MUHAMMAD IQBAL Versus THE STATE

RAJA MUHAMMAD KHURSHID, J.‑‑‑The appellant Muhammad Iqbal was convicted under section 302, P.P.C. and sentenced to death and a fine of Rs.20,000 or in default to undergo R.1 for 5 years for the murder of Iqbal Hussain son of Muhammad Hussain. The fine if realized was to be paid to ihe legal heirs of deceased as compensation vide judgment dated 15‑7‑1991 passed by Mr. Mujahid Hussian Sheikh, learned Additional Sessions Judge, Toba Tek Singh. The learned trial Judge vidi the same judgment further convicted the appellant under section 367, P.P.C. and sentenced him to seven years' R.I‑or in default to undergo further R.I for 1,1/2 years for committing murderous assault upon Azarn Hussain P.W. Fifty per cent. of the fine was to be paid to the injured P.W. as compensation under section 544‑A, Cr.P.C

2. The brief facts are that‑on 17‑2‑1990 at about 7‑00 a.m. the complainant Muhammad Hussain was proceeding to his cattle‑shed in Square No. 14 of Chak No.311513. His sons namely Iqbal Hussain and Azam Hussain were also accompanying him. When all three of them reached near crop of 'Barsin' of Allah Ditta son of Allah Rakha, they were confronted by the accused party emerging from the sugarcane crop near the turn of road. Appellant Muhammad lqbal was armed with a dagger, Muhammad Afzal was armed with a gun, while Muhammad Saleem was empty‑handed. They came near the complainant and out of them Muhammad Afzal raised Lalkara that they had come to take revenge of their insult and shouted that Iqbal Hussain and Azarn Hussain be done to death. In the mean time Saleem accused held the deceased lqbal Hussain in Japha from his back side whereas Muhammad lqbal accused/appellant plunged dagger on the front side of his neck.

3. ‑ Azam Hussain, P.W. tried to intervene, but the aforesaid Muhammad lqbal accused/appellant opened attack on him thereby causing injury on his left wrist and on the head. The aforesaid Azam Hussain fell down. The accused Saleem released lqbal Hussain from his Japha whereupon the latter also fell on the ground. The complainant tried to intervene but was threatened with his. life whereupon he did not go ahead out of fear. The hue and cry raised by the complainant attracted Nazir Ahmad son of Jan Muhammad. Allah Ditta son of Abdullah residents of the village, who happened to see the occurrence. The accused persons ran away while raising Lalkara. The deceased died onAhe spot.

4. The complainant further deposed in the F.I.R. that the occurrence was committed by the forenamed three accused at the abetment of Rahmat Ali son of Allah Rakha.

5. The motive about the occurrence was that lqbal Hussain deceased and his brother Azam Hussain injured P.W. were conducting dog‑fight near their cattle‑shed on 16‑2‑1990. The dogs while fighting entered into the wheat field of Muhammad Iqbal accused/appellant. All of them namely Muhammad Iqbal, Saleem and Muhammad Afzal came to the spot and started abusing 1qbal Hussain and Azarn Hussain as to why they were conducting dog fight in their field of wheat. The aforesaid Iqbal Hussain deceased and Azam Hussain injured P.W. also abused in reply besides slapping them. That occurrence was seen by Muhammad Sharif son of Abdullah and Islam son of Bashir Ahmad, who intervened and separated the parties. The accused namely Muhammad 1qbal, Saleem and Muhammad Afzal left the place while holding out that they will take revenge of their insult. In pursuance of the aforesaid threat the accused namely Muliantmad lqbal, Saleem and Muhammad Afzal committed the murder of 1qbal Hussain and caused injuries to Azarn Hussain P.W., after hatching conspiracy with Rahmat Ali. The report about the occurrence was lodged at the Police Station, Gojra, Toba Tek Singh on the same day at about 8‑55 a.m. A case under section 302/307/109/34, P.P.C. was registered vide F.I.R. Exh.PJ upon the statement of Muhammad Hussain complainant.

6. The learned trial Judge convicted Muhammad lqbal appellant as aforesaid but acquitted Saleem, Muhammad Afzal and Rahmat Ali after giving them the benefit of doubt. The present appeal was filed by muhammad lqbal appellant/convict to challenge the conviction and sentence as aforesaid. The learned trial Judge also made a reference under section 374, Cr,P,C for the confirmation of the death sentence awarded to the appellant/convict, Criminal 'Revision Petition No.494 of 1991 was filed by Muhammad Hussain against the acquitted accused namely Saleem, Muhammad Afzal and Rahmat Ali with the prayer that the respondents forenamed be convicted and sentenced to death under section 302, P.P.C.

