1985 PLP 11 (MLD)

Mehr Din, Muhammad Iqbal and Jahangir were tried by an Additional Sessions Judge of Sialkot under section 302/34, P.P.C., for the murder of Maqbool Ahmad, deceased, and convicted under the said section and sentenced to life imprisonment each with a fine of Rupees Ten Thousand (10,000) each or, in default thereof, to undergo further rigorous imprisonment for a period of three years each. Half of the fine, if realized from the accused, was ordered to be paid to the legal heirs of Maqbool Ahmad, deceased, as compensation. The joint appeal Cr.A.88 of 1982 preferred by the convicts against their conviction and sentence and the private revision (Cr.R.135 of 1982) filed by Muhammad Shafi, complainant, for the enhancement of the sentences of the three convicts, are both now before me for disposal.

2. The brief facts of the case are that on 8th July, 1981 at about 3.00 p.m. Maqbool Ahmad, deceased, was proceeding towards his Dera from his house. As soon as he reached in the vicinity of his Dera, Muhammad Iqbal and Muhammad Jahangir accused, armed with Chhuris, and Mehr Din accused, empty handed, suddenly appeared there. Mehr Din, accused, shouted Lalkara and exhorted his co-accused not to spare the life of Maqbool Ahmad, deceased, but to avenge the disgrace he had meted out to Muhammad Iqbal, accused on the previous day. Thereupon, Muhammad Iqbal and Jahangir, accused, rushed to make a murderous assault upon Maqbool Ahmad, deceased, who tried to run away and escape, but was overtaken by the accused in the Jowar field of Muhammad Khan. Muhammad Iqbal, accused, inflicted a Chhuri blow on the left shoulder of Maqbool Ahmad, deceased, while Jahangir, accused, inflicted a Chhuri blow in his abdomen. Maqbool Ahmad, deceased, fell down on the ground injured and succumbed to his injuries there and then. The incident was witnessed by Muhammad Shafi complainant P.W.1, Khushi Muhammad P.W. 2 and Mumtaz Ahmad P.W.3. The motive for the commission of the crime was that on 7th July 1981, Muhammad Iqbal, accused, had brought his cattle to the pond of the complainant, whereafter they trespassed to his Khurlis (mangers). Maqbool Ahmad, deceased, reprimanded Muhammad Iqbal, accused, in respect thereof, who hurled abuses at him. Thereupon, Maqbool Ahmad, deceased, gave him fist blows, Muhammad Iqbal, accused, while leaving the place, announced that he would avenge his disgrace.

3. Muhammad Shafi complainant P.W.1 thereafter proceeded to Police Station Daska, where he lodged F. I. R. Exh.P.A at 4-00 p. m., which was recorded by Abdul Haq A.S.I P.W.9. The Investigating Officer then proceeded to the spot, from where he recovered blood-stained earth vide memo. P. B.

4. On 9-7-1981 at 10.30 a.m. Dr. Syed Sohail Hassan P.W.6 conducted the post-mortem examination on the dead body of Maqbool Ahmad, deceased, and found an incised wound 3 c.m. x 11 c.m. on the back of left shoulder, muscle deep, and a stab wound 5 c.m. x 2 c.m. on the upper part of right abdomen, with omentum protruding out. The injury in the abdomen was held to be fatal.

5. On 12-7-1981, all the three accused were arrested by Ghulam Sarwar S.I. P.W.8.

6. On 16-7-1981 Muhammad Iqbal and Muhammad Jahangir, accused, led to the recovery of blood-stained Chhuris P.1 and P.2, which were taken into possession vide memos. P.C. and P.D. respectively, in the presence of Muhammad Ibrahim P.W.4, Ghulam Sarwar S.I. P.W.8 and Muhammad Khan (given up P.W.)

