1984 PLP 1592 (MLD)

MUHAMMAD ILYAS, J.--By his order, dated the 29th March, 1980, Malik Muhammad Afzal, Additional Sessions Judge, Sahiwal, convicted Muhammad Rafiq son of Aitbaar Ali, aged 20 years, Rajput by caste, resident of Chak No. 5/4-L, Police Station Chuchak, District Sahiwal, under section 302, P.P.C. and sentenced him to death and a fine of Rs.15,

000. In default of payment of fine, he was directed to suffer rigorous imprisonment for two years. The amount of fine, if realized, was ordered to be paid as compensation to the heirs of Faiz Ahmed who is alleged to have been killed by him. Muhammad Ashraf, Khadim Hussain and Muhammad Arshad Ali sons of Noor Hassan, Rajput, by caste, and residents of Chak No. 10/G.D., Police Station Chuchak, District Sahiwal, also stood trial before learned Additional Sessions Judge alongwith the said Muhammad Rafiq, on charge under section 302 read with section 34, P.P.C. for having caused the death of the said Faiz Ahmad, in furtherance of their common intention. Muhammad Ashraf, Khadim Hussain and Muhammad Arshad were acquitted by the learned Additional Sessions Judge by giving them the benefit of doubt. Feeling aggrieved by the order of his conviction, Muhammad Rafiq has filed this appeal while the learned Additional Sessions Judge has made a reference for confirmation of death sentence awarded to him. This judgment shall dispose of both the matters.

2. It is alleged that on 13th February, 1977, at about 9-00 a.m., Faiz Ahmad deceased, his brother Manzoor Ahmad (P.W.7) and father Muhammad Khan (P.W.10) were carrying bundles of Toori on their head, and were proceeding towards their house in Chak No. 10/G.D., referred to above, when they were suddenly attacked by Muhammad Rafiq appellant and the acquitted accused, namely, Muhammad Ashraf, Khadim Hussain and Muhammad Arshad. These assailants emerged from the village mosque. Muhammad Ashraf was armed with knife while Muhammad Rafiq had a Chhuri. Muhammad Arshad shouted that Faiz Ahmad be not spared. Khadim Hussain pushed Faiz Ahmad and caught hold of him by his legs. Muhammad Ashraf and Muhammad Rafiq caused injuries with their respective weapons on his chest and face. Manzoor Ahmad and Muhammad Khan raised alarm which attracted Mst. Sardaran (P.W.8) and Noor Samad (not produced). Muhammad Arshed continued shouting that whosoever would approach them would be done to death. Faiz Ahmad died instantaneously at the spot whereafter the assailants made good their escape by making use of a tractor. The weapons of offence were also taken away by them.

3. As for motive, the case of the prosecution is that about three months before the occurrence, Muhammad Akram, a brother of the acquitted accused, abducted Mat. Hanifan. She is sister of the deceased. The family of the deceased was able to get her back through the good offices of the Panchait. Thereafter, she started living with her cousin, Mansha by name, in Okara. On 20th of January, 1977, the said Muhammad Akram and his brother, Muhammad Aslam, and the appellant trespassed into the house of Mansha whereupon a case under section 452 read with section 34, P.P.C. was registered against them. They were, subsequently released on bail. One more reason for which the accused party was allegedly annoyed with the complainant party was that Sardar Khan, who was an uncle of the deceased, had appointed Noor Hussain, father of the acquitted accused, as Sarbrah Lambardar but after the abduction of Mat. Hanifan at the instance of the said Sardar Khan, Noor Hussain was replaced by Faiz Ahmad deceased as Sarbrah Lambar dar. The deceased and the acquitted accused were related inter se inasmuch as the said accused are sons of the real maternal-uncle of the deceased. The appellant is not related to them. About him it is alleged that he had taken the garden of the acquitted accused on lease from them.

4. After the occurrence, Manzoor Ahmad, brother of the-deceased, was going towards Police Station Chuchak to report the incident when he came across Nazir Ahmad S.I. (P.W.12) in Chak No. 4/G.D. In those days, Nazir Ahmad was S . H .O . of the said police station. Manzoor Ahmad reported the matter to him by making statement EXh.P.E. The S.H.O. despatched the statement to the police station where, on the basis thereof, formal F.I.R Exh.P.E/1 was recorded. The S.H.O. went to the spot and prepared injury statement. Exh.P.H. and inquest report, Exh.P.J. in respect of Faiz Ahmed deceased. He despatched his dead body for post-mortem examination. He took into possession blood-stained earth from the spot and sealed it into a parcel, vide memo EXh.P.A. Bundle of Toori, EXh.P.I, was also secured by him vide memo Exh.P.B. He arrested Muhammad. Rafiq appellant on 18th February, 1977. While under arrest, on 20th February, 1977, the appellant led to the recovery of blood-stained Chhuri, Exh.P.2 after digging the ground. It was lying buried in a wheat field. The S.H.O. took it into possession, vide memo Exh.P.C., and made it into a sealed parcel. The said memoranda were attested by Mansab Ali (P.W.1) and Wali Muhammad, who had expired by the time of recording of evidence in this case. According to the report of the Chemical Examiner, Exh.P.M. the said earth and Chhuri were stained with blood. In the opinion of the Serologist, as expressed in his report Exh.P.N., the said blood was of human origin.

