2002 PLP 374 (SCMR)

SYED DEEDAR HUSSAIN SHAH, J.‑‑-This appeal by leave to appeal of the Court is directed against the judgment and the Lahore High Court, Lahore, dated 30‑9‑1998, passed in Criminal Appeal No.81 of 1992 and Murder Reference No. 151 of 1992.

2. Briefly stated the facts of the case are that Muhammad Nazir complainant (P.W.6), brother of the deceased lodged F.I.R. (Exh.P.A./1) stating therein that he resides, in Chak No.255/R.B., Tehsil and District 'Faisalabad. A piece of State land in front of his house was in his cultivation where he built a room, installed a gate and set up a cattle shed. It is alleged that on 23‑12‑1989, a day prior to the occurrence, Muhammad Rafiq co accused tried to take possession of the said land by putting earth, which was brought on a tractor trolley; that this attempt was resisted by the deceased and the complainant, which resulted into an altercation and exchange of abuses, but the co‑villagers patched up the matter. Muhammad Rafiq left the venue extending threats to the deceased.

3. On the day of the occurrence around 8‑00 a.m. the complainant accompanied by the deceased boarded a bus bound for Faisalabad alongwith Muhammad Saleem Lumberdar (won over P.W.) and Muhammad Younus P.W.8. They reached near Cheema Petrol Pump's Stand at 9.00 a.m. the complainant and his companions moved towards the District Courts, while the deceased proceeded towards his petrol pump for attending duty. When Muhammad Ramzan deceased reached opposite to State Bank, towards the left side of the road, on the footpath adjoining to the offices of Canal Department, Muhammad Iqbal appellant and Abdul Ghafoor co‑accused armed with chhuris, who were hiding themselves in the trees, emerged and raised Lalkara that they will teach a lesson for insulting Haji Muhammad Ismail and not giving the possession of the land. Muhammad Ramzan deceased rushed towards the offices of Canal Department to save his life. Both the accused chasing the deceased stopped him inside the main gate of the Office of the Canal Department., Muhammad Iqbal appellant gave first Chhuri blow on the front of right shoulder of the deceased; second blow was inflicted by Abdul Ghafoor co‑accused hitting the deceased at his right thigh towards outside. The deceased extended his right hand to save himself and thus the Chhuri blow of the appellant‑accused hit the deceased at the little finger of his right hand. The deceased collapsed on the ground and succumbed to the injuries. The complainant and eye‑witnesses saw the occurrence and they tried to catch hold of the accused but the assailants fled away.

4. During investigation the police arrested the accused on 28‑12‑1989 and submitted challan in the Court. The accused did not plead guilty and claimed trial. The prosecution in order to prove its case produced 11 witnesses. Thereafter statements of the accused were recorded under section 342, Cr.P.C., in which they denied the allegations of the prosecution.

5. The motive, as stated, was that Muhammad Rafique and Haji Muhammad Ismail wanted to take possession of ihata owned by the complainant, having a room and gate, which was resisted by the deceased and the complainant, which resulted into abuses. Muhammad Rafiqe and Muhammad Ismail abetted the offence and Abdul Ghafoor and Muhammad Iqbal murdered the deceased.

6. The learned trial Court vide its judgment dated 11‑1‑1992 gave benefit of doubt to Muhammad Ismail and Muhammad Rafiq co‑accused and acquitted them. Muhammad Iqbal appellant and Abdul Ghafoor co‑accused were, however, found guilty tinder section 302/34, P.P.C. Muhammad Iqbal appellant was sentenced to death with a fine of Rs.10,000, or in default 2 years' R.I. Abdul Ghafoor was sentenced to imprisonment for life with fine of Rs.10,000, or in default 2 years' R.I. Both of them were also directed to pay Rs.10,000 as compensation to the legal heirs of the deceased under section 544‑A, Cr.P.C.

7. Both the convicts appealed. A learned Division Bench of the Lahore High Court, vide judgment, dated 30‑9‑1998, dismissed both the appeals and sentence of fine was raised from Rs.10,000 to Rs.50,000, or in default six months' R.I.

8. Thereafter, both the accused filed petitions for leave to appeal in this Court challenging their conviction and sentences. Criminal Petition No.43‑L of 1999 filed by Abdul Ghafoor co‑accused was barred by time, which was dismissed vide order, dated 23‑5‑2000, but leave to appeal was granted in Criminal Petition No.29‑L of 1999 to consider the question could, in such circumstances, Muhammad Iqbal, be awarded death sentence.

9. Mr. S. M. Nazim, earned counsel ‑for the appellant, inter alia, contended that the Courts below did not consider the evidence properly; that the P.Ws. are related inter se and for awarding capital punishment the evidence should be unimpeachable, natural and convincing, which is not forthcoming in this case and that the impugned judgment is not sustainable.

10. On the other hand Mr. Ehsanullah Learned counsel for the respondent, stated that the learned trial Court as well as the learned Division Bench of the High Court had considered the case minutely and the impugned judgment ‑ is based on the principles laid down by this Court.

11. We have considered the contentions raised by the learned counsel for the parties and examined the record minutely. The incident had taken place during day time at about 9‑00 a.m. and the F.I.R. was promptly lodged. Specific role of causing Chhuris blows to the deceased is attributed to the appellant. The police during investigation also recovered the blood stained Chhuris, which were sent to the Chemical Examiner, whose report is also in positive. Police also secured earth from the Wardat and blood-stained clothes of the deceased, therefore, the report of the Serologist confirms that the blood secured from the Wardat and on the Churri, was of human nature.

12. Dr. Abdul Sattar (P.W.5) did the post‑mortem examination on the dead body of Muhammad Ramzan (deceased), aged about 25 years and found the following iniuries on his person‑‑ "(1) A stab wound 6‑1/2 c.m. x 2‑1/2 c.m. on front of right shoulder. (2) An incised wound 2 c.m. x 3/4 c.m. x bone deep on front of right hand little finger upper phalynax. (3) An incised wound 2‑1/4 c.m. x 1 c.m x muscle deep (8 c.m.) on outer side of right thigh (directed inward and upward)." According to the opinion of the doctor, the cause of death was hemorrhage and shock due to injury No. 1, which was ante‑mortem in nature, caused by sharp edged and pointed weapon and was sufficient in the ordinary course of nature to cause death. Injuries Nos.2 and 3 were simple in nature. The probable time between injuries and death was few minutes while between death and post‑mortem examination it was five hours. The role attributed to the appellant, and promptly lodging of F.I.R.. as well as the statements of P.Ws. made before the Court ors oath, are supported by the blood‑stained Chhuri recovered from the appellant. The evidence of the eye witness is natural, convincing and trustworthy, which has not been shaken in cross‑examination. No doubt the P.Ws. are related to the deceased, but there is no previous enmity or ill‑will between them and the accused, so that real culprits may be let off and in their place other persons may be substituted. The Courts below, have very properly considered and appreciated the evidence. A fatal injury is attributed to the appellant, therefore, he has rightly been convicted and sentenced to death. There is no misreading or non‑reading of evidence and t~ impugned judgment is not open to exception.

13. For the circumstances, reasons and facts stated hereinabove, we see no substance in the appeal, which is hereby dismissed. N.H.Q./M‑314/S Appeal dismissed.