1984 PLP 302 (SCMR)

MIAN BURHANUDDIN KHAN, J.‑Leave was granted by this Court per order, dated 17‑1‑1977 against the impugned judgment of the Lahore High Court to consider the case of Ijaz Shah and Suleman accused who were tried alongwith two other co‑accused namely Abdul Ghani and Abdus Sattar and acquitted accused Abdul Qayum. The appellants are resident of Muzaffargarh District and were tried under sections 148, 302 and 149, P. P. C. for the murder of Sadiq Ali by the learned Sessions Judge, Muzaffargarh vide his judgment dated 3‑8‑1974 convicting Abdul Ghani and Abdus Sattar under section 302/34, P. P. C. and sentencing them to death subject to confirmation by the High Court, while Ijaz Shah and Suleman were sentenced to life imprisonment and a fine of Rs. 1,000 each or in default, to undergo further R. I. for one year, Abdul Qayum was acquitted. On appeal, the learned High Court Judges altered the sentences of Abdul Ghani and Abdus Sattar to life imprisonment and fine of Rs. 500 each but dismissed the appeal of Ijiz Shah and Suleman.

2. According to the prosecution, on 9‑5‑1973 at 1‑30 p. m. Sadiq Ali deceased alongwith Sultan Khan (not produced) were getting down from a bus at chowk Khalil Hotel, when Akhlaq Ali, P. W., brother of the deceased happened to be coming from the Social Security Hospital. It is alleged that all of a sudden Abdul Ghani, Abdus Sattar, Suleman, Ijaz Shah and Abdul Qayum, acquitted accused, came from the side of Novelty Cinema. Abdul Qayum was armed with a revolver, while Abdul Ghani and Abdus Sattar were carrying knives and Ijaz Shah and Suleman had lathis. Abdul Qayum raised a lalkara to his companions that Sadiq Ali deceased should not be spared because he had been pestering them. At this Abdul Qayum fired in the air from his revolver. Abdul Ghani and Abdus Sattar attacked the deceased with knives and gave him blows in the abdomen while Ijaz Shah and Suleman dealt the deceased lathi blows until the deceased fell to the ground. The accused retraced their steps but before doing so Ijaz Shah and Suleman picked up empty bottles of 7‑Up aerated water and hurled these at the deceased. An alarm was raised by the witnesses which attracted Abdul Jalil P. W. and Dr. Riaz (abandoned) who also witnessed the occurrence. Leaving Jahl, Sultan Khan beside the injured. Sadiq Ali at the spot, Akhlaq Ali proceeded to the Police Station for lodging a report. However, Bahadur Khan A. S. I. met him on the way and recorded his report Exh. P. A.

3. In his aforesaid report Exh. P. A. Akhlaq Ali gave the motive for the occurrence that 314 days prior to the occurrence Abdul Ghani accused, alongwith his companions, were seen loitering near the Railway Quarters to which the deceased objected and asked them not to visit the place again. While leaving the place the accused threatened the deceased. Bahadur Khan A. S. I. was dead before the trial and his statement recorded by the Commit ting Magistrate on 10-9‑1973 was transferred to the Sessions file and was read as evidence in the case.

4. According to Bahadur Khan A. S. I. he bad visited the spot prepared the injury statement of the deceased who was then alive ; took into possession broken pieces of 7‑Up soda water bottles Exh. P‑4/1‑18 from the spot and the accused were arrested on 12‑5‑1973. Suleman appellant, while in custody, led to the recovery of a blood‑stained soti P‑9 which was taken into possession by the A. S. I. vide Memo. Exh. P. J. Ijaz Shah appellant also led to the recovery of soti P. I, taken into possession vide Memo. Exh. P. B. which, alongwith the knives, recovered from the other accused, were sent to the Chemical Examiner who found the same to be stained with human blood. Report of the Serologist is also to the same effect.

