IQBAL AHMED AND 2 OTHERS Versus THE STATE

RUSTAM S. SIDHWA, J .--Abdul Hakim, his two sons lqbal Ahmed and Anwar and one Riaz were tried by the learned Sessions Judge, Sahiwal, under- section 302/323/34, P.P.C. for the murder of Bahadur Ali, deceased, and injuries to Murid Hussain P.W.5. The learned trial Judge, by his judgment dated 2-5-1984, found Iqbal Ahmad, Anwar and Riaz, accused guilty under sections 302/34 and 323/34, P.P.C. but acquitted Abdul Hakim from all the charges. He sentenced lqbal Ahmad, accused, to be hanged by the neck, till he was dead, subject to confirmation by this Court and Anwar and Riaz, accused, to life imprisonment each under section 302/34, P.P.C and also directed each one of them to pay Rs.20,000 as fine or in default thereof to undergo further rigorous imprisonment for three years each under the said section. He further directed the said three accused to pay a sum of' Rs.10,000 each to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. or in default thereof to suffer further rigorous imprisonment for six months each. He also sentenced all the three accused to six months' rigorous imprisonment each under section 323/34, P.P.C. The sentences of Anwar and Riaz accused, were ordered to run concurrently and so also the sentence of lqbal Ahmad, accused, if his sentence of death was converted to imprisonment for life, at any stage. The joint appeal (Cr. A. 107 of 1984) preferred by Iqbal Ahmad and Anwar, convicts, the appeal (Cr.A. 108 of 1984) preferred by Riaz Ahmad, convict, and the reference (M.R. No.87 of 1984) sent by the Sessions Judge for the confirmation of the death sentence awarded to Iqbal Ahmad, convict, are all now before us for disposal.

2. The brief facts of the case are that on 17-11-1983 at about 3-00 p.m. Murid Hussain P.W.5. was working in the field of Suleman P.W.4, his maternal uncle, alongwith Bahadur Ali, deceased. The complainant, Sher Muhammad P.W.6, and Bahadur Ali, deceased, were cutting fodder, when they heard the pilfering of sugarcane from the field of sugarcane. Sher Muhammad P. W.6 asked Bahadur Ali, deceased, to go to the field of sugarcane. A little later there was noise and it attracted lurid Hussain P.W.5 Sher Muhammad P.W.6. They went to that side and saw that Anwar, accused, and Bahadur Ali, deceased, were exchanging abuses. The complainant and his companions stopped them from doing so. After about an hour, Anwar, Iqbal Ahmad, Abdul Hakim and Riaz, accused, came there. Abdul Hakim and Anwar accused caught hold of Bahadur Ali deceased, by his arms and lqbal Ahmad, accused, gave knife blow on the right side of his chest. Bahadur Ali, deceased, fell down. Murid Hussain P.W.5 and Sher Muhammad P.W.6 went there and they wanted to lift Bahadur Ali, deceased. Riaz, accused, inflicted a hatchet blow from its blunt side on the back of the complainant, who snatched the hatchet from him and inflicted injuries to Riaz, accused, who was injured. Bahadur Ali died at the spot.

3. Murid Hussain P.W.5 first proceeded to Police Station Saddar, Sahiwal, where he lodged F.I.R. Exh.PB at 5-00 p.m., which was recorded by Masood Tariq P.W.9. The Police Officer then proceeded to the place of occurrence, where, after preparing the necessary papers, he sent the dead body of Bahadur Ali, deceased, for post-mortem examination. He recovered blood-stained earth from the place of occurrence, which he took into possession vide memo Exh.P.E.

4. On 17-11-1983 at 5.30 P.M. Dr. Muhammad Gulzar Dogar DW.1 medically examined Riaz, accused, as a private patient and found a contused swelling 13 cm x 12 cm on the right parietal side of his head, a contusion 3 cm x 2 cm on his right temporal region and an incised wound 6 cm x 2 cm x bone deep on his left shoulder. The injuries on the head were found simple and caused by blunt weapon. The injury on the left shoulder was found to be grievous and caused by sharp-edged weapon. All the injuries were found to have been inflicted within six hours of the examination.

