' MUHAMMAD AFIAL ZULLAH, J.-Two youngmen Iqbal Mahmood (29) and his brother Zafar Mahmood
(26) together with their father Mahmood-ulHassan were tried for the murder of Agha Hussain (24) by the learned Sessions Judge, Multan ; who vide judgment dated 16-4-1976, convicted Iqbal Mahmood under section 302, P. P. C., and sentenced him to death and fine of Rs, 1,009 in default to suffer rigorous imprisonment for one year-fine, when recovered has been ordered to be paid to the heirs of the deceased. Zafar Mahmood was acquitted of murder charge and was convicted under section 324, P. P. C. For causing simple hurt to the deceased He has been awarded sentence of six months' R. I. Mahmood-ui-Hassan was acquitted on account of reasonable doubt.
2. Murder Reference No, 136 of 1976 ; Criminal Appeal No, 460 of 1976 by Iqbal Mah mood ; Criminal Appeal No, 459 of 1976 by Zafar Mahmood ; and Criminal Revision No, 140 of 1977 by Kausar Hussain complainant are being disposed of together. Criminal Appeals Nos. 462 and 463 of 1976 filed by Zafar Mahmood and Iqbal Mahmood respectively, arising out of cases under the Arms Ordinance in which the two convicts were awarded sentences of six months' R. I. Each, are also being disposed of along with the aforementioned matters.
3. The occurrence took place on 12-1-1975, at 2-50 p.m. The F. I. R. Was lodged at Police Station Kup, at a distance of 100 yards, at 3 p.m. The prosecution case, as disclosed in the deposition of Kausar Hussain (P. W. 8), brother of the deceased and first informant, is as follows "I am running a sewing machine shop known as Kausar Rizvi Sewing Machines Co. In Kale Mandi Bazar Multan City. My two brothers and our father carry on business in the shop alongwlth me.
Agha Hussain, the deceased in this case, was my brother and was doing business in my shop with me, Jagir Sewing Machine Co. Is run by Ghulam Akbar Siddiqui in the shop adjoining our shop. Iqbal Mahmood accused and Mujahid were carrying on business in the shop known as Jaglr Sewing Macbine Co. Mujahid is the son of Ghulam Akbar Siddiqi while Iqbal Mahmood accused was working as his servant. Zafar Mabmood accused is the brother and Mahmood-ul-Hassan accused is the father of Iqbal Mahmood accused. On 12th January 1975, at about 12 noon, when I was present at my shop along with Agha Hussain deceased and Nasir Abbas, my brothers and Khadim Hussain, my father, a customer come to our shop. Mujahid son of Ghulam Akbar Siddiqi who was present at his adjoining shop called out the customer saying that he should not go to our shop as two were fleecing the customers. On this, the deceased went to the shop of Mujahid and gave him a slap. At that time, Mujahid was standing on the tharra of the shop. Iqbal accused said at that time that the deceased would suffer consequences for his having given a slap to Mujahid. My father intervened and advised the accused Iqbal that he should not aggravate the matter.
' On that date at about 3 p.m., I was present at my shop alongwith the deceased, my father and Muhammad Yusuf P. W. Who was our customer and bad happened to come there meanwhile. The deceased was standing at the tharra of our shop. Iqbal Mahmood and Zafar Mahmood accused holding knives in their hands and Mahmood Hussain accused came to our shop. Mahmoodul Hassan accused exhorted his co-accused. On the lalkara of Mahmoodul Hassan, Iqbal Mahmood gave two knife blows and Zafar Mahmood gave one knife blow in the chest of the deceased. The blows given by Iqbal Mahmood accused bit the deceased on the right side of his chest while that inflicted by Zafar Mahmood accused hit him on the left side of his chest. The deceased placed his hands on his injuries and sat down. We gave support to the deceased when all three availed went away towards their shop. We sent Yusuf P. W. For bringing a rickshaw. He immediately brought a rickshaw. Yousuf Hussain P. W. And my father placed the deceased in an injured condition in the rickshaw. At that time, H. C. Falak Sher and two constables arrived there. They apprehended the accused from their shop and snatched the blood-stained knives from them. The rickshaw left for the hospital. I went towards Police Station, Kup. On reaching the Police Station at about 3 p.m , I lodged F.T.R. Exh. P. H. It was read over to me and I signed it in token of its correctness.
' After lodging the F. I. R,, I alongwith the Police went to the Nishtar Hospital and found the deceased lying in the Ward unconscious. He succumbed to the injuries about an hour afterwards."
4. The prosecution examined Yousuf (P. W. 9) as the second eyewitness. He supported the account of occurrence given by Kausar P. W. He is an independent witness. He was present at the shop of the deceased in connection with the repairs of his sewing machine which had been purchased from there a fortnight earlier. According to the eye-witness account, the deceased was given blows when he was standing on a thara about 2 ft. High, while the assailants stood on the ground.
