FAQIR MUHAMMAD Versus THE STATE

AFRASIAB KHAN, J .--The appellants, Faqir Muhammad alias Faqiria aged 45 years, Muhammad Younas aged 23/24 years, sons of Sakhi Muhammad, and Munir Ali alias Manan aged 22/23 years son of Muhammad Ibrahim were convicted under section 302/34, P.P. C. for committing the murder of Muhammad Rafique aged 40 years. Accordingly, Munir Ali, appellant, was sentenced to death whereas Faqir Muhammad and Muhammad Younas, appellants, were sentenced to life imprisonment. The appellants were also sentenced to pay a fine of Rs.10,000 each and in case of default thereof to further undergo one year's rigorous imprisonment each. It was ordered that if the amount of fine is recovered, half of it shall be paid to the heirs of the deceased as compensation under section 544-A Cr.P.C., vide the judgment dated 30-4-1984 passed by the learned Additional Sessions Judge Kasur. The proceedings for confirmation of the death sentence awarded to Munir Ali (M.R. No. 127 of 1984) and joint appeal (Crl. .A. No. 312 of 1984) filed by the appellants against their conviction and sentence, shall be disposed of by us together by our consolidated judgment.

2. Briefly stated, the facts of the prosecution case, as narrated by Abdul Aziz; complainant PW.7, in his statement Ex.PH, are that the complainant is a resident of village Dhengriwala, District Kasur. He is younger brother of Muhammad Rafique, deceased. They had six acres of agricultural land which was situated on the eastern side of the village. The complainant and his brother Muhammad Rafique cultivated the land themselves. In the neighbourhood of the land of the complainant, Sakhi Muhammad and Muhammad Ibrahim had also some agricultural land. About 5/6 days ago, Sakhi Muhammad and Muhammad Ibrahim planted some Jaman saplings on the border of their land. The complainant and his brother lodged a complaint that they have planted the trees on their side of the land. However, Faqir Muhammad and his brother Muhammad Younus replied that the saplings had been correctly planted and that the same will remain on the same place. Upon this there was some altercation between them. However, the dispute was patched up on the intervention of the respectables of the village. The complainant stated that his brother Muhammad Rafique uprooted the said plants. The matter was brought before the Panchait wherein it was decided that Faqir Muhammad should plant the trees on his side of the land. This decision of the Panchait was implemented. However, Faqir Muhammad, appellant, threatened that Muhammad Rafique shall be taught a lesson for uprooting the plants. On 9-3-1981 the complainant had the turn of water to irrigate their land and in this connection his brother Muhammad Rafique and Muhammad Sharif went towards their land and at about 8.30 p.m. when Muhammad Rafique was irrigating his crops of wheat and Muhammad Sharif had gone 15/20 paces ahead to check the flow of water, and in the meantime, Faqir Muhammad alias Faqiria and his brother Muhammad Younas, both armed with sticks and Munir Ali alias Manan armed with a Toka came at the spot. The appellants shouted that Muhammad Rafique shall be taught a lesson for uprooting the saplings. On the noise being raised by Muhammad Sharif, the complainant and Farmaish Ali PW3 came at the spot while running. In their view, Muhammad Younas, appellant, gave a stick blow to Muhammad Rafique which blow was prevented by him at his Kassi. Thereafter Faqir Muhammad, appellant held Muhammad Rafique in his clasp. Munir Ali, appellant gave a Toka blow which landed on the head of Muhammad Rafique. On the receipt of Toka injury Muhammad Rafique fell on the ground. The witnesses were threatened by the appellants that they will also meet the same fate if they came near the injured. On the noise raised by the witnesses many people from the village also gathered at the spot. Muhammad Rafique was placed in a trolley in an injured condition and was brought to Civil Hospital, Kasur wherein first medical aid was provided to him and later on he was shifted to General Hospital, Lahore where he expired on 20-3-1981.

