MUHAMMAD ASHRAF Versus THE STATE

JAVID IQBAL, J: Muhammad Ashraf son of Gul Muhammad aged 17/18 years caste Mochi, Falak Sher alias Falku son of Muhammad Fazil, aged 30 years, caste mirasi, and Manzoor Hussain son of Karam, aged 21 years, caste Chimbar, have been convicted under section 302/3 a, P. P. C. for the murder of Qalandar Hussain, aged 26 years vide judgment dated the 22nd of Decem ber, 1973, of the Additional Sessions Judge, and were sentenced as follows: Muhammad Ashraf and Falak Sher were sentenced to death and Manzoor Hussain was sentenced to imprisonment for life; all the three were also fined Rs. 100 each or in default to undergo two years R. I. each. If the fine was recovered the entire sum was to be paid to the heirs of the deceased as compensation. Manzoor Hussain has not filed an appeal against his convic tion and sentence; therefore, his case is not before us. The appeal of Muhammad Ashraf and Falak Sher as well as reference for the confirmation of death sentence awarded to them are being taken up and disposed of together by this judgment.

2. The occurrence took place at 10/11-00 p.m. on the 3rd of October, in village Pir Abdur Rehman, at a distance of 12 miles from Police Station, Garb Maharaja. F. I. R. (P. W. F.) was lodged by Zafar Mehdi (P. W. H.), paternal cousin of the deceased at 2-00 a.m. on the same night and it was recorded at the Police Station by Mehdi Khan A. S. I. (P. W. 17).

3. The motive for crime as set up by the prosecution is that 15/16 days before the occurrence, Falak Sher appellant had borrowed a transistor Radio from the deceased, but did not return the same. Two days prior to the occurrence the deceased demanded the return of the radio, but Falak Sher appellant refused to return it. Thereupon the deceased gave him beating in .the presence of Muhammad Hayat (P. W. 12) and Kazim (P. W. 13). It is stated that Falak Sher appellant threatened the deceased that he would take revenge for the insult. As a result Falak Sher appellant alongwith two others who were his friends murdered the deceased.

4. The eye-witnesses of the occurrence are: Zafar Mehdi (P. W. 14), maternal cousin of the deceased, Muhammad Hussain (P. W. 15), an associate in business of father-in-law of Zafar Mehdi P. W. and stated to be hostile to the appellants, Mulazim Hussain (P. W.) servant of grandmother of Zafar Mehdi P. W. and Fida Hussain (P. W. 19) belonging to the baradari of the deceased. Fida Hussain P. W. could not be traced at the trial stage, there fore, his statement made before the C. M. was transferred to the Sessions file under section 33 of the Evidence Act.

5. Muhammad Ashraf appellant was apprehended on the spot with blood-stained knife by War Mehdi P. W. and others. Mehdi Khan A. S. I formally arrested him. (P. W. 17) when he arrived at the spot in the morning of the 4th of October 1972. He arrested the other appellant on the same day later. Blood-stained knife P. 1 belonging to Muhammad Ashraf appellant was produced by Muhammad Hussain (P. W. 15) on the spot and it was taken into possession vide memo. Exh. P. A. dated the 4th of October 1972. The attesting witnesses are Khuda Bux P. W. 10), Shameera (P. W. 11) and the investigating officer. Blood-stained knife (P. 3) was recovered at the instance of Falak Sher appellant and was taken into possession vide memo Exh. P. E., dated the 4th of October, 1972. The attesting witnesses are the same. No recovery was made from the third companion. According to the reports of the Serolgoist (Exh. P. Q. and P. R.) the above-mentioned articles were found to be stained with human blood.

6. Dr. Fazal Miran Chaudhry (P. W. 1) conducted post-mortem examination on the dead body of the deceased at 2-45 p.m. on the 4th October, and found the following injuries on his person: (1) stab wound on the left chest, (2) stab wound in the abdomen on the right side; (3) abrasion on the front of right chest, (4) incised wound on the back of right fore-arm; and (5) abrasion on the right side of abdomen. Injuries Nos. (1), (2) and (4) were caused by sharp-edged weapon. Injury No. (1) was fatal and injury No. (2) was grievous. The other injuries were simple. Death in his opinion was due to shock and haemorrhage caused by injuries Nos. (1) and (2) which were sufficient to cause death in the ordinary course of nature. Injury No. (1) was individually fatal.

