1986 PLP 1934 (SCMR)

5. After recording the F.I.R., Muhammad Khan S.H.O. went to the spot, prepared the inquest reports and injury sheets of bath the deceased and despatched the dead bodies to the mortuary for post mortem examination. He collected blood‑stained earth from the place of occurrence. He arrested Ghulam Abbas and took into possession his blood‑stained shirt vide memo. Exh.P.M. He arrested Zahid Hussain, Riaz Hussain and Muhammad Rafiq on 28.9.1974 and took into possession blood‑stained shirt P.15 and trousers P.16 of Zahid Hussain, vide memo. Ex.P.N. blood‑stained shirt P.17 and blood‑stained trousers P.18 from Riaz Hussain, vide memo. Ex.P.Q and bushshirt P.19 and trousers P.20, both blood stained, from the person of Muhammad Rafiq, vide memo. EXh.P.P. He also arrested Muhammad Boota and Mehr Din on the same day, i.e., 28.9.1974. On this very day Muhammad Bashir constable produced last worn clothes of the two deceased handed over by the doctor which were taken over into possession through memos. Exhs. P.C. and P.D. On 30‑9‑74 Riaz Hussain, Zahid Hussain, Muhammad Rafiq and Ghulam Abbas while in custody led the Police party to the Dera of Baba Lata from where three blood‑stained knives and one blood‑stained Chhuri Exhs.P.10, P.11, P.12 and P.13 were recovered, vide memos. Exhs. P F. P.G., P.H. and P.J. The report of the Chemical Examiner and that of the Serologist in respect of the above articles are Exhs.P.Z and P.AA.

6. Dr. Abdul Haleem Sahota (P.W:1) conducted the post‑mortem examination on the dead body of Bakhat Nawaz Malli aged about 24 years, and found a stab wound, 2"x3/4" x deep to chest on the left side of chest about two inches below the level of‑left nipple and three and a half inches away from the nipple. The wall of the, thorax was pierced at site of injury No. l .There was a cut 2" long on the left pleura. A cut 1 " long and 2" deep seas present in the left lung on the left lower base. The base was cut through and through. There was a hole in the apex of the heart whim was through and through. There was a cut 2-1/4" in the middle of diaphragm and also a cut 1 " long and 2" deep in the left lobe of the liver. The injury had penetrated chest wall, left pleura, left lung, heart, diaphragm: and liver. The path was about 10" long. On the same day the same doctor also conducted post‑mortem examination on the dead body of Baqir Ali and found the following injuries: (1) Stab 1‑3/4" x 3/4" x deep to chest on the back of left lower chest. (2) Stab 1 " x 1/2" 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 inter-costal space. (4) Incised wound 2 " x bone cut (chip fracture). On the lateral of palm of left hand. The first matacarpal, near little finger was fractured (chip fracture). (5) Incised wound 1 " x 3/4" x muscle deep on the posterior of the left forearm near elbow joint. (6) Stab 1" x 1/2" x deep to chest about one inch below the nipple line on the right part of sternum. (7) Triangular shape stab 1 " x 3/4" x deep to chest about four inches below nipple line and 2‑3/4" medial to the nipple in the right anterior of chest. (8) Incised wound 1 " x 1/2" x muscle deep on the right arm above elbow joint. (9) Bruised areas covering 3" x 1 " involving left cheek lower eye lid and lower part of upper eye‑lid. (10) Stab 2" x 1/2" x muscle deep back of right chest lower part. The wall of the thorax was pierced, the pleura was cut and so was the left lung through and through. The pericardium was cut at the right lower side. The diaphragm was cut beneath injury 7 on the right dome. There was a cut 11" deep on the right posterior lobe of liver and a cut 1" x a piece separated on the upper part of the spleen. A hole 1" through and through was present in the left kidney on the upper pole. The sternum was cut on the right side right half beneath injury No.6. The 9th rib was cut beneath injury No.7. The doctor admitted that the width of injuries 2, 3, 4, 6, 8 and 10 was one and the same and it was not necessary that the breadth of the wound should correspond with the breadth of the weapon of offence. However, in the case of pointed weapon it might be true. He ruled out the possibility of the various injuries having common measurement of 1/2" to have been caused by one and the same weapon.

