1988 PLP 1497 (MLD)

SARDAR MUHAMMAD DOGAR, J.‑‑FIR Ex. PA was registered at Police Station "Garhi Shahu", District Lahore, on 7‑5‑1983 at 3‑45 p.m. by Muhammad Nawaz Head Constable P.W. 1 on receipt of Ex. PA/1 statement of Muhammad Rashid P.W. 8 recorded by Shafqat Bari S.I./S.H.O. on the same day at 3.35 p.m. on Allama Iqbal Road near Meyo Garden. According to F.I.R, complainant and Muhammad Siddique alias Kali were running a workshop on the gate of Mew Garden on Ailama lqbal Road under the name of Mushtaq Autos Asghar Ali alias Bhola came to workshop at 2‑00 p.m. on 5‑5‑1983 and asked Muhammad Siddique as to why he should pail him Rs.

100. Bhola told him that he will have to pay the money whereupon Muhammad Siddique refused to make the payment as a result of which there was a minor quarrel. Asghar alias Bhola left the place saying that he will teach him a lesson. On the day of occurrence, Muhammad Siddrque was working at his workshop. Mubarik Ali, a Rehri vendor, was also present nearby. It was 2‑30 p.m. Rehmat Ali was purchasing Gundairies from Mubarik Ali. Muhammad Siddique alias Kali also went to the Rehri to purchase Guridairies alongwith Babar Hussain wino was working as a painter at the workshop. Asghar Ali alias Bhola carne there and demanded a sum of Rs. 100 from Muhammad Siddique. Muhammad Siddque replied that he was not prepared to pay Jagga tax. Both of them quarrelled with each other. Asghar Ali brought out a knife from his Dab :end stabbed Muhammad Siddique in the chest. He gave second injury on the right side of the abdomen as a result of which Muhammad Siddique fell down. The complainant and others made a noise. Ashgar Ali alias Bhola ran away waiving knife in the air. Muhammad Siddique was removed to the hospital in the car brought by Ashiq Ali Denter on the call of the complainant. The complainant after getting Muhammad Siddique admitted to the hospital, returned to inform the parents of Siddique. lie made statement Ex. P.1 to Shafqat Bari, S.I./S.H.O., on meeting him at the workshop. Shafqat Bari, S.I. after recording statement ex. PA/1 despatched the same to Police Station for the registration of case and took up the investigation. He recorded statements of P.Ws. Mubarik Ali, Rehmat Ali and Babar Hussain, and inspected the spot. Thereafter, he went to Mayo Hospital to record the statement of Siddique but he had died by that time. The S.I. prepared inquest report Ex. Ph and entrusted the dead body to the constables for post‑mortem examination.

2. The accused was arrested on 13‑5‑1983. fie led to the recovery of blood stained knife P. 3 from his house on 15‑5‑1983, which was taken into possession vide memo. Ex.PF, attested by Shahid Riaz and Karamat Ali P. Ws. apart from the S.I. After completion of necessary investigation the challan was put to Court.

3. Statements of fifteen prosecution witnesses, in all, were recorded at the trial. Dr. Mian Abdur Rauf who had medically examined the deceased during life time on 7‑5‑1983 at 3‑15 p.m. appeared as P.W.

9. He had noticed an incised wound 2 1/2 cm on front of chest 10 c.m. medial and below left nipple, and incised wound 2 x1 c.m. front of abdomen 3 c.m. away from umblicus on right side of abdomen. Depth of both the injuries was not probed. Corresponding cuts on the shirt stained with, blood were also noted by the doctor. The injuries were opined to have been caused by a sharp edged weapon and the duration was' opined to be fresh.

4. Dr. Muhammad Anees Sheikh, who had performed autopsy on the dead body of the deceased, on 8‑5‑1983, at 4‑00 p.m. appeared as P.W.

14. He had noticed same injuries on the body of the deceased as noted earlier by Dr. Mian Abdur Rauf P.W.

9. On exploring, injury No. 1 was found entering the chest cavity through the sternum and after having penetrated the pericardium, had entered the right atrium of heart. Pericardial sac was full with blood. Both sides of chest cavity contained about 2 litres of blood. Injury No. 2 had entered the abdominal cavity, had caused a perforation in the jejurnum and in the mesemtry. The abdominal cavity contained about 500 cc of blood. The injuries were opined to have been caused by a sharp‑edged and penetrating weapon. Both the injuries were opined to be sufficient to cause death individually also, in the ordinary course of nature. Excessive and rapid bleeding resulting in shock was opined to be the cause of death. During cross‑examination, he stated that some blood might have oozed due to the injuries but it was not always so.

