1988 P Cr (PLP)

RUSTAM S. SIDHWA, J.‑‑Munir Ahmad and Nazir Ahmed were tried by the learned Sessions Judge, Multan, under sections 302/34 P.P.C. for the murder of Muhammad Anwar, deceased. Both the accused were convicted under the said section and sentenced to imprisonment for life and to pay a fine of Rs.5000 each or in default thereof to undergo further rigorous imprisonment for two years each. The fine, if realised was ordered to be paid to the heirs of Muhammad Anwar, deceased, as compensation. The appeal (Criminal Appeal 103 of 1984) preferred by Munir Ahmad and Nazir Ahmad, convicts, against their conviction and sentences and the private revision (Criminal Revision 194 of 1984) filed by Muhammad Sarwar, complainant, for the enhancement of the sentences awarded to the convicts to death, which revision petition has been admitted, are both now before us for determination and will be disposed of by this judgment.

2. At this stage we may also mention that the appeal filed by Muhammad Siddique against Bashir Ahmad P.W.9, Ikramul Haq P.W.10 and two others against the judgment of the same learned Judge dated 17‑4‑1984 in the private complaint case filed by the said Muhammad Siddique relating to the cross version submitted by the present appellants in the present case, is also before us for determination and is being separately disposed of by a separate judgment.

3. The brief facts of the case are that Muhammad Sarwar, complainant P.W. 8 was a school teacher while his brother Muhammad Anwar, deceased, and Bashir Ahmad, Councillor P.W.9 had a tractor, which they ran jointly and which they used for ploughing land on commercial basis. On 16‑6‑1982 at about 5‑00 p. m. Muhammad Anwar, deceased, brought his tractor to Square No.85 to plough the land of Bashir Ahmad, Councillor P.W.9, Muhammad Sarwar complainant P.W.8, Bashir Ahmad Councillor P.W.9 and Inayat Ullah (given up P.W.) were present there. When Muhammad Anwar, deceased, had brought his tractor into Killa No.22, Nazir Ahmad, accused, was empty handed and Munir Ahmad, accused, who had a knife with him appeared from the west and uttered a Lalkara to the deceased, upon which the deceased stopped his tractor and got down. Muhammad Sarwar complainant P.W.8 and Bashir Ahmad Councillor P.W.9 ran in the direction of the tractor. Nazir Ahmad, accused, clasped Muhammad Anwar, deceased, whereupon Munir Ahmad, accused, inflicted one knife injury on the deceased on his left flank, as a result of which Muhammad Anwar, deceased, fell down on the ground. The two accused fled in the direction of the village. The complainant tried to render assistance to the deceased, but the latter breathed his last within four‑five minutes. On the alarm of the complainant party, Ikramul Haq P.W.10, and his two brothers Abdul Ghaffar and Abdul Jabbar (given up P.‑Ws.) who were at the Dera of Bashir Ahmad Councillor P.W.9, ran, duly armed with lathis, to apprehend the two accused. Nazir Ahmad, accused, was apprehended, but Munir Ahmad, accused, managed to escape. Nazir Ahmad, accused, then received blunt weapon injuries from Ikramul Haq P.W.10 whilst being secured at a distance of three acres. The motive for the occurrence was that Muhammad Anwar, deceased, on one side and both the accused, on the other, had quarrelled the day earlier over the ploughing of the tractor on the land of one Siddique son of Raj, caste Arain, during which quarrel they had abused each other. Due to this incident, the two accused had murdered the deceased.

4. Muhammad Sarwar, complainant P.W.8 visited Police Station Kabirwala, where he lodged F.I.R. Exh.PJ on 7‑30 p.m., which was recorded by Falak Sher A.S.I. P.W.11. The Police Officer then. proceeded to the spot, where, after preparing the necessary papers, he sent the dead body of Muhammad Anwar, deceased for post‑mortem examination. He arrested Nazir Ahmad, accused, from the dera of Bashir Ahmad Councillor P.W.9.

5. The next day i.e. on 17‑6‑1982, the Police Officer inspected the spot and took into possession blood‑stained earth vide memo Exh.P.F.

6. The same day Dr. M.A. Rafiq P.W.1 conducted the post‑mortem examination on the dead body of Muhammad Anwar, deceased, at 7.00 a.m. He found one stab wound 1i" x 1" x peritoneal cavity deep on the left flank of the dead body. The muscles and the centre of the kidney were punctured upto the hylum. Death was due to shock and haemorrhage due to the said injury, which was sufficient to cause death in the ordinary course of nature. Probable duration between the injury and death was half an hour and that between death and post‑mortem examination between ten to fifteen hours.