7. At the trial, Mehr Din, accused, denied his participation and imputed his false involvement to enmity with the prosecution witnesses. Muhammad Iqbal and Muhammad Jahangir, accused, however, admitted having killed Maqbool Ahmad, deceased, but in different circumstances. The version given by Muhammad Iqbal in his defence may be reproduced here with advantage: "I am innocent. On the day of occurrence, at about 3.00 p.m. Maqbool Ahmad, deceased, made attempt to commit rape on the person of Mst. Zohra, wife of Salam, son of Mehr Din, co-accused. She raised alarm, whereupon I and my co-accused, Jahangir, were attracted at that time, Maqbool Ahmad, deceased, was armed with a Chhuri. We grappled with Maqbool Ahmad, deceased, so as to rescue Mst. Zohra from him. I gave him fist was. He fell down and so Maqbool Ahmad suffered injury in his abdomen with his own Chhuri, Jahangir, co-accused, picked up that Chhuri and gave a blow therewith on his left should. As b matter of fact, Maqbool Ahmad earlier fell on the ground on the receipt of a head blow from Jahangir, co-accused. Maqbool Ahmad died on the spot by that injury, which was the house of Muhammad Salem.

8. The learned trial Judge placing in juxtaposition the of the prosecution and that of defence, held the case of the prospect, in to be proved, He accordingly convicted and sentenced all the three accused, as stated in para. 1 above.

