MUHAMMAD LATIF Versus STATE

KAMAL MUSTAFA BOKHARY, J .‑Muhammad Latif (aged 18 years), Ghulam Rasul 25 years;, their father Murad (71 years), Fazal (30 years) and (Munir 26 years) were tried. for the murder of Abdul Ghafoor, for voluntarily causing grievous and simple hurt to Mahar Ali P. W. and for committing rioting after forming themselves into an unlawful assembly. By his judgment and order passed on 8‑8‑1974, Mr. Khan Mahmood Khan, Sessions Judge, Sialkot, convicted all of them under sections 302/325/ 149 and 148, P. P. C. Muhammad Latif was sentenced to death and to pay a fine of Rs. 1,000 or in default of its payment to further suffer rigorous imprisonment for six months under sections 302/149, P. P. C. His death sentence was to be executed after, the same was confirmed by this Court and the amount of fine, if realised, was ordered to be paid to the legitimate heirs of the deceased. Ghulam Rasul, Murad, Fazal and Munir were sentenced to life imprisonment and to pay fine of Rs. 1,000 each or in default of its payment to further su8'er rigorous imprisonment for six months each under sections 302/149, P. P. C. All the five of them were sentenced to suffer two years rigorous imprisonment under section 148, P. P. C. each and one year rigorous imprisonment under section 325/149, P. P. C. each. All the sentences were ordered to run concurrently. The convicts' have filed an appeal and the learned trial Judge has sent reference for confirmation of death sentence of Muhammad Latif. This judgment will dispose of both the matters.

2. Briefly, the prosecution case as disclosed in the F. I. R. is that on 20‑9‑1972 at about chahwela of the day, Abdul Ghafoor deceased a accompanied by his first cousin, Ghulam Muhammad com plainant P. W. and Bashir Ahmad (not examined as unnecessary) went from abadi' of village towards their well called pipalwala in the area of Mauza Nikka Qilla, district Sialkot and when they reached near the bajra field of their well all the appellants came out of ambush armed with a dang each and surprised them. The appellants raised lalkara. Murad appellant, exhorted that the deceased be killed, upon which Muhammad Latif delivered a dang blow and hit the deceased on head while Fazal appellant caused the deceased second injury with his dang on the hand of the deceased. In the meantime Mehar Ali P. W., who was ploughing his field nearby, was attracted "and Murad appellant raised lalkara upon which the appellants attacked him as well. Ghulam Rasul, Muhammad Latif, Fazal and Munir appellants caused one blow each with their dangs on the chest, left arm and left leg of Mehar Ali P. W. respectively. Mehar Ali P. W. also retaliated and caused injuries to Muhammad Latif appellant with 'a parani (a small wooden stick). . Abdul Ghafoor deceased and Mehar Ali P. W. fell on the ground and became unconscious. They were carried to the Civil Hospital, Daska, at a distance of about four miles, where they were medically examined. On receipt of information from the, doctor, Mirza Izzat Beg (P. W. 4), who was then S. H. O. Police Station, Daska, went to the hospital where he recorded the statement of Ghulam Muhammad P. W. at 3 p.m. and sent it to the Police Station on which formal F. I. R. was recorded on the same day at 3‑15 pm.

The motive alleged in the F. I. R. was that one day prior to the occurrence at about asarwela cattle of Ghulam Rasul, etc. had trespassed into the moonji (rice) field of the deceased when the deceased complained to the appellants in the presence of Ghulam Muhammad P. W. which resulted in exchange of abuses between the deceased on the one side and Muhammad Latif, Ghulam Rasul appellants on the other side but they were separated by the complainant. On account of that grudge the appellants have been accused of causing murder of Abdul Ghafoor and simple injuries to Mehar P. W. '

After sending the statement (Exh. PB) of the complainant "recorded in the Civil Hospital, Daska to the Police Station for registration of the case, Mirza Izzat Beg, S. H. O. (P. W. 8) went to the spot where he secured the parani (a small wooden stick) (P: 6) from the place of occurrence, vide memo. Exh. P. D. Abdul Ghafoor died in the hospital at 6‑50 p.m. on the same day,, on which the offence under sec tion 307, P. P. C. was converted into that under section 302, P. P. C. The Investigating Officer went to the hospital and after preparing the injury statement and inquest report of the deceased he sent the dead body to the mortuary for autopsy. The Investigating Officer arrested Abdul Latif and Murad appellants from hospital on 20‑9‑1972. Ghulam Rasul Fazal and Munir appellants were arrested by him on 22‑9‑2972.