5. Dr. Altaf Hussain P. W. Described the injuries on the deceased as follows I- II) A stab wound 11'x x going into the chest cavity on the front of right chest lower part 4f below the right nipple.
(2) A stab wound 1/2' 1/4' x chest cavity deep on the outer side of right chest in min ninny line 4' below the axilla.
(3) An incised wound 3/4' a 1/4' x 2' (muscle cut) on the front of left chest 6' below the right nipple."
' On internal examination, it was found that 8th inter-costal space was punctured. Diaphragm and pleura were ruptured on the right side under injuries Nos. 1 and 2. The upper lobe of lung was ruptured under injury No,
2. Right chest cavity was full of blood. The liver was cut under injury No, 1.
Injuries Nos. 1 and 2 only were found having contributed to the death. According to the doctor, in case of Injury No, 1, the weapon was thrust Iron up downward. He also thought that due to the wider width of the weapons (P. 5 and P. 6), injury No, 2 which bad comparatively shorter length could not be caused with them. The other question was not asked from him that if the knife is thrust to the extent of 1/2 length or less, whether, his opinion would be the same. Nor was he asked whether sometimes some muscles do not contract, after the weapon is withdrawn, shortening the length of the original entry wound.
6. Falak Sher, Head Constable (P. W. 6) appeared to depose that he was on patrol duty and that he had apprehended all the accused at the spot within few minutes of the occurrence. He also proved the recovery by him of the daggers (P. 5 and P. 6) from the two appellants. They were found to have been stained with human blood. Hidayat Ullab, S. I. (P. W. 10) also confirmed the aforenoted facts because, on his arrival at the spot, the accused and the weapons were presented before him by Falak Sher P. W.
7. The accused denied the prosecution case. Iqbal Mahmood appellant admitted his presence and pleaded self-defence as follows :- "On the day of occurrence at about 3 p.m. I was present at my shop alongwith Mujahid. We were eating fruit after cutting it with a knife. At that time the deceased came to our shop and he embracing Mujahid, kissed him to his annoyance. I objected and advised the deceased that he should refrain from such acts as these were business hours. The deceased on this abused me saying that I was merely a servant drawing a salary of Rs, 100 and that why should I interfere. He further remarked that whether Mujahid was the paramour of his sister. He gave me a slap and after picking scissors from my shop attempted to strike me. At that time, I picted up the fruit knife which was already lying at my shop and I caused injuries with it to the deceased in self-defence a ad on grave an I sudden provocation."
' The other two accused denied their presence. The recoveries and motive alleged by the prosecution were specifically denied. The arrest at the spot was also denied by them. No evidence was produced in defence.
8. The learned trial Judge did not rely on the alleged motive. He held the occurrence as sudden with obscure origin. He relied on the ocular evidence, arrest and recoveries but giving the benefit of above factors creating some doubt qua Mahmoodul Hassan and Zafar Mahmood acquitted them of charges of murder and convicted and sentenced the appellants, as noted in the opening part of the judgment.
9. We have, with the help of the learned counsel, gone through the evidence. We agree with the learned trial Judge that the incident which allegedly took place at 12 noon did not furnish adequate motive for planning a murderous attack on the deceased. Otherwise too, there is no confirmatory material to support the solitary statement of Kausar P. W. That any such incident took place. It allegedly happened in a busy bazar. An alleged customer, admittedly, was present when the incident took place. He has not been produced to state that an attempt was made by Mujahid to dissuade him from making purchases from the complainant's shop. Learned trial Judge did not implicitly accept the prosecution version with regard to this incident. We are of the view that the prosecution has failed to prove the same beyond reasonable doubt. This aspect of the case, therefore, will be kepi out of consideration.
10. The main occurrence is supported by two eye-witnesses and the corroboratory evidence relating to the arrest of the appellants at the spot and the recovery of blood-stained knives from them. Yousaf P. W. Is disinterested. Attempt to connect him with the deceased, through vague and gereral suggestion in the end of his cross-examination, failed. He also refuted the suggestion that he ever appeared in any other criminal case. He stood the test of cross-examination with regard to the cause of his presence at the spot. He confidently asserted that he had purchased a sewing machine from the complainant's shop about fifteen days prior to the occurrence and that he had gone there for its repair. Be gave the particulars of the machine and further deposed that it remained at the shop of the deceased for several days after the occurrence. No attempt was made, in defence, to falsify the witness on this point. Nothing has been suggested even up to this stage as to what animus this witness could have against the appellants to falsely implicate them.
