1989SCMR 151 (PLP)

Date of hearing: 17th October, 1988. USMAN ALI SHAH, J.‑‑This appeal by leave of the Court is directed against the judgment and order of the Lahore High Court, Lahore, dated 20‑12‑1981, whereby Cr. A. No. 668 of 1980 of Ijaz Ahmad appellant and Abdul Hameed and No. 666/80 of Muhammad Yousaf against the judgment dated 4‑5‑1980 of the Sessions Judge, Faisalabad, convicting them under sections 302/34 and 324 P.P.C. for the murder of Sikandar Khan and sentenced Ijaz Ahmad appellant to death plus six months R.I. and Abdul Hameed and Muhammad Yousaf to life imprisonment plus six months' R.I., with a fine of Rs. 2,000 each, if realized to be paid to the heirs of the deceased or in default to suffer further R.I. for two years, were accepted as regards Abdul Hameed and Muhammad Yousaf and dimissed regarding Ijaz Ahmad appellant and Murder Reference confirmed by the impugned judgment. It is said that on 24‑7‑1978 at 10 a.m., complainant Anwar Khan (P.W. 8) alongwith his brother Sikandar Khan (deceased) went to the wagon stand of Chak No. 209 R.B. Faisalabad, where Mushtaq Khan, Faqir Muhammad and Muhammad Aslam P.Ws. were present, waiting for a wagon. In the meantime, one wagon No. FDC 454 reached from Faisalabad. Ijaz Ahmad appellant, Abdul Hamid and Muhammad Yousaf acquitted accused appeared there and caught hold of Sikandar Khan by his arms and Ijaz Ahmad appellant gave a Chhura blow on the left flank of Sikandar Khan due to which he fell down. Ijaz Ahmad appellant repeatedly caused four more Chhura blows on the chest of the deceased. Complainant Anwar Khan (P.W. 8) and other P.Ws. present on the spot raised alarm. Muhammad Aslam (P.W9) tried to catch hold of Ijaz Ahmad appellant but he brandished his Chhura and caused an injury on his left wrist. The accused raised lalkara that if any body would come near them he would be killed. After commission of the crime the accused decamped in the same wagon towards Faisalabad. Sikandar Khan and Muhammad Aslam in injured condition were rushed to the hospital in another wagon. Sikandar Khan succumbed to his injuries on the way to the hospital. On 24‑7‑1978 at 10.15 a.m. Muhammad Aslam (P.W. 9) was medically examined by Dr. Imtiaz Ahmad Gill, Medical Officer D.H.Q. Hospital Faisalabad who found one simple injury on his left wrist caused by a sharp‑edged weapon. Meanwhile, Nisar Ahmad (P.W. 6) brother of the deceased came there. Leaving him with the dead body Anwar Khan (P.W. 8) went in a Riksha to report the matter to the police. When he reached near Chowk Boley‑di‑Jhuggi, he met S.I. Naseer Ahmed Alvi (P.W. 12) incharge of Police Station Nishatabad, whom he. made his statement Ex. PD. The S.1. read out the statement to the complainant, got it signed from him and forwarded the same to the police station, where M.H.C. Bashir Ahmad (P.W. 4) prepared formal F.I.R. Ex. PD/1. Naseer Ahmad Alvi S.I. started investigation. He went to the hospital where the dead body of Sikandar Khan was lying. He prepared injury statement (Ex. PK) and inquest report (EX. PI‑) Muhammad Aslam (P.W 9) also met him in the hospital and produced before him his medical report (Ex. PC). The S.I. then visited the spot and collected blood‑stained earth from there and secured it in a sealed parcel vide memo (Ex. PF). The site plan (Ex. PE) was prepared by draftsman Aurangzeb (P.W. 5). On the same day at 2‑00 p.m. Dr. A.A. Khalid (P.W. 1) conducted the autopsy on the dead body of the deceased who found five injuries on the dead body. In his opinion the injuries were caused by sharp‑edged weapon and were ante‑mortem. Injuries No. 1 and 3 were sufficient to cause tire death in the ordinary course of nature individually and collectively and the death of the deceased occurred due to the said injuries. On 24‑7‑1978 the S.I. arrested Ijaz Ahmad appellant. The following day he led the police to the building of a powerloom factory in Zulfiqar Colony, Faisalabad, where his wagon was parked. In presence of the police the appellant recovered from the wagon Registration book (P. 4), Route permit (P. 5) and Insurance book (P.6) which were taken into possession by the police vide memo. Ex. PG. From underneath the driver's seat blood‑stained Shalwar and Kurta (P. 7 & 8) were also recovered, which were also