7. All the aforementioned three matters are proposed to be decided by this judgment.

8. We have heard the learned counsel for the parties and have taken into consideration the evidence brought on record. The prosecution has relied upon the motive regarding the occurrence, which took place a day preceding the occurrence. In that occurrence the dogs of the deceased party strayed into the field of the accused during the dog fight. This led to exchange of abusing and slapping to the accused/appellant. The appellant/accused held out threats that he will take the revenge of his insult. In pursuance of. the aforesaid threats the present occurrence was committed. According to F.I.R., muhaminad Afzal had raised Lalkara whereupon the deceased was taken into Japha by muhammad Saleem on the instigation of Rahmat Ali accused. All these thice accused were acquitted by the learned trial Court after giving them the benefit of doubt. They were also found innocent during the police investigation as well. Tile appellant/convict was, however, found guilty for committing the murder of the. deceased Iqbal Hussain and committing murderous assault upon Azain Hussain P.W.

9. The prosecution had relied upon the ocular account of occurrence, medical evidence, the recovery of blood‑stained earth from the spot and recovery of weapon of offence i.e. dagger from Muhammad lqbal appellant. The dagger P.5 recovered from the accused was‑found to have been stained with human blood.

10. The learned counsel for the appellant submitted that all the eyewilnesses were inter se related and were also closed relatives of the deceased and the injured P.W. It was further submitted that except Azarn Hussain.the other two witnesses were not present at the spot and would be considered as chance witnesses. It was alleged that there was no independent corroboration of unimpeachable nature so as to persuade that reliance could be placed on the evidence given by the eye‑witnesses. The veracity of those witnesses became doubtful because three out of the four accused mentioned above were acquitted and as such implicit reliance on their statements qua the appellant/convict might result into miscarriage of justice. In this regard it was urged that the witoesses who had tried to implicate innocent persons could not be believed till they were corroborated by the evidence of impeccable sterling value, In this case no such, corroborative evidence was available, therefore, it would be rather unsafe to believe the eye‑witnesses qua the appellant/convict. The recovery of the dagger was also allegedly doubtful as it had not matched the injury found on the person of the deceased and Azam Hussain P.W. It was accordingly urged that the prosecution case was extremely doubtful. The motive was also not proved Therefore, the story given by the defence was plausible that the appellant/convict was coming from his Dera after milking; that he was confronted on his way by the complainant side which resulted into the present occurrence after he was given two Soti blows, by Azam injured P.W., the appellant thereupon allegedly pulled out a pen‑knife and gave two injuries to Azarn Hussain aforesaid. the deceased lqbal Hussain caught hold the testicle of the appellant causing him pain, whereupon he gave back‑hand blow which fell on the neck of the deceased. The accused/appellant further stated that quarrel over the fight of dogs was trivial and that he had no intention to be aggressive to the deceased or his brother, but only it was an unfortunate incident He alscr stated that none,of the eye‑wItilusscs Were present at the spot‑ The deceased was taken to his house by his father who arrived at the place of occurrence after the inurder had already been committed. The dead body was taken to the house of deceased, after a cot was provided by Mubashir Hussain a resident of neighbouring Dhari, He also took up tne plea that much before the arrival of the eye‑witnesses, the occurrence had taken place and was seen by Falak Sher Awan and Saif Ullah who were attracted to the spot and were in the knowledge of actual occurrence. He claimed to be innocent.

11. The incident Of motive was seen by Muhammad Sharif P.W.7 and given up P.W. Muhammad Islam. Muhammad Sharif was disbelieved by the learned trial Judge on the ground that he was reluctant to disclose the name of his brother Allah Ditta when a question was put to him during the cross examination. Taking into account such like demeanour of the witness the learned trial Judge discarded his testimony. The other witness namely Muhammad Islam was not examined at the trial. Although Muhammad Hussain complainant deposed as P.W.9 that he had come to know about the occurrence relating to the motive, but during the cross‑examination he admitted that he was not present when that occurrence had. taken place. It is thus obvious that there is no convincing evidence which may prove the motive as alleged by the prosecution.