3. Dr. A. R. Arain (P. W. 1), who was then Assistant Medical Officer, Civil Hospital, Daska medically examined Abdul Ghafoor deceased when alive and found three injuries on his person. Injury No. 1 was a lacerated wound with swelling, 1 x 1/4 into bone deep, on the top of head, 3' behind the hair margin. Injury No. 2 was a swelling in 3" x 2 " area of the right temporal region and the right eye was blackened and swollen. Injury No. 3 was multiple abrasion in 3 x 2' area on the back of left hand. The patient was unconscious, respiration was irregular, tempera ture was 100 degree, pulse was rapid and irregular. All the injuries were kept under observation and were caused by blunt weapon within 113 hours.

The same doctor on the same day at 12‑15 noon medically examined Mehar Ali, aged 0 years, and found four injuries on his person. The injury No. 1 was a radish contusion 7" x " on the upper front of chest in its middle and there was swelling around it. Injury No. 2 was a lacerated wound with swelling semi‑circular in shape, 1" x " into skin deep, on the medial surface of left hand just near the root of left little finger. Injury No. 3 was an abrasion 1 "x " on the medial surface of right fore-arm near the wrist and there was swelling around it. Injury No. 4 was a swelling in 6"x '2" area on the lower outer left leg. All the injuries were caused by blunt weapon, the duration of the injuries was within 18 hours. Injuries No. 2 and 4 were kept under observation for X‑ray, others were declared as simple.

In cross‑examination the doctor deposed that Abdul Ghafoor died in the hospital on 20‑9‑1972 at about 6‑50 p.m. when he informed the police vide his letter (Exh. R. M.). In cross‑examination he also deposed that he informed the police vide letter (Exh. P. R.) that injury No. 4 of Mehar Ali P. W. which was kept under observation, was declared grievous vide the report of Radiologist. He also stated that Mahar Ali P. W. was admitted in hospital as indoor patient on 20‑9‑1972 upto 12‑10‑1972 arid during that period he was not able to pursue his pursuits.

The same doctor on the same day at 12‑30 p.m. medically examined Muhammad Latif appellant and found three injuries on his person. Injury No. 1 was a contused wound and swelling 1 "x " into bone deep on tile left side of head, 5' above ear. Injury No. 2 was abrasion x 1/3" on the left side of the head, 5" in front of injury No. 1 and there was swelling around it. Injury No. 3 was abraided contusion x 1/3 on the mid outer side of left upper arm. The patient was semi‑conscious, pulse was regular, temperature was 98 degree F. H. and respiration was regular. Injury No. 1 was kept under observation for X‑ray while other injuries were declared as simple. All the injuries were caused by blunt weapon, the duration of the injuries was within 18 hours. In cross‑examination the doctor deposed that Muhammad Latif left the hospital without permission on the same day.

4. Dr. Hafiz Abdul Latif (1'. W. 2) conducted post‑mortem examina tion on the dead body of Abdul Ghafoor, aged 38 years, on 21‑9‑1972 at 10 a.m. and found the same three injuries on his dead body. Injury No. 1 was a lacerated wound on the top of head, injury No. 2 was swelling on the right temporal region, the right eye lid was blackened and swollen while injury No. 3 was an abrasion on the back of left hand. On internal examination the doctor found vertical fracture starting from the top of the head and going to the right temple in the right frontal bone, 1" towards the interior side of the right suture. Middle meningeal artery on the right side had been punctured (fractured). The large intestine contained faecal matter. In the opinion of the doctor death resulted from shock and haemorrhage mainly from injury No. 2 which was sufficient to cause death in the ordinary course of nature. All injuries, were ante‑mortem and were caused with blunt weapon. The time between injuries and death was 6 to 18 hours and that between death and post‑mortem was 12 to 24 hours. In cross‑examination the doctor deposed that it was wrong that the injury No. 2 was on the eye, it was actually on the skull.

5. At the trial prosecution examined 8 witnesses in all. Ghulam Muhammad complainant (P. W. 5) and Mehar Ali injured (P. W. 6) were examined .as eye‑witnesses and they also gave the motive. The Investigating Officer, Mirza Izzat Beg, S. H. O. (P. W. 8) proved the investigation recoveries. Other formal witnesses were also examined. They all supported the prosecution case. The statements of the doctors before the Committing Magistrate were transferred to the Sessions record.

