1986 P Cr (PLP)

3. Abdul Aziz (30) was examined by Dr. A.H. Cheema P.W.6 on 29‑5‑1981, at 9.00 a.m., who found two stab wounds on his person. One stab wound was over epigastric region with mesentry protruding out with profuse bleeding from the wound which was 1 " x x visceral deep. The second injury was a stab wound on the right side of umbilicus 1 " x " x visceral deep. These injuries had beer "used by sharp‑edged weapon and were of about two hours duration. These were kept under observation. Abdul Aziz died in the operation theatre at 11-00 a.m. On the same day, at 2‑00 p.m., Dr. A.H. Cheema P.W.6 conducted post‑mortem examination on the dead body of Abdul Aziz and noted the same injuries as have been stated above. On opening the abdomen, he found that the peritoneum was cut at two places due to stab wounds. Small intestines, mesentry and vessels were found cut. The transverse colon and the ascending colon were also found‑ruptured. Large intestine, mesentry and vessels were also found cut. In the opinion of the Medical Officer, these two injuries caused massive haemorrhage and shock and were individually and collectively sufficient to cause death in the ordinary course of nature. The time between injuries and death was about 4 hours and between death and post‑mortem was about 3 hours. On the same day, at 9‑00 a.m., this Medical Officer examined Qazi Sher Muhammad P.W. aged 55 years and found an incised wound 1 " x x skin deep on left palm. He also noted complain of pain over left shoulder with tenderness on palpation. Injury No.1 was by sharp‑edged weapon. Both these injuries were simple in nature and of two hours duration. Zafar Ali S. I. P.W.3 on 31‑5‑1981 arrested Muhammad Afzal accused. He was on police remand when on 4‑6‑1981, he led to the recovery of blood‑stained knife P.1 from his residential Kotha which was taken in possession by 'the police, vide memo. Exh.P.A. in the presence of Riaz Ahmed P.W.8 and "Abdul Shakoor (given up P.W.). The knife P.1 was found stained with human blood, vide report of Chemical Examiner Exh.P.Q. and that of Serologist Exh.P.R. Faiz Muhammad accused led to the recovery of Sots P.2 on 27‑6‑1961 which was taken in possession vide memo. Exh.P.D. by Muhammad Ashiq A.S.I. (not examined as he died before the trial) in the presence of Ate Muhammad P.W.5 and Faiz Muhammad (given up P.W.). Fazal Muhammad accused got recovered Sots P.3 on 27‑6‑1981 which was taken in possession, vide memo. Exh.P.E. by the police in presence of Ate Muhammad P.W.

5. These two Sotas were not found to be stained with blood. The police after investigation challaned five accused in this case.

4. The prosecution during the trial examined 12 witnesses in all. Farooq Ahmed P.W.9 and Muhammad Bakhsh P.W.10 were examined as the eye‑witnesses. Qazi Sher Muhammad and Rahim Bakhsh were given up as having been won over by the accused. The medical evidence was furnished by Dr. A.H. Cheema P.W.6. The recoveries from the accused were witnessed by Ate Muhammad P.W.5 and Riaz Ahmed P.W.8 as given in detail above. The evidence on motive was furnished by Riaz Ahmed P.W.8. The investigation was conducted by Ashiq All A.S.I. (since dead) and Khalid Masood S.I. P.W.12. The evidence of the rest of the witnesses was of formal nature.