3. Mahmood-ul-Hassan ASI PW8 stated that on 10-3-1981 medico legal report of injured Muhammad Rafique was delivered to him and on the same day the injured was brought to General Hospital, Lahore. The witness went to General Hospital, Lahore for recording the statement of Muhammad Rafique, injured. However, the Doctor disclosed that the injured was not fit to make a statement. The witness recorded the statement Ex.PH of Abdul Aziz, complainant PW7. The complainant PW7 produced before the witness Chadar P1 and Kamiz P2 which were taken into possession and were sealed in a parcel vide memo. Ex.PA. Blood-stained earth was taken into possession from the place of occurrence vide memo Ex.PB. On 19-3-1981 the investigation of the case was withdrawn from the witness and was entrusted to Muhammad Amin Inspector/SHO PW11, on 20-3-1981. The witness on the receipt of the information that Muhammad Rafique has expired in the General Hospital, Lahore went to Hospital and sent the dead body of Muhammad Rafique to Civil Hospital, Kasur for post-mortem examination. Munir Ali and Muhammad Younas, appellants were arrested on 19-3-1981 and Faqir Muhammad appellant was arrested on 26-3-1981. Or. 28-3-1981 all the appellants led to the recoveries of weapons of offence separately. Faqir Muhammad led to the recovery of Sota P3 which was taken into possession vide memo Ex.PD. Muhammad Younas led to the recovery of Sota P4 which was taken in possession vide memo Ex.PE. Munir Ali led to the recovery of Toka P5 which was taken into possession vide memo Ex.PF. The witness prepared the site plan Ex.PJ and the inquest report Ex.PK. The reports of the Chemical Examiner Ex. PM and the Serologist Ex.PN were positive and the clothes of the deceased, Toka and earth taken into possession were found to be stained with human blood.

4. Dr. Sadiq Hussain Naqvi PW4 examined Muhammad Rafique on 10-3-1981 at 4.15 a.m. and found the following injury on his person:----

"A cut wound on left side head starting from left side temporal bone area, going upwards at parietal bone area crossing mid-line and going towards right side perietal bone area. Size 20 c.m. into 3 c.m. into underneath scalp, muscles and bones were cut and brain matter was protruded out."

The injured was in state of agony and unconscious, vomiting with low blood pressure and low pulse. On 20-3-1981, Muhammad Rafique died in the General Hospital, Lahore and the aforesaid Doctor conducted the post-mortem examination on the dead body of the deceased. Following injuries were found on his person:----

"(1) Injury No.1 is stitched wound on left side temporietal low area going upwards middle and posterior side of head. 18 stitches of black thread are present. Size 19 c.m. length. On disection, bone was cut. A gap size 10 x 4 c. m . was present, blood was clotted in the wound and scalp was cut. Skull fractured and cut at left temporal and parietal bones at and right parietal bones. Membrains and, brain was injured corresponding to injury No.1."

Heart was healthy and contained little clotted blood in both ventricles.

Stomach was healthy and empty. Urinary bladder was healthy.

It was opined by the witness that the deceased died on account of shock and cardio-respiratory failure due to injury No.1 which was sufficient to cause death in the ordinary course of nature. This injury was anti-mortem and caused by sharp-edged weapon.. Probable time between injury and death was about 10 days and between death and post-mortem examination within 12 hours. Ex.PB/1 is the carbon copy of the post-mortem report.

5. On 11-3-1981 the same Doctor examined Faqir Muhammad, appellant, at about 10.00 a.m. and found the following injuries on his person:----

(1) Incised wound on left side parieto occipital bone area size 3 c.m. x c.m. x scalp deep.

(2) Swelling on back of left side chest at lower border of scpula, size 6 c.m. x 4 c.m.

(3) A contution on upper and outer side of left arm size 3 c. m. x 1 c.m.

(4) An abrasion on right cheek. Size 4 c. m. x c. m.

(5) An abrasion on outer side of left elbow size 1 x 1 c. m. with swelling of the elbow.

