1984 P Cr (PLP)

5. After recording the statement of Muhammad, Akbar (P.W.7), Muhammad Aslam S.I. went to the place of occurrence. He prepared the necessary documents in respect of the dead body of the deceased and despatched the dead body to the mortuary for autopsy under the escort of Bashir Ahmad and Riasat Ali. Foot Constables. He recorded the statements of the P.Ws, and searched for the accused who were not readily available, On 25th August, 1979 he arrested Shah Nawaz appellant from near the park in Wassanpura known as Tajpura ground. On his search carbine P.4 with cartridge P.4/1 was recovered from his right fold and the same was secured vide memo. Exh. P.F. The S.I. got prepared the site Plana P.C and P.C/1 by Ch. Muhammad Yaqub Draftsman (P.W.5). On 7th September, 1979 at the instance of Shah Nawaz dagger P.5 was recovered from the roof of his Bumby which was secured vide memo. Exh. P.G which was also attested by Zahoor Ahmad (P.W.11). Muhammad Aslam could not arrest Younas and Yousaf and got them declared as proclaimed offenders. Mirza Maqbool Beg the then S.H.O. Police Station, Misri Shah, arrested Younas appellant on 19th December, 1979. On 24th December, 1979, Younas while in custody led to the recovery of blood stained dagger P.6 from underneath the Sofa lying in the Baithak of Shah Nawaz. The dagger was taken into Police possession vide memo. Exh. P.H. which has also been attested by Zahoor Ahmad (P.W.11). According to the Chemical Examiner and Serologist reports Exhs. P.N. and P.O. respectively, the dagger allegedly recovered from Muhammad Younas has been found to be stained with human blood.

6. Autopsy on the dead body of Saeed Ahmad deceased was carried out on 25th August, 1979 at 11-30 a.m. by Dr. Tahir Anees (P.W.8), the then Deputy Police Surgeon who noticed 20 incised wounds, one stab wound and one penetrating lacerated wound on the dead body of the deceased. The last mentioned wound was opined to have been caused by firearm while remaining 21 injuries were reported to have been inflicted by sharp-edged weapons. All the injuries were declared to be ante-mortem. These injuries particularly injuries Nos. 12 and 22 were opined to be sufficient to cause death in the ordinary course of nature through bleeding and shock. Exh. P.D. is correct carbon copy of the post-mortem report while Exhs. P.D/1 and P.D/2 are the pictorial presentation of the injuries.

7. P.W.7 Muhammad Akbar the complainant and father of the deceased P.W.9 Muhammad Ali (not related) and P.W. 10 Gul Rehman (not related) testified at the trial as eye-witnesses to furnish ocular account of the prosecution version. These eye-witnesses have fully supported the prose cution case as contained in the F.I.R.

8. The plea of Shah Nawaz appellant is that of denial simpliciter. He claimed his false involvement due to suspicion. Muhammad Younas appellant advanced the plea of alibi and claimed that he was not present in Lahore at the time of occurrence. He was present at Karachi at that time and boarded the flight No. P K 342 at 7-00 p.m. on the day of occurrence for Lahore on his way to Sialkot for celebrating Eid on the next day. He had travelled on tickets Nos. 214, 4109, 662 and 842.5. He further claimed that relations between himself and his brother on one side and Shah Nawaz co-accused on the other were strained and Police had resorted to proceedings under section 107/151, Cr.P.C. on 17th June, 1979.

9. Younas appellant in support of his plea of alibi examined D.W.1 Ahmad Khan Inspector Police, Faisalabad, D.W.2 Muhammad Abdullah F.C. and D.W.3 Yaqoob Ali Khan, Administrative Officer, P.I.A. Karachi.

10. D. W. I Ahmad Khan, Inspector deposed that he had arrested Younas appellant alongwith 4 others namely Iftikhar, Rafiq, Shafique, Boota and Pervaiz, on 10th December, 1979 in case F.I.R. No. 285/79 under section 399/402, P.P.C. of Police Station, Sadar, Faisalabad, and on that occasion from the luggage of Pervaiz the co-accused of Younas with said case, eight used tickets of P.I.A. and five photostat copies thereof were recovered. Tickets are Exh. P.B. to Exh. P.K. A cheque book Exh. P.L. was also taken into possession. He brought the accused on the same night to Choona Mandi, Lahore and handed them over to C.I.A. Staff, Lahore. D. W. 2 Muhammad Abdullah F.C. of Lahore district brought Roznamche, dated 17th June, 1979 of Police Post District Court, Lahore containing report No. 7 copy whereof is Exh. D. M. The contents of Exh. D.M. disclosed that proceedings under section 107/151, Cr. P.C. were resorted to on 17th June, 1979 against Shah Nawaz and his sons on Muhammad Yousaf absconder and Muhammad Younas appellant one the other. D. W. 3 Yaqoob Ali Khan brought the record of Flight No. P. K. 342 abovenamed being aggrieved by judgment, dated 24th August, 1979 and also brought flight coupon passenger list i.e. Exh and D. N. and Exh. D. O. The name of Muhammad Younas appears at serial No. 92 of the list. Yaqoob Ali Khan admitted that the signatures of the passengers were not obtained on any paper document when the tickets were sold and his identity was not required to be established in any manner. He further admitted that any person could buy ticket in any other's name and that if any body presented the ticket at the counter claiming himself to be Muhammad Younas he could travel on the basis of that ticket.