The appellants pleaded not guilty to the charge. When examined under section 342, Cr. P. C. they denied the allegations, recoveries of dands ' and the motive alleged against them, All of them stated that they had been falsely implicated. All the appellants decried their presence and participation in the occurrence before the Committing Magistrate and maintained the same position at the trial except Muhammad Latif appellant, The version given by Muhammad Latif appellant white explaining injuries on his person at the trial is reproduced blow:‑

"On the day of occurrence at chahwela, I was watering my field from Pipalwala well. Abdul Ghafoor deceased come and told me to stop watering the field as he wanted to start the tube‑well, I refused. He was armed with a puruni. So was I. He attacked ants caused an injury to me. I retaliated and answered in the same coin. I also injured him. In the meanwhile, Mehar Ali P. W. came. He attached me. He caused me an injury. I also injured him in self‑defence. I then became unconscious. The rest of the accused were not there".

Ghulam Rasul appellant pleaded alibi and examined Abu Zafar (D. W. 1), a partner of Abdullah Industries, in his defence. He deposed that according to the attendance register Ghulam Rasul appellant was present in the factory from 8.00 a.m, to 5.00 p.m. on 20‑9-1972. In reply to a Court question he deposed that entries in the attendance register were to the hand of one of his karigars. In cross‑examination he deposed that when any labourer leaves the factory during working hours no note of his absence is recorded in the attendance register. .

7. The learned trial Judge believed the ocular evidence and found that the motive alleged by the prosecution had been established and corroborated it while the medical evidence supported the ocular evidence. He rejected the plea of self‑defence raised by Muhammad Latif appellant at the trial as belated. He also disbelieved the plea of alibi of Ghulam Rasul appellant, The learned counsel for the appellants has submitted that the ocular evidence is not reliable because only close relations have been examined and no independent witness has been produced by the prosecution, that only one injury was attributed to Muhammad Latif appellant in the F. I. R. but at the trial an improvement was made and two injuries to the deceased were attributed to the said appellant and that there was a delay of 8 hours in the lodging of the F I. R. which period vas availed of by the prosecution for deliberations and consultations. According to the learned counsel for the appellants, Muhammad Latif appellant caused a fatal injury and Fazal appellant caused simple injuries to the deceased and Mahar Ali P. W' in the exercise of their tight of private defence. Finally he has submitted that the motive was on the aloe of the prosecution witnesses to falsely implicate the appellants. The learned counsel for the State has urged that the convictions and sentences of the appellants be maintained for the cogent reasons given by the learned trial Judge. We have read the entire evidence in the case and have considered it in the light of submissions made by the learned counsel for the parties.

8. The prosecution case is that at about chakwela on 29‑9‑1972 Abdul Ghafoor de‑eased alongwith Ghulam Muhammad complainant P. W. and one Bashir Ahmad were going from their village to their chah Pipalwala and when they were about 20 paces away from that chah the appellants attacked them with dings Of the appellants Muhammad Latif allegedly caused fatal injuries to the deceased while Fazal appellant caused hint injury on the hand and when Mahar Ali P. W., brother of the deceased, on being attracted from the nearby field where he was ploughing, reached there to rescue the deceased, the appellants except Murad caused injuries to Mehar Ali P. W. including one grievous injury and in retaliation Mahar Ali inflicted simple injuries to Muhammad Latif appellant. As against this Muhammad Latif appellant pleaded self‑defence at the trial against the deceased and Mehar Ali P. W. and stated that none of the other appellants was present at the spot at the time of occurrence. The prosecution examined two eye‑witnesses. Ghulam Muhammad P. W. is the complainant because the F. I. R. was lodged at the Police Station on his statement, which was recorded in the Civil Hospital, Daska. The deceased was son of the uncle of this witness. This complainant was owner of land at chah Pipawala and kept his cattle there. He is natural witness of the occurrence and is not inimical towards the appellants SO as to implicate them falsely or substitute them for the real culprits. His testimony is corroborated by Mahar Ali P. W. Although Mahar Ali P. W. is real brother of the deceased yet his presence at the spot at the time of occurrence cannot be doubted because he suffered injuries in the same incident. He was also owner of the land where he was ploughing and from where he was attracted. He too is a natural witness of the occurrence and has no enmity with the appellants. The testimony of both these witnesses is consistent, uniform and inspire confidence. The discrepancies and improvements pointed out in their testimony are not on any material points, are the result of omissions and are for lack of proper observation. Those are natural to occur in every human being. The complainant deposed that Abdul Ghafoor deceased in injured condition and Mahar Ali P. W. also injured were carried on cots from the spot and reached Civil Hospital, Daska at 11‑45 a.m. after covering 4 miles. The chahwela in the month of September would be about 9 a. m. and the time taken in reaching the hospital was normal. After arrival in the hospital the complainant must have got busy in arranging medical aid for the two injured one of whom died on the sane day at 6‑50 p.m. That is why it was the doctor who sent information upon which the Police reached the hospital at 3 p. m. and recorded statement of Ghulam Muhammad P. W. on which formal F. I. R. was registered at the Police Station at 3‑15 p.m. on the same day. In the circumstances of the case, we are of the view that there was no delay in lodging of the F. I. R. and the prosecution did not avail of any opportunity for deliberations to falsely implicate the appellants. The failure to mention second injury to the deceased is due to omission. 'The F. I. R. is not a detailed document it was lodged after the injured had been medically examined. The ocular evidence is corroborated by the medical evidence. The motive alleged by 'he prosecution also stands established and. has rather been admitted by Muhammad Latif appellant which further corroborates the ocular evidence. The plea of alibi taken by Ghulam Rasul appellant was rightly rejected by the learned trial Judge. Abu Zafar D. W. deposed that the entries in the attendance register were riot in his hard but were in the hands of one of his karigars and that no endorsement was ever made in that register if any labourer absented himself from his factory. The entry (D. l) was not produced before the Police and does not show signatures of any Government functionary on the relevant page to prove the authenticity of that entry. As such the entry No. 20 showing presence of Ghulam Rasul appellant in the factory from 8 a.m. to 5 p.m. on 20‑9‑1972 is fabricated. Muhammad Latif appellant did not plead right of self‑defence against the deceased before the Committing Magistrate and took up the plea at the trial as an afterthought because of medical evidence showing injuries suffered by him in the same incident. On the evidence on record and in the circumstances of the case we are satisfied that all the appellants were present at the spot at the time of occurrence and participated in the attack in which Muhammad Latif gave fatal injuries to Abdul Ghafoor deceased and other appellants caused grievous and simple injuries to Mehar Ali P. W. except Murad appellant who was attributed a lalkara only.