5. On 18-11-1983 at 11-00 a.m. Dr. Syed Zahid Hussain P.W.1 conducted the post-mortem examination on the dead body of Bahadur Ali, deceased, and found an incised wound behind the right ear with cartilage cut and an incised wound 1-1/2 cm 1-1/2 cm x going deep on the front of right chest. The fourth rib, right pericardium and atrium were cut under the injury on the chest. Death was due to the injury on the chest, which was held sufficient to cause death in the ordinary course of nature. Probable time between the injuries and death was early and between death and post-mortem examination about 18 to 20 hours.

6. On the same day Dr. Syed Zahid Hussain P.W.1 medically examined Murid Hussain P.W_5 and found an abrasion 1/2 cm x 1/2 cm on the right side of his forehead and an abrasion 1/2 cm x 1/2 cm on the back of his left upper chest, both of which simple blunt weapon injuries were held to have been inflicted within a duration of 24 hours from the time of examination.

7. On 21-11-1983, all the four accused were arrested by Masood Tariq, S.I. P.W.9. At the time of his arrest, Iqbal Ahmad, accused produced blood-stained knife P.4, which was taken into possession by the police vide memo. Exh.P.F in the presence of hurid Hussain P.W.5, Sher Muhammad P.W.6 and Masood Tariq S.I. P.W.9. The bloodstains on the knife were found to be of human origin.

8. At the trial, the prosecution produced Murid Hussain P.W.5 and Sher Muhammad P.W.6 in support of the motive and ocular account, the said two witnesses and Masood Tariq, S.I. P.W.9 in support of the recoveries and Dr. Syed Zahid Hussain P.W.I in corroboration of the medical testimony.

9. Iqbal Ahmad and Abdul Hakim, accused, both denied their presence and participation in the occurrence. Anwar, accused, admitted his presence, but gave a different version of the occurrence. His statement recorded under section 342, Cr.P.C. in this respect may be reproduced here with advantage: -

"I have been falsely involved in this case. In fact the occurrence took in killa No.4 of Square No.8 in Chak No. 89/68, which was under our cultivation, being on lease with us for the last 3/4 years. We had grown paddy in Killa No.4. On the day of occurrence our cut paddy was being collected by the young sisters of Riaz, co-accused. Bahadur Ali deceased cut indecent jokes with the grown up young sisters of Riaz, co-accused. I happened to come there and I admonished Bahadur Ali and on this alarm, Riaz, co-accused, who was cutting paddy in a nearby -field arrived there. He asked Bahadur Ali, deceased, as to why he had cut indecent jokes with his sisters and thus an altercation took place between the two, whereupon Bahadur Ali, deceased, who was armed with a hatchet, gave hatchet blow to Riaz, co-accused, who, in order to save his life, gave injuries to the deceased with a pen knife. I did not catch hold of the deceased. My father Abdul Hakim and my brother lqbal Ahmad were not present at the spot at the time of occurrence. Sher Muhammad and Murid Hussain PWs were not at all present at the spot. They learnt about the occurrence later on. The injuries on the person of Murid Hussain PW were later on fabricated in consultation with local police in order to make him an eye-witness in this case. The complainant party also removed the dead body of the deceased from our killa No.4 in order to shift the place of occurrence. Sher Muhammad and Murid Hussain PWs and the deceased were not at all cutting the fodder in that square, as alleged by them."