5. The accused when examined under section 342, Cr.P.C. denied the charge and pleaded innocence. They all denied their respective incriminating recoveries. Excepting Muhammad Afzal accused, the other accused denied their presence at the spot. Muhammad Afzal accused made the following statement during the trial:‑- "I am innocent. Abdul Aziz deceased was usually found under the intoxication of liquor as he was a drunkard. We were simply on speaking terms with him and had no cordial relations. Our family passed a good life in the village, but Abdul Aziz deceased was always out to insult us and threw insulting remarks at us. On the day of occurrence in the morning I was going to the Bazar to purchase household articles. At the place of occurrence Qazi Sher Muhammad (given up P.W.) was standing with some other persons. Qazi Sher Muhammad abused me. Abdul Aziz deceased arrived there under the intoxication of liquor as that was the Valeema day of marriage between Mst. Sofia and Riaz Ahmed P.W. Under the intoxication of liquor Abdul Aziz abused me and threw the remarks that I was Be‑ghairat because he had got the person of Mst. Sofia for his brother Riaz Ahmed who both' were living as wife and husband since the previous night and the Valeema shall be enjoyed on that day. I restrained Abdul Aziz from abusing me and saying me Be‑ghairat on which he slapped me. I immediately lost my control and in the heat of passion while under grave provocation brought out the knife and inflicted two injuries in the abdomen of Abdul Aziz. My co-accused are innocent. They have been falsely involved as they are closely related to me as I have stated above. After the occurrence I myself went to P.S. Sadder Rahimyar Khan and narrated the occurrence before Khalid Masood A.S.I. he confined me in the lock‑up. After some time Muhammad Farooq P.W. arrived alongwith his maternal uncle Muhammad Hussain Veeha, Advocate, Rahimyar Khan in the police station. They requested Khalid Masood A.S.I. to close the daily diary of the police and the register of F.I.R. They told that the F.I.R. shall be lodged in the evening. Muhammad Hussain Advocate and others went away alongwith Khalid Masood A.S.I. who came back in the police station in the evening when the F.I.R. was recorded. At the instance of Muhammad Hussain, Advocate 1 was made naked and was given the shoe‑beating." No evidence in, defence was produced .by the accused. The learned trial placed reliance on the evidence of eye‑witnesses, motive, recovery of knife P. 1 and convicted Muhammad Afzal, Muhammad Iqbal and Faiz Muhammad accused. The other two accused were, however acquitted by giving them the benefit of doubt.

6. We have gone through the evidence on the record of this case and have also heard the learned counsel for the appellants at great length. We have also heard the learned counsel for the State and the learned counsel appearing on behalf of the, complainant. It was contended by the learned counsel for the appellants that in view of the cross‑examination and the statement of the accused Muhammad Afzal under section 342, Cr.P.C., he cannot challenge the presence of the two eye‑witnesses at the spot. It was argued by him that Muhammad lqbal and Faiz Muhammad accused were not present at the spot and that Muhammad Afzal accused acted in the right of his, private defence and as such, in the facts and circumstances of this case could, at the most, be held guilty under section 304 (I) P.P.C. He argued that there were mitigating circumstances to justify a lesser punishment to Muhammad Afzal appellant. He pointed out 'that Muhammad Afzal accused acted in heat of passion; that Abdul Aziz deceased was not the direct target of attack; that Abdul Aziz was given blows when he went forward towards the accused; and finally that Muhammad Afzal accused did not inflict any injury on Abdul Aziz after he had fallen on the ground. The learned counsel for the appellants, placed reliance on Muhammad Saleem v. The 'State 1972 8 C M R 249; Din Muhammad and others v. The State 1984 S C M R 1363 and Muhammad Mukhdoom and another v. the State 1984 S C M R 837 in support of his arguments. The learned counsel for the State as well as the learned counsel for the complainant controverted the contentions on behalf of the appellants.

