1982 P Cr (PLP)

MAZHARUL HAQ, J.-Mehr Din (65), his son Muhammad Buta (32), Ghulam Abbas (26), nephews of Mehr Din, Zahid Hussain (24), Riaz Hussain (26) and their friends Rafique (25) all residents of Chak No. 224 R.B. were tried for the murder of Baqar Ali and Bakhat Nawaz Malli. On 2nd February 1978, Mr. Muhammad Afzal Suhail, Additional Sessions Judge, Faisalabad, acquitted Mehr Din and his son Muhammad Buta but found the rest guilty on the two counts under section 302/34, P. P. C. For the murder of Baqar Ali they were sentenced to imprisonment for life and fined Rs. 5,000 each in default to undergo four years' R. I. each. For the murder of Bakhat Nawaz Malli, Ghulam Abbas accused was sentenced to death Riaz Hussain, Zahid Hussain and Muhammad Rafique were sentenced to imprisonment for life and fined Rs. 5,000 each in default to undergo four years' R.

1. The appeals of the convicts in the connected murder reference and Muzaffar Ahmad, petitioner's revisions for enhancement of sentences of the last mentioned three accused and the second revision against the acquittal of Mehr Din and Buta are before us.

2. About 2 years before the occurrence in this case Baqar Ali deceas ed was engaged to be married to Mst. Ismat daughter of Mehr Din accused alias Shikra. In the meanwhile Baqar Ali qualified the C. S. P. competition, he therefore, considered Mst. Ismat below his standard and backed out of the commitment to marry her. This offended Mehr Din, he declared that Baqar Ali would never be a C. S. P. Officer. According to the prosecu tion on 27th September, 1974 at about 4 p.m. Muzaffar Ahmad informant resident of Chak No. 354 Qadir Abad went to meet Baqar Ali in the Dawn Textile Mill in the company of Shaukat Ali Shah. Bakhat Nawaz Malli a relation of Muzaffar Ahmad informant who was constructing a factory at Sheikhupura Road was also present at the Mill. Since Baqar Ali had gone to his house in Basti Hakim Din therefore the informant along with the aforementioned two went to the house of Baqar Ali. They all decided to go to the Dawn Textile Industries for a chit-chat. As they proceeded on foot Baqar Ali and Bakhat Nawaz Malli were ahead of the informant and Shaukat Ali Shah. When they reached near the Dera of Lata in Hussaini Street, Mehr Din alias Shikra, Ghulam Abbas, Muhammad Buta, Zahid Hussain, Riaz Hussain and Muhammad Rafique stood there in the lane in front of the said Dera. Ghulam Abbas. Zahid Hussain, Riaz Hussain and Muhammad Rafque were armed with knives. These four attacked Baqar Ali raising a lalkara that he would not be spared. Mehr Din and Muhammad Buta caught Baqar Ali in a jappha. Riaz Hussain, Zahid Hussain and Muhammad Rafique attacked Baqar Ali with knives hitting him in the chest, flank, back, left hand and arm. Baqar Ali also received injuries on his hand in defence. Bakhat Nawaz Malli tried to rescue Baqar Ali but Mehr Din gripped him. Ghulam Abbas gave a knife blow in his left flank. Bakhat Nawaz fell in the mud which had gathered in the lane. The informant and Shaukat Ali Shah tried to interfere but the accused threatened them with dire consequences. Riaz Hussain, Buta, Zahid Hussain and Muhammad Rafique carried Baqar Ali to their dera. P. W. Muhammad Khalil who lived near the place of occurrence had also wit nessed the occurrence. Baqar Ali and-Bakhat Nawaz Malli succumbed to their injuries. The accused fled away, P. W. Muzaffar Ahmad went to the Police Station, Peoples Colony, Lyallpur situated at a distance of li mile from the place of occurrence. He reported the matter to P. W. 10 Muhammad Khan, S. I. at 4.45 p.m. the same evening. After recording F. I. R. Exh. I. Q. the S. I. went to the spot collected blood-stained earth from there, prepared the necessary documents and sent the dead bodies for their post-mortem examinations.

