MUHAMMAD ARSHAD Versus STATE
KHALIL-UR-REHMAN RAMDAY, J . -- Three real brothers, namely, Muhammad Arshad, Muhammad Akram and Muhammad Afzal were tried by a learned Additional Sessions Judge at Lahore for committing the murder of one Khadim Hussain and for having murderously assaulted the widow and the two daughters of the said Khadim deceased.
2. Through his judgment, dated 6-7-1989, the learned trial Court found all the three accused persons guilty of the charge under section 302/34, P.P.C. and while Arshad was punished with death, Akram and Afzal were sentenced to imprisonment for life. Each one of them was further punished with a fine of Rs.5,000 or sufferance of one year's R.I. in default thereof. The entire amount of fine under this charge was directed to be paid to the heirs of the deceased. Each one of them was further convicted under section 307/34, P.P.C. and was sentenced to seven years' R.I. with a fine of Rs.2,000 or one year's R.I. in default of payment of fine. The sentences of imprisonment were directed to run concurrently and the convicts sentenced to imprisonment for life were allowed the benefit of provisions of section 382-B of the Cr.P.C.
3. Murder Reference No.195 of 1989 seeks confirmation of the sentence of death awarded to Arshad convict while all the three convicts impugn the respective convictions and sentences recorded against them, through Criminal Appeal No.544 of 1989. Criminal Revision No.363 of 1990 filed by the complainant prays for enhancement of the sentences of imprisonment for life awarded to Akram and Afzal convicts to the sentences of death on the murder charge.
4. All these three matters are being disposed of together through this single judgment.
5. The occurrence in question which had taken place at about 4-45 p.m. on 30-12-1983 near the house of the deceased in the area of Hussain Park in Badami Bagh, Lahore, had been reported by Mst. Irshad Begum, the widow of the deceased, to Nizam Shahid S.H.O. (P.W.22) at about 4-55 p.m. on the same day at the spot.
6. The said complainant had stated that her deceased husband was employed as an A.S.I. in the Police Department and had constructed a house in Hussain Park about 5/6 years prior to the occurrence. She had further stated that for the purposes of tethering their cattle, Khadim deceased had further secured a piece of land measuring about 7 Marlas in front of his house which land belonged to the Auqaf Department but was in possession of one Amir Gujjar and further that this deal had been struck through a Property Dealer by the name of Muhammad Anwar, about four years prior to the occurrence and that the possession of the said piece of land had also been taken by them, where they had even constructed a room.
7. She had further reported that about one year prior to the occurrence, Muhammad Akram appellant had also purchased a piece of land measuring about five Marlas through the same property dealer which was adjacent to their above-mentioned plot of land and that 2/3 days prior to the occurrence, the complainant party started constructing a wall on the Western side of their said plot but Akram appellant objected to the same on the ground that the point where the said wall was being constructed fell in his area and further that he would not permit the complainant party to raise a wall where they had started raising the same.
8. She had further claimed that on this objection being raised, her deceased husband told Akram appellant to bring Anwar Property Dealer and if according to his measurement, the place in question fell within Akram appellant's piece of land, then her deceased husband would surrender the same to the said appellant. According to the complainant, Akram appellant went away after hearing this reply from the deceased.
9. The complainant had gone on to allege that on the day of occurrence she was putting fodder to her cattle at about Asarwella when her deceased husband also returned home and in the meantime, the three appellants, out of whom, Arshad and Akram were armed with guns reached there and demanded of the deceased to resolve the above-mentioned dispute. The deceased allegedly reiterated his earlier position and asked the appellants to bring Anwar property dealer to resolve the issue at which, Afzal appellant lost his temper and caught hold of the deceased at which, the complainant and her two daughters pelted stones at Afzal appellant in order to rescue Khadim deceased.
10. The complainant had further asserted that thereafter Arshad appellant fired a shot with his gun which landed on the back of the deceased at which, he fell down; Akram appellant followed him and fired a shot which hit the left knee of Mst. Naseem Akhtar (P.W.15) whereafter, Afzal appellant took out a knife and inflicted an injury on the back of the complainant's other daughter i.e. Mst. Surraya Akhtar (P.W.16); that the complainant raised alarm to save her husband and her two daughters at which, Arshad appellant gave a blow on the complainant's head with the Butt of his gun and a similar blow was given by Akram appellant on the head of Mst. Naseeb Akhtar P.W. and further that on the neighbours being attracted to the spot, the three appellants ran away from the place of occurrence.
