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Criminal Appeal No. 589 of 1981, decided on 31st July, 1983.

-- S. 154-First Information Report--Statement recorded at spot after investigation had already begun, held, cannot be treated as First Information Report.-[First Information Report].

-- S. 302/324/34-Murder---Nothing available on record to suggest motive for false implication of accused-Ilea of self-defence without substance and rightly rejected by trial Court - Evidence showing that accused party attacked complainant party causing injuries to deceased and to eye-witnesses-Occurrence taking place all of a sudden after verbal altercation between parties-Accused giving a chhurri blow on back of deceased causing extensive damage in internal organ resulting in his death-Conviction and sentence maintained.

-- S. 302/324/34/149- Murder - Vicarious liability - Occurrence taking place suddenly without premeditation and not in pursuance of a common design - Principle of vicarious liability, held, not attracted and each accused liable for his own individual act.- (Vicarious liability].

-- S. 302/34-Murder-Complainant stating at trial that accused M. I, gave a chhurri blow on left arm of deceased but in cross- examination he admitted drat he did not make any such statement in first information report - No injury to deceased attributed to accused 'Z. I.'-Both accused acquitted of charge of murder and their conviction and sentence set aside.

Shah Ahmad Baloch for Appellants.

Muhammad Ali Naqvi for the State.

Dates of hearing : 13th April ; 18th, 21st and 23rd May, 1983.

Tasawar Iqbal (22), War Iqbal (19) and Munawar Iqbal (24) sons of Muhammad 19bal, resident of Mohallah Tibba Syedan, Sialkot City, were tried by the learned Additional Sessions Judge, Sialkot, under sec tions 302 any: 307, read with section 34, P. P. C. on the allegations that on 21st October, 1980 at about 1 p. m. they committed the murder of Abdul Waheed deceased and made murderous assault on Abdul Hamid and Muhammad Anwar P. Ws. in the area of Tibba Moemmaran, Sialkot City, in furtherance of their common intention. By judgment dated 29th September, 1981 all of them were convicted under section 302/34, P. P. C. for the murder of Abdul Waheed and sentenced to imprisonment for life and a fine of Rs. 5,000 each or in default the payment thereof to undergo R. I. for on year each. They were also convicted under section 324/34, P. P. C. for causing simple hurt to Abdul Hamid P. W. and sentenced to R. 1. for one year and a fine of Rs. 1,000 each. Zafar Iqbal was further convicted under section 325, P. P. C. for causing grievous hurt to Muhammad Anwar P. W. and sentenced to R. I. for one .year and a fine of Rs. 1,000 or in default of its payment to undergo further R. 1. for six months. The substantive sentences were directed to run concurrently. The convicts have appealed and the complainant has filed Criminal Revision No. 667 of 1981 praying that the sentence under section 302/34, P. P. C. be enhanced to death. Both these matters shall -be disposed of by this .judgment.

2. The appellants are real brothers. Their father Muhammad Iqbal is the real brother of Muhammad Anwar complainant and Mst. Nur Zainab P. W. Abdul Waheed deceased and Abdul Hamid injured P. W. are sons of Mst. Nur Zainab.

3. The brief facts of the prosecution case are that Mst. Azra, sister of the appellants, was married with Abdul Hamid P. W. Since Abdul Hamid P. W. was suspected for having contracted a second marriage, she left him and started living in the house of her parents. On 21st October, 1980 which was the second day of Eid-ul-Azha, Mst. Nur Zainab called Muhammad Anwar P. W. to her house and requested him to accompany her to the house of the in-taws of Abdul Hameed as she wanted to give them meat. Muhammad Anwar complainant and Mst. Rashida accom panied Mst. Nur Zainab to the house of Muhammad Iqbal. The appel lants and their mother Mst. Asmat were present there. They refused to accept the meat from Mst. Nur Zainab, hurled abuses on her and pushed her out of their house. In the meantime Abdul Waheed deceased and Abdul Hamid P. W. reached there and asked the accused to desist from abusing, upon which the accused persons went to their house and came out armed with chhuris. Tasawar Iqbal accused gave a chhuri blow on the back of Abdul Waheed while Munawar Iqbal gave a chhuri blow on his left arm. Abdul Hamid tried to intervene, upon which Munawar Iqbal gave him two chhuri blows hitting his chest and Zafar Iqbal gave him two chhuri blows on his back. Muhammad Anwar P. W. held Zafar Iqbal into his hold from behind and snatched the chhuri from him. Tasawar Iqbal accused suffered injury on his face when Muhammad Anwar was brandishing the chhuri to scare the accused persons. Tasawar Iqbal accused then gave a chhuri blow to Abdul Hamid on his left upper arm. War Iqbal accused struck his head against the face of Muhammad Anwar complainant and fractured his nasal bone. Muhammad Anwar fell to the ground. His left middle finger got fractured by the fall. The accused persons then fled away from the spot taking away their chhuris. Abdul Waheed succumbed to his injuries at the spot. Abdul Hamid and Muhammad Anwar were taken to Allama Iqbal Memorial Hospital where they were medically examined. Thereafter, Muhammad Anwar went to Police Post 'B' Division where he learnt that the police had already left for the spot. He reached the spot and reported the occurrence to Wali Muhammad A. S.-I. at t-15 a. m., vide his statement Exh. P. R. on the basis of which formal F. I. R. Exh. P. R./1 was recorded at Police Station, Sialkot City at 1-35 p. m.