7. At the trial, the prosecution in support of its case produced as many as ten witnesses. Of them, Muzaffar Ahmad P.W.8 and Muhammad Khalil P.W.9 have furnished eye‑account of the occurrence.

8. Ghulam Abbas appellant in his statement under section 342, Cr.P.C. has denied the charge of the murder of Baqir Ali and Bakhat Nawaz Malli. He also denied the recovery of blood‑stained Chhuri Exh . P .13 at his pointation and also the recovery of blood‑stained shirt Exh.P.14 from his person. In his detailed statement he deposed that on the evening of the day of occurrence he had left Lahore along with Zahid Hussain and Riaz Hussain co‑accused after visiting Data Darbar shrine. On the way back he fell ill and joined Mananwala Hospital for treatment. He had told this position to the police and Mr. Rizvi Inspector after perusing the record of the hospital recommended him to be shown in column No.2. As long as Mr.Mazhar Awais was S.P at Faisalabad he did not pay any heed to his plea of defence. An soon as he was transferred this plea was accepted by the Police. Later on under the influence of Iftikhar Rasul Malli, D,I.G., they were all challaned. Muhammad Rafiq appellant on his part denied the charge of murder of Baqir Ali and Bakhat Nawaz Maili. He disowned bushshirt P.19 and trousers P.20 and denied the recovery of knife P.12 at his instance from the Dera of Baba Lata. He further deposed that 'as a matter of fact on the day a drain was being repaired in the street. The deceased came there in a car and when they reached near us they managed to drive the car in such a way that mud splashed on us. There was an exchange of hot words, whereupon Baqir Ali and Bakhat Nawaz came out of their car. They fired with pistols. I left the place and went to my house. I did not know what happened on the spot afterwards". Zahid Hussain too denied the charge, the recovery of blood‑stained knife P.11 and ownership of blood‑stained shirt and trousers P.15 and P.16. He adopted the statement of Ghulam Abbas. Riaz Hussain in his statement under section 342, Cr.P.C. denied the charge of double murder, denied the ownership of shirt P.17 and trousers P.18 and knife 'P.'

10. He pleaded alibi by stating that on 27‑‑9‑1974 he actually attended the marriage ceremony of his friend Sardar Ali son of Nabi Bakhsh at Mauza Ibrahimabad Laliani. This was at a distance of 120 miles from Lyallpur. He produced the Nikahnama before the Investigating Officer Mr. Rizvi. It bore his name as a witness of Nikah. This fact was verified at Laliani and he was shown in column No.2 by Mr. Raza Hussain Rizvi and Mr. Fida Hussain D.S.P. The Court also examined Mr. Raza Rizvi as C.W.1.

9. We have heard the learned counsel for the parties in detail. The learned trial as well as the appellate Courts in convicting the appellants have relied upon the statements of Muzaffar Ahmad P. W. 8 and Muhammad Khalil P.W.9 who had given eye‑version account of the occurrence, the motive, the medical evidence and, of course, the recoveries of the weapons of offence. On further re‑appraisal of the evidence produced by the prosecution in this case, by us, in the light of the arguments of the learned counsel for the parties, has led us to the conclusion that the findings arrived at by the Courts below were correct. It is daylight occurrence, enacted in the midst of the village, the report of which had been lodged within 45 minutes which, under the circumstances of the case, was with great promptness. The F.I.R. has been lodged by Muzaffar Ahmad P.W.8 and this fact alone goes a long way to establish that he was present at the spot at the crucial time. As for Muhammad Khalil P. W.9, since his house is situated in the close vicinity of the spot, therefore, his presence also cannot be disputed, moreso when no attempt was made by the defence to create doubt about his presence at the spot at the relevant time. The eye‑version account of the incident has been furnished by the above two witnesses who are absolutely independent in that there is not an iota of evidence that they were inimical towards the appellants and had, therefore, implicated them falsely.

