ABDUL HAMEED Versus STATE
RAJA. AFRASIAB KHAN J. --- Abdul Hameed (48), Muhammad ~11.1ukat (45) sons of Haji Abdullah, Muhammad Bashir (32) son of Nawab Khan, Muhammad Mushtaq (32) son of Muhammad Hayat and Muhammad Ali (40) son of Haji Imam Bakhsh were tried by Khawaja Mahmood Ahmad, learned Judge Special Court for Speedy Trials, Lahore, for the murder of Shahid Butt (22). They were also alleged to have made a murderous assault upon Shahzad (not produced), Malik Mujahid alias Goga (P.W.13) and Khawaja Farooq (not produced) on 28-11-1991 at 7-30 p.m. On 8-2-1993, the learned Judge convicted Abdul Hameed and Muhammad Shaukat under section 302/34, P.P.C. Abdul Hameed was sentenced to death as Tazir. He was directed to pay Rs.50,000 (Fifty thousand) as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default thereof to suffer imprisonment for six months. Muhammad Shaukat was sentenced to imprisonment for life as Tazir. He was also ordered to pay Rs.25,000 (Twenty-five thousand) as compensation to the heirs of the deceased under section 544-A, Cr.P.C. or in default thereof to suffer further imprisonment for six months. The third accused, namely, Muhammad Mushtaq was convicted under section 337-A(i), P.P.C. and sentenced to pay a sum of Rs.10,000 (Ten thousand) as Daman to Mujahid Akmal P.W.13. He was also sentenced to R.1. for two years. Benefit of section 382-B, Cr.P.C. was given to the convicts. Muhammad Bashir and Muhammad Ali, were, however, acquitted by the learned Judge by giving them the benefit of doubt vide the same judgment. The convicts have challenged their conviction and sentence by filing Criminal Appeal No.16/SAC/L of 1993 before this Court. It shall be decided through this judgment.
2. The necessary facts, are that Dilawar Butt (35) complainant, was sitting in his shop at Zahoor Street, Sanda Khurd, Lahore, on 28-11-1991 at about 7-00 p.m. In front of the shop, his nephew Shahid Butt (22) and his friends were playing carom. Mian Billu Butt and Mushtaq Baluch residents of National Town, Sanda Road, Lahore, came there and stated that they would be ready to act as mediators for the settlement of the quarrel which took place a day before between Hameeda Gujjar and the complainant. On their insistence, Dilawar Butt, Shahid Butt, Malik Mujahid, Khawaja Farooq and Shahzad, accompanied them. When they reached near the Chowk of National Town, Rajgarh at about 7-30 p.m., near the shop of Qureshi Betel-vendor (Paan Farosh), where Hameeda Gujjar, Kala Gujjar, Mandi and Bashir Khokhar, were already lying in wait. All of a sudden, Billu Butt while armed with a fire arm shouted that revenge would be taken for the insult which was hurled upon them. Billu Butt fired which hit Shahid Butt on his right thigh. Mandi held Shahid Butt in his clasp whereupon Hameeda Gujjar and Kala Gujjar injured him with their daggers. Hameeda Gujjar gave a dagger blow which landed on the right side of chest of Shahid Butt. Kala Gujjar injured Shahid Butt on his back and flank by giving him two blows. Shahid Butt fell down. Bashir Khokhar gave blow with an iron rod hitting the left leg of Shahzad. He also fell down. The accused, thereafter, inflicted more injuries to Malik Mujahid Akmal and Khawaja Farooq. Dilawar Butt brought the injured P.Ws. to hospital for their streatment. Shahid Butt, however, died in the hospital on account of the injuries.
3. Muhammad Awais S.I. (P.W.16) was present on patrol duty at Sham Nagar Road, more, on 28-11-1991 at about 10-45 p.m. where he received information about the occurrence. He rushed to the hospital and found Dilawar Butt in the Emergency Ward of Mayo Hospital. A complaint (Exh.P.H./1) of Dilawar Butt was presented which was forwarded by the Police officer to the police station through Sain Muhammad, Constable whereupon formal F.I.R. (Exh.P.H.) was recorded by Rashid Ahmad A.S.1. P.W.6. The dead body of Shahid Butt was lying in the Emergency Ward. He prepared the inquest report (Exh.P.N.) and sent the dead body to the mortuary for conducting post-mortem examination. Khawaja Farooq, Shahzad and Malik Mujahid P.Ws. were also present in the Emergency Ward. He recorded the statement of Malik Mujahid under section 161, Cr.P.C. He visited the place of occurrence. Blood-stained earth was taken into custody by him vide recovery memo. Exh.P.F. which was attested by Taqi Butt and Ghulam Mustafa Butt P.Ws. The statements of the remaining witnesses were recorded by the investigator on 29-11-1991. Abdul Razzaq Head Constable produced before him last-worn clothes of the deceased P.1 to P.3 and a sealed phial containing led of the bullet P.4 which were taken into custody vide memo. Exh.P.G. The site plan Exh.PJ. and its duplicate Exh.P.J./1 were prepared _ by Imran Bokhari P.W: .on 30-1.1-1991 on instructions of the investigator, The accused Abdul Hameed, Shaukat, Muhammad Mushtaq, Muhammad Bashir and Muhammad Ali, were arrested on 6-12-1991 from Sham Nagar. Abdul Hameed led to the recovery of.Chhuri P.5 from a heap of firewood which was taken into possession vide memo. Exh.P.K./1. Shaukat also led to the recovery of Chhuri P.6 from the same place. These weapons were taken into possession by the investigator vide memos. Exhs.P.L. and P.L./1. respectively.