4. Wali Muhammad A. S.-I. prepared the injury statement Exh. P. U. and inquest report Exh. P. T. of the dead body of Abdul Waheed deceased and despatched it to the mortuary for post-mortem examination. He secured some blood-stained earth from the spot and made it into a sealed parcel, vide memo. Exh. P. J. Thereafter, he went to the hospital and recorded the statement of Abdul Hamid P. W. under section 161, Cr. P. C. Tasawar Iqbal accused was admitted in the same hospital. The A. S.-I. took his shirt (P. 5) and shalwar (P. 6), both blood-stained, into his possession and made them into a sealed parcel, vide memo. Exhs. P. L. and P. O. He arrested Tasawar Iqbal on 22nd October, 1980. On 27th October, 1980 he led to the recovery of blood-stained chhuri (P. 7) from Shahab-ud-Din Park which was made into a sealed parcel, vide memo. Exh. P. M.

Muhammad Sadiq S. H. O. Police Station City Sialkot, arrested Zafar Iqbal and Munawar Iqbal accused on 9th November, 1980. On 12th November, 1980 he secured blood-stained shalwar (P. 8) and shirt (P. 9) of Munawar Iqbai and made them into a sealed parcel, vide memo. Exh. P. N. On the same day Munawar Iqbal led to the recovery of blood-stained chhuri (P. 10) from his house which was made into a sealed parcel, vide memo. Exh. P. Q. After the investigation the appellants were challaned.

5, On 21st October, 1980 Dr. Rizwan Ali, M. O., A. 1. M. Hospital, Sialkot. examined Abdul Hamid P. W. and found five incised wounds on his person. All the injuries were kept under observation and were sub sequently declared simple in nature.

On the same day, the same doctor examined Muhammad Anwar complainant and found a contused swelling over the nose and another on left middle finger. Both the injuries were declared grievous in nature.

On the same day, the same doctor examined Tasawar Iqbal accused and found five incised wounds on his person injuries Nos. 1, 4 and 5 were declared simple and injuries Nos. 2 and 3 were kept under observation which were later on declared simple.

On 22nd October, 1980 Dr. Muhammad Yunus Sheikh, Medical Officer, A. 1. M. Hospital, Sialkot, conducted the autopsy on the dead body of Abdul Waheed deceased and found the following injuries on his person : --

(1) Incised wound 2" x " in middle of the back of the left chest.

(2) Contusion 1" x 3/4" in the middle of the forehead.

(3) Abrasions on the right knee joint " x ".

(4) Abrasions on the left knee joint " x 1" in the area of 3" x 1 ".

(5) Incised wound " x 1/8" on the left elbow joint.

Left pleura, left chest wall, lower lobe of left lung and aorta were cut under injury No. 1. Lower lobe of the right lung was also cut. Injuries Nos. 2 to 4 were simple caused by a blunt weapon. Injuries Nos. 1 and 5 were caused by a sharp-edged weapon. Death was due to shock and haemorrhage resulting from injury No. 1 which was sufficient to cause death in the ordinary course of nature.

6. In support of its case the prosecution examined three eye witnesses, namely, Muhammad Anwar complainant, Mst. Nur Zainab and Abdul Hamid. It also relied on the evidence relating to motive and recoveries.

