1988 P Cr (PLP)

(2) A stab wound 3 c.m. x 1 c.m. chest deep on the front of the left chest at 5 o'clock position from the left nipple, 6 c.m. away passing through the left fifth and sixth ribs and directed backwards cutting the left pleura and left lung underneath. (3) A stab wound 4 c.m. x 1 c.m. x chest deep on the front of the left chest at 7 o'clock position from the left nipple, 8 c.m. away cutting left sixth rib through and through, diaphragm and liver, underneath. (4) A stab wound 3 c.m. x 1 c.m. x chest deep on the front of the left abdomen at 1 o'clock position from the umbilicus, 10 c.m. away near costal margin cutting liver and peritoneum underneath. (5) A stab wound 3 c.m. x 1 c.m. x abdomen deep on the right side of the abdomen at 11 o'clock position from umbilicus, 2 c. m. away cutting peritoneum underneath. (6) A stab wound 4 c.m. x 1 c.m. x abdomen deep on the left lower part of abdomen. A small portion of intestine was coming cut of the wound. The peritoneum and mesentry was cut underneath, (7) A stab wound 1 c.m. x c.m. x muscle deep directed inwards on the back of the left flank near mid line." In the opinion of the Medical Officer, the cause of death was shock and haemorrhage on account of injuries Nos.2 to 6 which were sufficient individually and collectively to cause death in the ordinary course of nature. These injuries were grievous. Injuries Nos. 1 and 7 were simple. All the injuries were ante‑mortem and had been caused by sharp‑edged weapon. The probable interval between the injuries and the death was immediate and between the death and the post‑mortem examination about 18 to 24 hours. Exh.P.H. is the post‑mortem examination report arid Exh.P.H./1 is the diagram showing the locale of the injuries.

9. The above Medical Officer on the same date at 12‑45 p.m. performed post‑mortem examination on the dead body of Riaz deceased and observed the following injuries:‑‑ (1) A stab wound 3 c.m. x 1 c.m. x chest deep on the front upper most part of right chest near the root of the neck, cutting the, pleura and right lung underneath. (2) A stab wound 4 c.m. x 3 c.m. x chest deep on front of the right chest at 1 o'clock position of right nipple, 2 c.m. away cutting right second rib, right pleura, right lung and upper part of heart underneath. (3) A stab wound 4 c.m. x 1 c.m. x abdomen deep located at 2 o'clock position from the abdomen, 5 c.m. away. Part of intestine was coming out of the wound, which cut peritoneum and stomach underneath. (4) A stab wound 3 c.m. x 1 c.m. x muscle deep on the outer front part of the left upper arm. (5) An incised wound 3 c.m. x 1 c.m. x muscle deep on the web between left thumb and left index finger. (6) A stab wound 3 c.m. x 1 c.m. x muscle deep on the back of the right chest at its upper part." In the opinion of the Medical Officer, the deceased died due to shock and haemorrhage on account of injuries Nos. 1, 2 and 3 which were ante‑mortem and sufficient to cause death individually as well as collectively in the ordinary course of nature. Injuries Nos. 4, 5 and 6 were simple in nature. All the injuries were caused by sharp‑edged pointed weapon. The probable interval that elapsed between the injuries and the death was immediate and between the death and the post‑mortem examination about 18 to 24 hours. Exh.P.L. is the post‑mortem examination report and PL/1 is the pictorial diagram of the injuries.

10. Dr. Imtiaz Ahmad Gill P.W.6 medically examined Jamil appellant on 15th of December, 1981 and found the following injuries on his person:‑‑ (1) An ebrasion 1 c.m. x 3/4 c.m. on the back of left thumb. (2) An abrasion 1 c.m. x c.m. on the back of left thumb. (3) An abrasion 1 c.m. x 3/4 c.m. on the back of the left thumb. (4) An abrasion 4 c.m. x c.m. on the right leg. All the injuries were simple in nature having been caused with blunt weapon within the duration of about three days. Exh.P.O./1 is the medico‑legal report given on the injury statement Exh.P.O. prepared by S.I. Muhammad Zaman, P.W.12.

