P L D 1988 Lahore 709 (PLP)

IJAZ NISAR, J.‑‑Muhammad Azeem alias Jeemo son of Abdul Majid (18), Muhammad Jamil alias Jeelo son of Ghulam Muhammad (20), Atiq aliaS Teeqo son of Ghulam Muhammad and Muhammad Ikram son Of Ivlullumuldd Yousaf (24) were tried for the murder of Muhammad Ilyas deceased and for making a murderous assault on Muhammad Siddique P.W.10 and Latafat Ali P.W.11 and for trespassing into the Shop Of Muhammad Hussain P.W.9. Vide judgment dated 11‑5‑1986, the learned Additional Sessions Judge, Gujranwala convicted Muhammad Azeem appellant under section 302, P.P.C. and sentenced him to death Plus a fine of Rs.2,000 or in default to undergo one year R.I. lie was a1sc, directed to pay compensation amounting to Rs.8,000 to the legal heirs of the deceased or to undergo 6 months R.I. in default he was also convicted under section 324, P.P.C. for causing hurt to Siddique and Latafat Ali P.W. and a fine of Rs.200 on each count or U, default to undergo S.I. for one month. He was further directed to pay Rs.300 to each of the above injured as compensation or in default to undergo S.I. for one month. Atiq alias Teeqo was convicted under section 324, P.P.C. for causing hurt to Ilyas deceased and Siddique P.Ws. and Sentenced to pay a fine of Rs.1,000 to each injured or to undergo one month's S.I. He was further directed to pay Rs.1,000 as compensation to the legal heirs of Ilyas deceased and the same amount to Siddique P.W. or in default one month's S.I. for each default. Jamil accused was convicted under section 324, P.P.C. for causing injuries to Ilyas deceased and sentenced to pay a fine of Rs.1,000 or in default to undergo one month's S.I. He was further directed to pay Rs.2,000 as compensation to the legal heirs of Ilyas deceased or to undergo one month's S.I. in default. Muhammad Ikram accused was given the benefit of doubt and acquitted.

2. We have before us reference for confirmation of the death sentence of Muhammad Azeem alias Jeemo. appellant, the appeal filed by him and the Criminal Revision No.620/86 for enhancement of the sentence of Atiq alias Teeqo and Jamil alias Jeelo appellants and for setting aside the acquittal of Muhammad Ikram. All the matters shall be disposed of by this judgment.

3. The occurrence had taken place on 13‑11‑1984 at 5‑30 p.m. in the shop of Muhammad Hussain P.W.9 and the matter was reported to the police by Muhammad Siddique P.W.10 at 7‑25 p.m. Formal F.I.R. Exh. PB/1 was recorded at 7‑25 p.m. on the same day.

4. Azeem, Atiq and Jamil accused were cousins interest while Muhammad Ikram accused (since acquitted) was also related to them.

5. The prosecution case is that Azeem appellant owned Rs.100 to Ilyas deceased which he had demanded from Azeem appellant on the day of occurrence when he visited video shop of Muhammad Hussain P.W.9 where the deceased was employed. This led to an altercation between them and they grappled with each other and were separated by Siddique and Latafat P.Ws. Muhammad Azeem appellant left that place issuing threats to the deceased. After half an hour Muhammad Azeem appellant accompanied by Atiq, Jamil and Muhammad Ikram returned to the spot. Azeem was armed with a dagger, Atiq and Jamil with Churris while Muhammad Ikram (acquitted accused) carried a hockey stick. They trespassed into the shop of Muhammad Hussain P.W. and attacked. the deceased telling him that he shall be taught a lesson for demanding back money from Azeem appellant. Muhammad lkram accused (since acquitted) continued raising Lalkaras while standing outside the shop. Azeem appellant inflicted a dagger blow on the neck of the deceased. He tried to cause another blow which the deceased warded off as a result of which his little finger was hurt. Atiq alias Teeqo also gave a Churri blow to the deceased hitting him near the left flank. Muhammad Siddique and LaTafat F.W5. stepped forward to intervene but Azeem appellant inflicted a dagger blow hitting Muhammad Siddique P.W. on his Left arm. Atiq appellant injured Latafat P.W. on the right arm. Jamil alias Jeelo appellant also, caused a Churri blow to the deceased on the left flank‑ Azeem appellant "' gave a dagger blow on the right thumb of Latafat P.W. Meanwhile, Muhammad Ikram (since acquitted) also came into the shop and gave a stick injury to Latafat P.W. on his head. Muhammad Siddique and Latafat P.Ws. also received injuries while trying to rescue Ilyas deceased. Ilyas fell injured whereupon the accused left the spot. Ilyas was removed to Civil Hospital, Gujranwala where he expired. Muhammad Siddique P.W.10 reported the matter to the police by recording his statement' Exh‑PB to M Muhammad Amir Nawaz the then S. H.