7. On 17‑6‑1982 at 8‑30 a.m. Dr. M.A. Rafiq P.W.1 medically examined Nazir Ahmad, accused and found a contused wound 3" x " x scalp deep on his right parietal region, an abrasion " x " with swelling 3" x 2" on his left parietal region, an abrasion " x " on the outer side of right arm, a bruise 1" x " on his right elbow joint, a bruise 1" x 1" on his right forearm, an abrasion " x " on the left side of face, a bruise 2" x " on his left hand, a contused wound " x " x skin deep on his left forearm, twenty‑one bruises 5" x 1" to 1" x " on the back of his chest and an abrasion " x " with swelling on the front of right ankle joint. The injuries on the left hand and right ankle joint were declared to be grievous, whilst the rest were found to be simple.

8. On 23‑6‑1982 Munir Ahmad, accused, was arrested by Falak Sher A.S.I. P.W.11. On 25‑6‑1982 he led to the recovery of a blood‑stained knife P3 from an almirah in a room of his house, which was taken into possession. vide memo EX.PH. The said recovery was witnessed by Ghulam Rasool P.W.7, Falak Sher A.S.I. P.W.11 and Nazir Ahmad (given up P.W.).

9. The knife P.3 recovered at the instance of Munir Ahmad, accused, was found to be stained with human blood by the Chemical Examiner and the Serologist. After completing the necessary investigation, the police sent up the challan against Nazir Ahmad and Munir Ahmad, accused.

10. At the trial, the prosecution produced Muhammad Sarwar complainant P.W.8 and Bashir Ahmad Councillor P.W.9 in proof of the motive and the ocular account, Muhammad Ali P.W.5, Ghulam Rasool P . W . 7 and Falak Sher A.S.I. P.W.11 in support of the recoveries and Dr. M.A. Rafiq P.W.1 in corroboration of the medical testimony.

11. Both the accused denied the accusations that were levelled against them, including the recovery alleged to have been effected at the instance of one of them. Munir Ahmad, accused, in his statement under section 342, Cr.P.C., pleaded alibi and stated that he was not present at the spot, but was present in the Court of the Assistant Commissioner, Minchinabad, on the day of occurrence, where his statement was recorded that day. Nazir Ahmad, accused, admitted the occurrence, though in different circumstances. His statement recorded under section 342 Cr. P.C. which is relevant in this respect, may be re‑produced here with advantage:‑ "On the day of occurrence I was present in Killa No.21 of Square No.85. We had sown cotton in it on 8‑6‑1982. I was putting seed at the vacant places where the seed had not sprouted. There Anwar, deceased, on his tractor, Jabbar, Ghaffar, Ikramul Haque and Bashir P.W.s reached and told me that they had not vacated the land of Siddique and that they would re‑occupy it. I protested, but Anwar wanted to plough it forcibly. He came down the tractor and started grappling with me. He gave me beating and I also gave him beating. Ghaffar and Jabbar were having lathis and Ikramul Haque a dagger, Ikramul Haque aimed dagger blow at me, but I stepped aside and it struck Anwar, deceased. On this they all injured me, caught hold of me and took me to the Dera of Bashir, where they tied me."

12. The learned trial Judge, relying upon the motive, the ocular account, the recoveries and the medical testimony held the case of the prosecution to be proved against both the accused. He rejected the version of Nazir Ahmad, accused. He convicted and sentenced both the accused, as stated in Para 1 above.

13. We have heard the arguments of the learned counsel for the appellants, the complainant and the State and have also perused the record. The evidence as regards motive is furnished by Muhammad Sarwar complainant P.W.8 and, Bashir Ahmad Councillor P.W.9. According to their testimony, a ay prior to that of occurrence both the appellants had asked the deceased, when he was driving the tractor in Square No.85, to plough the land of their maternal‑uncle Siddique, who had sown his land with cotton‑seeds, but the deceased refused and on this they had exchanged hot words. Muhammad Sarwar complainant P.W.8 admitted that he was not a witness to the earlier incident, but the deceased had told him about the same in the evening preceding the day of occurrence: Bashir Ahmad Councillor P.W.9 also admitted that he had not witnessed the prior occurrence, but the deceased had told him of the said incident on the morning of the day of occurrence. Even if the statements are accepted, it is not possible to believe that the two appellants would have considered the earlier quarrel so pressing as to compel them to launch a murderous assault on Muhammad Anwar, deceased. If Muhammad Anwar, deceased, had refused to plough the land, which otherwise. he would have done against payment of some rent, the appellants could have requisitioned the services of any other tractor owner. We are somewhat sceptical about .the motive advanced and since Nazir Ahmad, appellant, himself was not armed when both the appellants happened to accidentally meet Muhammad Anwar, deceased, on the day of incident, which he would have been had both the appellants felt so aggrieved as to have gone to the extent of wanting to murder the deceased, that the story somehow does not ring true and we would not accept the motive as going to the extent of compelling the appellants to commit murder.