The reports of the Chemical Examiner and the Serologist on earth and Chhuri were positive inasmuch as it was opined by the experts that the earth and two Chhuris were stained with human blood.
4. Dr. Muhammad Khalid (P.W.1) conducted the autopsy on 29-11-1991 at 11-10 a.m. and found the following injuries on the dead body: --
(i) A stitched wound 3.5 c.m. alongwith three intact black silk stitches on the front of right chest 8 c.m. lateral to midline, and 5 c.m. informedial to right nipple.
(ii) A stitched wound 3 c.m. long with 3 intact black silk stitches on the left side of abdomen, 10 c.m. lateral to midline, and 3.5 c.m. from anterior superior iliac spine.
(iii) A stitched wound 3 c.m. long with 3 intact black silk stitches on the left lumber region, posteriorly 8 c.m. lateral to the midline, and 11 c.m. above iliac crest.
(iv) A circular lacerated wound 1.5 c.m. x 1.5 c.m. into going deep with inverted margins, with collar of abrasion all around the wound on the front of the right thigh, 17 c.m. above right knee joint and 32.5 c.m. below anterior superior iliac spine, edges of the wound, showed blackening and charring (wound of entry).
The injuries were found to be ante-mortem. Injury No.4 was reported to have been caused by fire-arm. The doctor opined that death occurred due to haemorrhage and shock as a result of injury No.l. The injury was sufficient to cause death in the ordinary course of nature.
On 28-11-1991, Doctor Imran Saqib M.O. P.W.2 medically examined Shahid Butt and also found the above-noted injuries on his person.
On the same night at 8-25 p.m., the same doctor medically examined Mujahid Goga and noted the following injuries on his person:--
(i) A contused swelling on the right side of forehead.
(ii) Swelling of lower lip.
(iii) A lacerated-wound 3 c.m. x 2 c.m. on the inner aspect of lower lip.
The injuries were caused by blunt weapon and were declared simple.
On the same night at 8-25 p.m., the said doctor medically examined Khawaja Farooq and observed the following injuries:-
(1) Swelling right cheek.
(2) A bruise at the bridge of nose.
The injuries were stated to have been caused with blunt weapon and were declared to be simple in nature.
On the same night the same doctor at 8-25 p.m. medically examined Shahzad and observed the following injuries:-
(i) A contused swelling 4 c.m. x 2 c.m. on the back of left side of chest, below the level of lower border of scapula.
(ii) Patient was complaining pain in the left leg.
Injury No.2 was declared grievous. It was caused by a blunt weapon. Injury No.l was declared simple.
5. Mst. Shamshad Begum P.W.10 and Aamer Akhtar P.W.11 deposed about the motive for the commission of, the crime. Malik Mujahid Akmal P.W.13, Chaudhry Siddique Hassan P.W.14 and Dilawar Butt P.W.15 furnished eye-witness account. Abdul Hameed accused denied the allegations in his statement under section 342, Cr.P.C. He stated that he was not arrested by the police. On the contrary, he appeared before the police of his own on the next day of occurrence because his wife and daughter were apprehended and brought to the police station. There, they were subjected to harassment by the police. According to him, his real brother Haji Ashraf was murdered by Akber Jatt and his two brothers. He was the complainant in the said case. Akber Jatt and his brothers were convicted and sentenced to death in their absence. They, also committed the murder of Liaqat and Jamil, who were friends of his brother. This case was also pursued by him. Similarly, the accused in the said case were tried, convicted and sentenced to death by the learned Special Court in their absence. He pleaded that he had falsely been implicated at the instance of Akber Jatt and Anjum Butt. He went on to say that his two sons were murdered by Akber Jatt and Anjum Butt on 11-11-1992. In the circumstances, he claimed to be innocent. Almost similar statements were made by the remaining accused. They produced Muhammad Hanif, Riasat Ali, Abdul Aziz, Muhammad Riaz, Mehr Din, Muhammad Ilyas, Malik Muhammad Hussain Awan, Muhammad Riaz; Haji Muhammad Saddique, Ali Ahmad, Habib Ullah, Tariq Mahmood, Sarfraz Ahmad and Muhammad Yaqub as D.W.1 to D.W.14 in support of their defence plea.
