1984 P Cr (PLP)

ABDUL WAHEED, J.-Muhammad Siddique alias Chuni scan of Abdul Aziz. aged 16 years, Talib Hussain son of Hashim Ali, aged 20 years and Muhammad Shafiq son of Rehmat Ullah, aged 20 years, were tried on a charge under section 302/34, P. P. C. for the murder of Muhammad Ejaz son of Ali Hassan, aged 19 years, by the learned Additional Sessions Judge, Sargodha, who vide his judgment dated 29th April, 1980 acquitted Muhammad Shafiq on benefit of doubt and convicted Muhammad Siddique and Talib Hassain under section 302/34, P. P. C. Muhammad Siddique was sentenced to death and to pay a fine of Rs. 5,000 or in default to undergo rigorous imprisonment for -a further period of two years. Talib Hussain was sentenced to imprisonment for lit-a and to pay a fine of Rs. 5,000 or in default to suffer rigorous imprisonment for a further period of two years. It was directed that the fine, if realized, be paid to the heirs of the deceased. Muhammad Siddique and Talib Hussain have filed appeals against their conviction and sentence. The learned trial Court also has submitted a reference under section 347, Cr. P. C. for confirmation of the sentence of death. Muhammad Shahbaz has filed a revision petition against the acquittal of Muhammad Shafiq and for enhancement of the sentence of fine imposed on Muhammad Siddique and the sentence awarded to Talib Hussain. This judgment shall dispose of the appeals, the reference rind the revision petition.

2. The occurrence took place on 25th May, 1979 at 2-30 p. m. in a street of Block Me- 25 about six furlongs away from Police Station City Sargodha. It was reported at the Police Station on the same date at 3-30 p. m. by Muhammad Shahbaz P. W. 4, brother of the deceased, vide F.

1. R. Exh. P. D. recorded by Sub-Inspector Ghulam Muhammad P. W.

7. On the report a case under section 302/34, P. P. C. was registered.

3. The prosecution case, briefly, was that the deceased was on friendly terms with Muhammad Siddique alias Chunni appellant. About a month prior to the occurrence, Muhammad Siddique alias Chhuni appellant wanted to see the photograph of a boy which was being carried by the deceased in his wallet. The deceased hesitated but subsequently allowed the appellant to see the photograph. The appellant while seeing the photograph in the wallet removed there from two grams of gold. The deceased demanded back the gold from the appellant but he refused and said that he would return it only when the deceased had homosexual relation with him. The deceased apprised his father who complained about it to Saleem, elder brother of the appellant. On this, Saleem beat the appellant and turned him out of his house. The appellant felt incensed against the deceased on this account.

4. On 25th of May, 1979 at 2-30 p. m., the deceased was going in a street of Block No. 25 towards his house situate there. When he reached in front of the shop of one Iqbal, Muhammad Siddique appellant armed with a chhuri, Talib Hussain appellant armed with a knife and Muhammad Shafiq, acquitted co-accused, empty handed waylaid him. Muhammad Siddique inflicted chhuri blows on the deceased on the face, chest and flank. Muhammad Shafiq caught hold of him from his neck arid Talib Hussain gave him knife blows on his back, buttocks etc. Muhammad Shahbaz P. W. 4, brother of the deceased, Muhammad Tariq P. W. 6 and Muhammad Mumtaz (given tip at the trial as unnecessary) were present nearby. They rushed to the spot and apprehended Muhammad Siddique alongwith the chhuri. Talib Hussain and Muhammad Shafiq, however, succeeded in making good their escape.

5. Muhammad Shahbaz P. W. 4. leaving Muhammad Siddique appellant in the custody of Muhammad Tariq and Muhammad Mumtaz P. Ws. took the deceased in an injured condition to the hospital. However, on reaching the hospital, the deceased succumbed to the injuries before any medical, aid could be provided to him. Muhammad Shabbaz P. W. then left for Police Station City Sargodha and on reaching there lodged the F. I. R. Exh. P. D.

6. Sub-Inspector Ghulam Muhammad P. W. 7 investigated the case. After recording the F. I. R., he rushed to the spot. Muhammad Siddique appellant was present there in the custody of Muhammad Tariq and Muhammad Mumtaz P. Ws. The S. I. arrested' him. Muhammad Tariq P. W. produced blood-stained chhuri P. 3 which had been earlier snatched ' from Muhammad Siddique appellant. The S.-I. took it into possession vide memo. Exh. P. F. and made it into a sealed parcel. The S. I. also collected from the spot blood-stained earth vide memo. Exh. P. G. and made it into a sealed parcel. Both the memoranda were attested by Muhammad Tariq P. W. 6 and Muhammad Mumtaz P. W. (nor produced). The S.-I. then proceeded to the hospital and on reaching there prepared injury statement Exh. P. H. and inquest report Exh. P. J in respect of the dead body of the deceased and despatched the same to the mortuary for post-mortem examination. The S.-I. arrested Talib Hussain and Muhammad Shafiq on 26th May, 1979. On the same date, Talib Hussain appellant while in custody led to the recovery of blood-stained knife P. 4 from his house. The S.-I. took it into possession vide memo. Exh. P. E. and sealed it into a parcel. This memo was attested by Muhammad Shahbaz P. W. 4 and Muhammad Tariq P. W.