The mere fact that the father of the appellants has been extended benefit of doubt on account of the nature of the role (of a lalkara) attributed to him, is not enough to come to a conclusion either that the third accused was not present there or that he was deliberately falsely implicated by the eye. Witnesses. True, other independent witnesses could be produced from the bazar to depose about the occurrence. If the prosecution chose not to multiply the number in this behalf, that by itself would be an insufficient reason to discard the statement of Muhammad Yousaf. It was admitted by the Investigating Officer that names of the eye-witnesses, as such, were not mentioned in the Roznamcha when making Entry No, 12 about this occurrence. But the entry was about the registration of the case and he was not supposed to copy the F. I. R. Or otherwise give the details in this entry. Kausar's name, as explained by him, was mentioned in the capacity of being the informant. For this reason either Yousaf's presence cannot be doubted. We hold that he did see the occurrence and his deposition furnishes very strong independent support to the other eye- witness, namely, Kausar who admittedly is an interested witness.
11. As pointed out earlier, there are other confirmatory circumstances in this case which tend to support the prosecution case about the occurrence. Both the appellants were apprehended soon after the occurrence when they were still present in their shop. Falak Sher, Head Constable, reached the spot when the injured was about to be seated in a rickshaw brought by Yousaf P. W. For taking him to the hospital. The Head Constable saw the accused present in their shop and secured them.
He snatched two blood-stained knives from the hands of the appellants and later on, at 7 p.m., produced the accused and the weapons before the Investigating Officer who also deposed about the same. Learned counsel vehemently criticised the conduct of the Head Constable on account of his having waited at the spot for the Investigating Officer, for about four hours. The Head Constable knew that the Investigating Officer would be coming to the spot. There was nothing unusual for him to wait for some time so as to join the spot investigation ; which could, in the circumstances, be conducted in the very presence of the accused. After waiting for some time he acted in normal manner by sending one Khushi Muhammad to check why the arrival of the Investigating Officer was delayed. He had seen the injured being removed to the hospital. The Investigating Officer deposed that immediately after recording the F. I. R. Within few minutes of the occurrence, ho rushed to the hospital. The injured had expired. Instead of going to the spot and then returning, the Investigating Officer completed the necessary documentation including inquest report, in the hospital, and having finished the same came to the spot at 7 p.m. His conduct also looks normal, particularly when it is kept in view that he had learnt from the first informant (contents of the P. I. R.) that all the accused had been apprehended at the spot and that the weapons of offence had also been secured. Learned counsel also argued that independent witnesses of recovery of the weapons having not been examined at the trial, the police officers should not be believed in this behalf. It is true that formal recovery witnesses from the public were given up, but it is not correct to say that the recovery is not supported by any independent witness from the public. Yousaf P. W.
Whom we have believed as independent witness of the occurrence, also deposed that before the removal of the injured to the hospital the Head Constable arrived and he apprehended the accused and snatched knives from the appellants. We feel satisfied with regard to the quality and quantum of evidence on recoveries. The same stand proved. However, the criticism of the learned counsel that the knives were sent for chemical analysis after a delay of two weeks eeems justified to the extent that it remained an Unexplained delay. May be, only explanation was mistake/ine ltciency on the part of P. W. 1, Moharrir Head Constable who despatched the parcels. No explanation was sought from him in the cross-examination. The Investigating Officer admitted that the first case diaries of the cases under the Arms Ordinance were received by the D. S. P. On 29-1- 1975. This does not necessarily show that the case diaries of the murder case were also received by the D. S. P. Late by about a fortnight. Nothing has been pointed out in this behalf. The neglect in dealing with the Arms Ordinance matter it not reflected in the handling of the murder case. If the diaries regarding weapons were sent in the latter cue without any delay, then the defect pointed out in the other cases remains that of formality -only and not of any substantial character. No explanation was sought from the Moharrir Head Constable with regard to late despatch of the diaries. Be that as it may, the late sending of the knives to the Chemi;al Examiner, in the circumstances, can be of avail to the defence only qua the evidentiary value of the report on the origin of the blood. In this case, there is direct evidence that the same knives which were used by the appellants in the occurrence, were scoured by the Head Constable immediately after the occurrence. This circumstance by itself Is a strong corroboratory evidence in addition to their arrest at the spot.
12. The next question is whether, as pleaded. Iqbal appellant acted in self-defence. Mujahid, son of the employer of the appellant, is a grown, up boy. The deceased, it is stated, kissed and thus annoyed him. It is strange that beyond "annoyance" Mujahid did not show any reaction. Instead, the appellant remonstrated with the deceased which allegedly gave rise to provocative words and then the fight. The story, as given, besides being unnatural does not find support from any source whatsoever, circumstantial or otherwise, not even to the extent of creating a reasonable possibility.
Mujahid, if the appellant acted in his defence, could have deposed about it without any compunction. The act of the appellant, as presented would have seemed to the shopkeepers and others in the bazaar as laudable-In such circumstances, other evidence could be forthcoming.
