1984 P Cr (PLP)

2. The occurrence took place on 25th July, 1976 at 10 a m. in a Gali in front of the house of the appellant situated in Kachi Dilmirwali Mohallah Islampura at a distance of one mile from Police Station Satellite Town, Gujranwala. Statement (Exh. P. B.) was made by Muhammad Farooq (P. W. 12), real brother of the deceased, at 12.05 p.m. on the same day and it was recorded by Rana Muhammad Yasin S.-I. (P. W. 14) at Chowk Bijli Ghar Market at a distance of 50 yards from the Police Station where he happened to be on Gasht duty at that time. Formal F. I. R. (Exh. P. B./I) was registered on the same day at 12.15 p.m. by Rafiullah F. C. (P. W. 3).

3. The motive for crime as stated in the F. I. R. is that about 21 months prior to the present occurrence the deceased bad advanced a sum of Rs. 451 to Abdul Jabbar, acquitted co-accused, as he was working in his factory of making brass utensils. Abdul Jabbar, acquitted co-accused, was there for about two months and then left the job and started working in the factory of someone else. 15/i6 days before the present occurrence, while the deceased alongwith his two brothers, namely, Abdul Shakoor (P. W. 7) and Muhammad Farooq (P. W. 12) was going to see a movie film, he met on the way Abdul Jabbar, acquitted co-accused, and the deceased demanded from him the repayment of advance money. Abdul Jabbar, acquitted co-accused, is stated to have promised to pay the same within a few days. Then one day prior to the present occurrence the said money was again demanded by the deceased from Abdul Jabbar, acquitted co-accused, while the deceased was accompanied by Muhammad Yaqoob (P. W. 6), Muhammad Farooq (P. W. 12) and Muhammad Akhtar (not produced). At this stage Abdul Jabbar, acquitted co-accused, as well as the appellant told him that the money would be returned whenever they had it. Both Muhammad Farooq P. W. as well as the deceased told the appellant and Abdul Jabbar, acquitted co-accused, that since Abdul Jabbar, acquitted co-accused, was working in another factory, he was certainly in a position to pay back the advance money. On this there was an altercation between the parties in which abuses were exchanged. However, the people of the Mohallah separated them. While leaving, the appellant is stated to have threatened the deceased that the result of the incident would not be good. Thus, the prosecution version is that both the appellant and his brother Abdul Jabbar, acquitted co-accused, bore a grudge against the deceased due to this incident and this has been described as motive for the commission of crime.

4. In the F. I. R. it is stated by Muhammad Farooq (P. W. 12), that on the fateful day while he, Muhammad Ramzan (P. W. 13) and Ghulam Muhammad (not produced) were sitting at the factory of the deceased, Abdul Jabbar, acquitted co-accused, came there and said to the deceased that he should accompany him so that they could settle the account which was due to him. On this the deceased accompanied Abdul Jabbar, acquitted co-accused. They were followed by Muhammad Farooq, Muhammad Ramzan P. Ws. as well as Ghulam Muhammad (not produced). When they reached near the turn of the Gali, they noticed that on reaching in front of his house Abdul Jabbar, acquitted co-accused, had held the deceased in a jappha while the appellant armed with a chhuri came out from inside their house and gave a blow with the chhuri which fell in the middle of he chest of the deceased. As a result the deceased fell down and while he was in the fallen condition, the appellant gave him the second blow with the chhuri which fell on the right flank of the deceased. On the alarm of the eye-witnesses, namely, Muhammad Farooq, Muhammad Ramzan P. Ws. and Ghulam Muhammad (not produced) the appellant and his brother Abdul Jabbar, acquitted co-accused, leaving behind the deceased, ran away. Muhammad Farooq P. W. with the assistance of others put the deceased in an injured condition in a rickshaw and took him to the Civil Hospital, Gujranwala. Shortly after reaching the emergency room of the hospital, the deceased passed away. Then leaving behind his companions at the Civil Hospital Gujranwala, in order to attend to the dead body of the deceased, Muhammad Farooq P. W. proceeded to lodge the report.