14. The ocular account in this case is furnished‑ by Muhammad Sarwar complainant P.W.8 and Bashir Ahmad Councillor P.W.9. Nazir Ahmad, appellant, admits the occurrence, though in different circumstances. The case of the prosecution stands reproduced in Para 3 above and need not be repeated. The case of Nazir Ahmad, appellant, stands recorded in Para 11 above. The only question, therefore, that arises is whether, after placing in juxtaposition the case of the prosecution and that of the defence, the evidence on the record and the surrounding circumstances prove the case of the prosecution to the hilt against both the appellants or lead to the reasonable inference that the defence version is true or reasonably probable. Muhammad Sarwar complainant P.W.8 is the real brother of Muhammad Anwar, deceased, whilst Bashir Ahmad Councillor P.W.9 is the maternal‑uncle of Ikramul Haq P.W.10, whose brother Nazir is married to the sister of Muhammad Anwar, deceased. Muhammad Sarwar complainant P.W.8 is, therefore, closely related to the deceased, whereas Bashir Ahmad Councillor P.W.9 is somewhat distantly related. None of them have any past enmity with any of the two appellants. The incident took place in Killa No.22 of Square No‑

85. Neither the complainant party nor the accused party own the said Killa. How ever, four Kanals of land in the adjacent Killa No‑21 of Square No.85 happen to be owned by one Siddique, the maternal‑uncle of the two appellants. It is admitted on both the sides that these four Kanals were previously under the cultivation of Bashir Ahmad Councillor P.W.9, but on the date of incident it was not so. According to the testimony of Muhammad Sarwar complainant P.W.8, Muhammad Anwar, deceased, was taking his tractor through Killa No.22 of the said Square, when he was confronted by the two appellants. In cross‑examination he stated that the deceased had ploughed Killa No.10 of Square No.85 and he was proceeding to Killa No.25 to plough it, when the incident occurred in Killa No.22. He further stated that in the eastern Bigha of Kil1a No.22 sugarcane crops were growing, but that the western Bigha was vacant. He also stated that no crops were growing in. between Killa Nos.10 and 25 at the time of occurrence. According, to Bashir Ahmad Councillor. P.W.9, Muhammad Anwar, deceased, had ploughed Killa No. 10 of Square No.85, and was proceeding towards Killa No.25, when the incident occurred in Killa No.22 of the said Square: In cross‑examination he, stated that Killa Nos.10 and 25 belonged to, him and his brother Abdul Hamid and that there was no regular passage for a tractor to pass from Killa No.10 to Killa No.25. The story of both the witnesses that the two appellants made a pre‑meditated attack upon the deceased, with a view to commit his murder, does not appear to be true. Had .the appellants any such design, Nazir Ahmad, appellant, would not have been unarmed. The story of Nazir' Ahmad, appellant, is also not true. According to his version, Ghaffar and Jaffar, armed with this, Akramul Haq P.W.10, armed with a knife and Mohammad Anwar, deceased, and Bashir Ahmad P.W.9 empty handed, all had come on the tractor of the deceased to re‑occupy Killa No.21 of Square No.85 where he was sowing cotton. According, to him, the complainant party had told him that they had not vacated the land and that they would re‑occupy it, that he protested, but Mohammad Anwar, deceased, wanted to plough it forcibly, that 'the deceased came down from the tractor and started grappling with him and the incident then developed in the manner stated by him in section 342, Cr.P.C. If five persons of the complainant party, of whom three were duly armed, had come on the tractor of Mohammad Anwar, deceased, to forcibly re‑occupy the land. Nazir Ahmad, appellant, would not have had the guts to offer any stiff resistance. He would have run away. If the complainant party had come to re‑occupy the land and also to plough it forcibly, the would have ploughed it. Nazir Ahmad, appellant, did not receive any incised injury. The story of this appellant appears to be unnatural and untrue and cannot be accepted. From the evidence on the record and the surrounding circumstances, the only inference, that we can draw is that whilst Muhammad Anwar, deceased, proceeded southward from Killa No.10 to Killas Nos.11, 20 and 21 and, then proceeded eastward in order to go to Killa No.25, via Killas Nos.22, 23 and 24, he either disturbed the sowing operations going on in four Kanals of the land belonging to Siddique in Killa No.21 or damaged the fields in the said four Kanals, as a result of .which a sudden quarrel erupted between Muhammad Anwar, deceased, on one side and Munir Ahmad and Nazir Ahmad, appellants, on the other, which spilled over into Killa No.22 or some dispute between the parties erupted in Killa No‑22, as a result of which Muhammad Anwar, got embroiled in a scuffle with the appellants, during which Munir Ahmad, appellant, inflicted the solitary injury on the deceased. Since Bashir Ahmad P.W.9 had his dera in Killa No.18 of Square No.85 and at the relevant time was present with Mohammad Sarwar complainant P.W.8 in Killa No.18 of the said Square, the fact that these two also ran up and got embroiled .in the scuffle, cannot be entirely excluded. Whether Munir Ahmad, appellant, inflicted the fatal knife injury to Muhammad Anwar, deceased, during the scuffle, after Nazir Ahmad, appellant, received some injuries, or before, would not change the nature of the case, for, if there was a scuffle or grappling, which very likely happened, the case would be one of sudden fight and Exception IV to section 300 of the Pakistan Penal Code would apply to the case. We would, therefore, held that the eye‑witnesses did see the occurrence and that the incident arose over a sudden quarrel and grappling.