10. We have carefully examined the version of the occurrence given by Muzaffar Ahmad and Muhammad Khalil P.Ws at the trial and have not been able to find any departure made by these two witnesses from the narration made in the F.I.R. or for the matter of that any inconsistency in their inter se version of the occurrence. Both of them have given a graphic account of the incident accusing each of the appellants for the part played by him in the commission of the crime. It was rather the defence which further strengthened the case of the prosecution when in the cross‑examination Muzaffar Ahmad P.W.8 was made to depose:‑‑ "The moment Baqir was taken in his Japha by Boots, the other accused assaulted on him, therefore, Baqir had got no time to release himself from the Japha of Boots. Riaz, Zahid and Rafique accused were the persons, who attacked on Baqir Ali when he was taken into Japha by Boota. Mehar Din and Abbas also tried to attack on Baqir Ali, but Bakhat Nawaz immediately interfered and was attacked by them. It was Zahid accused, who gave a blow on the chest of Baqir Ali. I did not state at the time of F.I.R. that it was Zahid, who gave a blow on the chest of Baqir Ali. Rafique accused also attacked on Baqir Ali, when Baqir had tried to defend himself with his hands. It was Riaz accused, who inflicted injury on the back of Baqir Ali." The very fact that Baqir Ali deceased had received large number of knife injuries on his person and Bakhat Nawaz Malli deceased one stab blow has been fully corroborated by the medical evidence inasmuch as Dr. Abdul Haleem Sahota (P.W.1) on examining the dead body of Baqir Ali deceased found nine incised wounds on its upper portion and one stab wound on the body of Bakhat Nawaz Malli. The doctor further deposed that injuries 1, 3, 6 and 7 were sufficient to cause death individually in the ordinary course of nature. It was again the defence which weakened its case more, when it brought from the mouth of the doctor that he would rule out the possibility of the various injuries having common measurement of 1/2" to have been caused by one and the same weapon.

11. Another circumstance which has gone against the appellants is the motive. Azhar Hussain P.W.7, who is brother of Baqir Ali deceased, and Muzaffar Ahmad P.W.9 deposed at the trial that Baqir ali deceased was engaged to Mst. Asmat daughter of Mehr Din. But on being selected to the Superior Services he refused to marry Mst. Asmat because she was below his standard and that the appellants were annoyed over the behaviour of Baqir Ali and had threatened him many a time. Though the appellants have denied the above allegation but they have failed to bring any material on the record to create doubt about the same. The parties are inter‑related, there existed no other enmity between them except the above motive which, we are of the view, has been duly established.

12. Yet another incriminating circumstance which has been relied upon in this case is the recoveries of the weapons of offence at the instance of the appellants and their blood‑stained clothes soon after the occurrence. Both the recoveries had been effected through reliable witnesses. The fact that the blood on the weapons of offence had disintegrated has lost its significance in view of the unimpeachable ocular evidence and reliance in this respect was rightly placed by the learned Judges of the High Court in the case of Ghulam Rasul v. Ali Akbar P L D 1965 S C

363. There is a discrepancy in describing the weapon which was in possession of Ghulam Abbas appellant at the crucial time. In the F.I.R. and in the evidence of Muzaffar Ahmad and Muhammad Khalil, he has been shown to be armed with and inflicted a blow on Bakhat Nawaz Malli with a "knife" but recovered at his instance has been made that of a "Chhuri". The miss-description of the weapon of offence in view of the reliable ocular evidence would not at all tarnish the case of the prosecution against Ghulam Abbas appellant, more so when the Chhuri recovered at his instance had stains of blood though disintegrated.

13. Mr. Shaukat Ali the learned counsel for the appellants, while referring to the statement of Muhammad Bashir P.W.4 and the statements made by Muhammad Rafiq appellants and Mehr Din (the acquitted accused) under section 342, Cr. P. C . , vehemently contended that as a matter of fact Baqir Ali deceased intended to kill Muhammad Rafiq and had fired at him with his pistol and that the appellants had inflicted injuries on the deceased in exercise of the right of private defence. He also submitted that during the re‑investigation conducted in the case by responsible police officers in the persons of Zahoor Hussain Shah, Raza Hussain Rizvi Inspectors, and Fida Hussain Shah D.S.P., Ghulam Abbas, Riaz Hussain and Zahid Hussain appellants were found innocent and their reports formed part of the record, yet the learned trial Court examined Raza Hussain Rizvi only as C.W.1 but did not summon the others, which has resulted in a grave and serious miscarriage of justice.