Riaz, accused, also admitted his presence. His version of the occurrence, as given in his statement recorded under section 342, Cr. P. C., may be reproduced here with advantage:-

"I had not inflicted hatchet blow to Murid Hussain P.W. l was thrashing the paddy towards the west of the place of occurrence. I heard the noise and rushed to that place. Murid Hussain P.W. gave me hatchet blow. I myself and co-accused belong to Chak No.89/6R. Murid Hussain belongs to Chak No.87/6R. Murid Hussain P.W. considered me the helper of the co-accused. I was 5/6 Karams behind when Murid Hussain gave me hatchet blow from the blunt side on my head. I fell down and became unconscious. I gained consciousness on the following day in the hospital.

Iqbal, accused, and deceased had been grappling with each other. I had seen this thing only. As I became unconscious, I do not know what happened. I had seen the knife in the hand of lqbal, accused."

10. The learned trial Judge, relying upon the motive, the ocular account, the recoveries and the medical testimony, convicted and sentenced lqbal Ahmad, Anwar and Riaz, accused, as stated in para 1 above, and acquitted Abdul Hakim, accused.

14. We have heard the arguments of the learned counsel for the appellants and the State and have also perused the record. The evidence as regards the motive in this case is furnished by Murid Hussain P.W. 5 and Sher Muhammad P.W.

6. Their version of the votive already stands reproduced in para 2 above and' need not be repeated. On behalf of the appellants it is submitted that no witness actually saw Muhammad Anwar, appellant. plucking sugarcane and the Investigating Officer had also admitted that he had not seen any plucked sugarcane at the spot and that he also not recovered any sugarcane at the place of occurrence. It is the case of both the witnesses that the sugarcane which was plucked by Anwar appellant, was in the killa which formed a part of the land cultivated by Suleman PW 4, the maternal uncle of Murid Hussain PW.5 and the father of Sher Muhammad P.W.

6. According to the site plan Exh.PG, the killa where the sugarcane was plucked was killa No.7. No question was put to Muhammad Hussain Patwari P.W. 7, on behalf of the appellants, to show that the said killa was not in the cultivation of Suleman PW4. It is, therefore, obvious that the killa from which Anwar, appellant, plucked sugarcane was killa No.7, under the cultivation of Suleman P.W. 4 and that since Murid Hussain P.W.5, Bahadur Ali, deceased, and Sher Muhammad P.W. 6, happen to be two nephews and a son of the said Suleman, their presence nearby cutting fodder, cannot be excluded. Bahadur Ali, deceased went into the sugarcane fieled to find out who that person was that was plucking sugarcane. When he went into the sugarcane fild, a quarrel took place between Bahadur Ali, deceased, and Anwar, appellant. Their voices attracted Murid Hussain P.W. 5 and Sher Muhammad P.W. 6 who went to killa No.7 and saw the said two persons there. Anwar, appellant, was, therefore, identified, No question was put to any witness to elicit how many stalks of sugarcane had been plucked. Very likely it was one or two which Anwar, appellant, wanted to chew. This accounts for the fact why no plucked sugarcane stalks were recovered. Taking all circumstances into consideration, the fact that Anwar, appellant, proceeded to his Dera and brought out a few persons to give the deceased a good hiding cannot be avoided. The motive stands proved, but only to the limited extent that the appellant wanted to teach the deceased a good lesson by giving him a beating or injuring him, but not to the extent of wanting to cause his death.

