1994 P Cr (PLP)

2. The prosecution case as unfolded in the F.I.R. by Khushi Muhammad complainant (P.W.6) is that his son Muhammad Iqbal deceased had a store known as Mian Electric Service in Quaid-i-Azam Market, Faisalabad. Farooq, son of Muhammad Iqbal accused served on his shop and during his service he had taken Rs.6,000 as advance, but after some time, he left the service without making payment of the amount received by him. His son (the deceased) had been making demand for the aforesaid amount and for this purpose went to the house of Muhammad Farooq who had been making promise in this regard. On 31-5-1990 at about 7/8 p.m. he (complainant) alongwith his sons Iqbal and Ishtiaq went to the house of Muhammad Farooq accused in order to make demand of the amount through Panchayat. When they reached there, Farooq Arif, Asif, Munir sons of Iqbal and their mother Mst. Sarwari accused were present there. On the demand of the aforesaid money from Muhammad Farooq accused who made excuse upon which an exchange of hot words took place and Mst. Sarwari raised a Lalkara to all his four sons to kill them. Arif caught hold of Iqbal from his hair whereas Munir accused started inflicting fist blows upon Ishtiaq and in this process Farooq and Asif accused ran towards their house and in that very moment Farooq armed with Khanjar came out and gave him a blow on his right flank when he was already in the grip of Arif accused, on which Muhammad Iqbal deceased fell down. Asif accused armed with .12 bore gun came out and fired at him (complainant) but fortunately he escaped. On his hue and cry Muhammad Sadiq (given up P.W.), and Muhammad Rafiq (P.W.11) were attracted to the spot and saw the occurrence. Muhammad Iqbal deceased was taken to the hospital where he succumbed to his injuries.

3. The occurrence took place on 31-5-1990 at about 7/8 p.m. and Khushi Muhammad complainant (P.W.6) made statement Exh.P.F. before Muhammad Zaman S.I. (P.W.15). On the basis of the aforesaid statement the same day formal F.I.R. Exh.P.F./1 was recorded by Muhammad Akram, Moharrar (P.W.10) at Police Station, Rang Bazar, Faisalabad.

4. The investigation was conducted by Muhammad Zaman (P.W.15). After recording the F.I.R. he went to the place of occurrence the same day and prepared rough site plan (Exh.P.H./1). He prepared injury statement Exh.PJ. and inquest report Exh.P.K., collected blood-stained earth and made it into a sealed parcel vide memo. Exh.P.G. He took into possession Car No.243.002/85/88 of white colour and a box containing 14 cartridges of .12 bore gun and a Honda motor-cycle P.4 with driving licence P.5 vide recovery memo. Exh.P.C. He also took into possession blood-stained Sota P.6 from the place of occurrence vide memo. Exh.P.D. On 1-6-1990 he arrested Farooq and Arif accused. On 2-6-1990 he arrested Mst. Sarwari accused. On 8-6-1990 he arrested Munir and Asif accused. Muhammad Farooq accused got recovered blood-stained Chhuri P.9 the same day (1-6-1990) while he was in custody, which was taken into possession vide memo. Exh.P.H. Muhammad Farooq accused produced gun P.7 before the 1.0. and an empty P.8 which he took into possession vide memo. Exh.P.E. After the post-mortem examination he took into possession the last-worn clothes of the deceased i.e. shirt P.1, Shalwas P.2 and Bunyan P.3 all blood-stained, vide memo. Exh.PA. He prepared rough sketch of place of recovery of Chhuri Exh.P.H./1. He also prepared rough sketch Exh.P.S. of place of recovery of gun .12 bore, car and cartridges. He recorded the statements of the P.Ws. under section 161, Cr.P.C, 'After completing all the formalities the challan was submitted in the Court.

5. On 1-6-1990 at 7-30 a.m. Dr. Altaf Pervaiz Qasim (P.W.7) conducted the post-mortem examination on the dead body of Muhammad Iqbal son o1 Khushi Muhammad and he found following injury on his person:-- (1) A stab wound 3-1/2 c.m. x 1-1/2 c.m. on the outer side of lowest part of right chest 25 c.m. below the right armpit along the mid-axillary line about 25 c.m. away from the midline at 22 c.m. obliquely from the right nipple (clotted blood was present in the wound). The stab entered the abdominal cavity on the right outer side by rupturing the skin 25 c.m. below the right armpit along the mid-axillary line. It ruptured the right kidney, vessels of right kidney mesentry, vonacava through and through and also ruptured the abdominal aorta (abdominal cavity was full of blood). In the opinion of doctor the death was due to excessive haemorrhage and shock as a result of injury No.l inflicted by a sharp-edged weapon. It was ante-mortem, grievous and sufficient to cause death in ordinary course of nature. The time between injury and death was about 15/20 minutes and between death and post-mortem was about 12/13 hours. On 8-6-1990 he medically examined Munir Ahmad son of Muhammad Iqbal and found the following injury on his person:-- (1) A stitched wound 2-1/2 c.m. with 3 stitches on the back of left hand above the 5th matacarpal of left hand. The wound had been healed. The edges were united. No exact opinion about the kind of weapon used could be given at that stage. However, the possibility of that injury to be caused by a friendly hand could not be ruled out. The nature of injury was simple.