3. P. W. 1 Dr. Abdul Haleem Sahota, Medical Officer, Civil Hospital Faisalabad, held the autopsy on 28th September, 1974 on the two dead bodies and made the following observations :- Examination of Bakhat Nawaz Malli : "A stab wound 2" x 3/4" deep to chest on the left side of chest about 2 inches below the level of left nipple and 3 away from the nipple. There was a cut two inches long on the left pleura. There was a hole in the apex of the heart which was through and through. There was a cut 2 in the middle of diaphragm and also a cut 1 long and two inches deep in the left lobe of the liver. Death occurred due to shock and haemorrhage caused by injury No. 1 which was sufficient to cause death in the ordinary course of nature. Stomach of the deceased contained eight ounces of digested meal. Small intestine also contained digested meal. There was faecal matter in the large intestine. The bladder was empty and healthy." Examination of Baqar Ali Injuries- (1) Stab 1 x 3/4" x deep to chest on the back of left lower chest. (2) Stab 1 x x muscle deep on the back of left lower chest near mid line. (3) Stab 2" x deep to chest on the back of left chest in the 10th intercostal space. (4) Incised wound 2 " x x bone cut (chip fracture). On the lateral of palm of left hand. The first metacarpal, near little finger was fractured. (chip fracture), (5) Incised wound 1 x 3/4" x muscle deep on the posterior of left forearm near elbow joint. (6) Stab 1" x x deep to chest about one inch below the nipple line on the right part of the sternum. (7) Triangular shape stab 1 x 3/4" x deep to chest about four inches below nipple line and 2 medial to the nipple in the right anterior of chest. (8 ) Incised wound 1 x x muscle deep on the right arm 1" above elbow joint. (9) Bruised area covering 3" x 1 involving left cheek lower eye-lid and lower part of upper eye-lid. (10) Stab 2 x muscle deep back of right chest lower part. Death occurred due to shock and haemorrhage caused by injuries Nos. 1, 3, 6 and 7 which were sufficient to cause death in the ordinary course of nature. Stomach, small intestine and bladder were empty. The large intestine was full of faecal matter."

4. On the day of occurrence Ghulam Abbas was arrested by P W 10 Muhammad Khan, Inspector. His blood-stained shirt P. 4 was got removed and taken into possession vide memo. F. M. attested by P. W. 7 Azhar Hussain P. W. 9, Muzaffar Ahmad and the Investigation Officer. The remaining five accused were arrested on the following day, i.e. 28th September, 1974. As the clothes of some of them were blood-stained, they were got removed and taken into possession. Zahid Hussain's shirt P. 15 and Trousers P. 16 were made into a sealed parcel vide memo Exh. P. N. Shirt P. 17 and Trousers P. i8 of Riaz Hussain were made into a sealed parcel vide memo. Exh. P. O. Bushirt P. 19 and Trousers P. 20 of Muhammad Rafique were made into a sealed parcel vide memo. Exh. P. P. The memos of the blood-stained clothes were attested by P. Ws. Azhar Hussain, Muzaffar Ahmad and the S. I.

5. On 30th September, 1974 Zahid Hussain, Riaz Hussain, Muhammad Rafique and Ghulam Abbas in custody led to the recoveries of their blood stained weapons. Riaz Hussain got recovered knife P. 10 from underneath a bush situated in the dera of Baba Lata. It was made into a sealed parcel vide Memo. Exh. P. F. Zahid Hussain got recovered knife P. 11 from within a heap of rubbish in the ihata of Baba Lata. It was made into a sealed parcel vide Memo. Exh. P. G. Muhammad Rafique got recovered knife P. 12 from a Ak bush in the dera of Baba Lata. It was made into a sealed parcel vide Memo. Exh. P. H. Ghulam Abbas led to the recovery of chhuri P. 13 from the roof in the dera of Baba Lata. It was made into a sealed parcel Exh. P. J. All these Memos were attested by P. W. 6 Muhammad Sarwar and Muhammad Ishaq given up as having been won over. According to the Chemical Examiner's report (Exh. P. Z.) the four weapons scat to him were stained with blood, but according to the Serologist's Report Exh. P. A. A. the blood on them had disintegrated ; therefore, its origin could not be determined. Clothes of the accused were found by the Serologist to be stained with human blood except for the shirt of Abbas accused. The Serologist's report may be clarified at this stage. In it against item No. 4207/6 it has been mentioned that the blood on this item has disintegrated. A comparison of the Chemical Examiner's report and that of the Serologist would reveal that reading both in seriatim the aforementioned item is the shirt of Abbas accused. The Chemical Examiner while marking 12 articles sent to him has given them Serial Nos. 1 to