7. The appellants in their statements before the trial Court denied having participated in the occurrence. They disowned recoveries affected from them and stated that they had been falsely implicated due to enmity and party faction. Muhammad Ashraf appellant stated that the P. Ws. in this case were under the influence of Zafar Mehdi P. W. His father was the Chairman of Peoples Party in the village. Zahoor-ul Haq Qureshi replaced him at the instance of the complainant party during the last elections. He alongwith his father used to raise slogans against Zamindars and Makhdooms as a result of which they were against them. Zafar Mehdi P. W. was a big zamindar and he got him falsely implicated due to that grudge. Falak Sher appellant stated that during the last elections he also used to raise slogans against Zamindars and Makhdooms for which they were annoyed and that Zafar Mehdi P. W. who was a big landlord had falsely implicated him due to that grudge.

8. In the F. I. R. the occurrence is reported to have taken place in the following manner : At the time of occurrence there was marriage of Muhammad Shafi in the village. On account of that a tamasha was being held and the place had been lit by gaslights, many spectators were present at that time. Zafar Mehdi P. W., the deceased, Mulazim Hussain and Fida Hussain P. Ws. had also gone there to see the tamasha. They were sitting together. It was about 11-00 p.m. at that time. The two appellants and their companion were sitting at a distance of about four karams smoking huqqa. The deceased sent Fida Hussan P. W. to them for getting the huqqa so that he could smoke the same. But the appellants and their companion refused to give the huqqa and said to him that if the deceased wanted the huqqa he should come to get it. Consequently the deceased went to them to fetch the huqqa when Falak Sher appellant abused him and gave out a lalkara that they would presently make him smoke the huqqa. There upon, Manzoor Hussain. got hold of the deceased from behind in a Jupha. Muhammad Ashraf appellant gave a knife blow to him who fell on the right side of his abdomen and his intestines came out. Then Falak Sher appellant gave a knife blow to the deceased, which fell on his right flank. At this stage War Mehdi and Fida Hussain P. Ws. managed to secure Muhammad Ashraf appellant alongwith his knife. Thereafter, Falak Sher appellant gave knife blows to the deceased, which fell on his right arm and chest. Then Manzoor Hussain's companion left the deceased and ran away from the scene of crime alongwith Falak Sher appellant. Muhammad Ashraf appellant was apprehended on the spot and kept there. Mulazim Hussain and hZubammad Hussain P. Ws witnessed the occur rence besides two P. Ws. A lorry was engaged and the deceased who was in an injured condition was taken to the 'dispensary of Ahmadpur Sial but he expired on the way. . Muhammad Ashraf appellant alongwith his knife was left on the spot in the custody of Muhammad Hussain, Fida Hussain and Mulazim Hussain P. Ws. and Zafar Mehdi P. W. went to lodge the report at the police station alongwith the dead body of the deceased.