11. It has been mainly contended on behalf of the learned counsel for Muhammad Younas that plea of alibi advanced by Muhammad Younas was sufficiently established by the oral as well as documentary evidence produced by him in his defence and that at least it was sufficient to raise in Court's mind a reasonable possibility of likelihood of his being at Karachi at the time of occurrence. It is thus pleaded that the entire approach of the learned trial Court in examining the plea of alibi of Muhammad Younas as contained in paragraph 15 of the trial Court's judgment is not legally sound.

12. The learned trial Court in paragraph 15 of the judgment has observed that the P.I.A. tickets were not recovered from Muhammad Younas but were recovered from his co-accused in dacoity case namely Pervaiz and that the possibility that Pervaiz or some body else might have travelled on this ticket could not be excluded. It has further been observed that the manner in which the tickets and their photostat were preserved was indicative of the fact that it was a pre-planned affair and the entire evidence was procured and preserved to substantiate the false plea of alibi. Reliance on behalf of Muhammad Younas in regard to plea of alibi has been placed on Amin Ullah v. The State PLD 1976 SC 629 and the subsequent judgment in the same case while considering it in review reported as PLD 1982. SC

429. The principle laid down in this case with reference to the provisions of sections 11 and 103 of the Evidence Act is that the accused was not required to prove his plea but was only required to lead evidence in order to raise plausible defence that he .was not present at the scene of occurrence.

13. We will have, therefore, to see as to whether in the circumstances of the under consideration case the evidence led by Muhammad Younas appellant is sufficient to raise a reasonable possibility on likelihood of his being at a place other than the scene of occurrence at the time of the commission of the crime. The Investigating Officers namely P. W. 12 Muhammad Aslam, and P.W.13 Mirza Maqbool Beg have stated that the plea of alibi was not advanced before them by Muhammad Younas. In fact Mirza Maqbool Beg (P.W.13) arrested Younas on 19th December, 1979 and he has stated that it was incorrect to suggest that at the time of arrest Muhammad Younas had told him that he had boarded a plane at 7-00 p.m. from Karachi on the day of occurrence and that it was further incorrect to suggest that he had told him that his air tickets were in the custody of Police of Faisalabad. No doubt, Muhammad Younas moved a pre-arrest bail application based on the plea of alibi on 30th August, 1979 as transpires from the contents of Exh. D.P. This application was fixed for confirmation of pre-arrest bail for 5th September, 1979 but on that day Muhammad Younas failed to appear as he has already absconded and, therefore, his application for bail before arrest was ultimately dismissed. His plea of alibi thus could not be verified at the stage of bail. Thereafter, he was arrested on 10th December, 1979 by Faisalabad Police in dacoity case alongwith others and then handed over to Lahore Police in this case. The air ticket on the basis of which he claimed to have travelled on the day of occurrence from Karachi to Lahore at 7-00 p.m. as already observed, has not been recovered from his possession. The same has been recovered from the possession of his co-accused in a dacoity case namely Pervaiz. The passengers' list where his name is entered at serial No. 92 contains his name as the last but one name. The last name viz. at No. 93 is that of Muhammad Yousaf his brother who is still absconding. Muhammad Yaqoob, the Administrative Officer, of P.I.A. who has appeared as D.W.3 has admitted that any body could present the ticket at the counter claiming himself Muhammad Younas and could travel on the basis of the ticket. With this evidence, the alibi produced by Muhammad Younas cannot, therefore, he held to raise reasonable possibility in the mind of the Court that the appellant was not at the place of occurrence at the time of the commission of offence particularly when seen in the light of the ocular evidence which shall presently be discussed.

14. It has been next contended on behalf of the appellants that in view of the plea of alibi of Muhammad Younas, the eye-witnesses do not deserve to be relied upon even in regard to Shah Nawaz. Reliance has been placed on Rang Ali v. The State P L D 1958 Lah. 242, wherein it was held that when in a murder case one of the accused was proved to be falsely implicated by the eye-witnesses on proof of the plea of alibi put forward by him their testimony could not be accepted as true in respect of the other accused also. In this case, the maxim "false in uno falsus in ommibus" was followed. The principle ennciated in Rang Ali's case has since been discarded and the principle now being followed by the superior. Courts of the Pakistan is that it is the duty of the Court to separate the straw from the grain. Moreover, in the circumstances of the under consideration case, as already held, the plea of alibi of Muhammad Younas has not been substantiated.

15. It has also been contended on behalf of Shah Nawaz that he had strained relations with Muhammad Younas and Muhammad Yousaf, the absconding accused inasmuch as there have been proceedings under section 107/151, Cr.P.C. against him and his sons on one side and Younas and Yousaf on the other side. It is also argued that on 19th of March, 1979, Shah Nawaz got published a news item to the effect that he was not liable for any action of Younas and Yousaf. It is not denied that Younas and Yousaf are the sons of the real sister of the wife of Shah Nawaz. Both of them used to reside in the house of Shah Nawaz. May be the relations between them became strained in March, 1979, and remained so till June, 1979, but being close relatives they might have patched up subsequently.