11. The appellants and their co‑accused pleaded not guilty to the charge framed against them under section 302/34, P.P.C. and 302/109, P.P.C. When examined under section 342, Cr.P.C. the appellants and their co‑accused, except the absconder, while admitting their relationship inter se and with the deceased denied the prosecution case. According to them they were innocent and had been implicated in the case due to enmity and their relationship with Jamil appellant. Jamil appellant while denying the recovery of blood‑stained Chhuri P.11 from him, raised the following plea as regards the occurrence:‑‑ "On the day, time and place as alleged by the prosecution, I came across Muhammad Yousaf deceased and touched his feet entreating him not to evict me and my family from Ihata No.2082, as I could go nowhere with my mother and grown up sisters living with me there. Muhammad Yousaf deceased instead displayed his penis (sex organ) and said to me that my sisters and mother could live thereon. On this I lost my self‑control and having been provoked caused injuries to Muhammad Yousaf deceased with a knife, which I happened to have with me at that time. After causing injuries to Yousaf deceased, I ran towards my house but on the way was confronted by Siraj Din deceased, who was armed with a stick with which he attacked me and caused injuries to me. Apprehending danger to my life, I, in the exercise of the right of self‑defence, caused injuries to him with the same knife. In the meantime, Riaz deceased attacked me in order to save his father (Siraj deceased) and I caused him injuries with my knife. I was arrested by the police from my house about half an hour after the above‑mentioned occurrence."

12. The prosecution at the trial examined twelve witnesses who included three eye‑witnesses namely Ishaq P.W.8, Asghar P.W.9 and Mst. Bashiran P.W.10 and S.I. Muhammad Zaman P.W.12 who investigated the case. The learned trial Judge during the trial personally inspected the spot on 5th of August, 1984 in the presence of the accused and learned counsel for the parties. His inspection note is on the file. After appraising the evidence, the learned trial Judge held the appellants guilty of the murder of the deceased and convicted and sentenced them as above while acquitting Shadi, Sharif and Ali Muhammad of the charge of abetment on the basis of benefit of doubt.

13. Learned counsel for the appellants has assailed the conviction and sentence of the appellants on the grounds that since the F.I.R. Exh.P.D. was not recorded at the police station, the normal presumption is that it was lodged after deliberation and, therefore, no sanctity is attached to it, that the eye‑witnesses are interested and their statements are discrepant, that the prosecution has suppressed the injuries of Jamil appellant, that Mst. Bashiran P.W. was not cited as an eye‑witness in the F.I.R., that all the accused except Jamil appellant were found innocent during investigation and that it was Jamil appellant alone who caused injuries to the three deceased on grave and sudden provocation. Learned counsel for the State supports the impugned judgment. Learned counsel for the complainant while supporting the conviction and sentence of the appellants, challenges the acquittal of the three co‑accused of the charge of abetment.

14. It is true that the F.I.R. Exh.P.D. was not lodged at the police station. When an F.I.R. is recorded at a place other than a police station, it is normally presumed that it was preceded by deliberation and preliminary investigation. However, in this case, this presumption does not arise. Police Post Sargodha Road, a police post of Police Station Civil Lines, Faisalabad was quite close to Chowk Thankiwala where the F.I.R. Exh.P.D. was recorded. This chowk is only 20/22 yards away from the spot. These distances have been given by S.I. Muhammad Zaman P.W.12 in his statement. It means that the occurrence took place in the vicinity of the police post. Therefore, the fact that the F.I.R. was recorded at Chowk Thankiwala does not detract from its authenticity. The appellants did not controvert the place and time of the occurrence. The F.I.R. was recorded at 6‑30 p.m. and the case was registered on the basis thereof at Police Station Civil Lines at 6‑50 p.m. The promptitude with which the F.I.R. was recorded and the case was registered excluded chances of fabrication.