The number and nature of the injuries suffered by the deceased and Mehar Ali P. W. show that the attack was not premeditated. It appears that in the sudden beat of passion the appellants gave beating to the deceased and also caused injuries to Mehar Ali P. W. when he tried to rescue the deceased. As such the appellants did not commit rioting and did not form themselves into an unlawful assembly with the common object of causing the death of Abdul Ghafoor deceased. The prosecution attributed fatal injury to Muhammad Latif appellant who alone is liable to be convicted under section 302, P. P. C. for his individual act because he caused two injuries one of which proved fatal to the deceased and selected head of the deceased which is vital part of the body and hit it with a dam which is a lethal weapon. One of the injuries was given with such a force that it caused fracture of the skull as a result of which the deceased died. Therefore, Muhammad Latif appellant alone can be saddled with the responsibility of causing murder of Abdul Ghafoor deceased and we find accordingly. Since Muhammad Latif appellant had no standing previous enmity with the deceased and it appears "that the injuries were caused by him to the deceased in the sudden affair, we consider it a fit case for reduction of his sentence from death to imprisonment tot life Ghulam Rasul, Munir and Fazal appellants caused injuries to Mehar Ali P. W. including his injury No. 4 which was declared grievous with the common intention of causing those injuries including the grievous one. Mehar Ali P. W. was admitted in the Civil Hospital, Daska where he remained as an indoor patient for more than 21 days, with effect from 20‑9‑1972 to 12‑10‑1972 during which period he was rendered unable to follow his usual pursuits and could not earn his livelihood. Therefore, we are of the view that Ghulam Rasul, Munir and Fazal appellants committed the offence under sections 325/34, P. P. C. and are liable to be convicted there under. Murad appellant is aged about 71 years. He is attributes only a usual lalkara. In the circumstances of the case, we feel persuaded to give him benefit of doubt as a matter of abundant caution and acquit him.

8. As a result of above discussion, the conviction of Muhammad Latif appellant under section 302, P. P. C. is maintained but his sentence is reduced to life imprisonment and sentence of fine is also maintained. His convictions and sentences under sections 148, 325/ 149, P. P. C. are set aside. The convictions and sentences of Ghulam Rasul, Munir and Fazal appellants are altered to that under section 325/34, P. P. C. and sentences of each of them are reduced to already undergone and to pay a fine of Rs. 500 each or in default of its payment to further undergo rigorous imprisonment for three months. In the event of paying the amount of fine they shall be set at liberty forthwith if not required in any other case. Their convictions and sentences under sections 302/ 149 and 148, P. P, C. are set aside. The convictions and sentences of Murad appellant on all charges are set aside and he is acquitted. He shall be set at liberty forthwith if he is not required in any other case.

The death sentence of Muhammad Latif appellant is not confirmed.

Order accordingly.