0. P. S. , Kotwali, P. W. 14 which was sent to the police for the formal registration of case. F.I.R. Exh.PB/1 was recorded by Muhammad Anwar A.S.I. on the basis of statement Exh. P.B. Muhammad Amir Nawaz Inspector PW 14 reached Civil Hospital, Gujranwala and prepared the injury statement Exh. PO and the inquest report Exh. PL of Ilyas deceased. Muhammad Siddique and Latafat PWs produced their M.L.Rs. before him. He recorded their statements, On the following day he visited the spot wide collected blood‑stained earth from there. On 14‑11‑1984 he arrested Azeem and Atiq appellants, On 21‑11‑1984 Azeem appellant led to the recovery of blood‑stained dagger P.5 through memo. Exh. PE from his house on the same day, Atiq appellant led to the recovery of Churri P.6 from his house through memo. Exh. PF. On 22‑11‑1984 Jamil appellant led to the recovery of Cnurri P.7 through memo. Exh. PG. The recovery memos. were attested by Pervaiz Asghar PW.6, Muhammad Saeed P.W.7 and Muhammad Amir Nawaz SHO PW.14, Dr. Manzoor Hussain PW.12 conducted autopsy on the dead body of Muhammad Ilyas deceased on 14‑11‑1984 and found the following injuries thereon: (1) Incised wound 2 cm x 1 cm x going deep on the left side on the base of the neck, 5 cm from the midline. (2) Incised wound 2 cm x 1 cm x muscle deep on the eighth intercostal space in the interior axillary line 14, cm below the left nipple in the left lower chest. (3) Scratch 2 cm x 1/6 cm. left lower abdomen on the front. (4) Scratch 5 cm x 1/4 cm inner side of right upper leg lower half . (5) Incised wound 1/3 cm x 1/4 cm x skin deep base of the right little finger on palmer surface,. All the injuries were ante‑mortem and caused by sharp‑edged weapon. Death resulted front shock and haemorrhage due to injury No.l. The probable time between injury and death was within one hour and that between detail and post‑mortem within 24 hours. Dr. Muhammad Asghar PW.8 examined Muhammad Siddique PW. 10 on 13‑11‑1984 and found the following. injuries on his person‑.‑‑ (1) Superficial incised wound 5 cm x 1/10 cm x skin superficial back of left forearm lower part. (2) Superficial incised wound 3 cm x 1/10 cm x skin superficial 1/2 cm inner to injury No.

1. Both the injuries were simple caused by sharp‑edged weapon. On the same day, he medically examined Latafat Ali PW. 11 and found the following injuries on his person:‑ (1) Swelling 4 cm x 4 cm left side of head 7 c.m. from left ear. (2) Superficial incised wound 4 cm x 1/10 cm x skin superficial front and lower part of left forearm. (3) Contusion 4 cm x 3 cm back and middle of right fore‑arm. (4) Abrasion 1/2 cm x 1/2 cm on the right thumb at back near bed of nail. (5) Abrasion 1/2 cm x 1/2 cm on back of right thumb. . Injury No.2 was caused by sharp‑edged weapon and the rest with blunt weapon.

7. The accused pleaded not guilty to the charge and denied the prosecution allegations. Excepting Jamil accused the others denied their presence at the spot. Jamil accused admitted the occurrence stating to have acted in self‑defence. He gave the following explanation: "I am innocent. On the day of occurrence I was passing near the video shop owned by Muhammad Hussain PW where Ilyas deceased was playing games and he demanded an amount of Rs.100 from me to which I replied that I did not owe any money to him and I further told him that if he had any. demand to make from Azeem co‑accused, he should contact him. On this there was exchange of abuses and hot words and we grappled with each other outside the shop. At that time, Ilyas deceased was armed with Churri and he caused injuries to me during the scuffle. While grappling, we went inside the said shop (both). At that time, I had a small knife in my pocket and feeling danger to my life I inflicted injuries to the deceased in self‑defence. My co‑accused were not present at the spot. I was medically examined in the DHQ Hospital, Gujranwala'. Muhammad Ikram accused stated that he was not related to the other accused but they were Mohallehdars. According to him he had been found innocent by the police. Azeem appellant denied that he owed any money to the deceased. Jameel accused produced copies of his M.L.R. Exh. DC and copy Of the F.I.R. Exh. DE and Exh. DD.