5. The ocular account was deposed to by Muhammad Rashid P.W. 8, Rehmat Ali P.W. 10 and Babar Hussain P.W.

11. Muhammad Rashid, complainant repeated the facts given by him in the F.I.R. During cross‑examination he stated that the deceased was his partner and he had obtained a workshop on hire from some persons who had left. for Arabian countries. According to him, the rent was being paid by him to one Chaudhry. The accused, according to him was living with his mother and sisters at a distance of about 100 yards, opposite to his shop. He stated that even prior to this incident the accused had demanded Goonda tax so many times but they had not reported the matter to the Police. He stated that the accused had demanded Goonda tax from the deceased on the day of occurrence also. In answer to another question he stated that the deceased was not related to Shahbaz Dogar. He expressed lack of knowledge if one Gullu was a friend of the deceased. He denied the suggestion that the deceased and Gullu used to get monthly from him. He expressed ignorance about the deceased and Gullu having abducted a sister of the accused. He denied that she was recovered from Qainchr Amarsadhu with his help or that her ornaments were embezzled. He also denied the suggestion that the accused had requested so many times to stop the deceased from visiting his house. He denied that he knew any Niazi Wagonwala. The suggestion that the deceased was killed by Niazi party and they had falsely involved the accused in the case because of demand of Goonda tax, was denied by him.

6. Rehmat Ali P.W. 10 and Babar Hussain P.W. 11 corroborated the statement made by Muhammad Rashid P.W.

8. Rehmat Ali during cross examination stated that he was working as salesman of his brother Shahbaz in the cement agency in the shops constructed on the footpath owned by the Railways. He stated that house of the accused was on the back of the shop and they had given money to the accused and his mother before constructing the shop as they claimed themselves to be owners in possession of the land. In answer to another question he stated that the accused had never demanded Goonda tax from him nor had made the demand from the deceased in his presence previously. He expressed lack of knowledge about the sister of the accused having been abducted by the deceased and one Gullu, a month prior to the occurrence. He denied that the mother of the accused had died as a result of shock resulting from abduction of her daughter. He added that in fact she was murdered by the accused but he had not reported the matter to the Police. He denied that the deceased was injured somewhere else and a false case had been registered against the accused.

7. Babar Hussain P.W. 11 during cross‑examination admitted that he was working as a painter at the workshop of the complainant. He denied the suggestion that he had made a false statement.

8. Karamat Ali P.W. 12 deposed about having witnessed the recovery of blood‑stained knife P. 3 at the pointing of the accused and of having attested the recovery memo. His statement in this regard has been corroborated by Shafqat Bari, S.I. P.W. 15.

9. Shafqat Bari, S.I. P.W. 5 gave the account of registration of case, the investigation conducted by him, the arrest of the accused and the recovery effected from him. He admitted during cross‑examination that he had not collected blood‑stains from the place of occurrence, as he had not found any.

10. Mubarik Ali, Muhammad Yasin, Shahid Riaz and Ashiq Ali were given up as having been won over.

11. Positive reports Exs. PJ and PJ/1 from the office of the Chemical Examiner and Exs. PK and PK/1 from the office of the Serologist, were also tendered in evidence.

12. The appellant during his statement under Section 342, Cr.P.C, denied the prosecution case as a whole and pleaded innocence. He denied to have made any demand for Goonda tax from the deceased. The recovery of knife P. 3 at his instance was also denied by him. He stated as follows in answer to the question, `why the P.Ws. have deposed against you: "The deceased arid the complainant are notorious influential persons of the locality. They had constructed workshop illegally by trespassing on the footpath. Dogars have also opened a cement shop adjacent the wall of my house illegally with the assistance of the complainant party. My house was constructed on the railway lines about 10/11 years back. The complainant party in order to grab my house has falsely involved me in this case:" In answer to the question, 'why this case against you', he stated that he was innocent. He did not produce any evidence in defence nor did he make statement under Section 340, Cr.P.C.

13. Learned Additional Sessions Judge, Lahore who had tried the case, convicted the accused under Section 302, P.P.C. and sentenced him to death, plus to pay a fine of Rs. 5,000 in default whereof to suffer further R.I. for one year, vide judgment dated 30‑9‑1984. The fine on recovery has been directed to be paid as compensation to the heirs of the deceased.

14. Learned Sessions Judge has made reference for confirmation of death sentence. The convict has filed appeal, through Jail. As both the matters arise from the same judgment, they are being disposed of by ensuing judgment.

15. The appeal was preferred by the convict from the jail, much after the expiry of the limitation provided for filing appeals. He has prayed for condonation of the delay in the memo of appeal, stating that his parents had died before he was arrested and that his sisters had left his house and did not know as to where they had gone, and that he had no other relative or friend who could have filed appeal on his behalf or would have advised him to do so.