5. The prosecution has produced two eye-witnesses of the occurrence, namely, Muhammad Farooq (P. W. 12) real brother of the deceased, and Muhammad Ramzan (P. W. 13), an unconnected and unrelated person stated to be from the baradari of the deceased as well as partner of Muhammad Farooq P. W. Ghulam Muhammad was cited as an eye witness in the F. I. R. but was given up as unnecessary.

6. Both the appellant and his brother Abdul Jabbar, acquitted co- accused, were arrested by Rana Muhammad Yasin S. I. (P. W. 14) on 26th July, 1976. At the instance of the appellant blood-stained chhuri (Exh. P. 2) was recovered and taken into possession vide memo. Exh. P. D. dated 26th July, 1976. The attesting witnesses are Abdul Shakoor (P. W. 7), brother of the deceased, Muhammad Farooq (P. W. 12), another brother of the deceased, and Rana Muhammad Yasin S. I. (p. W. 14). According to the report of the Serologist (Exh. P. M.) at page 14 of the printed paper-book, chhuri (Exh. P. 2) was stated to be stained with human blood.

7. The appellant in his statement before the trial Court denied having participated in the occurrence. However, he owned chhuri (Exh. P. 2) and stated that he had been falsely implicated by the P. Ws. who were related inter se and were inimical towards him as well as his brother Abdul Jabbar, acquitted co-accused. In reply to the question as to whether he had anything else to say, he gave his own version of the occurrence which is follows:- "I am innocent. In the early hours of 25th July, 1976 while I was sleeping on the roof of my house, my parents along with my co -accused Abdul Jabbar had gone to Sheikhupura to mourn the death of a relative; my sister Mst. Wakeelan was sleeping in the courtyard of our house. On hearing her shrieks I rushed down in the courtyard and found the deceased committing Zina-bil-Jabr with my sister. On this I lost self-control and almost became mad. I picked up domestic chhuri from my kitchen and tried to give blow to the deceased on the left flank. He rushed towards our outer door and tried to escape and there 1 gave him a blow in his chest. He fell down and died on the spot. The deceased left his semen-stained dhoti, his torn shirt and pair of shoes at the spot. The matter was reported to the police by Mohalladars and my uncle Allah Bandah. The police reached the spot at about 9.00 a.m. I surrendered myself voluntarily and produced the blood stained chhuri, clothes of the deceased and his pair of shoes before the police. Residents of street No. 3 were present there. My brother Abdul Jabbar was not in the house at the time of occur rence. The police in connivance with the complainant party cooked up a false version about an intentional murder." So far as Abdul Jabbar, acquitted co-accused, is concerned, he too denied his participation in the occurrence and the part ascribed to him. He stated that be was innocent and further stated that the story .of motive had been cooked up by the police at the behest of the complainant party in order to suppress the criminal as well as moral misdeeds of the deceased. He further stated that he was not present on the spot on the day of occurrence but was in Sheikhupura. There was only his brother, the appellant, who was present but both of them had been involved so that none should remain behind to look after the aged father and the family members. Both the appellant and the acquitted co-accused did not produce any evidence in defence.

8. Dr. Muhammad Irshad conducted medico-legal examination when the deceased was brought to the hospital in an injured condition and was still alive. According to the record he was brought to the hospital at 11-20 a.m. on 25th July, 1976 while he was in an injured condition and still alive and his medico-legal examination was conducted by Dr. Muhammad Irshad at 11.35 a.m. He noted .one incised wound on the left front of chest and one incised wound on the right front of lumbar region. The patient was only wearing one torn bunyan. It is not specified exactly in the record as to at what time the deceased had died. It appears that he died shortly thereafter. The medico-legal report is Exh. P. F. The Post-mortem examination on the dead body of the deceased was conducted by Dr. Iftikhar Ahmad at 10-15 a.m. on 26th July, 1976. He also noted the same injuries on the person of the deceased. The injuries had been caused with a sharp-edged weapon and it was the first injury which had proved fatal as it was sufficient to cause death in the ordinary course of nature. The second injury was found simple. He also noted that the dead body was only wearing a bunyan. About the stomach condition he observed that the bladder of the deceased was full of urine and his intestines were full of faecal matter. The post-mortem examination report is Exh. P. E. Since both the doctors i.e. Dr. Muhammad Irshad and Dr. Iftikhar Ahmad had gone abroad, their reports Exhs. P. F. and P. E. were proved by Muhammad Ahmad Haqqani (P. W. 11), Dispenser.