12. The ocular account is furnished by Murid Hussain P.W. 5 and Sher Muhammad P.W.6. Their version of the occurrence already stands reproduced in para 2 above and need not be repeated. Though both the witnesses are closely related to Bahadur Ali, deceased, they have no enmity or animosity with any of the appellants. In fact, none has been even suggested or put to them. On behalf of the appellants the following submissions have been made against the ocular testimony furnished by these two witnesses. First, that both were residents of Chak No. 87/68, whereas the occurrence took place in Chak No. 89/68, and that since none of the witnesses was owner or lessee of any land in Chak No. 89/68, their presence at the spot was doubtful and fortuitous. Second, that Murid Hussain P.W. 5 had not suffered any injury in the occurrence but perhaps had self-suffered two at a later stage to establish his presence at the spot. In this connection, it is submitted that though Murid Hussain P.W. 5 in his F.I.R. Exh. PD refers to one injury having been inflicted on him on his back by Riaz, appellant, with a hatchet, no injuries were noted by the police in their Karwai police report and the F.I.R, nor was any mention made of the injury by the police in their case diary or in their first inspection note. It is further submitted that though the F.I.R. refers to one injury the medico-legal report Exh. PB of the said witness shows two injuries, which only happen to be abrasions and are such which cannot be caused by a hatchet. It is also contended that Murid Hussain P.W. 5 actually got himself examined privately by Dr. Syed Zahid Hussain P.W.1, but the police later got his medico-legal report altered to show his examination as a police case. Third, that the F.I.R. was lodged late, which is obvious from the fact that the number of the F.I.R. was not mentioned by the police in the inquest report. Fourth, that the medical testimony conflicts with the ocular account. In this connection, it is submitted that though Murid Hussain P.W. 5 had mentioned that he received injuries at the hands of Riaz, appellant, by hatchet, the medico-legal report only shows that he received abrasions which could not have been inflicted by a heavy weapon like a hatchet. It is further submitted that Murid Hussain P.W. 5 only talks of one injury inflicted on him by Riaz, appellant, whereas there are two abrasions on his person and the second injury he has not explained. In cross-examination Murid Hussain PW 5 also referes to an injury which he received on the knee joint, when he fell on the ground, but there is no reference of the same in his medico-legal report Exh.P.B. Fifth and last, it is submitted that though a number of independent persons were working in the fields near the place of occurrence but no such person was produced and that the two witnesses who have been produced never saw the occurrence and their testimony should be rejected. With regard to the first submission, it cannot be denied that Suleman P.W. 4, the maternal uncle of Murid Hussain P.W. 5 and the father of Sher Muhammad P.W. 6, had taken fifteen killas of land in Chak No.89/6R on lease. The lands learned out to him comprised killa Nos.4,5,6,7/2, 15, 16,17,18, 19/2, 21,22 and 23. The lands were with him for the last four to five years. The site plan Exh.PG shows killas Nos.4/1, 4/2, 6.7. 14, 15, 16 and 17 to be contiguous. Sugarcane was plucked from killa No.7 Both parties claim killa No. 4. Murid Hussain PW 5, Bahadur Ali, deceased, and Sher Muhammad P.W. 6 were cutting fodder near killa No.7. The presence of Murid Hussain P.W.5, Bahadur Ali, deceased, and Sher Muhammad PW 6 cannot, therefore, be said to be fortuitous. Even otherwise, the presence of Murid Hussain P.W. 5 at the spot is admitted by Riaz, appellant, in his statement under section 342, Cr.P.C. and the presence of lqbal Ahmad, Anwar and Riaz appellants, stands admitted by the statements of the last two appellants recorded under section 342, Cr.P.C. The first submission, therefore, of the learned counsel for the appellant has no merit and must be rejected. With regard to the second submission, since the presence of Murid Hussain P.W. 5 stands admitted, the fact whether he did receive any injuries at the hands of the appellants is no longer important. It appears that Murid Hussain P.W. 5, in the scuffle, received two abrasions. Being petty injuries, they were not of much significance, but in any case one of them was attributed to Riaz, appellant, in the F.I.R. It is clear that the two abrasions apparently could not have been inflicted with a hatchet and that there is some embelishment in the testimony of Murid Hussain P.W. 5 regarding these two injuries, but this cannot destroy the prosecution case or dislodge the fact that the said witness was present at the spot and saw the occurrence. It is rlso cle<rr that the injuries on Murid Hussain P.W. 5 were not self-suffered, as Dr. Syed Zahid Hussain P.W. 1 excluded such a possibility, when put a question in that respect by the appellants' counsel. The second submission of the learned counsel for the appellants, therefore, has no force. With regard to the third submission of the learned counsel for the appellants, it cannot be denied that the F.I.R was lodged within one hour of the occurrence and since the first informant had to cover a distance of four kilometres whilst proceeding to Police Station Saddar, Sahiwal, the delay of one hour, cannot be considered to be inordinate in the circumstances. The failure on the part of the Police Officer to record the number of the F.I.R in the inquest report. by itself, is no indication that the F.I.R. was delayed. The presence of Murid Hussain P.W. 5 is admitted by one of the appellants. None of the witnesses had any motive to falsely implicate any of the appellants. Taking all circumstances into consideration, it cannot be said that the F. I. R. was recorded by the police after some delay or after preliminary investigation. With regard to the fourth submission. we have already given our views as regards the simple injuries found on the person of Murid Hussain PW 5 which appears to be petty abrasions and which were very likely caused in the scuffie when the appellants assaulted Bahadur Ali, deceaded. We have already held that some attempt was made by Murid Hussain PW 5 to embellish his testimony by foisting injuries on Riaz, appellant, which we have not accepted. In this view of the matter, we cannot hold that the medical testimony conflicts with the ocular account. With regard to the fifth and last submission, raised on behalf of the appellants, since Murid Hussain PW 5 and Sher Muhammad PW 6 are disinterested witnesses, there was no necessity for the police to produce further independent witnesses, Where witnesses are disinterested, even though they may be related to the deceased, they do not require any corroboration. In this view of the matter, nothing turns on the objection that other independent witnesses who were available were not produced and that such failure affects the prosecution case. Taking all circumstances into consideration, we hold that the occurrence was a broad day light occurrence, the F.I.R was lodged without any delay and that both Murid Hussain P.W. 5 and Sher Muhammad P W. 6 were natural witnesses and were present at the spot and did see the occurrence. Since the said witnesses have no enmity or animosity with any of the appellants, their statements can be accepted safely, without any further corroboration. The participation of all the appellants in the crime in instance stands proved.