11. During the spot inspection, Nizam Shahid S.H.O. (P.W.22) had, inter alia, found an empty cartridge P.14, a Gandasa P.15 and a wooden part of a gun P.12 at the place of occurrence.
12. During the course of investigation, Afzal and Akram appellants were arrested on 31-12-1983 out of whom, Afzal appellant had injuries on his person who was got medically examined and eight lacerations, abrasions and contusions had been found on his person by Dr. Ahmad Afifi (P.W.20), all of which had been caused by blunt weapon and were simple in nature.
13. While in police custody, Akram appellant had allegedly led the 1.0. to the recovery of his licensed gun P.20 on 6-1-1984 while Afzal appellant had led to the recovery of a blood-stained knife P.22 on 11-1-1989.
14. Arshad appellant had been arrested on 4-1-1984 and had produced a .38 revolver P.1 alongwith five live cartridges P.2 to 6 and the said revolver was the official revolver which was with the deceased as an A.S.I. of the police. He also produced a gun P.7, the wooden support of which had been found missing.
15. The above-mentioned crime empty, the two .12 bore guns and the wooden part P.12 had been sent to the Forensic Science Laboratory and according to their report Exh.P.NN., the above said wooden part was the part of the gun recovered from Arshad appellant while the crime empty had also been found to have been fired from the gun recovered from the same appellant.
16. It may, however, be mentioned here that the crime empty had been despatched to the Forensic Science Laboratory on 11-1-1984 i.e. about a week after the recovery of the guns in question and had been received there on 12-1-1984 while the said guns above-mentioned had been sent to the said Laboratory on 19-1-1984.
17. This was then the evidence with which the prosecution had come to trial and when confronted with the same, Afzal appellant admitted through his statement recorded under section 342, Cr.P.C. that he had purchased a piece of land which required demarcation but added that no dispute, which could lead to a quarrel, existed in respect of the said demarcation. He had further pleaded that after purchasing the said piece of land, he came to be on visiting terms with the complainant family; that on the day of occurrence he was sitting in the house of the deceased when the deceased suddenly returned home and on seeing Afzal appellant in his house sitting with his family members, the deceased got infuriated and picked up a Chhuri and started giving injuries to his daughter Mst. Surraya P.W.; that Afzal appellant intervened and snatched the Chhuri whereupon, the deceased picked up a Danda, ran after his family members and caused injuries to his wife Mst. Irshad Begum P.W.; that Afzal appellant then caught hold of the deceased and started grappling with him during the course of which grappling, the deceased managed to inflict injuries on the person of Afzal appellant with the Danda; that Afzal appellant managed to snatch the said Danda whereafter, the deceased overpowered the said appellant and felled him on the ground; that the deceased then picked up a Toka from the place where the appellant had fallen but in the meantime a son of the deceased, namely, Yaseen fired with a gun which hit the deceased and Mst. Naseem P.W.; that the appellant reported the incident at the police station but the S.H.O. who was a close friend of the deceased cleverly manoeuvred to implicate Afzal appellant and his brothers for the damage done in the said incident. Akram and Arshad appellants denied their presence and participation in the occurrence in question and adopted the plea offered by Afzal appellant.
18. Eight witnesses were examined in defence of the appellants. They were all police employees from various police stations who had produced various F.I.Rs. and reports concerning some of the prosecution witnesses other than the three eye-witnesses.
19. Canvassing acquittal for the appellants, their learned counsel argued that the defence version was a probable explanation of the occurrence in question which deserved to be accepted.
20. In the alternative, he added that the prosecution had failed to prove the guilt of the appellants beyond reasonable doubts as the F.I.R. had been registered at the spot; as the motive had remained unproved; as all the three eye-witnesses were closely related to the deceased and finally because the prosecution case did not inspire confidence.
21. The learned counsel further contended that on account of the occurrence having commenced with grappling as claimed by the prosecution itself, the application of section 34 of the P.P.C. was open to serious exception and in any case, Arshad appellant did not deserve the maximum penalty of death provided by section 302 of the P.P.C.
