1989 PLP 973 (SCMR)

USMAN ALI SHAH, J.‑‑Muhammad Rauf appellant in Criminal Appeal No.69 of 1986 and his brother Muhammad Younas respondent No.l in Criminal Appeal No.70 of 1986, were tried by the learned Additional Sessions Judge, Gujrat under section 449/302/34, P.P.C. for the murder of Mushtaq Ahmad deceased. Muhammad Rauf was sentenced to death and Muharnmad Younas was awarded life imprisonment under section 302/34, P.P.C. Fine of Rs. 3,000 was also imposed on each of them with direction that Rs. 3,000 be paid as compensation to the heirs of the deceased. In default of the payment they were to undergo further R.I. for one year. Both of them were also convicted under section 449/34, P.P.C. and sentenced to three years R.1. with fine of Rs. 1,000 each or in default further R.I. for six months vide judgment, dated 24‑2‑1979. Both the convicts filed appeal gainst their convictions and sentences. The complainant Mst. Nazir Begum mother‑in‑law of the deceased also filed Criminal Revision No.478 of 1979 for the enhancement of the sentence awarded to Muhammad Younas, in the Lahore High Court, Lahore. The learned High Court found the case against Muhammad Younas doubtful and acquitted him from the charges, whereas the appeal of Muhammad Rauf and criminal revision of Mst. Nazir Begum were dismissed and death sentence awarded to Muhammad Rauf was confirmed, vide its judgment dated 2‑12‑1980. Facts giving rise to these appeals, briefly stated, are that after the occurrence Mst. Nazir Begum went to Police Post Kakrali, at a distance of 4/S miles from the place of occurrence and made a report at 9‑00 p.m. on 30‑1‑1976 to S.I. Ghulam Murtaza (P.W.8) incharge of police post. She alleged in the report that her daughter Mst. Umatul Hafiz (P.W.9) was married to Mushtaq Ahmad (deceased) who was working at Karachi. He had come to village and intended to go back to Karachi on 31‑1‑1976. On the day of occurrence she had come to village Aada Charryawala to see him and also give him some Ghee. She met him while he was busy in talking with Muhammad Akbar and Adalat Khan. She asked him to accompany her to his house. Meanwhile, accused Muhammad Younas armed with Sota and Muhammad Rauf armed with' a knife came from their houses and gave `Lalkara' to Mushtaq Ahmad. Muhammad Younas delivered a Sota blow on the head of Mushtaq Ahmad who ran towards his house to save his life. Both the accused followed him. I along with Muhammad Akbar and Adalat Khan also followed them. Mushtaq Ahmad hid himself in a room of his house but both the accused also entered the room. My daughter Mst. Umatul Hafiz (PW.9) was present in the house. Muhammad Younas caught Mushtaq Ahmad from the back and Muhammad Rauf gave knife blows on the back of Mushtaq Ahmad, due to which he fell down and died on the spot. After commission of the crime both the accused decamped. This occurrence was also witnessed by Mst. Umatul Hartz (P.W.9), Muhammad Akbar and Adalat Khan. The above report of the occurrence was recorded by S.I. Ghulam Murtaza in the form of Murasala and sent the same to Police Station Lala Musa at a distance of 18 miles from the place of occurrence, where the formal F.I.R. Exh. P.B./1 was drawn at 12‑1/4 p.m. by A.S.I. Muhammad Maqbool (P.W.4). The S.I. then proceeded to the spot, reaching there at 10‑30 p.m. He prepared injury statement Exh. P.D. and inquest report Exh. P.E. of the deceased. He handed over the dead body to F.C. Muhammad Aslam (P.W.10). The dead body of the deceased was sent to the mortuary for post‑mortem examination. On inspection of the spot, the S.I. recovered blood‑stained earth from the room of' the house of the deceased vide memo. Exh. P.C. He sealed the same into parcel. He also recorded the statements of the witnesses. On 31‑1‑1976 F.C. Muhammad Aslam brought the clothes of the deceased from the mortuary and delivered to the S.I. The motive for the occurrence as described by the complainant is that both the accused are neighbours of Mushtaq Ahmad (deceased). On the day of occurrence at about Jumma prayer time Muhammad Rauf accused had disconnected the electricity connection of Mushtaq Ahmad and had committed theft of their electricity. Mushtaq felt annoyed and told Muhammad Rauf that he would report against him to the Electricity Department. On this there was an exchange of abuses. As a consequence of this incident, both the assailants arming themselves with their respective weapons killed Mushtaq Ahmad, in furtherance of their common intention. The S.I. Ghulam Murtaza (P.W.8) arrested the accused on 2‑2‑1976. On 5‑2‑1976, the S.1. recovered blood‑stained Sota Exh. P.6 from the house of Muhammad Younas respondent No.l in Criminal Appeal No.70 of 1986, at his instance. On the same day the S.I. also recovered at the instance of appellant Muhammad Rauf, knife Exh. P.7, lying underneath the heap of bricks in the courtyard of his house. On 31‑1‑1976 at 11 a.m. Dr. Solomen F. Elahi (P.W.1) Medical Officer Post‑Graduate Medical Institute Lahore performed the autopsy on the dead body of the deceased and found the following:‑ (1) A horizontally incised wound (stab) 3" x 1 /4" x 1/4" over the left buttock (2) An obliquely placed stab wound 3/4" x 1/4" directed into the thorax cage placed on right side of back of chest 2" of the right mid‑line. (3) A diagonally placed stab