5. Dr. Shabbir Suleman (P.W.2) performed post-mortem examination on the dead body of Faiz Ahmad and found the following injuries:-- (1) Incised wound 1-3/4" x " on the left side of upper lip extending upwards lateral to left ala of nose. (2) Incised wound 3" x 1" on right side of chest below clavical obliquely. (3) Incised wound 1 " x " on the right chest about 1" medial to right nipple. (4) Incised wounds 1" x " and 3/4" x " adjacent to each other on right chest medial to injury No.3. (5) Incised wound 1" x " on right chest below injury No.3. (6) Incised wound 1" x " on left chest near sternum. (7) Incised wound 2" x 2" on left chest 1 " below the left nipple. (8) Incised wound 1" x " on left chest above left nipple. (9) Incised wound 1" x " on left chest about 1" below left axilla. (10) Incised wound 3" x 1" on front and outer aspect of right upper arm. (11) Swelling in an area of 1 " x 1" on upper eye-lid right eye. On dissection, he found that fifth rib was cut anterior near junction with sternum corresponding to injuries 3 and 4 and, right lung was punctured anteriorly. The right lung was also punctured corresponding to injury No. 5 and pericardium of heart and right ventricle of heart were punctured antero-posteriorly corresponding to injury No.

5. Right pleura corresponding to injuries Nos. 4 and 5 was punctured. In the opinion of Dr. Shabbir Suleman, death of Faiz Ahmed occurred due to shock and haemorrhage caused by injuries Nos. 3, 4 and 5 which were collectively sufficient to cause death in the ordinary course of nature. According to him, injury No. 5 was also individually sufficient to cause death Injuries Nos. 1 to 10 were reported to have been caused by sharp-edged weapon and injury No. 11 by blunt weapon. Exh . P . U . is a copy of his post-mortem report. Exh . PD/ 1 is the sketch of injuries.

6. It was the S . H . O. mentioned above who had investigated the case and had submitted the challan.

7. After recording the evidence of the prosecution, the learned Additional Sessions Judge examined the accused. It was admitted by Muhammad Ashraf, who is employed as Foot Constable in the Police Department, that he is real brother of his two co-accused, namely, Khadim Hussain and Muhammad Arshad. It was, however, denied by him that the appellant, who was also his co-accused, had taken their garden on lease. It was also admitted by him that he is son of real maternal-uncle of the complainant. It was added by Muhammad Ashraf that he and the complainant had strained relations. It was admitted by him that Akram and Aslam were his real brothers. He did not deny that his brother Akram had abducted the complainant's sister, Mat. Hanifan and that she was restored to her parents by the Punchayat and was then sent to the house of her cousin, Mansha, which is in Okara. He also conceded that his brother Akram and the appellant committed trespass in the house of Mansha and were proceeded against under section 452 read with section 34, P.P.C. It was denied by him that the complainant's uncle, Sardar Khan, got appointed Muhammad Ashraf's father as Sarbrah Lambardar but then got him removed from that office after the abduction of Mst. Hanifan. It was also denied by him that the occurrence had taken place as alleged by the prosecution. He stated that he had been falsely implicated in the case due to the enmity with the prosecution witnesses. Similar statements were made by Khadim Hussain and Muhammad Arshad. Khadim Hussain is a school teacher. He stated that he was innocent and it was due to that reason that he was not challaned by the police. Muhammad Arshad is employed as an Assistant Sub-Inspector of Police. He too stated that he was not challaned by the police and added that he was present in Qurban Line, Lahore, at the time of occurrence in connection with his training there. It was denied by the appellant that he had taken the garden of the acquitted accused on lease in the days of occurrence. He did not know about the abduction of Mat. Hanifan. It was denied by him that he had trespassed into the house of Mansha alongwith Muhammad Akram. According to him, he was acquitted by the Court in the criminal case relating to the said trespass. He denied participation in the occurrence and also the recovery of Chhuri, Exh.P.2, at his instance. He stated that he had been falsely implicated in this case due to enmity with the prosecution witnesses.

8. As indicated at the outset, the learned Additional Sessions Judge was of the view that the case against Muhammad Arshad, 'Khadim Hussain and Muhammad Ashraf was not free from doubt and, therefore, they were acquitted. In regard to the appellant, the opinion expressed by him was that the prosecution had successfully proved the case against him beyond doubt and, therefore, he (appellant) was convicted and sentenced as aforesaid.

9. It was contended by learned counsel for the appellant that the main accused in the instant case;

who had enmity with the deceased, had been acquitted but the appellant, who had no such enmity, had been made a scapegoat. According to him, the acquitted accused were able to successfully tackle the investigation and that was why they were placed in column No. 2 of the challan. In this connection, it was pointed out by him that out of the acquitted accused Muhammad Arshad was 'an Assistant Sub-Inspector of Police while Muhammad Ashraf was a Police Constable. He added that the appellant was not related to the acquitted accused in any capacity and he was falsely implicated.