22. We have examined the defence version which, however, leaves a lot unanswered.
23. It is not believable that on being offended by Afzal appellant's presence in his house, the deceased would, after picking up a Chhuri, spare the offender and would instead start inflicting injuries on his own daughter. The claim of the appellant that despite his intervention and despite his snatching the Chhuri from the deceased, the deceased paid no attention to him and after picking up a Danda from the spot, the deceased again went after his own wife and the other daughter and did not assault the said appellant, is a claim which is not reasonably believable.
24. Afzal appellant had gone on to plea that after the deceased had injured even his wife and the other daughter, he started grappling with the deceased in which process, the deceased infected eight injuries oil his person and yet the appellant, even after the receipt of these injuries, managed to snatch the Danda from the deceased, is a story which does not inspire confidence.
25. Afzal appellant also wants us to believe that there was yet another weapon lying at the spot which was a Toka and which the deceased had managed to pick-up after having been twice disarmed of a Chhuri and a Danda and it was at the stage when the deceased was about to give a Toka blow on Afzal appellant, that a son of the deceased appeared on the scene with a gun and fired the same, hitting his own father and sister.
26. It stands established on record that Khadim deceased was in his uniform at the time of his death. He also had a service revolver with him at the said time. It is not understandable as to why he should be running around picking up Chhuri and a Danda to cause injuries, as alleged by the defence, when he had a revolver available with him.
27. It is also available on record that at the time of trial, Yasin, the son of Khadim deceased was about 14 years of age and would be about 11/12 years of age at the time of occurrence. It is equally unbelievable that he would pick up a gun and fire shots with the same, especially when there is no explanation as to from where he had found this gun.
28. As has been mentioned above, hypothesis and the explanation offered by the defence about the occurrence in question is far from being reasonable and probable and is, therefore, accordingly rejected.
29. This then brings us to the scrutiny of the prosecution evidence which is available on record.
30. The ocular testimony offered by the prosecution consists of the statements of Mst. Irshad Begum, Mst. Naseem Akhtar and Mst. Surraya Akhtar. The former out of these three, is the widow of the deceased while the two latter witnesses are, his daughters. All three of them had received injuries during the occurrence in question. Their presence at the place of occurrence is thus not open to doubt nor the same had been denied even by the defence. They had no enmity or ill-will against the appellants and no motive was even suggested to them for falsely implicating the three appellants in the occurrence in question. They are the inmates of the house in front of which, the occurrence in question had taken place.
31. These three injured witnesses of the occurrence in question are thus, natural and independent witnesses of the said occurrence.
32. So far as the motive is concerned, the purchase of a piece of land by the appellants party adjacent to the plot of Khadim deceased had not been denied by the defence. It had also been admitted by the appellants that the said two parcels of land required demarcation. Not even a suggestion was put to the three eye-witnesses that their claim regarding the construction of Western wall on their plot had led to an objection by Akram appellant which had led to a dispute between the two parties.
33. These facts lead us to conclude that the prosecution had successfully I( proved the motive allegedly by it.
34. The blood-stained earth had been collected from a spot outside the house of the deceased. This aspect of the prosecution evidence had not been challenged by the defence. Thus, there is nothing on the record which could persuade us to hold that the occurrence in question had not taken place at the venue claimed by the prosecution and had in fact taken place inside the house of the deceased.
35. The prosecution has produced evidence that the service revolver of Khadim deceased alongwith five live cartridges had been produced by Arshad appellant. The defence had not been able to persude us to disbelieve this recovery as also the recoveries of three other weapons of offence at the instance of the appellants. This piece of evidence regarding the recovery, of these weapons from the appellants is another circumstance, strongly militating against the innocence of the appellants.
36. The learned counsel for the appellants attempted to construct the occurrence canvassing that if the motive be true then the possibility of Afzal appellant having come to the spot; having found complainant party raising a wall on the land which the said appellant genuinely believed to fall in his part of the land and Afzal appellant and his two brothers then having acted either in the defence of their property and themselves or the occurrence having developed from a sudden flare-up between the parties could not be, ruled out..
37. The eye-witnesses had claimed that it was 2/3 days prior to the occurrence that the complainant party had started raising the construction and it was on that day that Akram appellant had objected to the said construction. Not even a suggestion was made to any of the prosecution witnesses that the wall in question was being raised on the day of occurrence. No question was put to any prosecution witness and nothing had been brought on record by the defence to demonstrate that there was any material lying at the place of occurrence on the day when the occurrence in question had taken place nor was the 1.0. asked whether the wall sought to be raised at the place of occurrence had been found by him to have been freshly constructed on his visit to the place of occurrence.