wound 1/1/8" x 1/4" directed into the chest placed on right side of back of the chest 2‑1/4" below spine of scapula 1 1/2" to right of mid‑line. (4) Contused wound 1/4" x 1/Q" x skin deep on the right side of head 2‑1/2" above the right ear. (5) Contused wound 1‑3/4" x bone deep on the right side forehead crossing the hair margin. In the opinion of the doctor injuries Nos. 1 to 3 were caused by sharp edged weapon while the other two were contusions and caused by blunt weapon. These injuries were sufficient to cause death in the ordinary course of nature. After completion the usual investigation, the accused were challaned in the Court of Additional Sessions Judge, Gujrat, to stand trial for the murder of the deceased. The learned Additional Sessions Judge found both the accused guilty of the charges and sentenced them as mentioned above. Appeal of only Muhammad Younas respondent No.1 in Criminal Appeal No.70 of 1986 succeeded and he was acquitted from the charges by the learned High Court. We have heard the learned counsel for the accused and the learned State counsel. By going through the evidence on record we find that the learned High Court has dealt with the case cursorily and has not attended to the evidence on record in its proper perspective. 1t is not on record that the deceased had any previous enmity with some other persons. The occurrence took place in broad daylight. There can, therefore, be no question of mistaken identity. Normally the complainant party is anxious to bring to book the real culprits and is not interested in the prosecution of innocent persons. Although there is a mention in the F.I.R. that Akbar Khan and Adalat Khan in addition to Mst. Nazir Begum and her daughter Umatal Hafiz were the eye‑witnesses in this case yet they were not produced in the trial Court because they were outsiders, who did not wish to give evidence obviously for fear of enmity with the accused party. The evidence of Mst. Nazir Begum and Mst. Umatal Hafiz cannot be doubted to view of the fact that the occurrence took place in the house of the deceased. Mst. Umatul Hafiz was the wife of the deceased, therefore, her presence in the house at the time of occurrence was natural. Mst. Nazir Begum (P.W.2) mother‑in‑law of the deceased had come on the day of occurrence and after witnessing the occurrence she went to the police post and lodged the report with no loss of time. Thus her presence on the spot at the time of occurrence is also beyond doubt believable. Both the witnesses have consistently charged the appellant Muhammad Rauf and respondent No.] Muhammad Younas for killing the deceased. They have also furnished motive for this occurrence. Muhammad Younas was attributed Danda blows to the deceased in the course of occurrence. While acquitting Muhammad Younas the High Court observed that: "It was Muhammad Rauf who was alleged to be armed with knife. Younas was armed with `Sota' and so far as contusions are concerned, the possibility cannot be ruled out that these could be caused during struggle or by falling or otherwise. Therefore, as a matter of extreme caution, we would exclude Younas from this incident giving him the benefit of doubt. He is accordingly acquitted." By observing so the learned High Court lost sight of the fact that the two accused had jointly committed the offence, therefore, their intention was obviously common to kill the deceased. According to the medical evidence the deceased had sustained two types of injuries i.e. Danda blow on the right side of B his head and forehead and knife injuries on the back side which clearly shows that two persons have participated in the offence. Therefore, the observation of the High Court is incorrect that the injuries attributed to Muhammad Younas can be caused by fall and hence; its opinion cannot be sustained. In this case motive for the offence is attributed to the accused. On the day of occurrence at Jumma prayer time Muhammad Rauf had disconnected the electricity connection of the deceased. There was exchange of abuses between the accused and the deceased. Younas respondent is the brother of Muhammad Rauf appellant. It can be said that Abdul Rauf could not enact the tragedy himself single handedly, therefore, he joined along with him his brother Muhammad Younas (respondent) to murder the deceased. We are, therefore, satisfied that the deceased was done to death by both the accused in furtherance of their common intention. The learned Sessions Judge, therefore, rightly found them guilty of the offence and convicted them and there was no justification in upsetting his order by the High Court. Now as regards the sentences awarded to the accused, we also find that the learned Sessions Judge rightly sentenced Muhammad Rauf to death for causing knife injuries to the deceased and Muhammad Younas to life imprisonment, who helped the appellant in commission of the offence. The result is that, we accept appeal No.70 of 1986 of the complainant party and restore the sentences awarded to accused Muhammad Younas by the learned Additional Sessions Judge, Gujrat. He shall be taken into custody and C lodged in jail to serve out the sentence. However, the appeal No.69 of 1986 of appellant Muhammad Rauf is concerned, the same has no merit and is accordingly dismissed. M.BA./M‑749/S Order accordingly.