9. We have heard learned counsel for both the sides and carefully perused the record. Learned counsel for the appellants that it was not mentioned in the F. I. R. that the appellants and their companion had any community of interest or that they had any friendship or association argued it. It was pointed out that the two appellants and their compa nion belonged to different castes and that, therefore, in the absence of any evidence of their friendship, it could not be inferred that they were present together with the common intention to commit the crime. In the opinion of learned. Counsel the complainant side because of political rivalry falsely implicated the appellants in this case. It was submitted that the deceased as well as Zafar Medhi P. W. were big landlords of the village and since the appellants being members of the Peoples Party had been raising slogans against Zamindars, they had been falsely roped in. This argument of learned counsel does not appeal to us Firstly, because Zafar Mehdi P. W. had stated in his statement before the trial Court that the appellants and their companion were friends inter se Secondly, it was stated by both the appellants in their statements before the trial Court that the bad been falsely implicated in this case because they both were members of the Peoples Party and used to raise slogans against Zamindars. Thirdly, this fact is not denied that the appellants as well as their companion resided in the same village. Fourthly, it is clear from the statement of Muhammad Ashraf appellant that previously his father was Chairman of the People's Party in the village and, therefore, be was replaced by Zahoorul Haq Qureshi at the instance of the complainant party during the elections. This would indicate that both the sides were members of the Peoples Party and lived in the same village, al though it is possible that they may have belonged to two rival groups of the same party. Therefore, it could not be said that the appellants and their companion being of different castes did not have any community of interest. N o such inference can be drawn from the record. It was next argued that all the eye-witnesses in this case were either closely related to the deceased or were partisans. It was submitted that even the recovery witnesses in this case were interested, Khuda Bukhsh (P. W. 10) being a cousin of the deceased and Shameera (P. W. 11) being a tenant of the father of the deceased. It was argued that Zafar Mehdi P. W. was paternal cousin of the deceased, Muhammad Hussain P. W. was an associate in business of father-in-law of Zafar Mehdi P. W. and bad also to settle account (of money) with the uncle of Muhammad Ashraf appellant, namely, Ghulam Rasul who v as a commis sion agent, at Multan. This witness according to learned counsel was, therefore, hostile. Then Mulazim Hussain P. W. was a servant of the grandmother of Zafar Mehdi P. W. and Fida Hussain P. W. was a Qureshi and belonged to the baradari of the complainant party as well as the deceased. The argument of learned counsel was that since the eye-witnesses as well as the recovery-witnesses in this case were interested and hostile, their testimony should not be relied upon. It was then argued that there were discrepancies in the statements of the eye-witnesses and on account of that also no reliance should he placed on their testimony. It was argued that even the witnesses of motive, namely, Muhammad Hayat and Kazim P. Ws. were related to the deceased and partisan. It was submitted that tire motive had nothing to do in this case. The appellants belonged to low castes and it was not possible that Falak Sher appellant had borrowed a transistor radio from the deceased, a big landlord, and then to have refused to return it on demand. It was argued that the rivalry between the parties was political and that the motive version had been introduced only to side track the political enmity between them. It was further stated that accor ding to the prosecution there were many people present at the time of occurrence and yet no independent witness was produced in support of the prosecution version. We have given our careful thought to these arguments of learned counsel but are of me considered opinion that they are not con vincing. It is understandable that on such occasions unconcerned or uncon nected persons would tend to slip away from the scene of crime so that they could not be made the eye-witnesses of the occurrence. Anyway, we do not find any reasons to discard the ocular testimony in the present case be cause the occasion of a tamasha in the village at a wedding party was such that they were likely to be there. If the eye-witnesses were related to the deceased or belonged to his baradari or were connected with him in any other way, this would not mean that they had a motive to falsely implicate the appellants in the commission of crime. The same can be said also about the recovery witnesses. According to the prosecution version Falak Sher appellant had been given a beating by the deceased two days prior to the occurrence. While the deceased was at the village tamasha alongwith the eye-witnesses and the appellants along with their companion were also sitting at some distance, the deceased asked Fida Hussain P. W. to get their huqqa for his smoking. The appellants refused to give the huqqa. The deceased then himself went to fetch huqqa and the occurrence took place. In the course of occurrence Muhammad Ashraf appellant was apprehended along with his knife on the spot whereas the other two managed to escape. The report was lodged without any delay. The police arrived and formally arrested Muhammad Ashraf Appellant. The human blood-stained knife P. 1 stated to have been used by him was produced on the spot by Muhammad Hussain P. W. Falak Sher appellant was also arrested on the same day and produced human blood-stained knife P.

3. The version of the eye-witnesses about the occurrence is consistent with the medical evidence. Injuries Nos. (1) and (4) on the person of the deceased are attributed to Falak Sher appellant whereas injury No. (2) in the abdomen is attributed to Muhammad Ashraf appellant. Their companion who is not before us is stated to have held the deceased in a Japha from behind. The discrepancies in the statements of the eye-witnesses pointed out by learned counsel to us are not of any consequence as they are not material and are only minor. Their account respecting the occurrence in substance is consistent, convincing and trustworthy. There is, therefore, no reason why the ocular testimony should be discarded in this case particularly when it is corroborated by the recoveries made from the appellants, the Serologist's report as well as the medical evidence. We have considered the arguments of learned counsel and carefully perused the record. In our considered opinion the prosecution has succeeded in establishing its case against the appellants. Consequently their conviction under section 302/34, P. P. C. was quite proper and well deserved and it is accordingly maintained. However, there remains the ques tion of sentence. We are of the view that the accused and the complainant parties were not on good terms with each other either due to political rivalry or for some other reason. It is the prosecutions, own case that two days prior to the occurrence the deceased had given a beating to Falak Sher appellant. If that was so then at the tune of occurrence the deceased should have not asked for -the- huqqa to be brought from the appellants for his smoking. Had he not asked for their huqqa, perhaps the occurrence would not have taken, his life. The sentences of fine are however maintained. With this modification their appeal is dismissed.

10. The death sentence awarded to the appellants is not confirmed.