taken into possession by the police vide memo. Ex. PH. From the same place the appellant got recovered a blood‑stained Chhura (P. 9) which was taken into possession by the police vide memo. Ex. PG. On 25‑7‑1978 Abdul Hamid acquitted accused surrendered himself to the Ilaqa Magistrate and was sent to jail on his request for holding an identification parade which was arranged in presence of Meher Muhammad Nawaz, Resident Magistrate (P.W. 13). In the said parade no one else except Muhammad Aslam (P.W 0) identified Abdul flamid co‑accused to which he objected that he was previously known to Muhammad Aslam (P.W. 9). On the same date, the 1.0. arrested Muhammad Yousaf accused. On completion of the investigation the appellant along with his other co?-accused were challenged in the Court of Sessions Judge, Faisalabad to stand their trial on the above‑mentioned charges. The learned trial Judge relied upon the ocular account furnished by complainant Anwar Khan (P.W. 8), the eye‑witness Muhammad Aslam (P.W. 9), the medical evidence, found the appellant along with his co‑accused guilty of the charges and accordingly convicted them under Sections 302/34 P.P.C. and 324/34 P.P.C., sentenced 1jaz Ahmad appellant in death plus six months' R.I., and Abdul Hamid and Muhammad Yousaf to life imprisonment plus six months' R.I. with a fine of Rs. 2,000 on realization was ordered to be paid to the heirs of the deceased or in default to suffer further R.I. for two years. Being aggrieved by the said judgment the appellant Ijaz Ahmad and his co‑accused Abdul Hamid filed appeal No. 668/80 and Muhammad Yousaf filed appeal No. 666/80 in the Lahore High Court, Lahore, against their conviction and sentences. The complainant also filed criminal revision No. 724/80 for enhancement of the sentences of Abdul Hamid and Muhammad Yousaf from file imprisonment to that of death. A learned Division Bench of the Lahore High Court which heard both the appeals and revision, rejected the appeal of Ijaz Ahmad appellant and confirmed, his death sentence. As regards the appeal of Abdul Hamid and Muhammad Yousaf, the learned High Court acquitted them, on the following reasons:‑‑ "The case of Abdul Hamid and Muhammad Yousaf appellant is distinguishable. Abdul Hamid appellant was not identified by 3 witnesses namely, Anwar Khan, complainant, Mushtaq Ahmad P.W. 10 and Faqir Muhammad (given up P.W.). Even according to prosecution version they were empty handed and the role assigned to them by the witnesses that they held the deceased by the arms does not stand supported from any independent witness. The injuries caused to the deceased could have been caused by Ijaz Ahmed appellant without holding of the deceased by anyone. Moreover, there appears to be an election rivalry between Anwar Khan complainant and Muhammad Yousaf appellant. In these circumstances, following the principle of safe. administration of criminal justice, we hold that the prosecution case against Abdul Hamid and Muhammad Yousaf appellants is not free from doubt. We are, therefore, of the view that they are entitled to the grant of benefit of doubt. Abdul, Hamid and Muhammad Yousal appellants, arc therefore, acquitted." The criminal revision filed by complainant Anwar Khan was also dismissed by the impugned judgment . Leave was granted to the appellant to consider whether the High Court, had overlooked that the reason give:: for the occurrence by the appellant was more convincing than that of the prosecution, whereas leave was refused by this Court to the complainant party in Cr.P. No. 99/82 against the acquittal of Abdul Hamid and Muhammad Yousaf vide order dated 25‑5‑1986. We have heard the learned counsel for the appellant and the learned Assistant Advocate‑General for the State and examined the impugned judgment of the learned High Court as also that of the Trial Court and the evidence recorded on the case. It was contended by the learned counsel for the appellant that the learned High Court had not believed the alleged motive for the occurrence as given by the prosecution and the reason for the occurrence given by the appellant Ijaz Ahmad was rather more convincing but it was overlooked by the learned High Court. It is a matter of record that Ijaz Ahmad appellant in his statement before the