9. The clothes at Serials Nos. 1, 3 and 5 in his report are further described as A & B, for each garment. On the other hand the Serologist had marked the same 12 articles sent to him by the Chemical Examiner as Nos. 4207/1 to 4207/12. Thus the comparison of the two reports shows that the article at item No. 4207/6 is the same which is shown at Sr. No. 4 (shirt) in the Chemical Examiner's Report.

6. The accused admitted their inter se relationship. Mehar Din denied engagement of his daughter to Baqar Ali deceased and said that his daughter was married to Muhammad Siddiq, Advocate, on 19th May, 1974 to whom she had been engaged much earlier. Explaining the case against him Mehr Din made the following statement :- "The reason is that Baqir Ali along with Bakhat Nawaz attacked the Dera of Baba Lata with their intention to commit the murder of Rafiq co-accused. The co-accused who were present with Rafiq in the right of exercise of defence of their person inflicted injuries on the assailants and deceased. One of them died inside and the other one managed to run out of the Dera and fell down in the street. I was involved in this case, because I was present in Lyallpur, whereas the prosecution knew that my real brother was at Sahiwal. They involved me so to stop the defence from pursuing it and also because of enmity." He further explained that he along with Ghulam Abbas, Riaz and Zahid Hussain were found innocent by the Police during the subsequent investi gation. He added that the earlier investigation was misguided because of the relationship of Bakhat Nawaz Malli with Mr. Mazhar Awais. S. P. Lyallpur. Iftikhar Rasul Malli was a D. I. G. and a close relation of Bakhat Nawaz Malli. Mehar Din led no evidence in defence. Muhammad Rafique accused admitted that he was a close friend of Riaz Hussain. Denying the prosecution case he said that on the day of occurrence a drain was being repaired in the street. The two deceased came there in a car and when they reached near him they drove the car in such a manner that mud splashed on him and others. There was an exchange of hot words, whereupon Baqir Ali and Bakhat Nawaz came out of the car and fired pistol shots and then left Muhammad Rafique then claimed to have left for his house and said that he did not know what happened at the spot after his departure. Explaining the case against him Ghulam Abbas accused said that Mst. Sugran Baqir Ali's father's sister was divorced by Shamshir elder brother of Riaz Hussain accused at the instance of Mehr Din accused. He added that Baqir Ali was an aggressive man and was involved in a number of car theft cases. He falsely claimed to be a C. S. P. Officer. In order to collect money he used to pose as a C. S. P. Officer. Ghulam Abbas accused further said that in the evening on the day of occurrence he had left for Lahore alongwith Zahid Hussain and Riaz Hussain. Aftet visiting the shrine of Data Sahib and on their way back he fell ill. He was admitted in the Mananwala hospital for treatment which he brought to the notice of Inspector Rizvi who placed him in column No. 2 but Mr. Azhar Awais, S. P. did not pay any heed to their defence. Since he was transferred, this plea was accepted by the police but later again under the influence of Iftikhar Rasul Malli D.

1. G., they were all challaned. Zahid Hussain accused has adopted the statement of Ghulam Abbas. Admitting his friendship with Rafique, Riaz Hussain said that he had been falsely implicated due to his uncle Mehr Din's bad relations with the complainant party. He made the following statement:- "On 27th September, 1974, 1 actually attended the marriage ceremony of my friend Sardar Ali son of Nabi Bakhsh at Mauza Ibrahimabad Laliani. This was at a distance of almost 120 mile from Lyallpur. I produced the nikah nama before the investigating officer Mr. Rizvi. It bore my name as a witness of Nikah. This fact was verified at Laliani and was shown in column No. 2 by Mr. Raza Hussain Rizvi and Mr. Fida Hussain D. S. P." Trial Court examined Mr. Raza Rizvi Inspector/S.H.O. Police Station Peoples Colony, Faisalbad. Under orders of D. I. G. the case was re investigated by this witness on 29th September, 1975. On the basis of the evidence made available to him the witness found Zahid Hussain, Ghulam Abbas and Riaz Hussain innocent, but he did not place them in column No.