16. In this case F.I.R. was lodged promptly within 11 hours of the occurrence. The question of fabrication does not arise in such a promptly lodged and detailed F.I.R.

17. The witnesses who have been examined as eye-witnesses namely Muhammad Akbar, Muhammad Ali and Gul Rehman are residents of the same locality where the occurrence has taken place. Muhammad Akbar no doubt is father of the deceased but the other two i.e. Muhammad Ali and Gul Rehman are absolutely unconnected and unconcerned witnesses. There is nothing on the record to question their independence. They have no animosity against the appellant whatsoever for their false involvement on a capital charge. These two witnesses have stood the test of lengthy cross-examination and their statements are quite consistent and unanimous in regard to all material details of the occurrence such as time, place, etc. Muhammad Akbar, the father of the deceased, has also no previous enmity with the appellants on any count and he had no reason whatsoever to falsely substitute the appellants in place of the real murderers of his own son.

18. Medical evidence furnishes corroboration to the statements of eye witnesses to this extent that as a result of post-mortem examination, one firearm injury and 21 sharp-edged weapon injuries were found on the body of the deceased. The eye-witnesses have also stated that first the was fired at by Shah Nawaz and subsequently both the appellants absconding accused dealt blows on his body with their respective daggers.

19. Recoveries from Shah Nawaz are of course of not much consequence inasmuch as no empty was recovered from the spot and therefore, the carbine recovered from him subsequently is not connected with the crime the dagger allegedly recovered at his instance was not blood -stained at the time of the recovery. Dagger P.6 which has been recovered at the behest of Muhammad Younas on 24th December, 1979 was blood-stained and the result in regard to this dagger as per Chemical Examiner and Serologist reports is in positive. The recovery is sufficiently proved from the statements of Zahoor Ahmad and the Investigating Officer, in regard to whom there is nothing on the record to raise any doubt about their veracity and independence. Abscondence of Muhammad Younas accused after 30th August, 1979 till he was arrested in a dacoity case by Faisalabad Police in December, 1979 is also another factor which lends some support to the prosecution case.

20. In the light of the above discussion, it is concluded that the plea of alibi of Muhammad Younas is not established and from the ocular evidence and the circumstances of the case, as detailed above, the guilt of the appellants is established beyond doubt. Their conviction under section 302/34, P.P.C. as recorded by the learned trial Judge is, therefore, upheld.

21. As regards the question of sentence, it may be observed that the normal penalty in the case of offence of murder, is death and for reasons to be recorded the lesser penalty of imprisonment for life can in certain cases be awarded. In the present case, the learned trial Judge has refrained from awarding capital punishment to the appellants on the ground that it could not be ascertained as to who caused the two fatal injuries to the deceased. This is at gruesome murder which has taken place during the broad daylight in which the assailants have caused as many as 22 injuries to the deceased. Out of these 22 injuries, one is a firearm injury while the remaining 21 are sharp-edged weapon injuries which have been caused to the deceased by the appellants and their absconding co-accused. In case of such brutal murder which has been caused by inflicting repeated stab wounds to the deceased by all the assailants, there can hardly be any justification in not imposing capital punishment merely on the ground that it could not be established as to who was liable for causing the fatal injuries. In this view of the matter, the reasons which weighed with the learned trial Judge for not imposing death penalty on the appellants are without substance.

22. It has, however, been noticed that the motive for the murder of the deceased at the hand of the appellants is not fully established. According to the prosecution's case, the appellants harboured grudge against the deceased because he helped the widowed lady namely Hamida Begum whom Shah Nawaz wanted to evict before the expiry of her lease period. But there is sufficient evidence on the record to suggest that as a matter of fact the dispute between Hamida Begum and Shah Nawaz which was a matter of more than 2 years prior to the present occurrence ended in compromise. Moreover, there is no convincing evidence on the record to suggest that in fact a stay order was obtained by the deceased in favour of Hamida Begum. The said Hamida Begum has not even been examined as prosecution witness to testify about the motive in this case. Even the Investigating Officer did not join Hamida Begum in the investiga tion as admitted by Muhammad Aslam P.W. 12.

23. It is thus concluded that the motive as alleged by the prosecution is not proved. In these circumstances, the motive in this case is shrouded in mystery and we are not aware as to why the appellants murdered Saeed Ahmad deceased. For this reason of the motive being shrouded in mystery the appellants deserved to the alternative sentence of imprisonment for life, and the normal penalty of death sentence is thus not warranted.

24. In this view of the matter, no exception can be taken to sentence awarded to the appellants by the learned trial Court.

25. For the foregoing conclusions both the appeals are dismissed the conviction and sentence of the appellants are upheld.

26. The Revision Petition seeking enhancement of their sentence is dismissed. S. G. D. Appeal and revision dismissed.