7. The appellants pleaded not guilty to the charge. They admitted that their sister Mst. Azra was married to Abdul Hamid and was living apart from him since one and a half months before Eid-ul-Azha. They, however, added that Abdul Hamid P. W. had contracted second marriage without her permission and so she refused to live with him. Zafar Iqbal and Munawar Iqbal contended that they were not present at the spot and were falsely implicated by the complainant party. Tasawar Iqbal appel lant admitted that his blood-stained shirt (P. 5) and shalwar (P. 6) which he was wearing at the time of his medical examination, were taken into possession by the police. He admitted having caused injuries to the deceased and Abdul Hamid P. W. but gave a counter-version of the occur rence as under :-

"I am innocent. There were estranged relations between our family and the family of the deceased Abdul Waheed on account of the fact that Abdul Hameed P. W. had celebrated second marriage against the consent of my sister Mst. Azra who was his wife. It was illegal marriage which he did not get it registered. Mst. Azra was staying with us alongwith her son. There are only two houses in our possession which form the part of ancestral property. The family of the complainant Muhammad Anwar who is our paternal uncle and others used to demand the share of the two houses from us but we refused to accept their demand saying that they should go to the civil Court for their grievance if any.

Abdul Hameed P. W. had been trying to get back Mst. Azra but she refused to accompany him. On 21st October, 1980 Abdul Hamid P. W. and brother Abdul Waheed deceased came to our house where our paternal-grandfather also lived and at that time Mst. Azra alongwith her son was present there. They asked Mst. Azra to accompany them. She refused to accompany them. Thereupon, Abdul Hameed and Abdul Waheed snatched her son and went into the street. On the alarm raised by Mst. Azra and some dwellers of the mohallah I was attracted to the spot from my second house. I snatched the child from them and handed over to Mst. Azra who was crying there. At that time both Abdul Waheed and Abdul Hameed attacked me with their daggers. I in my self-defence gave injuries to them with a pocket knife. Unfortunately Abdul Waheed died in the hospital as a result of the injuries suffered by him at the spot. They were not justified to come to that house and snatch the son of Mst. Azra as we had strained relations with them. The com plainant side cooked up a false story later on and falsely implicated all of us."

No evidence was led in defence.

8. The learned trial Judge accepted the prosecution evidence and convicted and sentenced the appellants as mentioned above.

9. The first contention raised by the learned counsel for the appel lants was that the statement of the complainant Exh. P. R. was recorded at the spot after the preliminary investigation, therefore, it cannot be A treated as F. I. R. The contention is well-founded. The occurrence took place on 21st October, 1980 at 1 p. m. and the statement Exh. P. R. of Muhammad Anwar complainant was recorded at 1-15 p. m. Admittedly, this statement was recorded at the spot. Muhammad Anwar P. W. stated that after his medical examination he came back to the spot and made statement Exh. P. R. before the Thanedar. In cross-examination he stated that Mst. Nur Zainab and Mst. Rashida P. Ws. had made statements before he reached the spot. The Investigating Officer admitted that before recording the statement Exh. P. R. he had inspected the spot. It is the fully established that statement Exh. P. R. was recorded at the spot after the investigation had already commenced. In that view of the matter this statement cannot be treated as the first information report.

10. The learned counsel for the appellants next contended that the eye-witnesses are interested and unreliable as they made material improve ments at the trial. He further submitted that the defence version finds support from the facts and the circumstances of the case. These conten tions were also raised before the learned trial Judge but he repelled them. The learned counsel for the appellants pointed out that the F. I. R. version was that Tasawar Iqbal inflicted chhuri blow on the back of the deceased and thereafter the deceased snatched chhuri from Zafar Iqbal and caused injuries to Tasawar Iqbal but at the trial the complainant stated that dur ing the occurrence he (the complainant) took War Iqbal appellant into his hold from behind, snatched the chhuri from him and when he was threaten ing the accused, Tasawar Iqbal suffered injuries on his face with that chhuri. He submitted that Mst. Nur Zainab and Abdul Hamid P. Ws. likewise stated that Muhammad Anwar complainant took Zafar Iqbal into his hold from behind, snatched the chhuri from him and when he was brandishing chhuri to scare the accused, Tasawar Iqbal suffered an injury but they had not stated so in their statements before the police with which they were duly confronted. It was argued that this improvement was made to meet the argument that after receiving the chhuri blow the deceased could not be in a position to snatch the chhuri from Zafar Iqbal and use it for causing injuries to Tasawar Iqbal. It was further submitted that the injuries of Tasawar Iqbal accused have not been explained by the eye-witnesses and they have made an attempt to minimize the role of the complainant party by saying that he suffered injuries when Muhammad Anwar was brandishing the chhuri to scare the accused. No doubt the eye-witnesses have improved their statements with regard to the injuries of Tasawar Iqbal but in the circumstances of the case their evidence cannot be rejected in toto on that score. Muhammad Anwar complainant is the maternal-uncle of the deceased and real paternal-uncle of the appellants. There is nothing on the record even to suggest that he had any motive falsely implicate the appellants in a heinous crime like murder. He had the stamp of injuries on his person and his presence at the spot is not open to the slightest doubt. The learned counsel for the appellants was unable to point out any infirmity in his statement except the contradiction referred to above. He has corroborated the version of the other two eye- C witnesses regarding the infliction of injuries on the members of the com plainant party. It is unbelievable that he would come forward as a false witness to implicate his own kith and kin in a case involving capital punishment.