(6) An abrasion on lower and back of left fore-arm size 1, c. m. x c.m.

(7) A contusion above the right elbow size 3 c.m. x 2 c.m.

(8) Contusion on back of right side chest at lower border of scapula size 6 c. m. x 2 c. m.

The injury No.1 was caused with sharp-edged weapon whereas the rest were caused with blunt weapon. All injuries were simple and were caused within about 48 hours. Ex.PC is the carbon copy of the medical report.

6. The eye-witness account was provided by Muhammad Sharif PW2, Farmaish Ali PW3 and Abdul Aziz, complainant PW7. Abdul Aziz PW7 is the complainant in the case and real brother of Muhammad Rafique, deceased. He has supported the prosecution story in its entirety. He stated that they had six acres of- land in the southern side of the village and the land owned by Muhammad Ibrahim, father of Munir Ali and Sakhi Muhammad is situated adjacent to their land. They have common boundary line with the land of the aforesaid Muhammad Ibrahim. The witness stated that the common boundary line was interfered with by the accused party and they planted Jaman saplings there. He stated that they protested and brought the matter to Panchait. The accused party refused to accede to their request and replied that they will not remove the Jaman saplings. The deceased, Muhammad Rafique uprooted those plants and upon this there was an altercation between them. On the intervention of the respectables of the village the matter was patched up and a decision was taken that they should plant the Jaman saplings on their side of the land. However, this decision of the respectables of the village was not implemented. The appellant, Faqir Muhammad hurled threats to Muhammad Rafique, deceased, that he will be taught a lesson for uprooting the Jaman plants. On the day of occurrence, the deceased Muhammad Rafique and Muhammad Sharif were watering the fields and in the meanwhile, appellants Faqir Muhammad and Muhammad Younas armed with Sotas P.3 and P.4 and Munir Ali, appellant armed with Toka P.5 came at the spot. Faqir Muhammad, appellant raised a Lalkara that Muhammad Rafique, deceased, should not be spared today. The witness stated that after hearing the noise he alongwith Farmaish Ali PW.3 came to the spot and Muhammad Sharif PW2 also reached there. Muhammad Younas, appellant gave a stick blow to Muhammad Rafique, deceased, which was warded off by him on his Kassi and then Faqir Muhammad, appellant caught the deceased, Muhammad Rafique, in his clasp and Munir Ali, appellant, gave a Toka blow to Muhammad Rafique, deceased, which landed on the left side of his head. On the receipt of the injury, the deceased fell down on the ground. There was a lot of hue and cry which attracted many people of the village. The deceased was brought to Civil Hospital, Kasur and from there he was brought to General Hospital, Lahore, where he expired on 20-3-1981. The statement of the complainant Abdul Aziz PW7 was supported by Muhammad Sharif PW.2 and Farmaish Ali PW3 in all its material terms. Muhammad Sharif PW2 stated that Muhammad Younas, appellant, gave a Sota blow which was warded off by Muhammad Rafique, deceased on his Kassi. Then Faqir Muhammad, appellant caught hold of the deceased in his clasp and thereupon Munir Ali, appellant gave a Toka blow which landed on the head of the deceased. On the receipt of the injury Muhammad Rafique, deceased, fell down and the appellants ran away. The witness stated that Muhammad Rafique deceased expired on 20-3-1981. To the same effect is the statement of Farmaish Ali PW.3 who has also supported the statements of Abdul Aziz PW.7 and Muhammad Sharif PW.2.