16. Since the reference made for confirmation of death sentence is also before us and the record stands printed, we feel inclined to condone the delay. The appeal is, therefore, being heard on merits.

17. Learned counsel appearing for the appellant after taking us through the evidence, criticised the judgment of the trial Court and submitted that the testimonies of the eye‑witnesses are not worth reliance as they appear to be inter connected. Learned counsel submitted that all of them appear to be biased against the appellant and so do not seem to have come up with true facts. Learned counsel contended that the prosecution has not been able to prove motive for the occurrence and so extreme penalty of death was not called for in this case.

18. Learned counsel for the State defended the judgment of the trial Court and submitted that the prosecution case stands proved to the hilt.

19. All the three eye‑witnesses who appeared at the trial to depose the ocular account, including the complainant, belong to different castes. They are neither related to the deceased nor are related inter se. No doubt the deceased was a partner of the complainant and P.W. 11 was also working at the same workshop but that connection by itself is not sufficient to discard their testimonies. There was no previous background of enmity of any of the P.Ws. with the appellant. No such suggestion was put to any of the witnesses, during cross‑examination at the trial. No doubt, the F.I.R. was not lodged at the Police Station but the report was lodged at the earliest. No advantage seems to have been taken of the fact that the statement on the basis of which the F.I.R. was registered, was made to the Police Officer at the spot. The Police Officer who had registered the case, made straight declaration that he, had not collected the blood stains from the spot as he could not find any. This fact alone is sufficient to consider that no extraneous interests were taken by the Police Officer in building up the case against the appellant, on any false grounds.

20. The suggestion that the deceased was murdered by some Niazis at a different place and the body of the deceased was brought to the place of occurrence and then shifted to the hospital, not only was denied by all the witnesses but even otherwise appears to be without any basis. There does not appear to be any reason to believe or doubt even that the complainant and the other eye‑witnesses or for that matter the Investigation Officer would have become a party to leave the real culprits and involve the appellant falsely by not only altering the true facts but by changing the place of occurrence too. The suggestion of place of occurrence having been changed, seems to be the result of encouragement, which the defence side received on the statement made by the Investigation Officer that he failed to collect the blood stains from the spot as he could not find any.

21. The testimonies of the eye‑witnesses which are corroborative of each other, find support from the evidence of recovery of weapon of offence as well as from the medical evidence. The argument of learned counsel for the appellant that all the eye‑witnesses seem to have made incorrect statements for being friends of the deceased, in our assessment, does not possess any weight.

22. The contention of learned counsel for the appellant that the prosecution had failed to prove motive for the occurrence, appears to be without any foundation. The appellant had not only demanded a sum of Rs. 100 as Goonda tax two days prior to the occurrence, but had made the demand on the day and at the time of occurrence as well. In fact the occurrence had ignited on the refusal of the deceased to make the payment. Although Remat Ali P.W. 10 stated in cross examination that the appellant had never made the demand of Goonda tax from him nor had he made the demand in his presence from the deceased, but it has been categorically stated by the complainant that the appellant had so many times made the demand of Goonda tax even prior to the occurrence.

23. The contention of learned counsel for the appellant that this matter was not reported to the Police, in our view, is not well‑placed. Such demands made are generally not reported to the Police as it is difficult for the complainant to prove that.

24. The appellant had filed the appeal from jail. He had not engaged an counsel. Learned counsel representing him was engaged at State expense. We therefore, thought it proper to go into the points raised by him in the memo o appeal also, apart from hearing his counsel. In the memo of appeal the appellant has taken up the plea that the deceased was a Badmasah of the city and had connections with persons of such reputation of his bratheri and that he used to chase his sister and had tried to abduct her with the help of one Gullu, and it was on that account that he had taken the steps. We have considered this plea in the light of the evidence on record: No such plea was taken by the appellant while, making statement under Section 342, Cr.P.C. nor did he make any such statement on oath. No doubt, a suggestion was put to the witnesses that the deceased and Gullu abducted sister of the appellant but that was denied categorically. The suggestion put to Muhammad Rashid P.W. that sister of the appellant was abducted by the deceased and Gullu and she was returned with his good offices, was also denied by him. Leaving aside that the witness had not accepted the suggestion, the other aspect is that the suggestion was contradictory to the stand taken by the appellant in the memo. of appeal, wherein he claims to have acted himself at the time when the deceased and Gullu were attempting to abduct his sister. Had that happened, how could the deceased then have returned the girl? After having carefully sifted the prosecution evidence and anxiously considering the arguments advanced by learned counsel for the appellant and the points raised by him in the memo. of appeal, we are of the view that there is no merit in the appeal, filed by the appellant. The same is dismissed. The sentence of death awarded to him is confirmed. The reference is answered in the affirmative. H.B.T./A‑431/L Appeal dismissed.