P L D 1997 Lahore 144 (PLP)

SH. MUHAMMAD ZUBAIR, J.

Five persons namely Muhammad Abid, Muhammad Asif, Muhammad Arif, Shabbir Ahmad alias Dhillun and Faqir Hussain were tried under section 302/148/149, P.P.C. by the learned Additional Sessions Judge, Faisalabad for the murder of Zafar Ikhlaq deceased. The learned trial Judge vide his judgment dated 3-4-1991 acquitted Faqir Hussain and Shabbir Ahmad alias Dhillun of the charge but convicted Muhammad Abid, Muhammad Asif and Muhammad Arif appellant as under:-- Under section

324. P.P.C. Muhammad Abid and Muhammad Asif were sentenced to one year R.I. plus fine of Rs.5,000 or in default thereof 3 months' R.I. each. Under section

304. Part I. P.P.C. Muhammad Arif appellant was sentenced to imprisonment for life plus fine of Rs.20,000 or in default thereof 2 yeais' R.I. The fine, if recovered, half shall be paid to the legal heirs of the deceased. The appellant/accused were given benefit of section 382-B, Cr.P.C. The State has filed Criminal Appeal No. 891 of 1991 under section 417, Cr.P.C. against the conviction of Muhammad Arif appellant, Muhammad Abid and Muhammad Asif and acquittal of Shabbir Ahmad alias Dhillun and Faqir Hussain and this appeal vide order of Division Bench of this Court dated 8-12-1991 was dismissed qua Shabbir Ahmad alias Dhillun and Faqir Hussain but qua Muhammad Abid, Muhammad Asif and Muhammad Arif respondents under section 302/34, P.P.C. was admitted. Muhammad Arif appellant filed Criminal Appeal No.550 of 1991 under section 410, Cr.P.C. against his sentence and conviction whereas Hakim A li complainant filed Criminal Revision No.242 of 1991 under section 435 read with section 439, Cr.P.C. against Muhammad Arif appellant, Muhammad Abid and Muhammad Asif for awarding the compensation to the legal heirs of the deceased. We propose to dispose of all the three matters by this judgment.

2. The facts as disclosed in' the F.I.R. Exh.PF recorded on the statement of Hakim Ali complainant P.W.9 are that he is residing in Gali No.22 Abdullahpur with his family and has installed a Soda Water Factory. His son Zafar Ikhlaq deceased alias Jujji was working as Designer of cloth. On 22-12-1989 at 2-30 p.m. the deceased went to take curd at the shop of Muhammad Abid accused -situated in Gali No.9/15, Abdullahpur. The curd was sour and Zaffar Ikhlaq went back to the shop to return the curd which was not taken back by Muhammad Abid, who grappled with Zafar Ikhlaq deceased and abused him. Mohallahdars intervened and matter was finished. Muhammad Abid extended threats to Zafar Ikhlaq and the deceased came back to the house. After some time after Assar prayer, Hakim Ali complainant came back from the mosque alongwith Mukhtar Hussain (won over) and at about 4-00 p.m. they sat with Azhar Zaidi P.W.10 at his flour Chakki in Gali No.9/15, Abdullahpur. The deceased was already sitting outside the shop reading newspaper. In the meanwhile, Muhammad Arif appellant, Muhammad Abid and Muhammad Asif sons of Ghulam Muhammad armed with daggers, Shabbir Hussain alias Dhillun armed with rifle and Faqir Hussain alias Faqiria empty-handed, came there. Muhammad Abid raised Lalkara to teach a lesson to Zafar Ikhlaq deceased of disgracing him at the shop and exhorted to kill him. Faqir Hussain accused caught hold of Zafar Ikhlaq, when Muhammad Arif-appellant gave a dagger blow which hit at the right side of his chest, Muhammad Abid then caused a dagger blow to the deceased below the left arm-pit. Muhammad Asif gave dagger blow on right thigh to Zaffar Ikhlaq, who fell down. When the complainant alongwith Mukhtar Hussain Shah and Muhammad Azhar Zaidi tried to rescue Zafar Ikhlaq, Shabbir Ahmad alias Dhillun resorted to firing. The occurrence was seen by Nazeer Ahmad, Muhammad Azhar Zaidi, Mukhtar Hussain and the complainant. On their hue and cry, the accused ran away. Zaffar Ikhlaq injured was taken to Civil Hospital, Faisalabad for medical aid where he succumbed to the injuries.