7. The appellant, while making statements under section 342, Cr.P.C. denied the allegations levelled against them. Faqir Muhammad, appellant, while replying to question No.5 stated that the appellants Munir Ali and Muhammad Younas were not present at the spot. He stated that he was all alone and had gone there to look after his fields which fields were adjacent to the fields of the complainant and the deceased. He stated that he was armed with a Sota. He gave a detailed defence version in his answer to question No.7. He stated that in fact he was assaulted by Abdul Aziz PW. 7 and his relative Nazir who were armed with sticks. He stated that the deceased, Muhammad Rafique was armed with Takwa. He disclosed that he received as many as eight injuries on various parts of his body at the hands of the complainant party. Regarding motive, he stated that 5/6 days earlier to this occurrence he alongwith his brother Muhammad Younas, appellant, had planted Jaman saplings on their side of the land. He admitted that his land is adjacent to the land of the complainant party. He stated that the saplings so planted were uprooted by Abdul Aziz PW.7 and Muhammad Rafique, deceased. He stated that they took the dispute before the respectables of the village and in fact they had planted the Jaman plants on their side of the land. He stated that the complainant party had a grievance that he should not have planted those trees. He stated that on account of this background he was subjected to attack referred to above. He also stated that on 11-3-1981 he was medically examined by Dr. Sadiq Hussain Naqvi at Kasur vide Ex.PC. Munir Ali, appellant, stated that he has been implicated in the case because he is a cousin of Faqir Muhammad, appellant who was subjected to an assault by Muhammad Rafique, deceased and Abdul Aziz, complainant PW.7 and their relative Nazir. He pleaded his innocence. To the same effect is the statement of the appellant Muhammad Younas.

8. The learned trial Court believing the motive, the eye-witness account and the recovery of weapons used in the commission of offence as well as the medical evidence, convicted and sentenced all the appellants as stated earlier vide his judgment dated 30-4-1984.

9. Learned counsel for the appellants submitted that the F.I.R. in the case has been lodged after considerable delay and no explanation thereof has been given by the prosecution. Learned counsel stated that after due consultation and deliberation, the appellants have been implicated in the case. The learned counsel maintained that motive to commit the offence of murder has not at all been proved by the prosecution evidence. He stated that eye-witnesses are related and no reliance can be placed on their testimony. Learned counsel urged that the occurrence had taken place in the darkness and as such the so-called eye-witnesses could not see the assailants. Learned counsel submitted that the statements of the eye-witnesses are full of contradictions.

10. Learned counsel appearing on behalf of the State has supported the conviction and sentence awarded to the appellants by the learned trial Court.

