1988 P Cr (PLP)

MUHAMMAD MUNIR KHAN, J.‑‑This Criminal Appeal No.673 of 1984, Murder Reference No.215 of 1984 and the connected Criminal Revision filed by Muhammad Boota complainant for the enhancement of the compensation under section 544‑A, Cr.P.C. as well as sentence of imprisonment of life of Abdul Sattar appellant to death arise from the judgment of the learned Additional Sessions Judge, Faisalabad whereby he on 27‑11‑1984 while acquitting Muhammad Tufail co‑accused convicted Sardar Ali (24) and Abdul Sattar (20) appellants under section 302/34, P.P.C. for the murder of Muhammad Ismail (21) and under section 307, P.P.C for murderous assault on Mst. Rashida PW. 10 and Mst. Bukhshi PW.11 and sentenced them as under:‑ (i) Sardar Ali appellant under section 302/34, P.P.C. to death and fine of Rs.5,000 or in default thereof further R.I. for two years; (i‑A) Under section 307, P.P.C to 7 years' R.I. and a fine of Rs.5,000 in default thereof two years' R.I.; (ii) Abdul Sattar appellant under section 302/34, P.P.C. to imprisonment for life and a fine of Rs.5,000 or in default thereof two years' R.I. It was directed that the fine if recovered, half of its be paid to the legal heirs of the deceased while the remaining half of the fine shall be equally distributed among the injured PWs as compensation under section 544‑A, Cr.P.C. We propose to dispose of them through single judgment.

2. The occurrence took place on 10‑3‑1983 at 8.p.m. in the street outside the house of Muhammad Boota complainant and situated in Chak No. 208/RB at a distance of six miles from Police Station Saddar Faisalabad.

3. F.I.R. Ex. PF was lodged by Muhammad Boota PW. 9 father of deceased on the same day at 10‑30 p.m. which was recorded by Muhammad Fayyaz Hussain Inspector PW.15.

4. Sattar and Sardar appellants are real brothers Muhammad Tuafail acquitted accused is their paternal uncle, Muhammad Boota PW.9 is father of Muhammad Ismail deceased. Mst. Rasheeda PW.10 is the first cousin of the deceased and Mst. Bukhshi is the sister of the PW.10.

5. The motive as alleged by the prosecution was that on the fateful day at about 4 p.m. Mst. Rasheeda PW.10 and Mst. Bukhshi PW.12 were sprinkling foul water of the pit in the street when Sardar Ali appellant, his mother Mst. Babi and Mst. Ghandoo wife of Muhammad Tufail acquitted accused came there and stopped them from throwing water in the street. This led to an exchange of abuses between them. Farzand Ali PW.7 and others intervened and separated them. Sardar Ali appellant left the place extending threats to Mst. Rasheeda and others that he would teach them lesson for throwing the water in the street and also abusing them, hence this occurrence.

6. As for the main occurrence, it has been stated that at the eventful time Mst. Rasheeda PW.10 was going to the house of Muhammad Boota complainant. When she reached near the gate of the mosque, the appellants and the acquitted accused came there. Sardar Ali appellant was holding knife while the others were empty handed. The appellants and the acquitted accused blocked her way, abused her and declared that they had come to teach her lesson for the abuses and for throwing water in the street. She raised alarm which attracted Ismail deceased. Mst. Bukhshi and Muhammad Boota P.Ws. also came there. Ismail deceased stopped the appellants and the co‑accused from abusing Rasheeda whereupon Tufail acquitted accused raised lalkara to the effect that Ismail should not be spared. Abdul Sattar appellant then caught hold of Muhammad Ismail in his Japha. Sardar appellant inflicted knife blow on the chest of Ismail, Mst. Rashida stepped forward to rescue Muhammad Ismail but she was given five knife blows by Sardar Ali appellant. Muhammad Boots. PW shouted whereupon Abdul Sattar released Muhammad Ismail who fell down on the ground. Sardar appellant wanted to give another Chhuri blow to the deceased but Mst. Bukhshi PW laid on Ismail in order to save him. Sardar appellant inflicted Chhuri blow on her left scapula. Muhammad Ismail succumbed to the injuries on the spot. The occurrence was also seen by Malkha PW.12 and Sher Muhammad (not produced).