15. As regards the motive, it is not in dispute. Ishaq P.W.8 deposed that Mst. Zahida Begum, the transferee of Ihata No.2082 had instituted proceedings for the eviction of Fazal Muhammad, Shadi and Sharif from there. Mst. Zahida Begum had appointed Yousaf deceased as her special attorney for the prosecution of the ejectment proceedings. This statement is corroborated by the three documents Exhs.PX, PX/1 and PX/2 whereby Mst. Zahida Begum had appointed Yousaf deceased as her special attorney on 17th of March, 1980 in the ejectment cases filed by her against Fazal Muhammad, Shadi and Sharif. The judgments Exhs.P.Y. and P. Z. further show that ultimately ejectment orders were passed in the ejectment cases filed against Shadi and another and Sharif and another on 10th of December, 1983. It is, therefore, quite natural that Fazal Muhammad, Shadi and Sharif in view of their imminent eviction from the Ihata were feeling aggrieved against Yousaf deceased, their brother, for pursuing the ejectment cases against them. Ishaq P.W. further deposed that a day before the occurrence, Fazal, Shadi and Sharif alongwith the appellants came to Yousaf deceased and asked him not to pursue the cases against them but when the deceased refused to accede to their demand, they went back giving him threats. This statement, in the circumstances, does not appear to be a contrivance.

16. As mentioned above, the ocular account was furnished by Ishaq P.W.8, Asghar Ali P.W.9 and Mst. Bashiran P.W.10. They supported the occurrence as given in the ensuing part of this judgment. Ishaq and Asghar P.Ws. deposed that the appellants and the absconder inflicted injuries with their respective Chhuris on Yousaf deceased and Siraj deceased and the appellants caused injuries with their respective weapons to Riaz deceased. In spite of the marathon cross -examination to which Ishaq P.W. was subjected, nothing could be elicited which could re‑coil on his veracity. The other two eye‑witnesses also were cross‑examined but their credibility also remained unimpaired. Their statements do not suffer from any material and credit‑shaking discrepancy. Some variations in their statements at the trial inter se and with those made before the police have been pointed out. However, these variations are not of the nature as could smack of fabrication. In the trauma caused by the murder of their near and dear relations, impairment of their perception and consequential divergence in the narration of minute details of the occurrence, being natural, hardly reflects on their reliability. No doubt they are related to the deceased, nevertheless they are also not enemies of the appellants and they had no animus, no motive, to exaggerate the occurrence and falsely implicate innocent persons. Learned counsel for the appellants has highlighted that Ishaq P.W. is not truthful as he has been disbelieved by the learned trial Court as regards the recovery of blood‑stained Chhuri P.11 on personal search of Jamil appellant and the abetment by Shadi, Sharif and Ali Muhammad. As regards the abetment, he was not emphatic that the deceased had been murdered at the instance of Shadi, Sharif and Ali Muhammad. He rather stated that since they were in the company of the appellants and the absconder when they extended threats to Yousaf deceased, a day prior to the day of occurrence, he thought that the appellants had committed the offence at their instance. This statement was of speculative nature and was rightly considered as intangible. So far as the recovery of Chhuri P.11 is concerned, it was disbelieved because Asghar P.W.9 and S.I. Muhammad Zaman P.W.12 had stated different times of the recovery. According to Asghar P.W.9, this recovery was made at about 3/4 p.m. while the S.I. gave the time as 8‑00 in the morning. In view of this irreconcilable discrepancy, this recovery was rightly discarded. Therefore, both these circumstances do not impinge upon the credibility of Ishaq P.W. Asghar P.W. is equally related to both the parties. He had neither any greater affection for the deceased nor any bias against the appellant Mst. Bashiran P.W. is the widow of Siraj deceased and the mother of Riaz deceased. Riaz deceased was attacked quite close to her house. The proximity between her house and the spot makes her a very natural witness of the occurrence. The fact that herb name was not mentioned as an eye‑witness in the F.I.R. does not in the circumstances of the case inevitably raise an inference that she has been grafted in this case.

