1988 P Cr (PLP)

SARDAR MUHAMMAD DOGAR, J.-- Muhammad Javid alias Jaida (23) and Muhammad Iqbal alias Bala (20), were tried by the Additional Sessions Judge, Gujranwala, under sections 302/34, 307/34 PPC, for having murdered Muhammad Shafiq and for having launched a murderous assault on Muhammad Jehangir (PW 9), at 8 p.m. on 9-9-1984, in Bazar Kache Bartananwala, city Gujranwala, at a distance of 3/4 furlongs from Police Station Kotwali. Gujranwala. The learned trial Judge, vide judgment dated 20-2-1985, convicted both of them under section 302/34 PPC and sentenced Muhammad Javid alias Jaida to death, plus to pay a fine of Rs.10,000 in default whereof to undergo R.I. for two years and Muhammad Iqbal alias Bala to undergo imprisonment for life, plus to pay a fine of Rs.10,000, in. default whereof to suffer R.I. for two years. Both of them have also been directed to pay Rs.15,000 each, as compensation to the heirs of the deceased. Muhammad Javaid alias Jaida has also been convicted under section 324, P.P.C. and sentenced to undergo R.I. for two years, for causing injuries to Jehangir PW.

2. The convicts have filed appeal. The learned trial Judge has made reference for confirmation of death sentence of Muhammad Javid and Muhammad Jehangir complainant has filed criminal revision seeking enhancement of sentence of Muhammad Iqbal alias Bala from life imprisonment to death. As all the matters arise from one judgment, they are being disposed of by one judgment,

3. FIR (Ex.PB/1) was registered at Police Station Kotwali, Gujranwala, on 9-9-1984 at 10-58 p.m. by Muhammad Anwar, ASI (PW 2), on receipt of statement (Ex.PB) of Muhammad Jehangir (PW 9), recorded by Muhammad Majid Khan, SI (PW 11) at 10-40 p.m. in Civil Hospital, Gujranwala. According to the F.I.R. Shafiq deceased accompanied by Muhammad Amir (PW 10), had come across Muhammad Javid, Muhammad Iqbal and Ghulam Rasul, in Taunkanwali street of Sardar Market, at 5/6 p.m. on 8-9-1984, when they were going towards old vegetable market. Muhammad Javid alias Jaida after hurling abuses, asked him why he was staring at him and called him Badmash. Javid and Iqbal accused then grappled with Muhammad Shafiq. They were separated by Muhammad Amir (PW 10). Javid remarked that you have escaped today, but you will soon be dealt with. Father of deceased came to know of this quarrel on the morning of day of occurrence (9-9-1984). He got a compromise effected between Javid and Iqbal accused and Shafiq deceased. However, that did not end the annoyance of Javid and Iqbal accused. On the day of occurrence, i.e. 9-9-1984, Javid and Iqbal took away the deceased from Pull Lakarwala, saying that they are going to the shop of Yuhni Pehlawan for taking betels. Muhammad Amir PW also went along with them. The complainant on coming to know about this, ran after them and joined them in Bazar Kache Bartananwala. Within his view, Iqbal alias Bala took Muhammad Shafiq into clasp and called out Javid that it is time for him to finish Shafiq with Khanjar. Whereupon, Javid gave a Khanjar blow on the left back side of right thigh of deceased. The complainant intervened and while attempting to snatch the Khanjar from Javid, suffered injuries on the fingers and palms of his both hands. Javid then gave him also injury on his left thigh. When both the brothers .fell down, the accused ran away. The occurrence was witnessed by Muhammad Amir. Muhammad Shafiq died on reaching hospital.

4. Muhammad Majid Khan, SI after recording the statement of Jehangir PW, handed over the dead body of Shafiq deceased to the constables for post-mortem examination, after preparing injury statement (Ex.PK and inquest report (Ex.PJ). Thereafter, he went to the spot and collected blood-stained earth from there. Both the accused were arrested by him on 14-9-1984. On 20-9-1984, Javid led to the recovery of blood-stained dagger (P.4) from his residential house. It was taken into possession vide memo. Ex. PF. After completion of necessary investigation, challan was put to court.