10. It is true that the appellant is not related to the acquitted accused but he appears to be their party man. It seems that, to start with, he came into contact with the acquitted accused by taking their garden on lease. It was Manzoor Ahmad (P.W.7) who had made statement in respect of that lease. The appellant was one of the accused in criminal case under section 452 read with section 34, P.P.C. Muhammad Akram, who is a brother of the acquitted accused was his co-accused in the said case. It was registered before the present occurrence. According to the Investigation Officer, Nazir Ahmad (P.W.12), the deceased had urinated in the mouth of the appellant on an earlier occasion. Statement in this respect was made by Nazir Ahmad during the course of his cross-examination and it reads as follows:-- "It is correct that during investigation accused Rafiq had pleaded before me that when he was caught it the spot in case registered vide F.I.R. Exh.P.G. he asked for water and deceased Faiz urinated in his mouth. Ghulam Kibriya and Aitbaar Ali father of the accused Rafiq had confirmed this fact during investigation." F.I.R. Exh.P.G. relates to the said case under section 452 read with section 34, P.P.C. We are, therefore, unable to agree with learned counsel for the appellant that the appellant had no motive to take the life of Faiz Ahmad.

11. As for the showing of the names of the acquitted accused in column No. 2 of the challan, it is noteworthy that in the initial challan submitted by Nazir Ahmad on 7th May, 1977, Muhammad Arshad, an acquitted accused, figured in column No. 4 and the other acquitted accused and the appellant in column

3. In the subsequent challan, filed on 3rd December, 1977, by another Police Officer, however, the acquitted accused were mentioned in column No.

2. Nevertheless, all of them were tried together. Therefore, the mention of the names of the acquitted accused in column No. 2 of the subsequent challan is of little consequence.

12. The mere fact that the acquitted accused had been let off does not justify a conclusion that the appellant is innocent or he had been made a scapegoat. The question whether he is guilty or not is to be determined on the basis of evidence on the record which we will do keeping in view the contention raised by learned counsel.

13. There are as many as three eye-witnesses, namely, Manzoor Ahmad (P.W.7), Mat. Sardaran (P.W.8) and Muhammad Khan (P.W.10), who had furnished ocular testimony against the appellant. Nothing was said against them by learned counsel for the appellant except that their conduct did not inspire confidence inasmuch as they did not make, any effort to rescue the deceased. All the eye-witnesses were empty handed but the appellants were armed with two deadly weapons, a Chhuri and a knife. The assailants had also threatened to kill any one who would approach them (to save the deceased). In these circumstances, inaction on the part of eye-witnesses is not improbable or unnatural. They did raise alarm which, perhaps, they could only possibly do. We, therefore, find nothing wrong with the conduct of the eye-witnesses.

14. There is also evidence of the recovery of blood-stained Chhuri, Exh.P.2, at the instance of the appellant. The blood found thereon was reported to be of human origin. Learned counsel for the appellant did not say anything against the witnesses of recovery, namely, Mansabr Ali. (P.W.1) and Nazir Ahmad (P.W.12). It was simply urged by him that the Chhuri was recovered after five days during which period the blood could be washed. We are not much concerned with what the appellant could do before his arrest. What we have to determine is the question whether the Chhuri was, in fact, stained with blood at the time of its recovery at the instance of the appellant. This question had been answered in the affirmative by the witnesses of recovery. As stated above, nothing was said against these witnesses by learned counsel for the appellant. We will, therefore, rely, on their testimony and hold that the blood-stained Chhuri was recovered on the pointation of the appellant, and it lends strong support to the ocular evidence against him.

15. We have seen that the appellant had a motive to kill Faiz Ahmad. According to ocular evidence on the record he had caused him injuries with Chhuri. There is evidence of recovery of blood-stained Chhuri (Exh.P.2) at his instance. The medical evidence also indicates that the deceased was given injuries with sharp-edged weapons. In view of all this, we are convinced that the appellant actively participated in the murder of Faiz Ahmad even though he was not the only person responsible for causing his death. We, therefore, uphold his conviction under section 302, P.P.C.

16. As for the sentence, it was submitted by learned counsel for the appellant that according to the prosecution's own evidence the appellant was disgraced and humiliated by the deceased by urinating in his mouth and, therefore, he did not deserve capital punishment for killing him with a view to avenging the insult thus caused to him. This was also. conceded by learned counsel for the State. He was of the view that imposition of life imprisonment on the appellant would meet the ends of justice. We, therefore, alter his sentence of death to sentence of imprisonment for life. The fine of Rs.15,000 imposed on the appellant also appears to be somewhat excessive. We, therefore, reduce this amount to Rs.10,000 and direct that in default of payment of the reduced amount of fine, he shall suffer rigorous imprisonment for two years. The amount of fine, if recovered, shall be paid to the legal heirs of the deceased as compensation. The appellant shall also have the benefit of the provisions of section 382-B, Cr. P.C.

17. The death sentence inflicted on the appellant is not confirmed.

18. The appeal and the reference are disposed of accordingly. M. Y.H. Death sentence not confirmed.