1976 P Cr (PLP)

Javid Iqbal J. Irshad Ahmed son of Rahmat Ullah, aged about 50 years, has been convicted under section 302, P.P.C for the member of Imdad Ali and sentenced to death vide judgement dated date the 28th of August 1971 of the Sessions Judge, Lahore. He has also been ordered to pay fine of Rs. 5 000.00 and the amount of fine if recovered was directed to be paid to the heirs of the deceased. Ijaz Ahmed his son who was co-accused, was acquitted. The appeal of Irshad Ahmed as well as reference for the confirmation of death sentence are being taken up and disposed of together by his judgement.

2. The occurrence took place on the night between the 22nd and 23 of May 1969, on a bridge near Diamond Engineering Works, G. T. Road Lahore, at a distance of three furlongs from Police Station, Baghbanpura, Statement (Exh. P. A.) was made by Muhammad Ashraf (t' W. 12) in the Mayo Hospital. Lahore, at 12.30 a.m. on the 23rd of May 1959, and it was recorded by Muhammad Zafar A. S. 1. (P. W. 17). Subsequently. on the basis of this statement formal F. I R. (Exh. P. A./1) was register at Police Station, Baghbanpura by Rashid Ahmad A.S. I. (P. W. 14) at 1.15a.m. on the 23rd of May 1969.

3. The motive for offence set up' by the prosecution is that the appellant was a former employee to the factory of the deceased and had sustained an injury in the factory in the course of his work. It is stated that earlier around about 12 noon preceding the occurrence the appellant had quarrelled with the deceased. He had come to the factory of the deceased arid claimed money from the deceased as compensation. The deceased told him that he had also paid him Rs. IOU for treatment and that since he was no more employed with him, he was not entitled to further payment. Upon this, there was an altercation between the two and they were separated by Muhammad Ashraf (P. W. 12) and Tai Din (P. W.13), the other employees of the factory. It is stated that the appellant before leaving held the would teach a lesson to the deceased.

4. The occurrence, is reported to have take place, in the following on the fateful day at about 9 p.m. Muhammad Ashraf and Tai Din P.Ws is usual to see off the deceased at the G. t Road :,so that he could proceed from the factory to his house situated in Samanabad. When they reached the bridge near Diamond Engineering Works, the deceased was a little ahead than the other two. They noticed the appellant and his son Ijaz Ahmad acquitted co-accused sitting there. They got up when the deceased approached. The appellant had a box in his hand which they subsequently learnt contained acid. The appellant threw acid on the deceased which fell on the left side of" his fate affecting his eye, throat, shoulder as well as arm. The clothes worn by the deceased, namely, shalwar, shirt etc. were also burnt. The deceased raised an alarm. Muhammad Ashraf and Taj Din P. Ws. immediately took water from the Nullah and put on his wounds. In the meantime, Abdul Majid (P. W. 16) who had a khokha nearby also rushed to the scene of crime. Then came more people. The appellant and Ijaz Ahmad acquitted co‑accused ran away. The deceased was put in a car belonging to one Shafi by Muhammad Ashraf and Taj Din P. Ws. and was brought to the Mayo Hospital, Lahore. It appears that the deceased had lost consciousness when he arrived in the hospital. He died on the 29th of May 1969.

5. The prosecution has produced three eye‑witnesses of the occurrence, namely, Muhammad Ashraf (P. W. 12), who is nephew of the deceased and an employee in the factory of the deceased, Taj Din (P. W. 13), also an employee in the factory of the deceased and Abdul Majid (P. W. 16), an independent witness. It may be noted that the appellant was also closely related to the deceased being his first cousin and had been formerly an employee in his factory. The trial Court has believed the testimony of Muhammad Ashraf and Taj Din P. Ws. although the testimony of Abdul Majid P. W. has been rightly disbelieved for the reasons stated at page 6. of the paper book.

6. The appellant as well as acquitted co‑accused were arrested at about 11 a.m. on the 23rd of May 1969, by Muhammad Zafar A. S.1. P. 1%V. Acid‑stained shirt P. 4 was got recovered from the person of Ijaz Ahmad acquitted co‑accused and taken into possession vide memo Exh. P. C., dated the 23rd of May 1969. The attesting witnesses of this recovery besides the Investigating Officer are Taj Din (P. W. lit) and Nazir Ahmad (e. W. 9). According to the report of the Chemical Examiner (Exh. P. W.) acid was detected on the area adjoining the minute boles on the shirt but the quantity being too small, the nature of the acid could not be identified. The container P. 5 was recovered at the instance of the appellant and taken into possession vide memo Exh. P. D., dated the 30th of May 1969 (seven days after his arrest). The attesting witnesses of this recovery besides the Investigating Officer are Taj Muhammad (P. W. 15) and Muhammad Hanif knot produced). This recovery has been rightly disbelieved by the trial Court for the reasons stated at page 86 of the paper book.