3. Abdul Razzaq, S.I. P.W.14 recorded the F.I.R. Exh. PF on the statement of Hakim Ali-complainant P.W.9 on 22-12-1989 at 5-30 p.m. Then he went to the Civil Hospital where the dead body of Zafar Ikhlaq deceased was lying on a stature in the lawn of hospital. He prepared injuries statements Exh.PA and inquest report Exh.PA/I and sent the dead body for post-mortem examination through Ali Ahmad, F.C. P.W.2 and himself came to the place of occurrence. He inspected the spot and prepared rough site plan of the place of occurrence Exh.PK and recorded the statements of P.Ws. On 23-12-1989 Ali Ahmad P.W.2 handed over last worn clothes of the deceased, all blood-stained, Shalwar P.1, Kameez P.2 and Bunyan P.3 which were taken into possession vide memo. Exh.P.C.

4. Muhammad Tariq, Inspector P.W. 15 started investigation on 25-12-1989, He got the site plan Exh.PJ and copy thereof Exh.PJ/1 prepared from Aurangzeb Draftsman P.W.12. He arrested all the accused, while in police custody, Muhammad Arif appellant got recovered dagger P.5 near the western wall of Jamia Masjid Usmania which was taken into possession vide memo. Exh.PE. Shabbir Ahmad got recovered rifle P.4 from the Nawar of his bed which was taken into possession vide memo. Exh.PD. On 10-1-1990 Muhammad Asif and Muhammad Abid accused were interrogated. Muhammad Asif led to the recovery of dagger P.6 near the boundary wall of graveyard Waheed Park, Abdullahpur which was blood-stained and took into possession vide memo. Exh.PH. Muhammad Abid got recovered dagger P.7 from the same wall which was also blood-stained and took into possession vide memo. Exh.PI. Rough sketches of place of recoveries Exh.PE/1, Exh.PD/l, Exh.PH/1 and Exh.PI/1 were made by him respectively. He also recorded the statements of witnesses of recovery and handed over the parcels for safe custody. Muhammad Akram A.S. I. P.W.13 arrested Faqir Hussain after his bail was rejected by the Sessions Court. After the completion of the investigation, the challan was submitted in the Court.

5. Dr. Rashid Maqbool P.W.1 on 23-12-1989 at 11-30 a.m. conducted the post-mortem examination on the dead body of Zaffar Ikhlaq deceased and found three injuries of stab wounds on his person. In his opinion, the cause of death was haemorrhage, and shock due to injury No.l. The injury was ante-mortem in nature, grievous and sufficient to cause death in the ordinary course of nature. ,Injuries Nos.2 and 3 were simple in nature. All the injuries were caused by sharp-edged pointed weapon. Time between injuries and death was few minutes while between death and post mortem examination was about 18 - 24 hours.

6. The statements of the accused under section 342, Cr.P.C. were recorded. All the accused denied the allegations against them. They also denied the recoveries have been affected from them and all of them pleaded innocence. They deposed that the case against them was due to enmity and the P. Ws. also deposed against them due to malice. Muhammad Abid replied to question No.8 as under in his own words:-- "The actual facts are that in the afternoon, the deceased took some curd from me and then brought it back which I refused to take. He abused me and I also did the same. He grappled me, I pushed him whereupon he fell down. He caught hold of my testicles and pressed them. I asked him to leave but he pressed further and I picked up a bread knife from my shop and gave him 2/3 blows under stress. None of the P. Ws.' or the co-accused was present at that time. Azhar Shah P.W. bears a constant grudge against us because the refuse from his machine spoils our milk and there has been a backering and quarrels with us many times. He has become a false witness and in league with the P.Ws. have made out a distorted and exaggerated account of the occurrence. I remained in pain for several days even after my arrest and in police lock-up, I was provided a brick bat, heated foment the influential of my testies. Akram, A.S. I. has been kind to me in this respect." All the accused did not want to appear to state on oath as witnesses nor they produced any defence except Muhammad Abid, who produced a copy of School Leaving Certificate Exh.DB-

7. Placing reliance on the ocular evidence. mentioned above corroborated by the recoveries of the crime weapons at the instance of respondents Nos. l to 3 in the State Appeal. The learned trial Judge convicted Muhammad Arif respondent No.3 under section 304, Part 1, P.P.C. and sentenced him to imprisonment for life plus fine of Rs.20, mentioned above whereas convicted respondents Nos.1 anti 2 under section 324, P.P.C. and sentenced them to undergo one year R.I. plus fine of Rs.5,000, against which, the State has filed the aforementioned appeal.