7. The occurrence in the instant case took place in front of the house of Abdul Aziz deceased. According to the site plan, the four‑walls of the said house were only 5 Karams away. The parties are related to each other. On 28‑5‑1981, the Rukhsati of Mst. Safia took place and she was brought to the house of Riaz Ahmed P.W.8 and the Walima reception was due to be held on the day of occurrence. The Nikah had earlier been performed about 5/6 months before the present occurrence, admittedly to the annoyance of the accused. Mst. Safia was earlier married to Rashid, a brother of Ghulam Qadir accused. She was divorced whereafter she was given in marriage to Riaz Ahmed P.W., a brother of Abdul Aziz deceased. It appears that Ghulam Qadir etc. accused who were residing close to the house of Abdul Aziz, did not like this marriage. According to the prosecution, Farooq Ahmed P.W.9, Muhammad Bakhsh P.W.10 and Qazi Sher Muhammad (given up P.W.) were present outside the house of deceased when the accused went there armed and picked up quarrel with Qazi Sher Muhammad which attracted Abdul Aziz deceased and Rahim Bakhsh (given up P.W.). The accused Muhammad Afzal admitted the presence of some persons at the spot though he gave his own version of the occurrence. On a perusal of the evidence of Farooq Ahmed and Muhammad Bakhsh P.Ws., we find that these two witnesses were the natural witnesses. Farooq Ahmed P.W was residing in a nearby house alongwith his father Abdul Aziz deceased. Muhammad Bakhsh P. W. had gone there to attend the marriage and Walima reception of Riaz Ahmed. Qazi Sher Muhammad and Rahim Bakhsh (both given up P.Ws.) were also present there in connection with the said marriage. The presence of Qazi Sher Muhammad is further established by the injuries on his person. As stated above, their presence was not disputed by the accused in cross‑examination of P.Ws. during the trial and by the learned counsel for the appellants during his arguments. The place of occurrence is at some distance from the house of the accused: They had no right to come armed to a place near the house of Abdul Aziz deceased at the time of occurrence. They were not happy over the marriage of Riaz Ahmad P.W. with Mst. Safia which was arranged by Abdul Aziz deceased with the help of Qazi Sher Muhammad (given up P.W.). Thus, the accused felt annoyed when Mst. Safia was brought to the house of Riaz Ahmed, a day earlier. We have considered the points urged by the learned counsel for the appellants in support of his plea for lesser punishment to Muhammad Afzal appellant. According to the eye‑witnesses, Abdul Aziz deceased had come to the spot empty‑handed in order to intervene in the fight between the accused and Qazi Sher Muhammad (given up P.W.). It cannot, therefore, be said that the accused inflicted him injuries in the heat of passion or at a time when the ‑deceased allegedly gave slap on the face of Muhammad Afzal accused. There is nothing to indicate that Abdul Aziz deceased made any gesture which could give rise to any apprehension or provocation in the mind of Muhammad Afzal accused. It were the accused themselves who initiated the trouble in the instant case near the house of Abdul Aziz deceased. It is correct that initially Abdul Aziz was not the target of the accused. They were quarrelling with Qazi Sher Muhammad P.W. only. The fight took place hear the house of Abdul Aziz and as such, he was naturally attracted to the spot. If he had any intention to attack or assault Muhammad Afzal accused or any one of his companions, he must have brought some kind of weapon with him from his own house. We therefore, find that Muhammad Afzal had no apprehension or provocation of any kind which could justify his attack on Abdul Aziz deceased. Muhammad Afzal accused gave two successive blows on the vital, part of the body of the deceased as a result of which he died within four hours of the occurrence. The defence version that Abdul Aziz was liquor addict and was in fact drunk at the time of occurrence is not supported by any circumstance. The occurrence took place at 7‑30 a.m. and he was medically examined 1 when still alive .at 9‑00 a.m. The Medical Officer did not note any sign of use of liquor by the deceased at that time. It is correct that initially Abdul Aziz deceased was not the target of the accused but he was given two blows by Muhammad Afzal when innocently he had come to rescue Qazi Sher Muhammad (given up P.W.) from the accused. The accused had no right to cause fatal injuries to deceased who was admittedly empty‑handed at that time and had come to the spot with good intentions. It is also correct that Muhammad Afzal had not inflicted any blow to Abdul Aziz deceased after he had fallen down but all these facts do not provide any mitigating circumstance in favour of Muhammad Afzal accused. We have gone through the judgments