7. Dr. Muhammad Shafiq IP. W. 10) medically examined the deceased while he was still alive. He examined the deceased carelessly only observing burn injuries on his face. According to him, the burns were of second degree. He did not give any treatment to the deceased but only rendered first‑aid to him. According to the record the deceased was unconscious from 1 a.m. on the 3rd of May 1969, to the 26th of May lsb

9. Therefore, his statement could not be recorded by the police. He is stated to have died on the 29th of May 1969. On the 30th of May 1969, at 1 p.m. Dr. Nusrat Ullah (P. W. 1) con ducted post‑mortem examination on the dead body of the deceased and found four first degree acid burgs and four second degree acid burns on the left hand, left fore‑arm, left upper arm, left shoulder, whole of the left face and neck, right side chest front upper part, front of chest in the middle and right fore‑arm. The cause of death, to his opinion, was cardio respiratory failure by acute nephritis as a result of acid burns. These acid burns were sufficient to cause death in the ordinary course of nature. He stated in the cross‑examination that the survival of the person depended upon the extent of the burnt area of first or second degree. If the area was extensive the chances of survival were rare even after getting prompt and efficient treatment. In case of second degree burn injuries on the client, chances of treatment are very rare.

8. The appellant in his statement before the trial Court totally denied having Participated in the occurrence and stated that he had been implicated because he had some family disputes with Muhammad Ashraf P. W.

9. We have heard learned counsel fur both the sides and carefully persued the record. The prosecution case, against the appellant is mainly based on the occular testimony vehemently argued that the recovery of container P. 5 at the instance of rite appellant had been disbelieved by the trial Court which had also disbelieved the testimony of Abdul Majid P. W. the only independent witness produced in this case. It is submitted that Muhammad Ashraf and Taj Din P. Ws. were closely related to the deceased and were employed m his factory and hence were partisan. It is argued that they did not see the occurrence. According to learned counsel the deceased was done to death by some unknown assailants, unseen and unwitnessed by any one. Ho was picked up by one Shafi who took him to the hospital in his car. It is submitted that this Shafi was never examined by the police. It is further submitted that the hospital record did not disclose that Muhammad Ashraf and Taj Din P. Ws. had accompanied the deceased to the hospital. The argument of learned counsel is that since Muhammad Ashraf and Taj P.Ws. did not see the occurrence, their testimony should not be relied upon. We have heard learned counsel in detail but we do not agree with him. It is admitted that the appellant was as closely related to the deceased as, was Muhammad Ashraf P. W. and just as the appellant was former, Employee of the deceased Muhammad Ashraf and Tai Din P. Ws. were i is employees. If they were related to the deceased in any way, that was told n that they were interested or partisan. In fact, if the argument of not mean learned counsel is followed to its logical conclusion, then they being labourers or workmen should have sympathy with the appellant and be partisan with him rather than their employer, the deceased. In our con Bred opinion they had no motive to falsely implicate the appellant. We are convinced that they accompanied deceased from the factory up to the G. T. Road so that he could take a taxi in order to go to his house Samanabad. In our view, their testimony is corroborated by the medical evidence because the doctor who conducted the post‑mortem examination found that the deceased had acid burns on his left hand, left fore‑arm, left upper arm, left shoulder, left face, chest etc. We do not find any improbability in the prosecution story. In our view, the appellant had a motive to attack the deceased. Learned counsel then argued that the appellants had no intention to murder the deceased and that if we were to arrive at the conclusion that It was the appellant who threw acid on the deceased, then keeping in view the background of the case, the intention of the appellant was only to disable the deceased by disfiguring him and that, therefore, his case was covered by section 324, P. P. C. or at the most by section 326, P. P. C. In our view this argument of learned counsel i , without any force. It could not be said that if a person was to throw acid 1,ome one (particularly on the face and the chest), knowing and to what is the effect of acid, ha intended only to cause injury view, the appellant threw acid on the person of the deceased with the intention to cause his death and, therefore in our considered opinion, hip eviction under section 302, P. P. C. Was quite proper and well‑deserved. It is accordingly maintained. However, there remains the question of sentence. According to the record the appellant had sustained an injury on his right wrist. The old fracture had disabled trim to use his right hand and according to the medical evidence there is also waste of his right lower limbs it also appears from the record that his wife was blind. Although he had sustained injury in the course of work in the factory of the deceased and was paid compensation of Rs. 100, he lost his job and also did not fully recover. In view of these considerations we are of the opinion, that award ing of the lesser penalty would have been sufficient to meet the ends of justice in the circumstances of the case. We accordingly alter his sentence from that of death to imprisonment for life. With this modification the appeal is dismissed.

10. The death sentence is not confirmed. Order accordingly.