9. I have heard the arguments of the learned counsel for the appellants, the complainant and the State and have also pre4red the record. The case of the prosecution is supported by the evidence of Muhammad Shafi P.W.1, Khushi Muhammad P.W.2 and Mumlet Ahmad P.W.3, which version is given in para. 2 above and net's not be repeated. The case of the defence is supported by the statements of Muhammad Iqbal and Muhammad Jahangir appellants, which were stands recorded in para. 7 above and need not be repeated. The only question therefore, that arises is whether, after placing in juxtaposition the case of the prosecution and that of the defence, the evidence on the record proves the case of the prosecution beyond any shadow of doubt or leads to the reasonable inference that the defence version is true or reasonable probable. The prosecution story is furnished by Muhammad Shafi P.W.1, Khushi Muhammad P.W.2 and Mumtaz Ahmad P.W.3. Muhammad Shafi P.W.1 is the father of the deceased, Khushi Muhammad P.W.2 is the paternal-uncle of the deceased; and Mumtaz Ahmed P.W.3 appears to be a distant relative, he being married to the first cousin of Muhammad Shafi P.W.1. None of the three witnesses have any past enmity or animosity with any of the appellants, so as to falsely involve them on so grave a charge as that of murder. On the date of time of l occurrence, Muhammad Shafi P.W.1 was present at his Dera and sitting on a cot under the shade of a tree about 30 Karams from the place of occurrence. Khushi Muhammad P.W. was also present at his Dera, sitting under the shade of a tree about 17 Karams away from the place of occurrence. Mumtaz Ahmad P.W.3 was ploughing land to the east of the place of occurrence, at a distance of 18/20 Karams. All three of them saw Maqbool Ahmad, deceased, coming towards the Dera, when all of a sudden he was way-laid by the three appellant and a verdurous assault was made on him by two of them. The witnesses she natural and their story is straightforward and convincing and has the ring of truth. As against this, the case of the defence is that Maqbool Ahmad, deceased, came to the house of Salem and tried to rape Mst. Zohra and, on her alarm Muhammad Iqbal and Muhammad Jahangir, appellants, alone came to her rescue. Muhammad Jahangir, appellant, Struck his head against the deceased, while Muhammad Iqbal, appellant eve him fist blows. The deceased fell and got injured in the abdomen with the Chhuri, which he himself had and was wielding. Thereafter, 4uhammad Jahangir, appellant, picked up the Chhuri and gave a blow to him on his left shoulder. The deceased died there and then. Mehr Din, 4Ppellant, was not present. In the first instance, the said case, as pleaded by Muhammad Jahangir and Muhammad Iqbal, appellants, in their statements under section 342, Cr.P.C., was not put in to all the three eye-witnesses. In any case, the statements of Ahmad Khan DSand Mst. Zohra D.W.2 do support the defence version. According to Muhammad Mumtaz P. W.3, Mst. Zohra was aged 45 years, while Maqbool Ahmad, was aged about 20 years. According to the two appellants, the whole occurrence took place in the house of Mst. Zohra, but according to Mst. Zohra D.W.2, and Muhammad Iqbal, Muhammad Jahangir appellants, whilst grappling with Maqbool Ahmad, deceased, emerged out of her house, whereafter the attack was launched. According to her, whilst Muhammad Iqbal and Muhammad Jahangir, appellants, came to her rescue about ten minutes after she raised alarm, no person living in the neighbouring house or from the village came to her rescue, which seems rather strange. According to her version, the deceased grappled with her for about ten minutes and when the two appellants turned up and grappled with him, they also did so for further ten minutes. However, no abrasion or bruise appears on the body of the deceased or on the person of the two appellants. According to her, during the time that the two appellants were grappling with the deceased, the latter was holding a Chhuri, but he did not give any Chhuri blows to them. This is highly unnatural, for if the two appellants had turned up on the alarm raised by Mst. Zohra, the deceased would have immediately apprehended danger to his life at the hands of the assailants and would have injured one or more of them. According to her version Maqbool Ahmad, deceased, suffered an injury in his abdomen in front of her house, and the blood also fell in front of her house. However, the police recovered no blood there. Maqbool Ahmad was fasting during the month of Ramzan, according to statement of Khushi Muhammad P.W.2, and it appears that he would be the last person to enter the house of Mst. Zohra at mid-day in the scorching heat in order to have any amoral relations with her. This is a time when all the menfolk would be in their homes and any amoral adventure would be the last thing a person would think of. The injuries on the deceased are two and one each is attributed to Muhammad Iqbal and Muhammad Jahangir, appellants. If it was a case of grave and sudden provocation, as alleged by the defence, the appellants would not have let of the deceased with two injuries, but would have inflicted more and would have made a pin cushion of, his body. The statement of Ahmad Khan D.S.P. D.W.1 does not in any manner prove the defence version. He did not inspect the spot or collect any further evidence, other than inspect that previously collected by the Police. As admitted by him, he only formed the opinion against the complainant party because of the fact that they had resiled from their agreement regarding the settlement of the disputed points through arbitration and also declined to take the oath on behalf of the State, it is submitted that the complainant party had agreed to the arbitration of Muhammad Ashraf, Muhammad Bashir and Muhammad Yousaf, the three respectables, but later they realized that these three persons had actually smuggled themselves into their camp and set down with them whet, they had appeared before Ahmad Khan D.S.P. D.W.1 and that the accused party had then called upon the complainant party to prove their case by suggesting that if the said three respectables, who belonged to the complainant party, gave a decision, they would abide by the same. It is submitted that on the next day, the complainant party realized that they had been fooled by the said three persons, who had clandestinely sat own with their group, which had gone with them, and that actually they were not well disposed to them, but had friendly relations with the accused party. Accordingly on the next day, they informed Ahmad Khan D.S.P. D.W.1 about the position and told him that they could not place any reliance on these three persons and that D.S.P. should investigate the matter himself. These submissions made by the learned counsel for the State are made on the basis of the police diary, which I cannot take into consideration. However, the fact remains, as admitted by Ahmad Khan D.S.P. D.W.1, that he only came to the conclusion that the prosecution case was untrue because the complainant party had resiled from their agreement and this, I think, is no basis on which I can hold that the defence story stands proved. Ahmad Khan D. S. P. D.W.1 did not inspect the spot or record the statement of any witness. He in fact did not even investigate the case. His finding was rightly brushed aside by the Superintendent of Police, Sialkot, who did not agree with his conclusions. In these circumstances, the defence) version is an after thought and cannot be accepted. Learned counsel has submitted that Sardar son of Qaim Din, the brother of Meher Din, appellant, on 9-7-1981 made a statement before the A.S.P. that both Muhammad Jahangir and Muhammad Iqbal, appellants, were guilty of the crime, whereas Mehr Din, appellant, uttered no Lalkara. Later, however, on 16-7-1981, he first introduced the defence before the police, which was recorded in the Zimni on 16-7-1981, he first introduced the defence before the police, which was recorded in the Zimni on 16-7-1981, and 4he same was then further supported by other witnesses before Ahmad Khan D.S.P. D.W.1 when tie started investigation on 20-10-1981. In fact, I cannot accept matters pointed out to me from the police diary, as these matters were not put to the witnesses in cross- examination. However, as already stated, the defence plea does not ring true and has been rejected by me already. This, therefore, leaves me with the prosecution case, which proves the participation at least of Muhammad Iqbal and Muhammad Jahangir, appellants.