8. Learned counsel for the State appearing in the State Appeal submitted that as there was one occurrence which culminated into the death of Zafar Ikhlaq deceased and all the respondents are brothers inter se and they had common intention to cause the death of the deceased, they inflicted injuries on the deceased which ultimately proved fatal. In the circumstances, the acquittal of Muhammad Abid and Muhammad Asif is erroneous in law and has resulted into miscarriage of justice, as the learned trial Judge after believing the prosecution evidence erroneously held that these two respondents i.e. Muhammad Abid and Muhammad Asif are liable to be convicted under section 324, P.P.C_ not under section 302134, P.P.C. Similarly, the findings of the learned trial Judge with respect to the conviction of Muhammad Arif under section 304, Part 1, P.P.C. is not sustainable in the eye of law because the learned trial Judge did not keep in view the principle of law which says that the exception 4 to section 300, P.P.C. would be applicable, if culpable homicide is not murder, if it is committed without premeditation in a sudden tight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or -unusual manner. According to the learned counsel for the State, the prosecution evidence fully proves that they had the motive to commit the crime due to the previous incident which took place at 2-30 p.m. on the same day, whereas the murder took place in pursuance of that motive at 4-CO p.m. He further submitted that all the eye-witnesses are independent witnesses and beside that they are natural and probable witnesses of the occurrence being the resident and inhabitant of the same vicinity. Muhammad Azhar Zaidi P.W.10 (eye witness) is a quite independent witness, neither he is related to the complainant party nor he has any animosity against the accused, as neither any animosity was suggested nor proved. The acquittal of two persons would not damage the case of the prosecution, Those persons were given benefit of doubt lay way * of abundant caution while deciding the case. The F.I.R. was lodged promptly in this case and even there is no background of enmity between the complainant and the accused persons and the occurrence took place due to petty dispute over the curd which resulted into this unfortunate incident. The learned trial Judge erroneously held that with respect to the previous incident, no witness was examined whereas the evidence of Muhammad Azhar Zaidi P.W.10 is clear on this point. The findings of the learned trial Court that one occurrence has been bifurcated into two occurrences in order to male the case of murder is fallacious and based upon misreading of the record. From the site plan Exh.PJ, it is clear that the occurrence took place in the manner as deposed by the prosecution witnesses: hence he prayed that while accepting the State appeal, the respondents mentioned above be awarded punishment under section 302134, P.P.C.

9. Learned counsel for the appellant submitted that the eye-witnesses were not present at the scene of occurrence and the incident is one which took place at 2-30 p.m. when the deceased went to the shop of Muhammad Abid co-accused of Muhammad Arif to lodge protest with him with respect to the defect in the curd, even this fact is admitted by Muhammad Abid in his statement under section 342, Cr.P.C., which is his defence plea. The learned trial Judge after proper appreciation of the evidence believed this part of the defence story; hence his order is not open to any legal exception. He next contended that the learned trial Judge has not properly appreciated and comprehended the defence plea of Muhamad Abid accused that it was he who caused three injuries on the person of Zafar Mlaq deceased in self defence and his co-accused were not present there. The statement of Muhammad Azhar Zaidi P. W.10 under section 161, Cr.P.C. proves that he was not present at the spot. The other prosecution witnesses had the motive to falsely implicate appellant and his co-accused of Abid and Asif, who are incidentally his real brothers. The learned trial Judge erred in law while deciding the case on the plea that the onus of proof was on Muhammad Abid accused to prove this defence to the hilt whereas law requires that the prosecution case would fail, if the defence is able to create the dent and doubt in the prosecution -case, as onus of proof always remains on the prosecution. He submitted that in the presence of these infirmities, the prosecution has failed to prove its case against the appellant and if at all any offence is trade out that too under section 304, Part I, P.P.C. he too deserves leniency in the imposition of the sentence and placed reliance on 1373 CMR 69, 1979 PCr.LJ 536; 1971 SCMR 476, 1994 SCMR 1222 and 1995 SCMR 173.

