorting to proper remedies and skilful treatment. It is not deniable, in the present case that the death was the direct result of the injuries caused on the person of the deceased and it is not possible for us to hold that Saleem Baig appellant could not be held guilty of causing the said death only because better vigilance or better medical care could have prevented the said death.
14. Consequently, we feel led to hold that Saleem Baig appellant had been rightly convicted under section 302 of the P.P.C. For causing the death of Muhammad Akram deceased and for his resultant murder.
15. This brings us to the question of confirmation of the sentence of death awarded to Saleem Baig appellant.
16. The incident of motive has been discussed above in some detail from which discussion, it would appear that Akram deceased had been mentioned only as one of the witnesses of the said occurrence and the real architect and the complainant of that case was Malik Abdul Hafeez.
Therefore, if the appellant party were to take revenge from someone on account of the said case of motive then, their target should have been the said Malik Abdul Hafeez and not Akram deceased. It is, therefore, difficult for us to hold that the appellant party would have launched a planned murderous assault on Akram deceased. Both the parties Rs, the deceased of the present case and the members of the appellant party had a valid reason to be at the place of occurrence which is the Main Bazar of Bhai Pheru, as both of them were shopkeepers. The possibility of the two sides having confronted each other at the place of occurrence at the relevant time and altercation having ensued between the two in relation to the incident of the earlier day and Saleem appellant having fired a solitary shot at the deceased on account of a sudden confrontation and flare-up, could not be ruled out. We would, therefore, consider it unsafe to confirm the sentence of death awarded to Saleem Baig appellant which sentence of death is not confirmed. He is instead directed to suffer imprisonment for life under section 302 of the P.P.C. He shall be allowed the benefit of the provisions of section 382-B of the Cr.P.C.
17. Realising that no adequate compensation had been directed to be paid to the heirs of Akram deceased, we issued notice to the appellant to show-cause why proper compensation should not be ordered to be paid by Saleem Baig appellant as envisaged by the provisions of section 544-A of the Code of Criminal Procedure. The learned counsel appearing for Saleem Baig appellant accepted the said notice. Having heard the parties, we direct Saleem Baig appellant to pay an amount of Rs,50,000 (Rupees fifty thousand) to the heirs of the deceased under section 544-A of the Code of Criminal Procedure or to suffer six months' S.I. In default of payment of the same. We further direct that this amount of compensation shall be recoverable as arrears of land revenue in terms of the provisions of section 544-A of the Code of Criminal Procedure. This compensation will be in addition to the compensation payable to the heirs of the deceased as per the orders of the learned trial Court according to which, half of the amount of fine, if realized, has to be given to the said heirs.
18. Murder Reference No,445 of 1992 and Criminal Appeal No,997 of 1992 are disposed of in the above terms.
19. The learned counsel for the complainant-petitioner in Criminal Revision No,88 of 1993 could not demonstrate that the acquittal earned by Basharat and Nadeem accused was either perverse or arbitrary. Consequently, the said Criminal Revision No,88 of 1993 is dismissed.
Sentence of death is not confirmed.