17. Jamil appellant pleaded in his statement under section 342, Cr.P.C. that it was he alone who with a knife on grave and sudden provocation caused injuries to Yousaf deceased ‑and in exercise of the right of self‑defence attacked Siraj and Riaz deceased when Riaz deceased attacked him to save Siraj deceased, his father. This plea was suggested to Ishaq P.W. in his cross‑examination but he refuted the same. This plea was argued before the learned trial Court but it repelled the same observing: "Muhammad Jamil accused wants the Court to believe that all the deceased posed as sitting ducks and could not defend themselves particularly when Jamil accused had come extremely close to each one of them in order to inflict Chhuri blows." The cogency of this observation is unassailable. The deceased received 22 injuries (actually 23 as injury No. 2 on the body of Yousaf deceased consisted of two incised wounds). All these injuries except two received by Riaz deceased were on vital parts. It is inconceivable that only one person with only a knife could have caused so many injuries to the three deceased in the presence of the eye‑witnesses who were not strangers. The number and nature of the injuries manifest that there were undoubtedly more than one assailants. In this connection, capital has been sought to be made out of the injuries of Jamil appellant. It is argued that suppression of his injuries by the prosecution indicates suppression of the real occurrence. The injuries of Jamil appellant are very minor and of nature which could be self‑suffered. It does not appear from any material on record that these injuries were caused to Jamil appellant in the occurrence.

18. Another circumstance which has been pressed into service by learned counsel for the appellants is the statement of S.I. Muhammad Zaman P.W.12 in his cross‑examination that during investigation, 109 persons most of them claiming to be the inhabitants of the locality and mother of Yousaf deceased appeared in defence of the accused except Jamil and in view of their statements, he had opined that the accused persons except Jamil appeared to be innocent. Except the eye‑witnesses, no one else had seen the occurrence. S.I. Muhammad Zaman stated in his cross‑examination that when he first reached Chowk Tankiwala near the spot, he did not see inhabitants of the locality having collected there. Ishaq P.W.8 in his cross‑examination also stated that no one from the locality other than the P.Ws. were seen by him on or around the spot during the occurrence. Similar statement was made by Asghar P.W.9 in his cross‑examination that nobody came from the nearby houses during the occurrence. It means that the inhabitants of the locality who had appeared before the Investigating Officer in defence of the accused were not eye‑witnesses. Moreover, if in fact they had seen only Jamil appellant killing the deceased, some of them would have been produced at the trial in defence. As regards the mother of Yousaf deceased, she is also the mother of three accused and grandmother of the appellants. Her anxiety to save as many as possible is understandable. She too was not produced at the trial and her 'non‑production by the defence loudly speaks of the weakness of the plea of the appellants.

19. In view of the above reasons, we feel that the ocular account provided by Ishaq P.W.8 Asghar P.W.9 and Mst. Bashiran P.W.101 does not bristle with any doubt and in spite of exclusion of recovery evidence in respect of blood‑stained Chhuri P.11 from Jamil appellant, proves the guilt of all the appellants fully.

20. In the result, therefore, we maintain the conviction of then appellants.

21. As regards the sentence, learned counsel for the appellants has pleaded for leniency arguing that if at all the appellants committed the crime, they were driven to that extent by the conduct of Yousaf deceased himself who was pursuing ejectment cases against them on behalf of a stranger and they acted under the influence of their elders. We are afraid, this plea in the circumstances of the case does not constitute a justifiable basis for refraining from awarding the normal sentence to the appellants for the offence committed by them except Shakeel appellant who, of course, deserves leniency for the reason that he was less than 16 years of age at the time o If occurrence. We do not also find any justification for enhancing the sentence of fine of the appellants, as prayed for by the complainant. Accordingly, we confirm the sentence of the appellants except Shakeel and dismiss their appeal as well as the revision petition of the complainant for enhancing the sentence of fine imposed on them. In the case of Shakeel appellant, the sentence of death is altered to that of imprisonment for life on each count. The sentence of fine is, however, maintained.

22. The complainant has also assailed the acquittal of Shadi, Sharif and Ali Muhammad. The only evidence against them is the statement of Ishaq P.W.8. His testimony qua them, as observed above, was only conjectural and inferential. Their acquittal, therefore, does not call for interference. Accordingly, the revision petition against them also is dismissed.

23. The sentence of death awarded to Muhammad Jamil and Muhammad Aslam appellants is confirmed. However, the same is not confirmed in the case of Shakeel appellant. M.Y.H./M‑714/L Appeal dismissed.