6. The learned Judge believed the motive and the ocular account while convicting and sentencing the appellants, as already mentioned above.
7. It is contended by the learned counsel that 'the motive as set up by the prosecution appears to be doubtful and that the eye-witnesses are interested and partisan. Their evidence is also not in line with the medical evidence and as such it is not reliable on the face of it. It is maintained that the prosecution evidence was required to be corroborated in these circumstances by evidence of unimpeachable character which had not been produced. Alternatively, it is argued that the incident took place as a result of sudden flare up and in view of the background, it appears that on facing each other, the accused party in heat of passion attacked and caused injuries to the complainant party. Learned counsel, however, argues that there was no evidence to connect Muhammad Mushtaq in the commission of the crime. According to the learned counsel, this is not a fit case where capital punishment may be awarded to the accused. The learned State counsel submits that no previous enmity between the parties existed and even no suggestion in respect of enmity' was given to the prosecution witnesses in this behalf. The eye-witnesses were injured and as such their presence at the spot could not be doubted. He states that Saddique Hassan P.W. is an independent witness. His deposition has to be relied upon in the given facts and circumstances.
8. We have heard the learned counsel for the parties at considerable length and have also read the entire record with their assistance. Before proceeding further, we would like to observe that the prosecution has successfully proved its motive on the basis of reliable evidence of Mst. Shamshad Begum P.W.10 and Aamer Iftikhar P.WA1. According to evidence, a sum of Rs.20,000 was given to one Yaqub by Mst. Shamshad as loan and that the loanee did not return the amount to the lady despite demands. He continued postponing the return of loan to Mst. Shamshad Begum on one pretext or the other. The loanee was under such a pressure that for the return of the loan post-dated cheques were issued by him which were, however, not honoured. It is in the evidence that Yaqub paid Rs.2,5W to Mst. Shamshad Begum under the above background. Aamer Iftikhar is a friend of the family of Mst. Shamshad Begum who helped her in the return of loan. The lady testified that Shahid Butt was done to death on account of the aforesaid loan dispute. Aamer Iftikhai P.W.11 supported the statement of Mst. Shamshad Begum. In the circumstances, there appears no reason to disbelieve the motive. It has A been proved to our .satisfaction. Dilawar Butt is the first informant. He reiterated his earlier statement made by him before the police. The deposition of Dilawar Butt was materially corroborated by Mujahid Akmal and Ch. Muhammad Siddique Hassan P.Ws. Mujahid Akmal was injured and as such his presence at the spot cannot be doubted. Similarly, Ch. Muhammad Saddique Hassan is completely an independent witness because he comes of a different locality. He had come there for shopping. His presence at the spot too is natural. He has supported the case of the prosecution through and through. The evidence of Dilawar Butt, Mujahid Akmal and Ch. Muhammad Saddique Hassan does inspire confidence. Their presence at the spot is established. They had no axe of their own to grind by falsely implicating the accused in this case. The prosecution evidence is also corroborated by the evidence of Dr. Muhammad Khalid P.W.1 and Dr. Imran Saqib P.W.2. We are, g therefore, convinced to believe the prosecution case. In presence of overwhelming prosecution evidence against the accused, defence version would naturally pale into insignificance. It is, accordingly, rejected. After arguing the case at some length, learned counsel of his own came out not to challenge the conviction and instead requested that a lenient view might be taken in awarding sentence to the appellants inasmuch as the above background would demonstrate that the occurrence did take place suddenly and that the accused had no premeditation to commit the offence.
9. The upshot of the discussion is that we are inclined to maintain the conviction already recorded against the appellants Abdul Hameed and Muhammad Shaukat. We are, however, convinced to reduce the sentence of Abdul Hameed from death to imprisonment for life on the ground that the motive was weak, the immediate cause for the incident is shrouded in mystery and the occurrence appears to have taken place all of a sudden. His death D sentence is, accordingly, altered to life imprisonment. With this modification in the sentence of Abdul Hameed, his appeal and that of Muhammad Shaukat is hereby dismissed.
10. The case of Muhammad Mushtaq, appellant, however, stands on a different footing and is distinguishable from the case of other two convicts inasmuch as he was admittedly found to be empty-handed. He did not do any overt act at the time of commission of the crime. The prosecution has, miserably failed to link him with other accused in the commission of murder. The case of Muhammad Mushtaq appears to be at par with that of the acquitted co-accused, namely, Muhammad Bashir and Muhammad Ali. He, therefore, is entitled to the same treatment as was meted out to Muhammad Bashir and Muhammad Ali on the basis of similar set of evidence. On the principle of parity, by giving the benefit of doubt, Muhammad Mushtaq appellant shall also be acquitted of the charge. He is directed to be released forthwith provided of course he is not needed in some other criminal case. The appeal to the extent of Muhammad Mushtaq succeeds and is allowed.
N.H,Q./119/SAC Order accordingly.