9. We have heard learned counsel for the parties and carefully perused the record. There is no background of previous enmity between the parties The motive as set up by the prosecution is this that the deceased had advanced Rs. 451 to Abdul Jabbar acquitted co-accused, brother of the appellant, and on demand the said amount was not being returned to him Thus, from the motive version as set up by the prosecution, Abdul Jabbar, acquitted co-accused, was directly connected with the motive, whereas the present appellant, if connected with the motive, was only indirectly so connected. Learned counsel attempted to argue that the motive, in the instant case, is very weak and that furthermore it was being advanced only by such witnesses who were closely related to the deceased and should be considered as interested witnesses. So tar as the prosecution is concerned, three witnesses of motive have been mentioned out of whom two were produced namely, Muhammad Farooq (P. W. 12) who is real brother of the deceased, and Muhammad Yaqoob (P. W. 6), the other real brother of the deceased. Third witness of motive, namely, Muhammad Akhtar, was not produced. The contention of learned counsel is that the motive is put up. But our view is that in support of the motive only natural witnesses could have been produced who might have known the fact that Rs. 451 had been given as advanced money by the deceased to the acquitted brother of the appellant and this fact could have not been known to anyone else. So, we do not agree with learned counsel that there is any flaw so far as the motive version is concerned. Then the prosecution story is that on the fateful day the acquitted brother of the appellant who was directly connected with the motive, came to the factory of the deceased and asked him to accompany him so that they could settle the accounts. Thus, the deceased went away with the acquitted co-accused and according to the prosecution version, they were followed by Muhammad Farooq and Muhammad Ramzan P. Ws. as well as Ghulam Muhammad (not produced). But the prosecution version further is that when the deceased arrived in front pf the outer door of the house of the accused party, suddenly the acquitted co-accused held him in a japhha and the appellant rushed out of his house with a chhuri and stabbed him in his chest. Thereafter, when the deceased had fallen down on the ground the appellant gave another blow with his chhuri to the deceased which fell on his right flank. According to the medical evidence the first injury in the chest proved fatal, whereas the second injury was simple, although both the injuries were incised and caused with sharp-edged weapon. The ocular account comes forth from a real brother of the deceased and a partner of this brother. Therefore, learned counsel submitted that the ocular version is interested and the testimony should be judged under the principle of abundant caution. On this point we are inclined to think that even if we were to consider Muhammad Farooq P. W. as an interested witness, being brother of the deceased, Muhammad Ramzan P. W. is only partner of Muhammad Farooq P. W. and could not be considered to have a motive to falsely implicate the appellant. However, we are of the view that because Muhammad Farooq P. W. was closely related to the deceased and Muhammad Ramzan P. W. was a friend and partner in business with Muhammad Farooq P. W., they might have done a little padding to the ocular version. In any case their testimony is being corroborated by the recovery evidence as well as supported by the medical evidence, motive version and possibly to the extent of admission on the part of the appellant that be had caused injuries with a kitchen chhuri to the deceased which led to his death. The recovery evidence is in the form of human blood-stained chhuri (Exh. P. 2) which was recovered at the instance of the appellant in the presence of attesting witnesses Learned counsel at this stage submitted that the attesting witnesses of the recovery are also real brothers of the deceased, namely, Abdul Shakoor (P. W. 7) and Muhammad Farooq (P. W. 12). Anyway, the third attesting witness of this recovery is Rana Muhammad Yasin S. I. (P. W. 14) who is a police officer and there is nothing against him on the record to show that he had conducted the investigation in a dishonest manner and furthermore in any case, the face of killing the deceased with chhuri is admitted by the appellant in his statement before the trial Court. The only point which requires considera tion is as to whose version is the correct version. The defence version is that the acquitted co-accused of the appellant was not present at the time of the commission