13. The recovery of the blood-stained knife P 4 at the instance of Iqbal Ahmad, appellant, is proved by Murid Hussain PW 5, Sher Muhammad P.W. 6 and Masood Tariq SI P.W.

9. Nothing has been brought out on the record to show that any of the three witnesses had any enmity or animosity with any of the appellants, to lead them to planting of a false recovery on Iqbal, appellant. Habib Hussain 77 P.W. 2 made some concessions in favour of the appellants in cross-examination to suggest that the appellants were in the lock up on 18-11-1983. But the learned Judge, who recorded the evidence, held in his judgment that the said witness had attempted to make concessions in favour of the appellants, which view we endorse. There appear to be some minor contradictions in the evidence with regard to the dates when the two sealed parcels were handed over by Abdul Khaliq M.H.C. P.W. 3 to Muhammad Younas F.C. P.W. 8 for transmission to the Chemical Examiner, but since nothing appears on the record to suggest that the recovery was planted and the ocular account is furnished by disinterested witnesses, the statement of Masood Tario S.I. P.W.9 alone is also sufficient to prove the recovery. As stated earlier, corroboration is not required in the instant case. However, the production by lqbal Ahmad, appellant, of a blood-stained knife at the time of his arrest clearly acts as a strong incriminatory piece of evidence to show his participation.

14. The medical testimony furnished by Dr. Syed Zahid Hussain PW 1 clearly shows that Bahadur Ali, deceased, received two incised injuries on his person of the nature which could have been caused by the knife P4, recovered at the instance of Iqbal Ahmad, appellant. The medical testimony, therefore, corroborates the ocular account.