11. We have heard the learned counsel for the appellants and the State and have also perused the record very minutely. We are of the view that the prosecution has successfully proved its case against the appellant Munir Ali, by bringing on record reliable and cogent evidence. The eye-witness account has been given by Abdul Aziz PW7. He has supported the case of the prosecution in all its material terms. Although Abdul Aziz, complainant PW7 is the real brother of Muhammad Rafique, deceased, but his evidence can safely be relied upon for the purpose of convicting Munir Ali, appellant. The witness has categorically stated that he was present at the spot. He stated that he and the deceased had land in the village in the neighbourhood of the land of the accused party. The witness has also proved the motive for commission 'of the dime inasmuch as he has stated without any ambiguity that the accused wanted to plant Jaman saplings on the land owned and possessed by the complainant party. On the plantation of these trees there was a dispute between the complainant and the accused party. The above-referred dispute was resolved by the respectables of the village. The witness stated that Faqir Muhammad, appellant hurled threats to Muhammad Rafique, deceased, that he will be taught a lesson for uprooting the Jaman trees which trees were planted by the accused party. Similarly, the complainant gave full account of the attack launched by the accused. He stated that Faqir Muhammad and Muhammad Younas, appellants, were armed with sticks whereas Munir Ali, appellant was armed with Toka P.5. The witness went on to state that Muhammad Younas, appellant, gave a stick blow to Muhammad Rafique, deceased, which was prevented by him on his Kassi. The appellant, Faqir Muhammad caught the deceased in his clasp and the appellant Munir Ali, gave a Toka blow which landed on the left side of the head of the deceased. On the receipt of the injury Muhammad Rafique, deceased, fell on the ground and the appellants ran away. This statement of the complainant PW7 was supported by Muhammad Sharif PW2 and Farmaish Ali PW3. These witnesses were subjected to lengthy cross-examination but nothing favourable came out to the defence. From the close scrutiny of the statements of the eye-witnesses it is clear that it was Munir Ali, appellant, who while armed with a Toka P5 attacked the deceased Muhammad Rafique and caused a Toka injury , on the head of the deceased. This single injury caused by Munir Ali, with his Toka proved fatal. Thus, it is established beyond any shadow of doubt that it was Munir Ali, appellant who caused a fatal blow on the vital part of the deceased Muhammad Rafique as a result of which injury he died on 20-3-1981 in General Hospital, Lahore. Toka was found stained with human blood and the said Toka was recovered by Muhammad Amin PW11 at the instance of the appellant Munir Ali vide memo Ex.PF. Thus, from the eye-witness account, it is proved that Munir Ali, appellant was responsible for causing a fatal injury on the person of Muhammad Rafique, deceased. The recovery of Toka P5 further supports the evidence of the eye-witnesses. Keeping in view the statements of the eye-witnesses, recovery of Toka P5 and the medical evidence, we are persuaded to believe that it was Munir Ali, who attacked the deceased, Muhammad Rafique, and, murdered him. Therefore, we are of the view that Munir Ali, has committed the offence of murder and he was, therefore, rightly convicted under section 302, P.P.C. However, on the quantum of sentence, we are of the view that the appellant, gave only one injury with his weapon of offence on the person of Muhammad Rafique, deceased. The possibility cannot be ruled out that Munir Ali, might have opened attack on the deceased, Muhammad Rafique, on account of provocation on the question of plantation of Jaman saplings at the boundary line of the lands of the complainant party and the accused party. We have thoroughly considered the contentions of the learned counsel for the appellants and to the extent of appellant Munir Ali, we do not find any substance therein and as such the same are repelled. We, therefore, alter his death sentence to life imprisonment. Resultantly, the death sentence so awarded to Munir Ali, appellant, is not confirmed.

So far as the case of Muhammad Younas and Faqir Muhammad, appellants, is concerned, we are of the opinion that the prosecution has not been able to prove its case against them beyond reasonable doubt. Admittedly, there is no evidence against them to connect them with the commission of the crime. The evidence against Faqir Muhammad, appellant, is that he held the deceased Muhammad Rafique in his clasp and Munir Ali gave a Toka P5 blow to the deceased. Otherwise there is no evidence to show that this appellant did any overt act toward the commission of the crime. Admittedly these two appellants did not cause any injury to the deceased. There is only one injury on the person of the deceased which proved fatal. So far as the contention of the learned counsel for the appellants, that Faqir Muhammad, appellant was injured and he received as many eight injuries on his person, is concerned, we have considered this contention and we are of the view that it is true that the prosecution has not disclosed the existence of these injuries on the person of Faqir Muhammad in the F.I.R. and they did not so clearly explain these injuries in the evidence by the prosecution, but the fact remains that if at all Faqir Muhammad, appellant, was injured as a result of his participation in the occurrence, he must have informed the police there and then and should have made out a case before the police that he has been injured at the hands of the complainant party and that it was the complainant party who had opened attack upon him. This is in the evidence that Faqir Muhammad, appellant, did not immediately, went to the police and did not inform them about his injuries. It is also in the evidence that he did not file a private complaint against the complainant party before the Court of law. All these facts and circumstances taken together create considerable doubt about the genuinensess of the injuries found on the per--on of Faqir Muhammad, appellant. We are of the considered view that these injuries might be the fabricated injuries.

12. We, therefore, by giving the benefit of doubt to Faqir Muhammad and Muhammad Younas, appellants, proceed to acquit them. Both the appellants are set at liberty and they shall be released forthwith if not required in any other case. Resultantly, this appeal is partly accepted.

M. Y. H./F-39/L Appeal partly accepted.