5. Dr. Muhammad Afzal P. W. 4 examined Sadiq Ali, injured on 9‑5‑1973 at 2‑30 p. m. and found three stab wounds abdomen 1" x " on the left abdomen 3" to the left of nerves " x ' above and 1" x " below the first (i. e. injuries Nos. 12 to 14) while the remaining 12 were either lacerated wounds, multiple scratches and swollen area 3" x 2" on the right side of the head denoted by Injury No.

16. When Sadiq Ali succumbed to his injuries at 4 p. m. the same day, the same doctor performed his post‑mortem exami nation, and, in his opinion, the death occurred due to shock, haemorrhage, concussion of the brain, abdominal injuries and fracture of the skull caused by Injuries Nos. 12 to

16. The doctor further stated that these injuries were individually and collectively sufficient to cause the death of the deceased in the ordinary course of nature.

6. The learned trial Judge relied on the testimony of Akhlaq Ali P. W. 7 brother of the deceased and Abdul Jalil, P. W. 8 and held all the accused guilty of the murder of the deceased and sentenced them as mentioned above. Abdul Qayum was given the benefit of doubt and acquitted.

7. Learned counsel for the appellants contended that out of the four eye‑witnesses, presence of Akhlaq Ali at the spot on the relevant time was held by the learned High Court Judges doubtful. Dr. Riaz and Sultan, who were mentioned in the F. I. R. were given up as having been won over, and, therefore, in the ultimate analysis, maintenance of conviction was based on the solitary testimony of Abdul Jalil P. W. 8 who too should not have been believed for the reason that he was a chance witness and bad been disbelieved by the learned Judges in a material aspect i. e. the use of bottles which according to him were thrown by the assailants at the deceased but were found to have beep hurled by the deceased at them ; and that the deceased was a man of dubious character having been admittedly tried of the charge of murder that the statement of this witness (Jalil) is full of improvements and contradictions, and. lastly that no independent corroboration of the testimony of this witness was available.

8. We have considered the points raised by the learned counsel and would say that Abdul Jalil's name is mentioned in the F. I. R. by the deponent Akhlaq Ali besides the names of Dr. Riaz and Sultan. On going through the statement of this witness we find that he had no personal enmity with the accused/appellants. He stated that he was present in front of the Medical Store of Dr. Riaz when he saw the deceased near Khalil Hotel and, the accused were seen coming from the direction of Novelty Cinema and thereafter the attack started. He had been cross‑examined at length and there is no reason to hold that he was either procured witness or had any motive to go as far as to denounce the appellants as the ‑assailants of the deceased Sadiq Ali. Undoubtedly he had been confronted with some parts of his statement made to the police and his statement under section 164, Cr. P. C. but nothing material has been solicited to discredit him. He admitted that he bad not mentioned the name of Akhlaq Ali P. W. in his Police Statement Exh. P. B.

9. Furthermore, on examining the site plan we find that most of the shards from the 7‑Up bottles were found near the place where Sadiq Ali was lying wounded and blood was found on these shards at Point No.

1. Thus, the story that the deceased had thrown these bottles at the accused is totally belied and for another reason also that none of the accused/appellants sustained any injury. The medical evidence referred to above, shows that the deceased had sustained Injuries Nos. 15 and 16 on his head. Injury No. 15 1"x 1 " x scalp deep was caused on the left side of the head, while Injury No. 16 3" x 2 was above the ear on the right side of the head and Injuries Nos. 12 to 16 bad caused concussion of the brain, abdominal injuries and fracture of the skull which were individually sufficient to cause the death of the deceased. Whatever may be the antecedent and character of the deceased, it appears that the parties belonged to desperate gangs of ruffians engaged in nefarious activities and extorting money from the people of the locality. We also find from the record that earlier a report Exh. DC was lodged by one Ali Hussain on 8‑2‑1971 in which the deceased Sadiq Ali was charged for stabbing him and Sultan, one of the accomplices of the deceased Sadiq Ali, for stabbing Ijaz brother of Ali Hussain deponent. Thus, we find no merit in this appeal which is, accordingly, dismissed. S. Q. Appeal dismissed.