Infliction of three blows with knife could fit in the defence story only if the deceased was also attributed some overt act of serious physical harm to the appellant. That is why in the statement under section 342, Cr. P. C., he alleged that the deceased had picked up a pair of scissors to strike him then he "picked up" the "fruit knife" and struck the deceased. Joking up of scissors by the deceased was not mentioned in the suggestion cross-examination to the complainant. Nor there is any circumstance to indicate as to what prevented the deceased from using it if the fight was between the two of them. It is true nothing has been said by, nor asked from, the Investigating Officer about the omission to recover blood from near the thara of the shop of the deceased. If asked, he might have given explanation. This is not fatal to the prosecution. There is no indication that blood or any weapon was found at any other place. The injuries are in the body cavities ; which must have been filled before the blood oozed out to the winter-coat, which the deceased was wearing. The argument of the learned counsel that medical evidence contradicts the prosecution version and supports the defence is also untenable. True the thara is about 2 ft. High and the height of the deceased was 5 ft. Y. But it cannot be ignored that the only injury with downward direction, i.e,, No, 1 is 41( below the nipple. With this margin on the deceased side, the raising of hand by the appellant above his own height for inflicting this injury would make the description given by the eye-witnesses natural. Moreover, this injury might have resulted from second blow when the injured must have bent, somewhat, after the first blow. After carefully weighing the same by putting it in juxta-position to the prosecution case, we feel that the plea of self-defence has rightly been rejected by the learned trial Court.
13. It is not a mere coincidence that Yousaf, the independent eyewitness, while explaining as to why he did not raise any alarm, frankly admitted that it was a sudden affair. There does not seem to be any planning on the part of the accused. After the exclusion of the mid-day incident as a motive and rejection of the defence plea, the Court is usable to find the origin of the attack. It appears something happened immediately before the occurrence, the true nature of which has not been revealed by either side. The learned trial Judge also felt this difficulty and observed that ' the actual circumstances in which the occurrence took place are surrounded in obscurity". Zafar Mahmood has rightly been given the benefit in this behalf-namely, that he has not been vicariously held guilty of murder. He gave only one knife blow (Injury No, 3) which cut the muscle only and did not do any damage to the vital organs. The dimensions of the injury are such that in all probability the knife was not thrust by the assailant with the intention of causing any serious damage to the victim. That is why only the muscle was cut. All this negatived the intention to kill. The supposition is further strengthened by the fact that Zaffar Mahmood did not repeat the blow. His role is merely ancillary.
He has rightly been convicted under section 324, P. P. C. Sentence awarded to him is also proper.
His Appeal (No, 459/76) accordingly is dismissed.
14. Iqbal Mahmood appellant gave two knife blows to the deceased Both caused damage to vital organs. He has rightly been convicted under section 302, P. P. C. We do not agree with the learned counsel that his case fell under section 304, P. P. C. However, while agreeing with the learned trial Judge that the occurrence was sudden and that the origin of the attack is shrouded in mystery, we reduce the sentence to imprisonment for life and a fine of Rs, 5,000 in default of payment of which he shall suffer further rigorous imprisonment for two and a halt years. 'The sentence of death is not confirmed. The fine, when realised, shall be paid as compensation to the heirs of the deceased. It may be mentioned that at the beginning of the hearing we directed issuance of notice for enhancement of compensation but, when announcing the above decision, recalled the notice because the fine of Rs, 5,000 recoverabi from Iqbal Mahmood has been directed to be paid as compensation. For the same reason, we do not consider it necessary to award separate compensation against Zafar Mahmood. Except for the above modifications, the Appeals Nos. 459 and 460 of 1976 are dismissed. Criminal Revision No, 140 of 1977
15. For reasons mentioned in our foregoing judgment in the connected Murder Reference and Criminal Appeals, we find no justification for issuing notice in this revision filed against Zafar Mahmood and Mahmood-ulHassan regarding their acquittal in the offence under section 302/34, P. P. C. And dismiss the same in limine. Criminal Appeals Not. 462 and 463 of 1976
16. The prosecution case against Iqbal Mahmood and Zafar Mahmood regarding recovery of unlicensed knives from them has been fully stated in the main judgment in the murder case. In two separate trials against them, prosecution examined two witnesses in each trial. They are Head Constable Falak Sher and Hidayat Ullah, Sub-Inspector. We having gone through their depositions In both these cases are satisfied that recovery of the knives has been established. There is no new element in the evidence on the record of these cases which should change our view on the question of recovery. Learned counsel also did not press anything in addition to his arguments on the recovery in the murder case. Learned trial Judge has rightly relied on the prosecution witnesses. The convictions and sentences are proper. The sentences in these cases shall, as already ordered by the learned trial Judge, run concurrently with the sentences awarded in the main murder case. These appeals accordingly are dismissed. Order accordingly.