5. The statements of eleven witnesses were recorded at the trial. Dr. Muhammad Asghar, who had medically examined Muhammad Jehangir PW at 10-20 p. m. on 9-9-1984 appeared as PW-5. He noted following injuries on the person of Jehangir:

(1) Incised wound, 3 cm x 1/2 cm x muscle deep front of right middle finger at distal part. (2) Incised wound, 2 cm x 1/2 cm x muscle deep front of right ring finger at distal part. (3) Incised wound, 3 cm x 1/2 cm x muscle deep front of left thumb middle part outer side. (4) Incised wound, 2 cm x 1 cm x skin deep on palmer surface of left hand, middle part inner side. (5) Incised wound, 4 cm x 1/2 cm x skin superficial outer side of left thing upper part. There was a corresponding cut on the Shalwar which was signed. All the injuries were opined to have been caused by a sharp-edged weapon and were declared simple. During cross-examination, he stated that injuries on Muhammad Jehangir were not self-suffered.

6. Dr. Manzur Hussain, who had performed autopsy on the dead body of Shafiq deceased at 1 p.m. on 10-9-1984 appeared as PW-7. He had noted an incised wound, 2 cm x 1 cm x going deep, lateral and outer side of left thigh lower part. On dissection, popliteal vessels of the left thigh were found injured. The doctor opined that death was due to shock and haemorrhage, resulting from the said injury. While answering a question, during cross-examination, he stated that death possibly could have been checked if the deceased had been given the surgical treatment immediately after the infliction of injury.

7. The ocular account was deposed to by Muhammad Jehangir (PW 9) and Muhammad Amir (PW 10). Muhammad Jehangir repeated the facts given by him in the FIR. In cross-examination, he stated that Iqbal appellant had taken his brother into clasp no sooner he had joined them. The distance of police station Baghbanpura, from the place of occurrence, according to him, is 30 yards. He admitted that he was not present when the altercation took place between the accused and the deceased on the previous day and so also was not present when his father had brought about the compromise between the accused and the deceased on the morning of day of occurrence. In answer to other question, he stated that there was no other enmity between the accused and the deceased. He stated that Muhammad Amir PW and deceased used to work together. He denied the suggestion that he and his deceased brother had met Javid alias Jaida near the betel shop of Yuhni Pehlwan and the spite vomitted by Javid had unintentionally fell on their clothes, whereupon they had abused him, which were returned by him, as a result whereof they had attacked him, after pulling out knives and he had given injuries to both of them after picking up the knife which had fallen from his (PW's) hand. He also denied that Javid had also suffered injuries at their hands. Muhammad Amir (PW 10), who corroborated the statement made by Muhammad Jehangir (PW9), stated in cross-examination that he had not tried to intervene when the accused had inflicted injury to the deceased, nor had raised an alarm. He confessed that he was not present when father of deceased had brought about the compromise between the deceased and the accused. In answer to another question, he stated that he knew the deceased since childhood. He denied the suggestion that he had not witnessed the occurrence. Muhammad Naseer (PW 6), who deposed about having witnessed the recovery of blood-stained dagger (P.4) at the instance of Javid admitted in cross-examination that the house of the accused was surrounded by other residential houses but none of the neighbours had been called to join the recovery proceedings.

8. Both the appellants during their statements under section 342, Cr.P.C. denied the prosecution version as a whole and pleaded innocence. Javid alias Jaida stated as follows in answer to the question, "Why this case against you and why the PWs deposed against you?":

"At the time of occurrence I was chewing a betal in front of the shop of Yooni Pehlwan, when Muhammad Jehangir P.W. and Muhammad Shafiq deceased also reached there. I did not notice them and unknowingly spat on the ground with which the clothes of Muhammad Jehangir and the said Muhammad Shafiq were stained. Muhammad Jehangir P.W and the deceased started abusing me and I also abused them in reply. At that time, Muhammad Jehangir P.W. and Muhammad Shafiq deceased pulled out knives from their respective persons and Muhammad Jehangir intended to inflict a knife blow on my person. I tried to snatch the knife from him and the knife had fallen on the ground. I wanted to pick up the knife as also Muhammad Jehangir. I got hold of the knife from the handle, whereas Muhammad Jehangir held it from the blade and in that process he suffered injuries on his hand. At that time Muhammad Shafiq deceased caused two knife blows with the knife with which he was armed and caused injuries on my left leg and left fore-arm. Thereafter, I had inflicted one injury on the person of Muhammad Jehangir and one injury to Muhammad Shafiq deceased with the knife which I had picked up from the ground only to save myself and in exercise of my right of private self defence. The PWs have made false statements. Muhammad Amir P.W. was not present at that time. He had an outstanding enmity with me with regard to the payment of dues of purchase of fish from me and he was having friendly relations with the deceased."