10. The participation of Mehr Din, appellant, appears to be somewhat doubtful. At the time of incident, he was seventy-five years old. Though Mst. Zohra D.W.2 in her cross-examination states that Muhammad Iqbal, appellant, is the grandson of Mehr Din, appellant, yet from the oral statements of the learned counsel for the appellants and the complainant, it appears that Muhammad Iqbal is the grandson of one Ghulam Muhammad, the real brother of Mehr Din, appellant. It was actually Muhammad Iqbal, appellant, who nursed grudge against Maqbool Ahmad, deceased, over the dispute that occurred a day before the occurrence. Muhammad Jahangir, appellant, being roughly of the same age as Muhammad Iqbal, appellant very likely joined the later, but the same cannot be stated for Mehr Din, appellant, who was much more older and least concerned to be involved in some crime. Mehr Din, appellant, therefore, appears to have been falsely involved in the case.

11. The recovery of the blood-stained Chhuris P.1 and P.2 at the instance of Muhammad Iqbal and Muhammad Jahangir, appellants, is proved by Muhammad Ibrahim P.W.4 rind Ghulam Sarwar S.1. P.W.8-. Though Muhammad Ibrahim P.W.4 is distantly related to the complainant party, Ghulam Sarwar P.W. is a totally disinterested witness. Even otherwise, none of the two said witnesses has any enmity with any o the appellants to falsely involve him in the case. .In these circumstances, the recoveries of the blood-stained Chhuris at the instance of Muhammad Iqbal and Muhammad Jahangir, appellants, act as strong confirmatory circumstances to prove their participation.

12. Dr. Syed Sohail Hassan P.W.7 clearly shows that Maqbul Ahmad, deceased, suffered an incised and a stab wound, of the nature which could be caused by Chhuris P.1 and P.2 recovered at the instance of Muhammad Iqbal and Muhammad Jahangir, appellants. The incised wound is 3 c.m. in- length, which corresponds with the blade of the Chhuri P.1 recovered at the instance of Muhammad Iqbal, appellant, which is about 3 c.m: in width. Likewise, the stab wound is 5 c.m.in length, which corresponds with the blade of chhuri P.2 recovered at the instance, of Muhammad Jahangir, appellant, which is about 5 c.m. in width. The medical testimony therefore, corroborates the ocular account.

13. The upshot of the above discussion, is that the motive, the ocular account, the recoveries and the rnedical testimony, conclusively prove the participation of Muhammad Iqbal and Muhammad Jahangir, appellants, in the crime in instance.

14. The only question that remains for determination is the offences committed by both the appellants. Muhammad Iqbal, appellant, alone had the motive to teach a lesson to Maqbool Ahmad for having slapped him the day before the incident. There is no doubt that Muhammad Jahangir, appellant, joined him in the assault. From the statement of the eye-witnesses it is clear that Muhammad Iqbal only inflicted one wound on the left shoulder of the deceased. It seems rather doubtful that he wanted to kill the deceased. Very likely he wanted to cause a grievous injury to the deceased, in order to teach him & lesson. In the attempt however, he made an assault almost akin to an attempt on his life. Muhammad Jahangir, appellant, however far exceeded the intention of his companion even, for he gave a fatal blow in the abdomen of the I deceased, leaving no doubt that he intended to murder the deceased. In these circumstances, the conviction of Iqbal under section 302/34, P.P.C. does not appear to be correct. He is liable under section 307, P.P.C. However the conviction of Muhammad Jahangir, appellant, under section 302, P.P.C., is correct and must be maintained. Muhammad Iqbal, appellant, is therefore, convicted under section 307, P.P.C and he is sentenced to suffer rigorous imprisonment for seven years and shall also pay a fine of Rupees Three Thousand (Rs.3,000) or, in default thereof, to suffer further rigorous imprisonment for a period of one year. The sentence of Muhammad Jahangir, appellant, as impose by the learned trial Judge, is hereby maintained.

15. For the foregoing reasons, the appeal of Mehr Din, appellant, is accepted. His conviction and sentence is set aside. He is on bail. His bail bonds shall stand discharged. Fine, if any recovered from him, shall be refunded to him. The appeal of Muhammad Iqbal, appellant partly succeeds, in terms of alteration of conviction and reduction in sentence, as stated above. The appeal of Muhammad Jahangir, appellant, fails and is dismissed. The benefit of the provisions of section 382-B, Cr.P.C. shall be granted to Muhammad Iqbal and Muhammad Jahangir, appellants.

16. There being no merit in the private revision (Cr. R. 135 of 1982) filed by Muhammad Shafiq, the complainant, the same is dismissed in limine. M. Y. H. Appeal partly accepted.