15. At this stage it is necessary for us to deal with the defence version of Munir Ahmad, appellant, who in his statement under section 342 Cr.P.C. pleaded alibi and stated that on the day and time of occurrence he was not present in the village, but in Minchinabad, where late in. the day he had attended the Court of the Assistant Commissioner. Learned counsel for the appellants has not pressed this plea of alibi of Munir Ahmad, appellant, being conscious of the weighty findings given by the learned trial Judge showing that the complaint case alongwith its record was a clear forgery, which had been attempted by jam Jan Mohammad Magistrate, in collusion with Mohammad Nishan and Munir Ahmad, Advocates. Learned counsel merely pressed the version of Nazir Ahmad, appellant. We approve the findings of the learned trial Judge which clearly show that the complaint case titled Munir Hussain v. Muhammad Hussain etc. filed in the Court of the Assistant Commissioner, Minchinabad, on 13‑6‑1982 and the proceedings thereon, are clear forgeries and were attempted by certain persons to assist Munir Ahmad, appellant, in order to misdirect justice, to mislead the Court of the learned Sessions Judge, Multan, and to clandestinely secure the acquittal of Munir Ahmad, appellant. We have, therefore, no hesitation in holding that the plea of alibi of Munir Ahmad, appellant, is false and fabricated. We therefore, reject the same.

16. Corroboration in this case comes from the recovery of the blood‑stained knife P3 at the instance of Munir Ahmad, appellant, on 25‑6‑1982 and the medical testimony furnished by Dr. M.A. Rafiq PW1. which shows that Muhammad Anwar, deceased, died of a stab wound, which could have been caused try the type of knife recovered at the instance of the appellant. The learned counsel for the appellants has not challenged the evidence as regards the recovery and the medical testimony and we have no reason to disbelieve the same.

17. The upshot of the above discussion is that the ocular account, the recovery and the medical testimony, clearly shows that the incident arose over a sudden quarrel. Munir Ahmad, appellant, alone is alleged to have inflicted the fatal knife injury to Muhammad Anwar deceased. He is, therefore, liable under section 304‑I, P.P.C. Sine Nazir Ahmad did not inflict any injury. he is not criminally liable for any offence. The conviction and sentences of both the appellants under section 302/34, P.P.C are not legal and correct and we, therefore, set the same aside. We convict Munir Ahmad, appellant, under section 304‑I, P.P.C. and sentence him to ten years' rigorous imprisonment and direct him to pay a fine of Rupees ten thousand (Rs.10,000) or in default thereof to undergo further rigorous imprisonment for two years. Fine, if recovered, shall be paid to the heirs of Muhammad Anwar, deceased, as compensation. The benefit of the provisions of section 382‑B, Cr.P.C. shall also be granted to this appellant. Nazir Ahmad, appellant, is not liable for any offence. He is, therefore, entitled to an acquittal.

18. For the foregoing reasons, the appeal of Nazir Ahmad, appellant, is accepted and his conviction and sentence are set aside. He shall be released forthwith, if not required in any other case. The fine, if any recovered from him, shall be refunded to him.

19. The appeal of Munir Ahmad, appellant, is partly accepted, in terms of alteration of his conviction and reduction in his sentence, as stated above.

20. There being no merit in the revision petition (Criminal Revision 194 of 1984) filed by Muhammad Sarwar, complainant, for enhancement of the sentence of Munir Ahmad, appellant, the same is dismissed.

21. In conclusion, We would direct the learned Sessions Judge, Multan, to register a case with the police regarding the forgery and fabrication of the complaint case titled "Munir Hussain v. Muhammad Hussain etc.", which was surreptitiously introduced into the records of the Assistant Commissioner, Minchinabad, so as to show that the said case was a genuinely instituted one in which proceedings had actually taken place, though it was not so. A copy of the judgment of the learned Sessions Judge, Multan, dated 17‑4‑1984, delivered in this case, together with all the papers contained in the sealed cover sent by the said learned Judge to this Court, should be sent to the learned Sessions Judge, Multan. The learned Sessions Judge, Multan, should ensure that all connected papers are properly delivered to the police against their signed receipt. S.G.D./M‑636/L Order accordingly