2. We may mention here that none of the accused led any evidence in defence, which they claim to have produced before the police in proof of their innocence.

7. Relying on the evidence of P. W. 7 Azhar Hussain who deposed about the motive, the evidence of two eye-witnesses i.e. P. W. 8 Muzaffar Ahmad and P. W. 9 Muhammad Khalil and the evidence of the recoveries from the accused trial Court found the four accused guilty. Since Mehr Din and Muhammad Boota were not said to .be armed with any weapon, the role attributed to them was that of a japha only which the trial Court described as a "proverbial japha". It thus concluded that the armed accused were ready to attack, there was therefore, no occasion for these accused to hold their victims in a japha, giving them the benefit of doubt acquitted them. Notice in the revision against acquitted accused was not issued. Since it is pending with this case, we may add here that the reasons given by the trial Court for their acquittal are sound. Moreover, in a concentrated attack by a number of accused the role of a japha ascribed to some of the accused who are unarmed, involves risk of injury to them also. With these observation., the revision against the acquittal of Mehr Din and Boota is disposed of.

8. Criticising the finding of the trial Court, learned counsel for the appellants contended that out of the three eye-witnesses, prosecution produced only two. Shaukat Ali who was mentioned in the F. I. R. was given up as having been won-over. P: W. 8 Muzaffar informant was closely related to one of the deceased and was a friend of the other. Moreover, be was a chance witness. His presence at the spot was doubted because he was a resident of Chak No. 354, J. B, situated at t; distance of about 35 miles away from Lyallpur. It was next contended that the motive story was cooked up because documentary evidence could have been produced to show that Baqar Ali had been selected a C. S. P. officer but it was not done. Moreover, the Court Witness Raza Rizvi had said that Baqar Ali was not a C. S. P. on record. We have already commented upon the evidence of the Court witness. We may add that to a Court question whether the witness verified from the Public Service Commission or from the Academy that Baqar Ali was selected in any service, not only the witness replied in the negative, he offered no explanation. This adversely reflected on his evidence. In this regard it was also argued that the trial Court has erred in placing reliance on the oral testimony of P. W. 7 Azhar Hussain, brother of Baqar Ali deceased and P. W. 8 Muzaffar Ahmad a class-fellow and a friend of Baqar Ali deceased. In this regard it may be mentioned here that if the defence had any doubts about the antecedents of Baqar Ali and was sure that Baqar Ali had not qualified in the C. S. P. competition of 1971, then it could have belied the assertion of the two prosecution witnesses by producing documentary evidence. In the absence of proof to the contrary, the evidence of the prosecution witnesses cannot be brushed aside, simply because the prosecution did not produce documentary evidence to prove this, fact. There was' nothing in their evidence to show that the assertion was not true. The fact that Mst. Ismat Bibi was married on 19th May, 1974 did not prove that she was not previously engaged to Baqar Ali at some stage. We have no reason to doubt the evidence of the motive in this case.