12. Now we come to the ocular account of occurrence. Muhammad Hussain (P.W.9) is a complainant and also father of the deceased and injured P.W. Azam Hussain. The other witness Azam Hussain, who had sustained injury during the transaction was examined as P.W.10. Allah Ditta is first cousin of the complainant. He appeared as P.W.11 and supported the prosecution case. It is true that all these three eye‑witnesses are related inter se, but that by itself would not discard their testimony if it otherwise inspires confidence. We have not been shown any plausible reason as to why they would depose falsely against the accused if he had not killed their kith and kin. The objection that all these three witnesses were not present at the place of occurrence seems to be devoid of force because one out of them namely Azain Hussain had sustained injuries at the hands of the appellant/convict. The injuries on his person were correctly described by eye‑witnesses, which also matched with the injuries given in the Medico‑Legal Report. The age of injuries given by the Medical Officer corresponds to the time of occurrence given by the eye‑witnesses as 7‑00 a.m. These circumstances go a long way to establish that there can be no doubt aboui A the presence of eye‑witnesses at the spot. They cannot be considered chance witnesses because they come from the same locality and reside in each other's neighbourhood. All the eye‑witnesses belong to the same village. Their 'Deras and 'Dharies' are, in the same vicinity. Hence their presence at the spot cannot be considered as unusual or out of place. Rather their presence would look to be quite natural.

11 The next question would be whether the same evidence could be utilized against the appellant/accused if the other three co‑accused were acquitted ignoring their testimony. It is true that one of the accused namely Muhammad Afkal was involved for Lalkara, the other Muhammad Saleein for Japha and the third Rahmat Ali for instigating the murder of the deceased. They were found innocent by the Investigating Agency. It is also true that finding of the Investigating Agency is not binding on the Court, as it has to decide the matter on the evidence produced before it. However, at the sathe time, the finding of the Investigating Agency cannot be thrown over‑board because it is the only agency which comes into contact with the first hand evidence after the occurrence takes place. It has, therefore, Us own value and weight. It is also a matter of common knowledge that the aggrieved party quite often increases the number of accused although the occurrence might have been committed by one out of them. This is very unfortunate tendency but this has come to stay in our system. It is for that reason that the principle of sifting the grain out of chaff was evolved and recognised by the superior Courts of this country, so as to save innocent persons and to bring the real culprits to gallows. In this case the application of principle of sifting the grain out of the chaff is no exception and the evidence relied upon by the learned trial Court qua the appellant/convict cannot be discarded, though his co‑accused have been acquitted. Even otherwise there is distinguishing feature because the recovery of dagger P.5 was effected from the appellant/accused, which he had used during the occurrence to cause fatal injury to Iqbal Hussain deceased and causing injuries to Azam Hussain P.W. on his left shoulder and head. The injuries found on both the aforesaid persons have been corroborated by the medical evidence as the locale, nature and number of injuries corresponded to their description given by the eye‑witnesses in their statements. The dagger P.5 was found by the Serologist to have been stained with human blood. The recovery witness in this case is an independent person and there is nothing against him, for which his testimony should be doubted. He is an impartial person and resides in the neighbourhood and as such can be safely relied upon. These corroborating circumstances were not available in respect of acquitted accused as compared to the appellant/convict ' and therefore, the grain had to be sifted out of the chaff, which resulted into the acquittal of three accused and conviction of the present appellant/convict.

14. The appellant/accused has given his own version that he was attacked in the morning of unfortunate day and was given two Soti blows by Azam Hussain P,W. whereupon he pulled out his pen‑knife and caused injuries to the deceased and the injured P.W. This story does not appear to be probable because both the victims were quite young and it was not possible that the accused will be able to counter‑attack so as to take life of one of his rivals and cause injuries to the other one without suffering even a scratch on his body ~‑ The defence story is invented only to save his skin. On the contrary the dagger P.5 recovered'from the appellant/accused is a lethal weapon. Its blade is 21 c.m. long and 3 c.m. wide with double sharp edges. It is a formidable weapon and not a pen‑knife as claimed by the appellant/accused. The dimension of injuries found on the person of the deceased as well as to injured P.W. are quite responsive to the dagger P.5 than to any pen‑knife as claimed by the appellant.

15. In view of our above discussion, we come to an irresistible conclusion that the prosecution has been able to prove its case against the appellant/accused beyond any reasonable doubt. The convictions of the appellant under C section 302, P.P.C. and under section 307, P.P.C. have rightly been made by the learned trial Court and call for no interference.