8. The prosecution produced 14 witnesses to prove its case. Muhammad Hussain PW.9, Muhammad Siddique PW.10 and Latafat PW.11 furnished the ocular account. Pervaiz Asghar PW.6 and Muhammad Saeed PW.7 testified to the recoveries of the weapons of offence from the accused. Muhammad Amir Nawaz Inspector PW.14 had recorded the F.I.R. and carried out the investigation of the case.

9. Relying on the motive and the ocular testimony the trial Court convicted and sentenced the appellants as described above. The recoveries of weapons of offence were, however, not relied upon by the learned trial Court.

10. It would not be out of place to mention here that Atiq and Jamil appellants who were convicted under section 324, P.P.C. have not filed any appeal and only Azeem has filed the appeal. No appeal has been filed by the State against Jamil, Atiq and Muhamamd Ikram and only a revision has been filed on behalf of Muhammad Siddique PW against their acquittal.

11. It is contended that there are material contradictions in the ocular account and medical evidence and the eye‑witnesses were interested against Azeem appellant and had been disbelieved against M,uhammad,lkram accused (since acquitted).

12. F.I.R. is said to be a spurious document for not having been recorded at the police station. The suppression of injuries of Jamil adversely affects the credibility of the ocular witnesses, it is added.

13. Learned counsel for the defence has not been able to point out any serious contradiction between the medical evidence and the, ocular account. The mere fact that the eye‑witnessed could mot give, the exact location of the injuries caused by the accused will not make material difference because it was not possible to describe the same with exectitude due to the efflux of time but they are consistent' with regard to most of the injuries particularly of the deceased. Being natural witnesses they could be expected to be present at the spot. The presence of injuries on the person of Muhammad Siddique and Latafat P.Ws. proves their presence at the spot. Both had been' medically examined for their injuries which tallied with the injuries of the deceased on the point of duration. Muhammad Hussain P.W.9 is owner of the shop where the occurrence in question had taken place. Latafat PW.11 was playing video at the time of occurrence. He received injuries while trying to intervene. The shop of Muhammad Siddique PW was also close to the shop of Muhammad Hussain where the occurrence in question had taken place. In the face of these circumstances, the presence of the eye‑witnesses at the spot cannot be doubted. They had no previous enmity with the accused so as to falsely implicate them. The motive also stand8 established through the evidence of Muhammad Hussain FW. 9 and Muhammad Siddique PW. 1U. Jamil co‑accused of Azeem appellant stated that the deceased had demanded the money from him and he told him to contact Azeem appellant in this behalf. This snows that the cause of occurrence was the non‑payment of money by Azeem appellant to Ilyas deceased.1 According to the eye‑witnesses shortly before the occurrence Azeeml appellant and Ilyas deceased had quarrelled with each other over the return Of money and that Azeem appellant left that place and returned soon thereafter in the company of his co‑accused variously armed and attacked the deceased telling him that he would be taught a lesson for demanding money. from him. It appears that the story of the first quarrel taking place between Azeem appellant and Ilyas ,deceased and the former going and coming back again in the company of his co‑accused has been introduced so as to deprive Azeem appellant of taking the plea of sudden fight/quarrel or the occurrence being, unpremeditated. In all probability, it appears that Azeem and Jam appellants on one side, Ilyas deceased and the injured eye‑witnesses on the other had quarreled with one another over the non‑payment, of money by Azeem appellant and in the said occurrence both sides injured each other. From the prosecution side 11yas deceased, Muhammad Siddique and Latafat P.Ws. suffered injuries while from the accused side Jamil alias Jeelo suffered injuries, Since there was no previous enmity between the parties and the occurrence was unpremeditated and Azeem appellant had not acted in a cruel or unusual manner the case would fall under section, 3U4, Part 1, P.P‑C instead of section 302, P.P.C. and each appellant would be liable for his individual act. Accordingly the conviction of Azeem alilas Jeemo appellant is altered from section 302, P.P.C. to section 304, Part 1, P.P.C. and he is sentenced to imprisonment for life plus f, fine of Rs.2,000 or in default to undergo one year R.I. Re shall pay compensation of Rs.8,000 to the heirs of Ilyas deceased or in default to undergo 6 months' R.I. His conviction and sentence under section 324, P.P.C. is maintained.

14. The death sentence awarded to Muhammad Azeem alias Jeemo appellant is NOT confirmed.

15. For the reasons discussed above the revision for enhancement. of sentence of Jamil and Atiq appellants and for setting aside the acquittal of Muhammad Ikram fails and is dismissed accordingly. M.Y.H./A‑398/L Revision dismissed.