1993 P Cr (PLP)

SH. MUHAMMAD ZUBAIR, J.

Ghulam Rasul and Fazal Ahmad were tried under section 302/324/34, P.P.C. by the learned Additional Sessions Judge, Faisalabad, for the murder of Muhammad Arshad and for causing a simple injury to Mushtaq Ahmad (P.W.11). The learned trial Judge vide his judgment, dated 18-2-1991, acquitted Fazal Ahmad of the charge, but convicted Ghulam Rasul under sections 302 and 324 (old), P.P.C. Under section 302, P.P.C, Ghulam Rasul was sentenced to death and fine of Rs.10,000 or in default to undergo R.I. for one year. Half of the fine if realised, was ordered to be paid to the legal heirs of the deceased as compensation, and under, section 324, P.P.C. he was sentenced to two years' R.I. The convict has appealed and the learned trial Judge has referred the case to this Court under section 374, Cr.P.C. for confirmation of death sentence awarded to Ghulam Rasul. We propose to dispose of both the matters by this judgment.

2. Din Muhammad (P.W.10) lodged report Exh.P.G. at Police Station Sadar, Faisalabad, alleging therein that on the fateful day, he accompanied by Muhammad Arshad deceased. Mushtaq Ahmad (P.W.11) and Tahir Mahmood (not produced), came out of the mosque after offering their Maghrab prayer. When they reached in front of the shop of Ghulam Rasul appellant, then the appellant armed with a Chhuri and Fazal Ahmad (since acquitted) empty handed came out of the shop while raising Lalkara. Fazal Ahmad took Mushtaq Ahmad P.W. in his clasp, whereas the appellant gave a Chhuri blow to Muhammad Arshad, which landed on the left side of his chest, I hereafter, the appellant also caused an injury with the Chhuri on the chest of Mushtaq Ahmad P.W. On receipt of injury Muhammad Arshad fell on the ground and breathed his last at the spot and the assailants decamped from the scene. As for the motive, it is alleged that a few days prior to the occurrence, the appellant had rented a VCR from the deceased, but did not pay its rent, which resulted into exchange of hot words between the two. The appellant threatened the deceased of dire consequences and this motivated the present occurrence.

3. Leaving the dead body of Muhammad Arshad at the spot, Din Muhammad P.W.10 went to Police Station Sadar Faisalabad, where on `"is statement F.I.R. Exh.P.G. was recorded by Khalid Mukhtar S.I. (P.W.12). He then proceeded to the spot, prepared the injury statement Exh.P.H. d inquest report Exh.P.J. of Muhammad Arshad deceased and sent the dead body to the mortuary for post-mortem examination. He also prepared that injury statement Exh.P.L. of Mushtaq Ahmad P.W. and got him medically examined. He also took into possession blood-stained earth from the spot vide memo. Exh.P.C. Thereafter the investigation was taken over by Inamullah S.I./S.H.O. (P.W.13). He took into possession the last worn clothes P.1 and P.2 of the deceased vide memo. Exh.P.D. He got prepared the site plan Exh.P.B. and Exh.P.B./1 by Aurangzeb, Draftsman (P.W.2). He arrested the appellant on 7-6-1989, who led to the recovery of blood-stained Chhuri P.3 from his house, which was taken into possession vide memo. Exh.P.F. After completing legal formalities, the Sub-Inspector submitted the challan in the Court.

4. Dr. Abdul Sattar (P.W.1) conducted post-mortem examination of the dead body of Muhammad Arshad deceased and found a stab wound, 2 c.m.; 1 c.m., 7 c.m. from left nipple at 4'o clock position on anterior axillary line of left side of chest. In the opinion of the doctor death was due to haemorrhage and shock due to the said injury which was ante-mortem, caused by a sharp-edged and pointed weapon and was sufficient to cause death in the ordinary course of nature. Dr. Masood Iqbal Bukhari (P.W.2) examined Mushtaq Ahmad P.W. and found a stab wound, 1.5 c.m. x 1/2 c.m. on front of chest on right side, 10 c.m. above obliquely from right nipple.