7. On 11‑3‑1983 Dr. Imtiaz Ahmad Gill PW.8 conducted post‑mortem examination on the dead body of Muhammad Ismail. He found following injury:‑ "A stab wound 4 cm 2x cm leading into the chest close to mid line at the level of nipple." On dissection the doctor found that the third and 4th ribs were cut due to injury No.10. The pleurae was cut and chest cavity was full of blood. The right lung was cut at its front border. The dorsal aorta was cut through and through. The stomach contained about six ounces of food matter. In his opinion the death was due to shock and haemorrhage. Injury No.1 was sufficient to cause death in the ordinary course of nature. The time between death and the injury was immediate. On 10‑3‑1983 at 9.30 p.m. Dr. Muhammad Idrees Chhatha PW.1 examined Mst. Rasheeda and found following injuries on her person:‑ (1) A stab wound with sharply cut edges 3 cm x 1/1/2 cm x cm deep to chest cavity on front and lateral part of chest below the breast. Wound having corresponding cut on shirt and wound was freshly bleeding. (2) An incised wound 3 cm x 1/2 cm x muscle deep on inner side of palm of right hand. (3) An incised wound 5 cm x 1/2 cm x muscle deep on outer side of left palm and inner eminence. (4) A incised wound 3 c.m. x 1/4 c.m. x skin deep on the upper and outer part of left breast. (5) An incised wound 2 cm x 1/4 cm x skin deep close to injury No. 4 The injuries were simple and caused by sharp‑edged weapon. On the same day he examined Mst. Bukhshi P.W. and found following injury on her person:‑ "An incised wound 3 cm x 2 cm in the outer and upper part of left arm deep to the exit wound 3 cm x 1/2 cm with incised edges on back of left shoulder. Shirt was blood‑stained and having corresponding cuts." The injury was caused by sharp‑edged weapon and was simple in nature.

8. The appellants were arrested on 23‑3‑1983 by Muhammad Fayyaz S.I. P.W.

15. On 4‑4‑1983 Sardar Ali appellant led to the recovery of blood‑stained knife from the baithak of his house which was taken into possession vide Memo PD attested By Farzand Ali P.W.7 Bagh Ali (not produced) and Mumtaz Hussain Shah A.S.I P.W.13. The Serologist report Ex. PM reveals that knife P.1 was stained with human blood.

9. To prove its case, the prosecution examined la witnesses. Muhammad Boota P.W.9, Mst. Rasheeda P.W.10, gist. Bukhshi P.W.11 and Malkha P.W. 12 have given the ocular account of the occurrence. They claim to have heard Muhammad Tufail acquitted accused raising lalkara and seen Abdul Sattar appellant catching hold of Muhammad Ismail, and Sardar Ali appellant inflicting knife blows to Ismail, Mst. Rasheeda and Mst. Bukhshi resulting in the death of Ismail and injuries to Mst. Resheeda and Mst. Bukhshi P.Ws. Farzand Ali P.W.7 Muhammad Boota P.W.9, Mst Rashida P.W.10 and Nlst. Bukhshi P.W.11 have deposed about the motive incident which took place at 4 P.M. on the day of occurrence. Farzand Ali P.W.7 and Mumtaz Hussain Shah P.W. 13 have supported the recovery of blood‑stained knife from Sardar Ali appellant. Dr. Imtiaz Ahmad Gill P.W.8. has proved the post‑mortem examination report. Dr. Muhammad Idrees has proved the medico‑legal report of the injuries of Mat. Rasheeda and Mst. Bukhshi P.Ws. The rest of the evidence is of formal nature.

10. When examined under section 342, Cr.P.C. the appellants denied all the incriminating circumstances and raised the plea of false implication on account of enmity. No witness was produced in defence.

11. The learned trial Court has disbelieved the statements of Muhammad Boota P.W. 9 and Malkha P.W.10 and while believing the ocular account of the occurrence given by Mst. Rashida P.W. 10 and Mst. Bukhshi P.W.11, the recovery of blood‑stained knife from Sardar Ali appellant motive alleged by the prosecution and the medical evidence, has convicted and sentenced the appellants as stated above Muhammad Tufail was however given the benefit of doubt.

12. The learned counsel for the appellants contended that Mst. Rashida and Mst. Bukhshi P.Ws. being closely related to the deceased are not reliable; that their statements have not been relied upon to the extent of Tufail who was also found innocent by the police; that Abdul Sattar has falsely been involved in the case in that there was no necessity of catching hold of the deceased and Sardar Ali alone could inflict injury to the deceased. In the alternative the learned counsel prayed for the alteration of the sentence of Sardar Ali from death to imprisonment for life on the ground that Mst. Rashida and Mst. Bukhshi P.Ws. had not only thrown the foul water in the street but had also abused Sardar Ali appellant, his mother Mst. Babi and others. Conversely the learned counsel for the State has supported the judgment of the trail Court. Kh. Sultan Ahmad Advocate counsel for the petitioner in the connected revision prayed for the enhancement of the sentence of Abdul Sattar as well as compensation under section 544‑A, Cr.P.C. He argued that since Abdul Sattar had facilitated the commission of the murder by catching hold of the deceased, therefore, he deserves capital punishment. Learned counsel submitted that the location and depth of the injury of the deceased indicates that the victim had been over‑powered enabling Sardar Ali co‑accused to inflict knife blow on his chest, and this circumstance corroborates the statements made by the eye‑witnesses.