investigating officer had given the reason for the occurrence that Sikandar Khan deceased had given him two slaps and opened the attack. This version on the part of the appellant does not stand to reason and is liable to be disbelieved, because it is only his own version and does not received corroboration from any of the witnesses. As far as the motive given by the prosecution for the said occurrence, it is only given in the statement of Anwar Khan (P.W. 9). He had stated that one day prior to the occurrence he was told by the deceased that the wagon of Ijaz Ahmad dashed against his wagon in Rail Bazar, Faisalabad Wagon stop due to which the reflector mirror of the deceased got broken. The deceased being annoyed uttered hot words to Ijaz Ahmad appellant. The latter threatened him that he would take revenge of it. In our opinion this is a common feature that in such incidents hot words are normally exchanged between the drivers/owners of the vehicles but it cannot be made the basis of motive for a fatal occurrence. Therefore, the learned High Court has rightly disbelieved it to be a motive for this occurrence and has properly appreciated the evidence on record while acquitting Abdul Hamid and Muhammad Aslam. The former was not identified by the complainant Anwar Khan (P.W. 9), Mushtaq Ahmad (P.W. 10) and Faqir Muhammad. According to the prosecution version both of them were empty handed but the role attributed to them was only to the extent that they caught hold of the deceased with his arms and the appellant dealt him Chhura blows. This piece of evidence does not receive support from any of the independent witnesses. On a careful perusal of evidence on record, we find that the prosecution in our view, has succeeded in proving its case beyond any reasonable doubt against Ijaz Ahmad appellant, as he had caused the death of the deceased by stabbing him and also causing simple injury to Muhammad Aslam (P.W. 9) in broad daylight in a public place i.e. wagon stand. The learned Judges of the High Court after a thorough scrutiny of the evidence, appreciated all aspects of the case but ignored the motive for the occurrence which was disbelieved by them while confirming the death sentence of Ijaz Ahmad appellant. We agree with the learned Judges of the High Court that the appellant has committed the murder of Sikandar Khan deceased but it was not a pre‑planned case. As the occurrence took place in a wagon stand, Ijaz Ahmad appellant was said to have been disgraced a day earlier. According to complainant Anwar Khan on the day of occurrence the deceased and the P.Ws. were present in the wagon stand and in the meantime the appellant who had a Chhura in his hand alongwith Abdul Hamid and Muhammad Yousaf (acquitted accused) empty handed came there in wagon No. FDC 454 and suddenly caused 4 fatal blows to the deceased and also caused an injury to Abdul Hamid and thereafter decamped in the same wagon. But in his cross‑examination he said that "Ijaz Ahmad accused was not holding Chhura when he got down from the wagon. He picked it up when he got nearer to the deceased. I did not suspect that the accused was going to attack my brother (real brother of the deceased). The deceased did not try to escape (after the incident). I did not notice from where he picked up Chhura". This minor discrepancy in the statement of the complainant, who is an eye‑witness of the occurrence, shows that it was not a pre-planned case but a chance meeting of both the parties, which created extenuating circumstances, resulted in a sudden fight in which the appellant caused the death of the deceased. If the intention of the appellant was that of a pre‑planned nature to kill the deceased, he would have been looking for an opportunity and would have selected a place other than a wagon stand where there is little possibility of eye‑witnesses. In the circumstances, we partly allow this appeal reduce the death sentence of the accused to life imprisonment and enhance the fine of Rs. 2,000 to that of Rs. 20,000 which should be paid to the heirs of the deceased on realization or in default to suffer further R.I. for 2 years. MAX/I‑52/S??????????????????????????????????????????????????????????????????????????????????????????????????? ?????????? Order accordingly.