15. The upshot of the above discussion is that the motive, the ocular account, the recoveries and the medical testimony show the participation of the three appellants in the crime in instance. However, so far as Riaz, appellant, is concerned, though he was present, we have some doubts as regards his criminal association with the other two appellants. He is a Muslim Sheikh and he is not related to the other two appellants or the acquitted accused. According to his testimony, he was thrashing paddy towards the west of the place of occurrence, when he heard noise and rushed to the place of occurrence according to his statement, Murid Hussain PW 5 gave him a hatchet blow, considering him to be a helper of the co-accused, as they all belonged to the same Chak. Since he was injured seriously by mistake, the probability that he was introduced as belonging to the party of the accused, cannot be ruled oat. Hi criminal participation with the other appellants appears to be somewhat doubtful. We would; - therefore, give him the benefit of doubt. As regards the participation of Iqbal Ahmad and Anwar, appellants, the same stands established not only by the testimony of the eve-witnesses, but also by the statements of Anwar and Riaz, appellants, recorded under section 342, Cr.P.C. It appears that after the quarrel which erupted over the plucking of the sugarcane, Anwar, appellant, went home and brought lqbal Ahmad, appellant and perhaps some others, to the spot. Iqbal Ahmad, appellant, was armed with a knife. The motive was not such that the appellants wanted to kill Bahadur Ali, deceased. Perhaps they wanted to inflict injuries on him. Since lqbal Ahmad, appellant, was armed with a knife, it can be presumed that the appellants were united with the common intention of wanting to cause grievous injuries on him. Iqbal Ahmad and Anwar, appellants, therefore, started with their venture, united in their design of wanting to commit an offence under section 326/34, P.P.C. However, Iqbal Ahmad, appellant, exceeded that intention, by infliction two injuries on the deceased, one of which was on the vital part of the body, which proved fatal. Therefore, whilst we hold Anwar, appellant, liable under section 326/34, P.P.C we hold lqbal Ahmad, appellant, liable under section 302, P.P.C. for the murder of Bahadur Ali, deceased.

The conviction and sentence of lqbal Ahmad, appellant, under section 323/34, P.P.C. and the conviction and sentence of Anwar and Riaz, appellants, under sections 302/34 and 323/34, P.P.C. deserve to be set aside.

16. In view of the above, we hold lqbal Ahmad, appellant guilty under section 302, P.P.C. for the murder of Bahadur Ali, deceased. Since he did not actually intend to cause the death of the deceased, but death was caused due to his rash over enthusiasm, we sentence him to imprisonment for life and to pay a fine of Rupees Ten Thousand (Rs. 10,000) or in default thereof to undergo further rigorous imprisonment for two years. He shall also pay Rupees five thousand (Rs.5,000) to the legal heirs of Bahadur Ali, deceased, as compensation under section 544-A, Cr.P.C. In default of payment of compensation, Iqbal Ahmad, appellant, shall undergo further rigorous imprisonment for six months. Anwar, appellant, is convicted under section 326/34,1 P.P.C. for being united in the common intention of injuring Bahadurl Ali, deceased, and we sentence him to three years' rigorous imprisonment and to pay a fine of Rupees Two Thousand (Rs. 1000) or in default thereof to undergo further rigorous imprisonment for six months. Anwar appellant, shall also pay Rupees one thousand (Rs.1,000) as compensation to the heirs of Bahadur Ali, deceased, under section 544-A, Cr.P.C. In the event of default of payment of compensation, Anwar, appellant, shall undergo further rigorous imprisonment for three months. Both the appellants shall be entitled to the benefit of section 382-B, Cr.P.C.

17. The appeal of Riaz, appellant, (Cr.A. 108/84) is accepted. His conviction and sentences are set aside. He shall be released forthwith, if not required in any other case. Fine and compensation, if any recovered from him, shall be refunded to him.

18. The appeal (Cr A. 107/1984) of lqbal Ahmad and Anwar, appellants, is partly accepted, in terms of alteration in their conviction and reduction in their sentences, as stated above.

The death sentence of Iqbal Ahmad is not confirmed.

S.G. D./I-58/L Order accordingly.