13. We have anxiously considered the submissions made by the parties and have reviewed the entire evidence that has been produced by the prosecution, statements made by the appellants and co‑accused under section 342, Cr.P.C. and the circumstances appearing in the case, very carefully. We find that it is a case of promptly lodged F.I.R. which contains the names of the appellants and the acquitted accused, the weapons carried by them, the part played by them in the occurrence and the names of the eye‑witnesses. The occurrence took place at 8. p.m. and the F.I.R. was lodged at 9‑30 p.m. i.e. , after one hour and thirty minutes. There is nothing in evidence to show that the F.I.R. was not prepared at the time and place as it purports, so much so no suggestion with regard to the registration of case after preliminary investigation was made to complainant. It seems to us that F.I.R. Ex. PF is a genuine document.

14. Adverting to the crucial evidence i.e. ocular testimony, we find that by the fact of injuries on the persons of Mst. Rashida P.16J.10, Mst. Bukhshi P.W.11, their presence at the time of occurrence on the spot is very much established. They were not inimically disposed towards the appellants before the occurrence. Neither any previous enmity has been proved nor suggested to the witnesses by the defence. They have stood the test of cross‑examination. Nothing damaging to their veracity and integrity could be elicited in cross‑examination. The statements made by them are in consonance with the probabilities and materially fit in with the rest of evidence. The statements made by them do not suffer from infirmities such as material contradictions, major discrepancies or dishonest improvements. We do not see any infirmity in their evidence. The occurrence took place in the light of the day. The appellants were previously known to them and as such they were in a position to identify the offenders. We are of the opinion that the aforesaid two eye‑witnesses can be relied upon even without corroboration because the number of the injuries found on the deceased and the two eye‑witnesses commensurate with the number of the persons named by them. We have been very much impressed by the straightforward manner in which they made statements. Although one person had lost life and the two eye‑witnesses had received as many as six injuries which could have been easily attributed to the co‑accused namely Abdul Sattar and Muhammad Tufail yet they did not state so. Instead they frankly stated that they as well as the deceased were inflicted injuries by Sardar Ali appellant alone. No doubt the two eye‑witnesses are closely related to the deceased but it is well‑settled that the statement of a witness cannot be discarded on account of mere relationship. The case of Muhammad Tufail acquitted accused is little different. He had not caused any injury to the deceased or the P.Ws. The allegation against him was that he raised a proverbial Lalkara. So, benefit of doubt was rightly given to him. His acquittal in the peculiar circumstances of the case does not damage the integrity of the two injured eye‑witnesses. It seems to us that the two injured eye‑witnesses are wholly dependable. In case, the rule of prudence requires corroboration of their statements, the same is available in the shape of recovery of blood‑stained knife P.1 fro Sardar Ali appellant. Farzand Ali P.W.7 is a reliable witness. He had no motive to depose falsely against Sardar Ali appellant. He has stated that Sardar Ali appellant had got recovered blood‑stained knife P.1 from his house in his presence. We do not find any legal infirmity in his statement. Mumtaz Hussain Shah A.S.I. had also no reason to plant knife P.1 on the appellant. His evidence cannot be rejected because of the office he holds. The Serologist's report Ex. P.M. shows that the knife P.1 was stained with human blood. The recovery of knife P.1 stained with human blood points to the inference that Sardar Ali appellant did participate in the commission of the crime. The kind of the weapon, the seat of the injury and the force with which the injury was inflicted indicate that Sardar Ali appellant had no intention but to kill the deceased. For all these reasons, we are convinced that the trial Court has rightly believed the two injured eye‑witnesses, recovery of blood‑stained knife and the motive alleged by the prosecution witnesses. Despite aforesaid observations we fee inclined to err in acquittal of Abdul Sattar appellant as a matter of abundant caution as it is always better to err in acquittal than in conviction. We feel that in the circumstances of the present case only one person i.e. Sardar Ali appellant could have caused solitary injury to the deceased without being facilitated by other persons.

15. This brings us to the question of sentence of Sardar Ali appellant. We have considered this question with utmost care bearing in mind all the circumstances surrounding his guilt. We have not been able to find any mitigating/ extenuating circumstance in his favour for lesser penalty.

16. The upshot of the above discussion is that there being satisfactory basis to uphold the conviction and sentence of Sardar Ali appellant, the appeal to his extent is dismissed in toto and the sentence of death is confirmed and while giving benefit of doubt to Abdul Sattar appellant, he is acquitted of the charge. He is on bail. He stands discharged of the bail bonds. Resultantly the connected revision is dismissed. The sentence of death is confirmed. H.B.T./S‑186/L Death sentence confirmed.