6. When examined under section 342, Cr.P.C. Arif, Asif, Munir and Mst. Sarwari accused denied the prosecution allegations and stated that they have been falsely implicated in this case due to close relationship with the principal accused whereas Muhammad Farooq appellant stated in the following words:-- "The P.Ws. are inter-related. Ishtiaq P.W. is desperado and has beem previously involved in case under section 302/307, P.P.C. At the time of occurrence I was sitting at the clinic of Dr. Zafar Iqbal which is nearby. Ishtiaq P.W. had declared that he knew the method for getting money. The complainant party got some unknown Gundas alongwith them. They came in a car. Ishtiaq was on a motor-cycle. The buffaloes belonging to us were tethered in a vacant plot outside our house. Ishtiaq, Iqbal and their companions began untieing the buffaloes and began to beat them. When my mother Mst. Sarwari requested them not to do so, Iqbal deceased and Ishtiaq P.W. disgraced my mother and threw her in the manger. On hearing the alarm raised by Mst. Sarwari I reached the spot. I found Iqbal deceased armed with a Danda, Ishtiaq armed with .12 bore gun and one of the hired Gundas was armed with a Chhuri. Ishtiaq fired at me but it missed. The hired Gundas inflicted me a Chhuri blow but that was snatched by Arif accused. Thereupon, Iqbal deceased hit me with a Danda blow on my head and when he was going to cause more harm to me at that time to save me from further blow, Arif accused inflicted a single Chhuri blow upon Iqbal deceased while I was busy in snatching the gun from Ishtiaq P.W. I produced the gun and Ishtiaq P.W. before the 1.0. We had been attacked and aggressed by the complainant party. The complainant party being very influential and we being very poor persons, was able to get a concocted case registered against us and in order to conceal their own crime, they are now falsely deposing against us."

7. Placing reliance on the evidence of the prosecution fortified by the recovery of Chhuri at the instance of the appellant, the learned trial Judge convicted the appellant and gave him the sentence indicated above and acquitted the other accused.

8. The learned counsel for the appellant contended that it is a case of two versions; one version has been advanced by the prosecution whereas the other version has been given by the defence; that Iqbal deceased hit the appellant with a Danda on his head when he was going to cause more harm to the appellant, then his brother inflicted a single Chhuri blow to the deceased in order to save the life of his brother Muhammad Farooq. He next contended that the prosecution version is being supported by highly interested witnesses such as Khushi Muhammad is the father whereas Muhammad Ishtiaq (P.W.8) is the real brother of Iqbal deceased. Muhammad Rafiq (P.W.11) the other eye-witness apart from being a chance witness is also a kith and kin of Khushi Muhammad complainant, so their uncorroborative testimony cannot be believed. Jn this case, the occurrence took place near the house of the accused party which proves that the complainant party was the aggressor and this fact is being further corroborated by the recovery of Danda, motor-cycle and motor car at the venue. The recovery of Chhuri at the instance of the appellant is not proved in accordance with law, hence there is no corroborative piece of evidence available on the record to justify the conviction of the appellant. He has placed reliance on P L D 1959 (W.P.) Pesh. 1 and P L D 1959 (W.P.) Pesh.

74. In the end, he submitted that even if the conviction is maintained, still the sentence awarded to the appellant needs consideration and there is no evidence whatsoever against the acquitted co-accused and the revision petition which is at a motion stage be dismissed.