10. Learned counsel for the complainant, who has filed Criminal Revision No.242 of 1991 while supporting the arguments of the learned counsel for the State in the State Appeal, further submitted that it is the requirement of law under section 544-A, Cr.P.C. the Court is bound to pass the separate order regarding the compensation to be paid to the legal heirs of the deceased, as the learned trial Judge has not passed any separate order, so this Court after accepting the Revision may pass separate order under section 544-A, Cr.P.G. and placed reliance on 1991 SCMR 1408.

11. We have beard the learned counsel for the parties anti have perused the record carefully with their aisle assistance. We have critically examined the respective submissions of the learned counsel.

12. Admittedly, this is a case of two versions, one version had been advanced by the prosecution, being supported by Hakim Ali complainant P.W.9, Muhammad Azhar Zaidi P.W.10 and Nazeer Ahmad P.W.11 whereas other version had been put forth by Muhammad Abid respondent before the trial Court, as mentioned above in extenso.

13. The salutary principle of law for the just decision of the case of two versions is this that both the versions are put in juxtaposition, then the Court has to see which version is more probable and near to the truth on the basis of us evidence brought on the record, of course subject to the qualification, that onus of proof always remains on the prosecution, if any doubt occurs in the prosecution version that doubt must be resolved in favour of the accused.

14. Applying the aforesaid principle of law to the facts of this case, we find that the prosecution version is being supported by Hakim Ali complainant P.W.9 and Muhammad Azhar Zaidi P.W.10. No doubt; P.W.9 is the father of the deceased but his persence is established from the fact that in this case, the matter was reported to the police with great promptitude. Even Hakim Ali had no previous animosity with the accused party which could pursuade or motivate E him to depose falsely in this case. The occurrence took place in the broad daylight which eliminates the possibility of mistaken identity of the accused. The ocular version furnished by the eye-witnesses is getting ample corroboration from the medical evidence as well as from the recovery of the crime weapons at the instance of the accused/respondents in the State appeal, which were found I stained with human blood vide Serologist Report Exh.PO.

14. The prosecution version is that the occurrence took place due to the quarrel between Muhammad Abid and the deceased over the curd which was sour, which Muhammad Abid respondent in State appeal refused to take back at 2-30 pm. is getting corroboration from this fact, that the deceased met his death at point No. I of the site plan Exh.PJ which is at a distance of 30/32 feet from the shop of Muhammad Abid and other respondents in the State Appeal. The time of occurrence is getting direct support from the evidence of Muhammad Axhar Zaidi P:W.l0, who deposed that on 22-12-19889 at 2-,S0 pm. zafar Ikhlaq deceased -brought curd from the shop of Abid which was sour and no wanted to return the curd, over which, a dispute and quarrel took place which ultimately led to the murder of Zafar Ikhlaq at 4-00. pm. He was extensively crass-examined by the learned defence counsel but not a single suggestion was put to this witness that he had any enmity to falsely implicate the respondents and hail not witnessed both the occurrences. On the contrary, evasive suggestion was put to him that due to ginning cotton factory, the cotton goes to the shop of Muhammad Abid, due to this fact, they had strained relations wins each other, loot a single suggestion was put to this witness that the occurrence diet not take place. at 4-00 p.m., on 22-12-1989 but took place at 2-30 pm. as deposed by him. This evidence is also getting corroboration from the recovery of crime weapons at the instance of the accused which were latter on found stained with human blood as well as by point No. I of the site plan Exh.PJ from where blood stained earth was taken by the police, where the deceased lost his life, which is at a distance of 30/32 feet from the shop of the accused. The defence version is only being supported by the defence plea taken by Muhammad Abid in his statement, under section 342, Cr.P.C. and none else. The defence plea of Muhammad Abid is belied by the recovery of blood-stained earth at point No. 1 which is not disputed by the defence. According to Muhammad Abid, the occurrence took in the shop over a curd dispute, where he grappled with the deceased, and pushed him, he fell down and he caught his testicles and pressed them, this defence plea is negated by the recovery of blood-stained earth from point No.l as mentioned above. Had this defence plea been correct, the blood would have been recovered from the shop not from point No.