of crime and that the appellant had murdered the deceased under grave and sudden provocation. In support of this contention nothing has been brought on the record except the statement of the appellant before the trial Court and the observation of the Medical Officer to the effect that the dead body was only wearing a torn bunyan. It is evident from the record that suggestion to this effect when put to the eye-witnesses in the cross-examination, had been categorically denied. Furthermore in our view mere statement of the appellant advancing defence version coupled with the fact that the dead body was only wearing a torn banyan is trot sufficient for us to draw an inference that the defence version is correct. In support of this proposition, neither Mst. Wakeelan was produced as a defence witness, nor any case was registered on her behalf against the deceased for having committed rape on her, nor was there any medical examination of Mst. Wakeelan and not was there any injury suffered by her. Similarly, there was non-production of allegedly semen-stained dhoti of the deceased or his shirt or pair of his shoes. Even according to the site plan the backs of the houses of the deceased and the. appellant were not joint and that in such circumstances, the deceased could not have access to Mst. Wakeelan. It was also argued that the occurrence took place in the early hours of the morning when the deceased was surprised by the appellant. Thus, according to the defence-version the police took away the deceased from the spot to the hospital while he was dead already. But we are not convinced by this argument of learned counsel that the police got a medico- legal report faked in the instant case. From the record it appears that the deceased was brought to the hospital in an injured condition and while he was still alive at 11. 20 a. m. on 25th July, 1976, Dr. Muhammad Irshad conducted the medico-legal examination at 11.35 a.m. Thus, if he was alive at that time, it automatically follows that the occurrence might have taken place at the most two or three hours before, which could be at 9-00 a.m. or 8-00 a. m. and in the month of July 8-00 a.m. or 9.00 a.m. is not the time when an assailant could possibly be surprised in an attempt to commit rape on a girl sleeping in a courtyard of the house. Thus, we are not persuade to accept the defence version in the instant case. However, it is admitted by the appellant that he caused injuries to the deceased with a chhuri outside the outer door of his house and this supports the ocular testimony produced in the instant case. But we have observed that although the testimony of the eye-witnesses is being corroborated by the recovery evidence and supported by the motive version, the medical evidence and to some extent by the statement of the appellant; out of the two eye-witnesses produced, opt, being brother and the other being close friend of the brother of the deceased, could have done a bit of padding. It is reasonably probable that the deceased might have demanded the advanced money from the acquitted co-accused and the acquitted co-accused had taken him to hi house or the deceased had gone to the house himself followed by the eye-witnesses and demanded the amount of money. It is further reasonable probable that again an altercation took place between the deceased and the accused party i.e. both the brothers in the course of which they could hate grappled with one another and in the course of the same the appellant caused him injuries with a chhuri, as the case may be. In that view of matter we are, therefore, convinced in our mind that the prosecution hah succeeded in establishing its case as against the appellant beyond any shadow of doubt. His conviction as well as sentence awarded to him were quite proper in the circumstances of the case and these are according maintained. In our view, no case is made out for enhancement of sentence of the appellant from life imprisonment to death. Similarly, in the light of the above discussion, we are of the considered opinion that the co-accused, in the instant case was rightly given the benefit of doubt and ac quitted. The result is that the appeal of the appellant is hereby dismissed and in the light of the above discussion Criminal Revision No. 861 of 198 is also dismissed. Since we have maintained the conviction of the appellant under section 302, P. P. C. as well as sentence of imprisonment for the pill fine awarded to the appellant, we hereby direct the Jail authorities to grant the benefit of the provisions of section 382-B. Cr. P. C. to the appellant the time of computation of the sentence of life imprisonment awarded the appellant. M. Y. H. Appeal dismissed.