6. According to the report Exh. P. K. of the Chemical Examiner and the report Exh. P. L. of the Serologist, the chhuri, the knife and the earth were stained with human blood. On the finalization of the investigation, the appellants and their acquitted co-accused were challaned. Dr. Mazhar Rashid P. W. 1 conducted autopsy on the dead body of the deceased on 26th May, 1979 at 8-30 a. m. and observed the following injuries: - (1) Incised wound 11 c.m. x 1 c.m. on the right check upper part. (2) Incised wound 1 c.m. x 1 c.m. on the right chest upper part. (3) Incised wound 3 c.m. x 2 c.m. going deep on the outer side of right chest lower part going in the abdomen. (4) Incised wound 2 c.m. x 1 c.m. on the back of chest in its middle. (5) Incised wound 2 c.m. x l c.m. on the back just above the left buttock. (6) Incised wound 2 c.m. x 1 c.m. on the right knee-joint. (7) Incised wound 3 c.m. x 1 c.m. on the back of left chest in the scapular region. (8) Abrasion 1 c.m. x 1 c.m. on the front of left knee-joint.

8. In the opinion of the Medical Officer, injuries Nos. 1 to 7 were caused with sharp-edged or cutting weapon and injury No. 8 with blunt weapon. Injury No. 3 alone was sufficient to cause death in the ordinary course of nature as it resulted into severe internal haemorrhage and shock. The probable interval between the injuries and the death was within one hour and between the death and the post-mortem examination within 24 hours. Exh. P. A. is the post-mortem examination report.

9. The appellants and their acquitted co-accused pleaded not guilty to the charge framed against them under sections 302/34, P. P. C. When examined under section 342, Cr. P: C., they denied the prosecution case and the recovery of blood-stained chhuri and blood-stained knife ascribed to Muhammad Siddique and Talib Hussain appellants respectively. According to Muhammad Siddique appellant, he had joined the police investigation like many other boys of his Block and other Blocks. He further stated that-he had appeared before the police at Ishawela on the day of occurrence. All of them pleaded innocence saying that they had been involved due to suspicion. Out of them, Muhammad Siddique appellant examined in defence Moharrir Constable Nazar Muhammad D. W.

1. He proved an F. I. R., which was recorded at Police Station, City Sargodha on 5th November, 1978 on the statement of one Abdul Hamid, whereby a case under section 325, P. P. C. was registered against the deceased and Muhammad Shahbaz P. W. However, none of the appellants and their acquitted co-accused was concerned with this case. No other evidence was adduced in defence.

10. Muhammad Shahbaz P. W. 4 was examined in support of the motive. He deposed that a month before the occurrence, the deceased was carrying a wallet which contained a photograph of a boy and two grams of gold. Muhammad Siddique appellant desired to see the photograph. After some reluctance, the deceased allowed him. The appellant while seeing the photograph, removed two grams of gold from the wellset. The deceased continued demanding the return of the gold but the appel lant did not return the same. About eight days prior to the occur rence, the appellant told the deceased that he would return him the gold if he had homosexual relation with him. The deceased disclosed this to his father who complained about it to Saleem, brother of the appellant. Saleem reprimanded the appellant and turned him out of his house. The appellant felt offended against the deceased on this account. In his cross-examination, he admitted that he was not present when his father complaint against the misconduct of Muhammad Siddique to his brother. The learned counsel for the appellant has argued that the statement of Muhammad Shabbaz P. W. to the extent that the father of the deceased complained against the misconduct of the appellant to his brother and the brother of the appellant reprimanded him and turned him out of his house is inadmissible being hearsay. Even if this part of the testimony of Muhammad Shahbaz P. W. is excluded from consideration on the ground of it being hearsay, it would not render the entire prosecution case as dubious if it is substantiated by other evidence on record. In regard to the remaining testimony of Muhammad Shahbaz P. W. on the motive, no serious exception has taken to its veracity.

11. As regards the occurrence, its ocular account was furnished by Muhammad Shabbaz P. W. 4 and Muhammad Tariq P. W.

6. They stated that on the day of occurrence at 2-30 p. m. they were standing under the shade of a Bohar tree in Block No.