9. The next question for determination would be whether the two eye-witnesses namely, P. W. 8 Muzaffar Ahmad, P: W. 9 Muhammad Khalil can be relied upon. P. W. Muzaffar Ahmad was a friend and a class-fellow of Baqar Ali, Bakhat Nawaz Malli deceased was his wife's brother. This witness fully supported the prosecution case as enumerated by him in .the F. I. R. Admittedly, he was a permanent resident of Chak No. 354 Qadarabad, which was far away from Lyallpur, but according to him, being a friend of Baqar Ali, he bad come from his village with Shaukat Ali (given up) to get together with friends there. After taking Bakhat Nawaz with them, they went to the house of Baqar Ali and from there they were on their way towards the Dawn Industries, when the occurrence took place. The witness and Shaukat were about 7/8 karams behind the others when the accused opened the attack near the dera of Baba Lata. Riaz, Zahid and Rafiq gave knife blown to Baqar Ali on his chest, back and other parts of his body while Boota held him. Bakhat Nawaz tried to intervene but was ripped by Mehr Din. Ghulam Abbas gave a knife blow in the left flank of Bakhat Nawaz who fell down. According to Muzaffar Ahmad, the occurrence was also witnessed by P. W. 9 Khalil who was standing in front of his door. Riaz, Zahid, Rafiq and Boota lifted the dead body of Baqar Ali to the dera of Baba Lata. The other two accused also followed them. Thereafter the witness went near Bakhat Nawaz and found him dead. After a short while they peeped into the Ihata and saw Baqar Ali lay dead on the ground. Under cross-examination Muzaffar Ahmad admitted that the programme of getting together was not arranged through correspondence, but a few days before the occurrence he went to Lahore, Baqar Ali met him there and asked to come over on Friday to Lyallpur as he would be going there. Consequently, the witness came over to Lyallpur. Shaukat Ali being a common friend had also come with him. It may be mentioned at this stage that the Police Station was at a distance of 1 miles from the place of occurrence and the report was promptly made there within 45 minutes giving the details of the occurrence and the names of the witnesses. The fact that the F. I. R. was made by Muzaffar Ahmad supports his statement that he had come over from his Chak to Lyallpur and was with his friends when the occurrence took place. Under these circumstances the argument that Muzaffar Ahmad was a chance witness has no force. His presence at the spot is very much established by the prompt F. I. R. made by him.

10. We now take up the evidence of P. W. 9 Muhammad Khalid, the other eye-witness in the case. He is a disinterested witness and lives near the place of occurrence. He runs a poultry farm. He appeared on the scene from his house when he heard the alarm. He has fully corroborated the testimony of Muzaffar (P. W. 8). He has given a detailed description of the injuries inflicted to both the deceased by the accused. He witnessed the occurrence from a distance of 15 to 20 ft. It was suggested to him under cross-examination that he had a dispute with the father-in-law of Riaz accused which was settled through a compromise deed dated 31st January, 1974. The witness denied the document and his signatures on it. It may be mentioned here that the defence has not proved this document (Exh. as D. C.). In any case Exh. D. C. does not disclose the details of the dispute. It was, however, suggested to the witness that he had been teasing the daughters of his neighbour, Mst. Irshad Begum which was objected to by the father-in-law of Riaz. Further, he was running a gambling den. Both the suggestions were denied by him. Muhammad Khalid is a natural witness being a neighbour. Defence did not succeed in proving that he was of a bad character. An attempt was made to show that this witness had some connection with one Muhammad Ilyas of Gojra who had put him up as a witness in this case because fifteen years back in the murder case against the witness's father, said Ilyas had helped him. The witness denied this suggestion. He admitted that Munir, husband of Baqar Ali's sister, was a Chairman of the Peoples Party Maqbool Road, Lyallpur and was known to him as a Mohallahdar,, but this did not prove his interest in the deceased. There is nothing in the cross-examination of this witness to indicate that he had not seen the occurrence. He has no motive to falsely involve the accused in this case. Nor is he related to the deceased. He is a natural witness.

11. In so far as the recoveries in this case are concerned, no doubt the blood on the' four weapons recovered from Zahid Hussain, Ria3 Hussain, Muhammad Rafiq and Ghulam Abbas had disintegrated. These recoveries were supported by the evidence of Muhammad Sarwar. This witness was a Clerk in the Malik Oil Mills and had joined the investigation at the request of the police. He was confronted with his police statement (Exh. D. A.) where he has referred to only one recovery, that is from Riaz Hussain accused. A perusal of the police file would reveal that the same day his four statements were recorded, i. e. after each recovery. Therefore, this confrontation is of no help to the defence.