38. Consequently, there is no material available on record from which an inference could be drawn that the occurrence in question had erupted at the E spur of the moment when Afzal appellant had found the complainant party raising a wall on the appellants' side of the plot.
39. It is also not discernible from the record that Afzal appellant was the first to have reached the place of occurrence and his two brothers, i.e. Arshad and Akram appellants had come to the spot after arming themselves with guns on hearing the alarm caused by the grappling between Afzal appellant and the deceased because the defence elected not to bring anything on record to suggest that their house was within a distance which could have led Arshad and Akram appellants to the place of occurrence on hearing any such alarm.
40. Our above examination of the two versions and the material available on record thus leads us to hold that Afzal appellant's claim regarding the occurrence in question was not at all reasonable and thus could not be accepted as a plausible explanation of the said occurrence; that the defence had also failed to establish, in the alternative, that the occurrence in question could have erupted at the spur of the moment without any premeditation and without the existence of any common intention between the three appellants and in the circumstances, we are constrained to reject both these pleas.
41. As against this, the prosecution case is supported by three eye witnesses who are injured victims of the occurrence in question and who are also the natural witnesses of the said occurrence, the same having taken place just outside their house; the motive alleged by the prosecution stands proved F on record; the evidence regarding the recovery of the service revolver of the deceased from Arshad appellant is reliable and the wooden part of a gun found at the spot having been found by the Forensic Science Laboratory to be the part of a gun P.7 recovered at the instance of Arshad appellant was another reliable piece of evidence; the injuries received by the deceased and the three eye-witnesses were in consonance with the number of assailants who had allegedly taken part in the occurrence in question and in the circumstances, nothing exists on record which could persuade us to find that the prosecution had not been able to prove its case against the said appellants.
42. Consequently, we maintain the conviction of all the three appellants as recorded by the learned trial Court.
43. It is on record that a shot fired at the deceased had been shot from a very close range and that the appellants did not stop at that and caused an injury on the knee of a young daughter of the deceased and plunged a knife into the back of another young, unmarried daughter of the said deceased besides injuring his wife. According to the medical evidence, the injury caused on the person of Mst. Naseem Akhtar P.W. who was a young daughter of the deceased had resulted in the amputation of her left leg and the injury received by the other daughter of the said deceased had resulted in the paralysis of both her legs.
44. During the course of hearing of these matters, we issued notice to the appellants to show cause why they should not be directed to pay adequate compensation to these two injured P.Ws., in case their appeal failed. The said notice had been accepted by the learned counsel representing them.
45. The learned trial Court had awarded death sentence to Arshad appellant. He had shot at the deceased from a point blank range whereafter, he had also inflicted a blow on the head of Mst. Arshad Begum complainant with the Butt of his gun while his two brothers had invalidated the two young daughters of the deceased, as above noticed
46. No mitigating circumstances thus exist on record which could warrant lenient treatment for Arshad appellant and his two brothers.
47. Consequently, the convictions of the three appellants under section 302/34, P.P.C. and under section 307/34, P.P.C. and the sentences awarded to them therefore by the learned trial Court are maintained and in addition thereto, it is directed that each of the three appellants shall pay an amount of Rs.15,000 to Mst. Naseem Akhtar and Rs.15,000 to Mst. Surraya Akhtar P.Ws., as compensation, under section 544-A of the Code of Criminal Procedure. It is further directed that this amount of compensation shall be recovered as arrears of land revenue and in case of non-payment of the same by the appellants. each one of them shall suffer six months' rigorous imprisonment.
48. The result is, that Murder Reference No.195 of 1989 is answered in the affirmative and the sentenced of death awarded to Arshad appellant is confirmed.
49. Criminal Appeal No.544 of 1989 is dismissed subject to the modification regarding payment of compensation to the two P.Ws., as above directed.
50. Since Akram and Afzal appellants had not caused any injury to the deceased, therefore, we find no justification to enhance the sentences of imprisonment for life awarded to them under section 302/34, P.P.C. Criminal Revision No. 363 of 1990 is, therefore, dismissed.
Death sentence of arshad appellant is confirmed.
H.B.T./M-592/L Appeal dismissed.