25. Muhammad Mumtaz P. W. (not produced) also was present there at some distance. At that time, the deceased was going towards his house. When he reached in front of the shop of lqbal Paan Farosh, the appellants and their acquitted co-accused attacked him. Muhammad Siddique appellant gave him chhuri blows on the cheek and right side of chest and flank. Muhammad Shafiq caught hold of him from his neck when Talib Hussain appellant inflicted on him knife blows on his back and buttocks. They and Muhammad Mumtaz P. W. (not produced) rushed to the spot. They apprehended Muhammad Siddique appellant there and Muhammad Tariq P. W. snatched blood-stained chhuri P. 3 from him. Talib Hussain and Muhammad Shafiq managed to run away. The deceased was taken in an injured condition to the hospital where he died. On the arrival of the police at the spot, Muhammad Siddique appellant alongwith the chhuri was produced and he was arrested. Muhammad Shahbaz P. W. 4 is the brother of the deceased but he had no animus or malice to falsely implicate the appellants. Muhammad Tariq P. W. 6 was an independent and disinterested witness. He had neither relationship with the deceased nor any enmity against the appellants. Both were residents of Block No. 25 where the occurrence took place. They explained their presence at the spot at the time of occurrence. Their explanation did not bristle with any infirmity. In spite of lengthy cross-examination to which they were subjected, their credibility remained unimpaired.

12. Muhammad Tariq P. W. deposed that when the Sub-Inspector arrived at the spot, he produced Muhammad Siddique appellant and blood-stained chhuri P. 3 wrested from him earlier and the Sub-Inspector arrested the appellant and took the chhuri into possession vide memo. Exh. P. F. Muhammad Shahbaz and Muhammad Tariq P. Ws: further stated that on the next day of 'the occurrence Talib Hussain appellant while in custody led to the recovery of blood-stained knife P. 4 from his house and the S.-I. took it into possession vide memo. Exh. P. E. Their statements corroborated the testimony of Sub-Inspector Ghulam Muhammad P. W. 7 who effected the recoveries. These recoveries amply augmented the ocular evidence.

13. The medical evidence provided by Dr. Mazhar Rashid P. W. 1 who conducted autopsy on the dead body of the deceased lent further 'support to the ocular account.

14. The above evidence proves beyond any doubt that the deceased died as a result of the injuries which were caused to him by Muhammad Siddique and Talib Hussain appellants with their respective weapons viz. chhuri P. 3 and knife P.

4. The learned counsel for the appellants have not assailed this inevitable conclusion. On behalf of Muhammad Siddique appellant, his learned counsel has argued that his offence does not fall under section 302, P. P. C. as he had no deep-rooted enmity against the deceased and the nature of the injuries ascribed to him indicates that he had no intention to kill him. According to him, this was a sudden and unpremeditated affair and the circumstance which precipitated the same is shrouded in mystery. As regards Talib Hussain appellant, his learned counsel has contended that since no motive at all was attributed to him and the injuries attributed to him were simple in nature, his offence falls under section 324, P. P. C. These arguments have not impressed us. The manner in which both the appellants collaborated in attacking the deceased and caused him injuries including one which was individually fatal unmistakably manifest that they intended to kill him. Therefore, the learned trial Court was perfectly justified in invoking their conviction under section 302/34, P. P. C.

15. As mentioned earlier, Muhammad Shahbaz P. W., who is the complainant and the brother of the deceased, filed a revision petition against the acquittal of Muhammad Shafiq and for enhancement of the sentence awarded to the appellants. When the appeals and the revision petition came up for hearing, the complainant filed an application withdrawing his revision petition and praying for its dismissal. It was stated in the application that the parties had entered into a compromise out of Court and the petitioner did not want to further pursue the matter. It was also stated that after local investigation it appeared to be a sudden and unpremeditated flare up and it really could not be said with certainty as to who gave which injury. The petitioner as well as the father of the deceased also appeared in this Court and on a query they confirmed having entered into the compromise. It has been strenuously pressed b the learned counsel that in view of the compromise the offence of the appellants may be converted from one under section 302, P. P. C. to that under section 304, Part II, P. P. C. and their sentence reduced to that already undergone. However, we have not felt persuaded to agree to it. Facts cannot be perverted nor law circumvented is order to give effect t a compromise in a case in which the evidence on record establishes beyond any iota of doubt the commission of an offence under section 302, P. P. C. The indulgence as sought could be shown if a reasonable inference could be drawn from the material on record and the ambient circumstances that the offence committed by the appellants was covered by any of the Exceptions to section 300, P. P. C. The only benefit which can at the most be derived from the compromise is the alteration of the sentence of death imposed on Muhammad Siddique appellant to imprisonment for life and the remission of fine awarded to both the appellants.

16. In the result, the conviction of the appellants under section 302/34, P. P. C. is maintained. However, in view o: the compro mise, the sentence of death awarded to Muhammad Siddique appellant is altered to imprisonment for life and the sentence of fine imposed on both the appellants is remitted. Accordingly, the sentence of death is not confirmed. With this alteration in the sentence, the appeals preferred by Muhammad Siddique and Talib Hussain appellants are dismissed. The revision petition is also dismissed as withdrawn.

17. While computing the period of sentence for imprisonment for life awarded to both the appellants, the jail authorities shall give them benefit of the provisions of section 382-B, Cr. P. C. M. Z. M. Death sentence not confirmed.