1990 P Cr (PLP)

Hafiz Ghulam Bari for the State. Date of hearing: 26th November, 1989. Attiq Ahmad appellant and his brother Shafiq Ahmad were tried for the: murder of Shaukat All deceased, the brother of Liaqat complainant (P.W.4) and vide judgment, dated 13-2-1980 the learned Additional Sessions Judge, Lahore, convicted the appellant for the offence under section 304, Part lI, P.P.C. and sentenced him to undergo five years' R.I. and a fine of Rs.2,000 or in default thereof six months' R.1. while the co-accused was acquitted. The convict has come up in appeal.

2. Liaqat complainant (P.W.4) met Sanaullah, S.H.O. (P.W.7) on 7-6-1979 and made a statement (Exh.P.C.) which was sent to the police station where formal F.I.R. (Exh.P.C./1) was registered by Muhammad Ramzan, A.S.I. (P.W.3) at 12-05 a.m. on 8-6-1979.

3. The version given in the F.I.R. was that when the complainant returned to his house in the evening after the day's job and Mannah and Ghulam Mustafa (given up P.Ws.) were present with him, the appellant came and informed them that Barkat Ali (the deceased) had stolen their Rs.600 and took them along as, according to him (the appellant) Shaukat was calling him (the complainant). When they reached the house of the appellant, the deceased was lying in a room in their house and the appellant and his co-accused told that he had stolen Rs.600 and he be inquired about it. The deceased was lying injured and his condition was serious, inasmuch as he could not walk. He was supported along by the complainant to his house. Attiq Ahmad appellant also accompanied them. On the way, he told that Attiq etc. had injured him. At the house he soon expired.

4. Sanaullah, S.H.O. (P.W.7), after recording the statement (Exh.P.C.) of the complainant sent it to the police station and reached the house of the complainant where the dead body of Shaukat was lying. He prepared its injury statement and the inquest report (Exhs.P.K. and P.L.) and despatched the dead body for post-mortem examination. At 5-30 a.m. on 8-6-1979 he raided the house of the appellant but none was present there. Brush, Koochi, two tins of different sizes, Tesi and Kaandi (P.4 to P.9) belonging to the deceased, were lying in the Verandah of their house which were identified by the complainant. These were identified by the complainant as belonging to his brother and were taken into possession vide memo. Exh.P.D. Both the accused were arrested by him on 11-6-1979.

5. Dr. Sabir Ali (P.W.6) performed the post-mortem examination on the dead body of the deceased at 11-45 a.m. on 9-6-1979. He observed as many as fourteen injuries on all parts of the body, which, according to the doctor, had resulted collectively in shock and death of the deceased. These were opined to be by blunt object which was possibly of flexible nature.

6. The charge against the appellant was concluded by the learned trial Judge on the basis of the medical evidence, the investigation and the statement of Liaqat complainant.

7. Learned counsel for the appellant contended that the bare statement of the complainant was not sufficient to clinch the matter against the appellant, particularly when he had not seen the occurrence nor had he deposed as an eye witness. On the face of it, the argument looks forceful. But after going through the statements of the complainant, the doctor and Sanaullah, S.H.O., the investigator, coupled with the defence plea raised, no doubt is left that it was the appellant who was responsible for the homocide of the deceased. Liaqat complainant is an independent, disinterested and natural witness and his statement rings nothing but true. He is an ordinary mason while his deceased brother was a painter and white-washer. The articles of daily use of the deceased were recovered from the house of the appellant, as stated to by the complainant and the investigator, and there is no reason to doubt the same. Liaqat complainant corroborated the version given in the F.I.R. that when he returned to the house at 7 p.m. Attiq appellant reached him alongwith two other persons and told him that he was sent by the deceased. Mannah and Ghulam Mustafa (given up P.Ws.) were present with him and he accompanied the appellant alongwith them to his house in Sheraz Park. Shaukat was lying on a cot with injuries on his person. The appellant told him that the deceased had stolen their Rs.600 and that he should be inquired about that. They started taking away the deceased to their house and he told them on the way that he was given merciless beating by the appellant and his co-accused with Dandas. Attiqne appellant also accompanied them. On reaching the house, he soon expired, whereafter he reported the matter to the police. In cross-examination he told that the mother of the appellant was also present at the house, they stayed there for about five minutes and ,the appellant accompanied, them when the deceased was taken along to his own house and then left. He clearly stated that he started weeping at about 8 p.m. after Shaukat deceased had died and persons collected. He was frank enough to say that since they had no apprehension that the deceased would die as a result of the injuries, he did not apprehend the appellant and that was also the reason that he did not cry before 8 p.m. He also deposed that since he was in deep shock, it did not occur to him to report the matter to the police at once. He admitted that Siraj Din and Karam Din were his neighbours, but denied that at their instance he had involved the appellant and his co-accused. This is the defence plea raised at the close of the trial. But what enmity these two neighbours had with the appellant is not specifically brought out in cross-examination of the complainant B nor elucidated in defence. The statement of the complainant was thus correctly believed. The deceased was injured at the house of the appellant as he was suspected of having stolen Rs.fi

00. The complainant was called by the appellant and from the house of the appellant the deceased was taken to his own house where he expired, and while being taken to the house he informed that he had been injured by the appellant and his co-accused. The learned trial Judge acquitted the co-accused as he was not specifically named in the F.I.R., though so named in the statement at the trial. This was considered an improvement. The benefit of doubt to the co-accused rightly seems to have been extended, but a against the appellant the charge was correctly held to be proved.

8. Resultantly, I see no force in the appeal which fails and is dismissed. But in the circumstances of the case, a sentence of three years' R.I. with a fine of t Rs.5,000 or in default thereof one year's further R.I. would meet the ends of justice. I order accordingly. The whole of the fine, if realized, shall be paid to the heirs of the deceased as compensation. The appellant would have the benefit of the provisions of section 382-B, Cr.P.C. N.H.Q./A-883/L Order accordingly.