14. We have given our careful consideration to the contentions raised but we are afraid, as the case stands, none would prevail. The perusal) of the record shows that as for the question of self‑defence is concerned this question had been raised in the Courts below. Both the Court, after thorough examination of the question rejected it on a very solid ground. Of the six accused, only two namely, Mehr Din, the acquitted accused, and Muhammad Rafiq appellant had raised the plea of self‑defence in their statements under section 342, Cr.P.C. But to their misfortune their statements are so contradictory and discrepant that it hardly makes out a case for self‑defence. Muhammad Rafiq appellant has not said a single word that he had inflicted injuries on the deceased 'in exercise of his right of private defence. Further, neither the pistols which the deceased were allegedly carrying nor any empty had been recovered from the place of occurrence. So far as the statement of Muhammad Bashir P.W.4 is concerned, it is vague and off the point and has lost its value in view of the consistent statements of other prosecution witnesses.

15. So far as the innocence of Ghulam Abbas Riaz Hussain and Zahid Hussain appellants during re‑investigation is concerned, this was urged before the learned trial Court and repelled by it after due consideration and there exists no reason with us to come to a different conclusion. The occurrence in this case had taken place in September 1974 and the final report of the re‑investigation was submitted in April 1977, i.e. after a lapse of about three years. How on earth any significance can be attached to a report compiled and submitted after such a long time, especially when there was every possibility of fabrication of evidence. The system of re‑investigation in criminal cases is a recent innovation which is always taken up at the instance of influential people and favourable reports obtained. This in no way assists the Courts in coming to a correct conclusion, it rather creates more complications to the Court administering justice. We, therefore,: this system altogether. As for the grievance of the learned' counsel for the appellants for non‑summoning of the police officers goes, it too has no basis. The perusal of the order‑sheet of the trial Court shows that during the trial an application under section 540, Cr.P.C. was moved by the appellants for summoning of Zahoor Hussain Shah, Raza Hussain Rizvi and Fida Hussain. The learned trial Court after hearing the arguments of the parties on this application passed order on 19‑12‑1977 and only Raza Hussain Rizvi was summoned as a Court witness and was examined on 19‑1‑1978. It seems that no effort was made by the appellants at the trial to insist on the production or the other police officers and the point was not raised at the appellate stage as well. It is, therefore, too late in the day to ask this Court to undergo that exercise.

16. Lastly, the learned counsel for the appellants had addressed us on the question of quantum of sentence. The appellate Court has maintained the sentence imposed by the trial Court upon Zahid Hussain, Muhammad Rafiq and Ghulam Abbas but enhanced the sentence of Riaz Hussain from imprisonment for life to death for the murder of Baqir Ali. It also confirmed the sentence of death imposed on Ghulam Abbas for the murder of Bakhat Nawaz Malli and also maintained the sentence imposed by the trial Court on Riaz Hussain, Zahid Hussain and Muhammad Rafiq for the murder of Bakhat Nawaz Malli which was committed by them in furtherance of their common intention. The learned High Court did not find any mitigating circumstance for Riaz Hussain and thus enhanced his sentence from imprisonment for life to death and directed that he shall be hanged by his neck till he is dead. We have considered the quantum of sentence imposed upon the appellants from every angle and we find that the sentences imposed by the Division Bench of the High Court did not require any interference in that the two deceased who were unarmed have been mercilessly and brutally done to death. Thus, no mitigating circumstance exists to impose lesser punishment on Ghulam Abbas and Riaz Hussain appellants. Therefore, the appeals filed by the appellants are dismissed. However the sentences off imprisonment for life imposed on Zahid Hussain and Muhammad Rafiq appellants shall run concurrently and they are also allowed the benefit of section 382‑B , Cr. P . C . As for the appeal of Sadiq Ali for the enhancement of sentence of Zahid Hussain and Muhammad Rafiq is concerned, we are of the view that the Courts below have awarded them lesser punishment on very solid grounds and same does not require interference by us. Therefore, the appeal of Sadiq Ali is also dismissed. S. Q. Appeal dismissed.