5. The appellant in his statement under section 342, Cr.P.C. denied the prosecution allegations, professed innocence and in answer to question No.12, "why this case against you?" deposed as under:-- "I have been involved falsely in this case. I had abused Faqir Muhammad, real brother of Mushtaq Ahmad P.W. and a cousin brother of the complainant and threatened him with dire consequences. At the time of occurrence I was present in my shop all alone when Muhammad Arshad deceased came there armed with a Chhuri and launched attack upon me saying that he would teach me a lesson for abusing Faqir Muhammad. Muhammad Arshad deceased attempted to cause a Chhuri blow on me but I was able to save myself from that blow and picked up a Chhuri from a table lying in the shop and gave him a single blow in order to save myself. I did not cause any further injury to Arshad deceased. I also did not cause any injury to Mushtaq Ahmad P.W. as he was not present at the spot." No evidence was produced in defence.

6. Believing the prosecution evidence, the learned trial Judge convicted and sentenced the appellant, as indicated above.

7. The learned counsel for the appellant vehemently contended that both the eye-witnesses besides being the close relations of the deceased are the chance witnesses of the occurrence and they had no apparent reason to be present at the relevant time at the scene. He further submitted that the medical evidence belies the ocular version. The motive, though set up, was not proved; hence it adversely reflected upon the prosecution case, as a whole. The case is of two versions and the learned trial Judge has not properly examined the defence version, which has resulted into miscarriage of justice. In the end, learned counsel submitted that as the immediate cause of occurrence is shrouded in mystery, hence the sentence of death needs consideration and it may be reduced to imprisonment for life.

8. The learned counsel for the State has supported the judgment.

9. We have gone through the evidence carefully with the assistance of the learned counsel and have considered their respective submissions critically. Admittedly it is a case of two versions, one version has been put forth by the prosecution whereas the other version has been advanced by the appellant in his statement under section 342, Cr.P.C. Both the eye-witnesses, namely, Din Muhammad P.W.10 and Mushtaq Ahmad P.W.11, no doubt, are related to the deceased, but in the absence of any enmity on the record, we find no legal justification to discard their straightforward and confidence-inspiring evidence, especially when their evidence is getting ample support from the medical evidence. Mushtaq Ahmad P.W.11 received an injury on hiss person in the occurrence, hence his presence cannot be disputed. The learned counsel for the appellant has half-heartedly urged that the injury of Mushtaq Ahmad P.W. is self-suffered, as neither the doctor gave the time of his arrival in the hospital nor he gage the duration of the injury in the medico-legal report. We have examined this aspect carefully and we find that in the absence of any malice on the part of the doctor if something is negligently omitted by him that would not mean that this injury was fabricated one when dismension of the E injury shows that it was by a sharp-cutting edged weapon, i.e. dagger-cum Chhuri P.3, recovered at the instance of the appellant and was found to be stained with human blood. We have examined the defence plea taken up by the appellant. It seems to be an afterthought and ludicrous. Had the deceased been armed with IC a dagger, then the appellant might have received some injuries on his person. On the contrary, we find that the appellant caused an injury to the deceased as well as to Mushtaq Ahmad P.W. Both of them were young and healthy persons; hence we find no merits in this appeal, which is accordingly dismissed.

10. We have given our anxious consideration to this aspect of the case whether the sentence of the appellant needs consideration or not, especially, in view of the fact that in motive was not properly proved in this case and immediate cause of occurrence is shrouded in mystery. We find that Din Muhammad P.W.10 was not in the direct knowledge of loaning of the VCR by the deceased to the appellant and Abdul Qayyum, who could give direct evidence of the motive was not produced by the prosecution. Even the register maintained by the video shop owner was not produced in the Court. In the presence of the material discussed above, we find, the immediate cause of murder remained shrouded in mystery, the possibility cannot be ruled out that some untoward incident took place between the parties prior to the occurrence, which led to this tragedy, hence the sentence of death is not called for, so while maintaining the conviction of the appellant under section 302, P.P.C. we reduce his sentence from death to imprisonment for life and the sentence of fine is maintained. The sentence of the appellant under section 324, P.P.C. is also maintained. It is ordered that both the sentences shall run concurrently. Benefit of section 382-B, Cr.P.C. is also given to the appellant. As the sentence of death has not been confirmed, so the reference is rejected. N.H.Q./G-242/L Sentence reduced.