16. Before we take up the question of sentence, it will be necessary to make certain observations regarding the statement of Investigating Officer (P.W.12), whereby instead of examining the direct evidence, the learned trial Court had admitted hearsay evidence in violation of Article 71 of the Qanun‑e‑Shahadat, 1984. The expression "direct evidence" in English law is used to signify evidence relating to the fact in issue‑(factum probandum), whereas the terms .circumstantial evidence", "presumptive evidence" and "direct evidence" are used to signify evidence which relates only to relevant facts (facta probantia). Under Article 71 of Qatitin‑e‑Shahadat; however, the expression "direct evidence" has an altogether different meaning; it is used in the sense of .original" evidence as distinguished from "hearsay" evidence and it is not used E in contradiction to "circumstantial" or "presumptive evidence". Thus, under the Qanun‑e‑Shahadat all evidence whether direct or circumstantial in the English sense, must, in the sense of that law, be "direct" i.e. the fact to be deposed to, whether it is a fact in issue or a relevant fact, must be deposed to by a person who has seen it if it is one which could be seen, by a person who has heard it if it is a fact which could be heard, and by a person who has perceived it by any other sense if it is a fact which could be perceived by any other sense etc. So, it is clear that the law insists for a direct evidence of the primary source. It would be inadmissible if it comes from an indirect source. In the instant case the cross‑ F examination of P.W. 12 would show that certain facts were brought on record without producing the primary evidence. In this context the following portion may be pointed out:

"Mubashar Ahmad son of Sadiq Ali met incion the same day. He told me that his Dahri was nearby the place of occurrence and on hue and cry he went to the spot and saw Muhammad Iqbal accused alone running away from there. He also told me that Falaksher and Saifullah had already reached the spot. He told me that he had brought a Charpai and then the relative of deceased had arrived and had taken his dead body to the village. On 18‑2‑1990 Doctor Ghafoor Ullah appeared before me and gave me certain facts, about the occurrence. He said that he had gone to see Azam injured P.W. who told him that he and lqbal deceased were‑ coming from their Dera after milking. lqbal Hussain deceased was carrying milk. Iqbal accused met them on the way who accosted them and he had given Iqbal accused two Soti blows. He also told that this confrontation took place because of a quarrel of the previous day., In the light of this information I also recorded the statements of Falaksh& and Saif Ullah. A.S.P. also investigated this case on 18‑2‑1990. 1 was also a party to that investigation. Allah Ditta 'son of Allah Rakha, Muhammad Ali son of Allah Rakha, Sadiq, Boota and Akram appeared. They stated that only lqbal had participated in the occurrence."

17. It follows from the above quotation that ."indirect" i.e. "hearsay evidence" was allowed to be brought on record without any objection although it should have been brought on record after examining Mubashar Ahmad, Falksher, Saif Ullah, Doctor Ghafoor Ullah, Allah Ditta son of Allah Rakha, Muhammad Ali son of Allah Rakha, Sadiq, Boota and Akram. They were the right persons to be examined if the facts referred to 'above were to be proved through legal evidence, but none of them were put in the witness‑box and in their absence the aforesaid evidence was merely a hearsay evidence and would not carry any legal value. We, therefore, find that the learned trial Judge fell in error to bring on record such type of evidence.

18. The question of sentence under section 302, P.P.C. needs consideration in this case. The motive has not been proved by the prosecution. A question would, therefore, arise as to what had actually happened so suddenly and quickly, which resulted into the unfortunate incident. Allah Ditta (P.W. 11) stated that there was some sort of grappling between the accused and deceased before the latter fell on the ground. This leads us to a conclusion that the origin of occurrence remained shrouded in mystery. As such it would call for an alternate sentence of imprisonment for life as provided under section 302, P.P.C. The capital sentence under such circumstances would not be warranted under law. The death sentence awarded to the appellant/convict is, therefore, not confirmed. It is accordingly converted into imprisonment for life' under section 302, P.P.C. with a fine of Rs.20,000 or in default to further undergo 5 years' R. 1.

19. We propose to enhance the amount of compensation to the heirs of the deceased. A notice under section 544‑A, Cr.P.C. to that effect is given to the learned counsel for the appellant Kh. Sultan Ahmed, who has accepted the same. After hearing the learned counsel for parties on the point, we award Rs.30,000 as compensation to the heirs of the deceased or in default the appellant will undergo six months' S.I. This amount will be in addition to the amount of Rs.20,000, which has,been awarded by the learned trial Court, if the same is realised as a fine from the appellant/convict. The conviction and sentence under section 307, P.P.C. awarded to the appellant/convict by the learned trial Court are maintained. Both the sentences shall run concurrently. Benefit of section 382‑B, Cr.P.C. is also extended to the appellant.

20. Murder Reference is accordingly decided and death sentence of appellant is not confirmed.

21. The appeal of the appellant/accused is dismissed with the above modification in sentence. The Criminal Revision Petition No.494 of 1991 is also dismissed.

N.H.Q./M‑51/L

Sentence reduced.