9. The learned counsel for the State has supported the impugned judgment.

10. The learned counsel for the complainant submitted that mere relationship of the witnesses per se is no ground to discard their evidence if their presence otherwise is proved on the record. He submitted that the F.I.R. was lodged promptly which proves the presence of Khushi Muhammad complainant and Muhammad Ishtiaq (P.W.8) received injury during the occurrence, so his presence is established. The occurrence took place in the evening time, and the accused persons were known to the eye-witnesses, hence it is not a case of mistaken identification. The appellant received injury on his head during the fight which proves his presence at the spot. The appellant had a motive against the deceased due to the dispute over the advance loan of Rs.6,000 and recovery of Chhuri at the instance of the appellant, proves the guilt of the appellant beyond any reasonable doubt. He further contended that there is no background of enmity between the complainant party and the accused party except the loaning of Rs.6,000 which is the motive in this case. The eye-witnesses had no ostensible reasons to falsely implicate the accused persons. With respect to the acquittal of the co-accused referred to above, he submitted that as all the accused persons made concerted attack on the deceased, so they are liable for the act of the principal accused in view of the provisions of section 148/149, P.P.C. read with section 302/307, P.P.C. He has placed reliance on 1992 P Cr. L J 2273, P L D 1977 SC 14 and 1973 S C M R 26.

11. I have gone through the record with the able assistance of the learned counsel for the parties and have minutely considered the respective submissions of the learned counsel referred to above.

12. Admittedly, there is no background of enmity between the parties. As the F.I.R. was lodged immediately after the occurrence, hence it cannot be said with certainty that Khushi Muhammad complainant was not present at the place of occurrence. The presence of Muhammad Ishtiaq (P.W.8) is established due to the injury which he bore on his person. Even the defence has not seriously challenged his presence. It is true that it is a case of two versions; one version has been given by the prosecution and the other version has been advanced by the defence. The salutary principle for the just decision of the case of two versions is that both the versions are put in juxtaposition and A then the Court has to see which version is more probable and near to the truth keeping in view the direct as well as circumstantial evidence brought on the record. In addition to that if both the parties have suppressed the material facts, then incompleteness of tale should not deter Court from drawing proper inferences from evidence and circumstances as held in P L D 1962 SC 502.

13. Applying the aforesaid principles of law to the facts of the present case I find both the eye-witnesses were present at the place of occurrence. Even if by way of abundant caution the evidence of Muhammad Rafiq (P.W.11) is kept out of consideration still, the prosecution has at least proved this fact that the appellant caused the death of Iqbal deceased by solitary blow. The plea of defence does not get support from the direct or circumstantial evidence. The substitution of the accused is a rare phenomenon. The presence of Muhammad Ishtiaq (P.W.8) is not denied even by the defence. If Arif acquitted accused had caused the injury as asserted by the defence, then in all probability, the complainant and his son Muhammad Ishtiaq P.W. would have named him as accused. The defence has taken different pleas during the cross-examination of the eye-witnesses which leads to this inference that even the defence was not sure which plea should be taken. In these circumstances, this Court can infer on the basis of the evidence brought on the record that the version given by the prosecution is more probable and near to the truth and the recovery of blood stained Khanjar at the instance of the appellant has further proved the guilt of the appellant beyond any reasonable doubt. The concessional statement made by the I.O. itself without there being any basis for the same does not advance the case of the defence. The learned trial Court rightly observed that the injury received by the appellant on his head was simple and insignificant in nature which did not give him the right to cause the death of the deceased as provided in section 100, P.P.C. The appellant obviously exceeded the right of self defence by causing the death of the deceased on this insignificant injury, hence his case fairly and squarely falls within the provisions of section 304, Part I. P.P.C., his appeal has no merits which is dismissed accordingly. I find great force in the submission of the learned counsel for the defence that the sentence awarded to the appellant Muhammad Farooq needs consideration. While maintaining his conviction under section 304, Part I, P.P.C. I reduce his sentence from imprisonment for life to 10 years' R.I. and fine is also reduced from Rs.10,000 to Rs.5,000 and in case of default, the appellant shall further, undergo 1 year's R.I. The order regarding compensation under section 544, Cr.P.C. to the heirs of the deceased passed by the learned trial Court is maintained. The benefit of section 382-B, Cr.P.C. is also allowed to the appellant.

14. I have considered the submissions of the learned counsel for the complainant and I find no force in his submission that the other acquitted accused shared the common object with the principal accused Muhammad Farooq. In view of my discussion mentioned above, it is established that the occurrence took place all of a sudden due to the non-payment of the loan which is the motive in this case, hence everybody was liable for his own act. The learned trial Court rightly observed that there is no material on the record which would connect the acquitted accused with the crime. The order of acquittal passed in favour of acquitted accused can neither be termed as fanciful nor contrary to the record, in the presence of these findings, this Court would be loath to upset the order of acquittal passed by the learned trial Court which is getting ample confirmation and corroboration from the direct as well as circumstantial evidence brought on the record of this case.

15. The upshot of the above discussion is that the appeal is partly accepted to the extent of the reduction of the sentence mentioned above and IE the revision petition filed by the complainant is dismissed. N.H.Q./M-1228/L Order accordingly.