11. The plea of self-defence raised by Tasawar Iqbal appellant has no substance at all. Abdul Waheed deceased suffered five injuries out which injuries Nos. 1 and 5 were incised wounds on the back of left chest and left elbow-joint, respectively. The remaining three injuries were in the nature of a contusion in the middle of forehead and abrasions on right and left knee-joints. According to the eye-witnesses, the deceased suffered injuries on the forehead and knee-joints when he fell to the ground. Their statements in this regard go unchallenged on the record. The location of injuries Nos. 1 and 5 clearly suggest that he received these injuries from behind when he was running for his life and not when he was facing Tasawar Iqbal to attack him as alleged in the F. I. R. This apart, the accused have not given any explanation of two grievous injuries of Muhammad Anwar complainant nor cared to examine their real sister Mst. Azra in support of the plea that Tasawwar Iqbal intervened when the deceased and Abdul Hamid P. W. snatched her son upon which they attacked him and thereupon he caused them injuries in self-defence. The defence version was, therefore, rightly rejected by the learned trial Court. From the evidence on the record I am satisfied that the accused party attacked the complainant party causing injuries to the deceased and the two injured eye-witnesses.

12. Lastly, the learned counsel for the appellants submitted that each accused would be liable for his individual act as there was premeditation and the occurrence happened all of a sudden. The conten tion has sufficient force. Abdul Hamid P. W. in his statement before the police with which he was duly confronted, had stated that he and the deceased went to the spot on hearing the alarm that the accused had dis graced their mother. The evidence shows that there was a verbal alterca tion between the complainant party and the accused persons which all of a sudden took a serious turn resulting in this unfortunate occurrence. On the basis of the evidence on the record, it cannot be said with any degree of judicial certainty that the murder was committed in pursuance of a common design. I am, therefore, of the view that the principle of vicarious liability is not attracted and each accused is liable for his individual act.

13. Tasawwar Iqbal appellant gave a chhuri blow on the back of the deceased which caused extensive damage to the internal organ resulting in his death, therefore, he has been rightly convicted for the murder- of Abdul Waheed deceased and his conviction on that charge is maintained As he caused only one injury to the deceased and did not repeat the blow, therefore, the sentence of imprisonment for life and a fine of Rs. 5,000 awarded to him by the trial Court is adequate. In default of payment of fine he will undergo rigorous imprisonment for one year, as ordered by the trial Court. He caused simple injury to Abdul Hameed P. W. on his left arm. His conviction under section 324/34, P. P. C. is altered to section 324, P. P. C. and his sentence of one yeiZ's R. 1. and a fine of Rs. 1,000 is maintained. The sentences shall run concurrently. He shall, however, be given the benefit of section 382-H of the Criminal Procedure Code.

14. At the trial the complainant stated that Munawar Iqbal appel lant gave a chhuri blow on the left arm of the deceased. However, to cross-examination he admitted that he did not make any such statement in the F. I. R. No injury to the deceased has been attributed to Zafa Iqbal appellant. Munawar I9bal and War Iqbal are, therefore, acquitted of the charge of murder and their conviction and sentence under section 302/34, P. P. C. is set aside. They caused simple injuries to Abdul Hameed P. W. with sharp weapons, therefore, their conviction and sentence on that charge is maintained. Zafar Iqbal appellant caused grievous injury to Muhammad Anwar P. W. His conviction and sentence under section 325, P. P. C. is, therefore, maintained. The appeal stands disposed of accordingly.

Criminal Revision No. 667 of 1981,automatically fails and is dismissed.

M. Y. H. Order accordingly.

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