9. We have heard learned counsel for the parties and have perused the record. The motive for the occurrence in this case is a quarrel said to have taken place between Javid appellant and the deceased a day prior to the occurrence, on Javid having asked the deceased as to why he was staring at him. The evidence of this incident has been deposed at the trial only by Muhammad Amir (PW.10). Muhammad Jehangir complainant who had mentioned this fact in the F.I.R. and had stated so at the trial also, admitted in cross-examination, that he was not a witness of that incident. Father of the deceased, who, according to the prosecution, had got effected the compromise between the deceased and Javid appellant, was not produced at the trial. Jehangir was not a witness of effecting of compromise as well. Apart from the fact that there is no corroboration of the statement made by Muhammad Amir PW about the incident of motive, the other aspect is that, had that incident taken place, the deceased would not have accompanied the appellants on their invitation. Considering alternately that since the appellants had compromised with deceased, and no apprehension was left and so the deceased went along with the appellants, then Jahangir PW would not have gone in their pursuit. Yet the other fact is that if the previous day occurrence had taken place in the manner stated by Muhammad Amir, then the appellants could have no grievance because it was javid appellant, according to Amir PW, who had hotly addressed the deceased and had called him a Badmash and not the deceased. In fact, none of the two witnesses have stated that the deceased had said or done anything which could cause annoyance or provocation to Javid or his co-accused. In the circumstances, we have no hesitation in agreeing with the learned counsel for the appellants that the prosecution has not succeeded in proving the motive set up for the occurrence.

10. One of the appellants, i.e. Javid alias Jaida, while admitting his presence and of having caused injuries to the deceased as well as the complainant, has given his own version of the occurrence. This being the position, both the versions put forth by the prosecution and the defence shall have to be examined in juxta-position.

11. Coming to the version put-forth by the prosecution, we feel that the role assigned to Muhammad Iqbal, neither appears probable nor believable. Even according to the prosecution, he had no motive against the deceased, as he had not played any role in the first incident. If he had any intention or programme to take the deceased along with them for murdering him, he would not have come unarmed. The part assigned to him of having taken the deceased into clasp also does not fit in with the story of the prosecution. If the deceased had been taken into clasp by him, his co-appellant could have with ease struck the deceased on more vital part and would also have given him more than one injury. Not only he did not cause any injury to the deceased or Jehangir PW, he is not even alleged to have played any role also whets Jehangir PW was struggling with Javid appellant to snatch the knife. Had he been there, he would have definitely aided Javed at that time because he could have easily assessed that if the knife was snatched by Jehangir PW, his co-accused would also be, without arm, like him and so both might come to harm at the hands of their adversaries. Looking from another angle, if the appellants had any intention to murder the deceased, after bringing him from his house, they would not have brought Amir P'W with them. They would have definitely made some excuse to avoid his company or would have postponed the programme. Above all, why should they have taken the deceased for the purposes of finishing him to a Bazar? And then why should they have waited for Jehangir P.W. brother of the deceased for launching attack? All these facts cast heavy doubts on the version putforth by the prosecution.

12. The version putforth by Javid appellant has also not impressed us. We cannot believe that on being attacked by two persons with knives, he could have succeeded in taking away the life of one and causing quite a number of injuries to the other, after taking over knife: from one, after struggling. His version that he had also suffered injuries during the occurrence but the police had taken him into custody on the very first day and had not got him medically examined, is 'unbelievable. It is in evidence that he was arrested on 14-9-1984, i.e. five days after the occurrence. The injuries, which according to aim he had suffered, could not have been fully healed till then. He was produced before a Magistrate for remand. If the police was playing dishonestly to hide his injuries, he could request the Magistrate for his medical examination when he was produced for remand. Moreover, when he was sent to jail, he would have been medically examined, as according to Jail rules a person at the time of admission to jail is medically examined to find out if he was not bearing any injury, and above all he could at least point out some scar marks of the injuries said to have been suffered by him to the trial Judge during trial.