12. We find no reason to doubt the evidence of P. W. 6 Muhammad Sarwar. True, the other witness of recovery was given up as having been won-over. We find that the statement of Muhammad Sarwar is corroborated by the Investigating officer. In our opinion, the recoveries of weapons at the instance of the accused were satisfactorily proved. No doubt, the blood on the four weapons was found to have been disintegrated by the Serologist but in this regard the principle laid down in P L D 1965 S. C. 263, supports the prosecution case, i.e. the evidence of the eye-witnesses being unimpeachable, such e recoveries on which blood is disintegrated and its origin is not determined, would serve to support the direct evidence which is found reliable. We, therefore, see no reason to differ with the trial Court's finding that the recoveries of the weapons from the accused corrobora ted the testimony of the two eye-witnesses. We may mention at this stage that except for the shirt of Ghulam Abbas, the clothes of the remaining accused which were got removed from their persons on the following day of the occurrence, were found by the Serologist to be stained with human blood and these recoveries were attested by P. W. 7 Azhar Hussain and Muzaffar Ahmad Azhar Hussain also deposed about the motive and Muzaffar Ahmad was an eye-witness of the occurrence. We have already found their evidence to be reliable. There is nothing in their cross-examination to discredit their testimony. At this stage we may also mention about the conflicting defence pleas taken by the accused in this case. According to Mehr Din, the acquitted accused, Baqar Ali alongwith Bakhat Nawaz attacked the dera of Baba Lata with their intention to commit the murder of Rafiq (accused). The co-accused who were present with Rafiq, in the exercise of their right of self-defence, inflicted injuries on the assailants and the deceased. One of them died inside and the other managed to run out of the dera and fell down in the street. As against this statement, Muhammad Rafiq admitted his close friendship with Riaz Hussain accused and said that on the day of occurrence, a drain was under repair in the street and the two deceased came ' in a car. The mud was splashed on them by their car upon which there was exchange of hot words whereupon Baqar Ali and Bakhat Nawaz came out of the car and fired shots and then left. After which he also left for his house and did not know what happened on the spot thereafter. His statement on the face of it, did not inspire confidence because he did not mention whether the shots hit anyone or any thing. This place of occurrence is a street and not an open place. He has not taken up the plea of self-defence as attributed to him by Mehar Din the acquitted accused. In our view the defence was worthless and has rightly been kept out of consideration by the trial Court. However, in support of their defence none of the accused led any evidence.

13. In view of the aforementioned analysis of evidence, we do foot see any force in this appeal, the same is dismissed.

14. During the course of, arguments of the appeal, we deemed it fit to issue notices for enhacement of sentence to Muhammad Rafiq. Zahid Hussain and Riaz Hussain respondents, because the trial Court's reasoning for not awarding the capital sentence to them was against the evidence in this case. Trial Court observed that no specific injury had been attributed to any of the accused in so far as the murder of Baqar Ali deceased was concerned. Therefore, on this count capital punishment was not awarded. In cross-examination P. W. 8 Muzaffar Ahmad had mentioned that Zahid accused gave a blow in the chest of Baqar Ali. Rafiq also attacked Baqar Ali who tried to defend himself with his hands and Riaz inflicted an injury in Baqar Ali's back. No doubt, in his examination-in-chief the witness did not specify the injuries as above. Nor he did so in the F. I. R. However, in the F. I. R. be did give the location of the injuries of the deceased. Under these circumstances, the finding of the learned trial Court was not correct. Moreover, it was an attack on undefended persons which resulted in double murder. It may be pointed out here that, according to the medicial evidence, Baqar Ali had received injuries on his chest, back and on the palm of his left hand and near the little finger. According to the doctor, injuries in the chest and the back were fatal. These are attributed to Riaz and Zahid Hussain. Since the injuries caused by Rafiq were on the hand of Baqar Ali deceased, in his case we do not consider the enhancement of sentence necessary. Notice issued to him is, therefore, withdrawn. It was contended that a question of family honour was involved in this case because Mehar Din's daughter was given a bad name and was rejected for marriage by Baqat Ali deceased. It may be mentioned in this regard that participation of Mehar Din has been found doubtful and he has since been acquitted. It was next contended that the respondents were sentenced to imprison ment for life on 2nd February, 1978 and they should not be awarded capital punishment after the lapse of more than two years. There is no force in the submission. Since it is a case of double murder and the undefended deceased were brutally murdered, therefore capital sentence is appropriate. However, the case of Zahid Hussain was distinguish able from his brother Riaz Hussain. Zahid Hussain being younger to Riaz Hussain, may have acted under his influence. We, therefore, withdraw the notice issued to him and maintain his sentence of imprisonment for life. There being no mitigating circumstances for Riaz Hussain, we enhance his sentence from imprisonment for life to death and direct that he shall be hanged by neck till he is dead. The death sentence of Ghulam Abbas is confirmed. Death Sentence Confirmed.