1. According to the defence plea, Muhammad Akram, A.S. I., P.W.13 gave brick bat, heated and fomented to Abid to nurse his injury which he sustained on testicles was not asked about this defence plea, when he appeared as P.W.13 in this case, which shows this plea is afterthought and false. The other argument of the learned counsel is that zafar Ikhlaq was reading newspaper. Learned counsel next contended that the presence of deceased in the front of shop of Abid respondent suggests, that it was a one occurrence, as deceased had no business to remain sitting in front of his shop for more than 1-1/2 hours after occurrence at 2-30 p.m., we find no force in this contention, as the deceased was the resident of same Mohallah and he was sitting in the Gali in front of his house, when all the respondents made concerted attack upon him at 4-00 p.m. due to the motive of incident at 2-311 p.m. on 22-12-19139. Learned counsel also urged that if we read the statement of Azhar Zaidi P.W.10 carefully, he had not deposed anything in his statement about the occurrence of 2-30 pm. We are afraid, this argument can only be accepted, if we do not read his statement as a whole, in fact in his statement under section 161, Cr.P.C. he first narrated about the occurrence pertaining to murder; thereafter he mentioned the occurrence at 2-30 p.m. witnessed by him which led to the murder. According to the law that portion of the statement under section 161, Cr.P.C. of the witnesses is admissible which is confronted in accordance with law in the Court. In the present case, a suggestion was put to Aahar Zaidi P.W.10, "I got it recorded in my statement before the police Exh.D.A. that I was present alongwith others, who got Abid and Zafar Ikhlaq separated during first occurrence. (confronted with ExhA)A where it is not specifically so recorded)." The inference drawn by the learned counsel for the defence which is the main plank of his contention is devoid of force as mentioned above because reading of Exh.DA proves that there were two occurrences, one at 2-30 P.m. with respect to the dispute over curd, other at 4-00 p.m. which led to the murder of Zafaf Ikhlaq by all the respondents in furtherance of their common intention.

15. In view of the above discussion, we find that the defence plea is not tenable and without any force, as it is not getting any corroboration either from the direct or from the circumstantial evidence. Now it brings us to the question of the sentence which should be imposed upon the respondents in the State appeal and what should be the section of Pakistan Penal Code which would be applicable to the facts of this case. Learned counsel has placed reliance on 1979 PCr.LJ

536. In that case, the sentence was altered from 302, P.P.C. to 304, Part I, P.P.C. on the ground that there was no premeditation or any enmity and the fight was all of a sudden. But in the present case, as discussed above, all the respondents made attack on the deceased with premeditation and in furtherance of their common intention due to the motive quarrelled over the curd; hence they are liable to be convicted under section 302/34, P.P.C. because of the fact that they caused injuries to the deceased with daggers having 9 inches blade; hence the State appeal is accepted and their acquittal under section 302/34, P.P.C. is set aside. The recovery of blood-stained daggers at the instance of the respondents in the State appeal further strengthened the prosecution case against them. The injuries were caused on most vital part of the body which proved fatal; hence the application of I section 302/34, P.P.C. is made out.

16. The case-law cited by the learned counsel for the complainant is fully applicable to the facts of this case.

17. We have given our anxious consideration to this aspect of the case what should be the sentence in the circumstances of this case. We find, no doubt all the three brothers had common intention to cause death of Zafar Ikhlaq deceased that fatal injury was attributed to Muhammad Arif, who was convicted under section 304, Part I, P.P.C. and other respondents were convicted under section 324, P.P.C. Applying the principle of expectancy of life, we refrain from imposing death sentence upon the respondents which is the normal penalty under the law. Anyhow, we convict all the respondents in the State Appeal namely Muhammad Arif, Muhammad Abid and Muhammad Asif to imprisonment for life plus fine of Rs.10,000 or in default thereof two years' R.I. under section 302/34, P.P.C. which would meet the ends of justice.

18. As respondents Nos. l and 2 namely Muhammad Abid and Muhammad Asif respectively are on bail to the satisfaction of D.M., Faisalabad, they should surrender to their bail bonds, we direct that they shall be taken into custody immediately to serve the remaining portion of their sentences imposed by this Court under section 302/34, P.P.C. and be send to Jail.. Muhammad Arif respondent No.3/appellant/Criminal Appeal No.550 of 1991 is already in Jail ire pursuance of the order of learned trial Court while undergoing imprisonment for life which is maintained but his fine is reduced to Rs.10,000 or in default thereof 2 years' R.I. We reject the Criminal Appeal filed by Muhammad Arif ,appellant. We accept Criminal Revision No.242 of 1991 filed by the complainant and direct that respondents Nos.l to 3 namely Muhammad Arif, Muhammad Abid and Muhammad Asif sons of Ghulam Hussain to pay Rs.10,000 each (total Rs.30,000) to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. or in default thereof 6 months' S.I. each. N.H.Q./S-93/L, Order accordingly