15. In these circumstances, we are of the view that both the parties in this case have not come up with true version of the occurrence and each one of them has not only attempted to minimise its role but they have also tried to exaggerate the role of the adversary. As such, the scene of crime will have to be reconstructed by drawing inferences from the evidence on record. In doing so we are placing reliance on Syed Ali Bepari v. Nibaran Mollah etc. (PLD 1962 S.C. 502) wherein it was held by their Lordship of the Supreme Court of Pakistan:

"...that in a case of this type the parties do not generally come out with the true story. It is a normal incident of an "adversary proceeding" to minimise one's own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence and circumstances.

14. For the reasons recorded in the earlier part of the judgment, we are convinced that Muhammad Iqbal alias Bala appellant was not present at the time of occurrence, nor had he participated in the occurrence.

15. The presence of Muhammad Amir (PW 10) has also not been established conclusively, in that, neither he tried to save the deceased, which he could have easily done with the help of Jehangir (PW 9) by pushing or dragging away Muhammad Iqbal appellant when he was holding the deceased for the other accused, nor did he help Jehangir PW when he was struggling with Javid appellant for snatching the knife. He even did not raise any alarm.

16. Having disbelieved the participation of Iqbal appellant in the occurrence and not believing the presence of Muhammad Amir (PW 10), we feel that the only reasonable inference which can be drawn about the manner of occurrence is that Javid appellant on one side and the deceased and Jehangir PW on the other side quarrelled with each other on something which happened at the spot and during that quarrel Javid succeeded in inflicting a blow on the deceased and then Jehangir PW suffered injuries at his hands, while attempting to snatch knife from him (Javid) first on the hands, and later on the thigh when Javid did not allow him to snatch the knife from him.

17. After having concluded that it was Javid who had caused injury to the deceased and injuries to Jehangir PW in an occurrence, which took place spontaneously, the reason for which is not known, what remains to be adjudicate upon is as to what offence he can be held liable?

18. There was no previous enmity between the parties and this has been admitted by Jehangir complainant in cross-examination. The deceased was found to have suffered only one incised injury, and that too on the lateral and outer-side of left thigh lower part the dimensions of which were 2 cm x 1 cm x going deep. It was not a vital part. Death had occurred due to injury to popliteal vessels. If he had any intention to kill, he would not have selected thing for inflicting the wound, nor would he have stopped after inflicting only one injury. We cannot assume that as an illiterate he knew that such an injury on that part of the body would result in the death of Shafiq. He, therefore, cannot be burdened for having intention to commit murder. While arriving at this conclusions, wed have derived strength from judgment of the Supreme Court in Munawar Hussain v. State (1983 SCMR 1165), wherein their Lordships have held that the appellant was a layman and could not be saddled with knowledge of location of different arteries or veins in human body and as such blow given to deceased cutting his femoral artery did not show that he intended to murder deceased. In the said case the appellant was believed to have caused a wound, 3" x 2" x 6" with a dagger on the outerside of left thigh, at its upper part, cutting left femoral vessels. In the circumstances, knowledge likely to cause death can only be imputed to Javid appellants. He is, therefore, held liable under section 304, Part II, P.P.C. and not under section 302 PPC. His conviction and sentences a/s 302 PPC are set aside and the same is substituted a/s 304 Part II PPC, with imprisonment for ten years R.I. and a fine of Rs.15,000/-, in default whereof to undergo R.I. for three years. Whole of the fine, on recovery, shall be paid as compensation to the heirs of the deceased, No case for interference in his conviction and sentence a/s 324 PPC for causing injuries to Jehangir PW is made out. The same are maintained. Both the sentences shall run concurrently. He shall also be given the benefit of the provisions of section 382-B, Cr.P.C. Muhammad Iqbal appellant is acquitted of the charge. He is already on bail, vide order dated 3-6-1985. He shall be discharged of his bail bond.

19. Since Muhammad Iqbal alias Bala has been acquitted, question of enhancement of his sentence does not arise. The revision petition stands dismissed. M.Y.H./M-469/L Appeal partly allowed.