relied upon by the learned counsel for the appellants. In the case of Muhammad Saleem, the learned Judges awarded lesser sentence taking into consideration that it was a case of sudden quarrel and that there was exchange of abuses and fist blows which preceded the stabbing of the deceased. In the instant case, it will be noted that there was no exchange of abuses between the accused and the deceased nor there was any exchange of fist blows between the two at the time of occurrence. The accused admitted the presence of the witnesses at the spot. From a perusal of the statements of these witnesses or from any other circumstance, there is nothing to indicate that the deceased gave any slap to the deceased or that they exchanged abuses with each other before Muhammad Afzal accused gave two successive blows to him. In our view, this judgment was not helpful to the accused. In the case of Muhammad Mukhdoom and another, their Lordships came to the conclusion that the two motives deposed by the witnesses at the trial, on proper scrutiny, were not found strong enough to support the prosecution for such an attack. It was further found by their Lordships that Muhammad Nasar accused appeared before the police within two hours of the occurrence and produced the weapons of crime and that something happened between Mst. Musaurat and the three deceased on that morning which annoyed her and he made a complaint to the inmates of her house. According to the learned Judges, these facts went a long way to show that the immediate cause of occurrence had been concealed by the prosecution. In view of the facts and circumstances of that case, the accused was awarded lesser sentence of transpiration for life. In the instant case, it will be noticed that the immediate cause of occurrence was not concealed by the prosecution. The accused had come all the way from his house armed with a knife and picked up quarrel with Qazi Sher Muhammad P.W. near the house of the deceased who came there only to rescue nazi. Sher Muhammad (given up P.W.) and was given two fatal blows in his abdomen. Muhammad Afzal accused was arrested about two days after the occurrence while the other two appellants were arrested nearly a month after the occurrence. In our view, the case of Muhammad Makhdoom and another was of no help to the appellants. In the case of Din Muhammad and others also, their Lordships held that the motive alleged by the complainant was not convincing and that the prosecution had withheld the immediate cause of incident which, if disclosed, might have constituted a mitigating circumstance. In view of this finding, the sentence of death was reduced to imprisonment for life. As held above, we are of the view that the prosecution has not withheld any evidence on motive in the instant case. This judgment was also not applicable to the facts and circumstances of the instant case. The accused came armed to the place of occurrence and picked up quarrel with Qazi Sher Muhammad. Abdul Aziz deceased came unarmed from his house to rescue Qazi Sher. Muhammad but was given two fatal blows on the vital part of his body resulting in his death. We, therefore, are unable to agree with the learned counsel for the appellants that there were mitigating circumstances in favour of Muhammad Afzal accused or that he was guilty only under section 304(1), P.P.C. Muhammad Afzal accused admitted his presence at the spot, and having caused, injuries to Abdul Aziz deceased with knife. He also admitted, the presence of the two eye‑witnesses. We, therefore, find no merits in his appeal which is accordingly dismissed.

8. So far as Muhammad lqbal and Faiz Muhammad accused‑appellants are concerned, they did not cause any injury to the deceased. Muhammad lqbal was empty‑handed at that time. It was not necessary for them to catch hold of Abdul Aziz deceased to enable Muhammad Afzal accused to inflict injuries to him. They may be present at the spot at the time H of occurrence. They may also have joined Muhammad Afzal in attacking Qazi Sher Muhammad (given up P.W.) but it cannot be said from the facts and circumstances of this case, that they shared common intention with Muhammad Afzal accused in committing intentional murder of Abdul Aziz deceased. As an abundant caution, we give them the benefit of doubt.

9. As a result of the above discussion: we dismiss the appeal of Muhammad Afzal accused and maintain his conviction and sentence under section 302, P.P.C. for the murder of Abdul Aziz deceased. The sentence of death of Muhammad Afzal accused is confirmed. The appeal of Muhammad Iqbal and Faiz Muhammad accused accepted. They are, given the benefit of doubt. Their conviction and sentence is set aside. They are acquitted of the charge under section 302/34, P.P.C. They shall be released forthwith, if not required in any other case. M.Y.H. Appeal accepted.