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Criminal Appeal No. 132 and Murder Reference No.91 of 1982, decided on 18th November, 1984.
---Ss. 302/34 & 307/34--Ocular evidence, appreciation of--Presence of injured eye-witness established beyond doubt as he received injuries due to occurrence--Presence of complainant eye-witness also estab lished--With exception of few minor omissions in statements of eye witnesses, nothing found substantial to discard their testimony--Evidence about actual occurrence found to be consistent--No element of doubt found with regard to fatal blows being given to deceased by one accused and injuries given to injured witness by other accused--Ocular evidence believed in circumstances.
---Ss. 302 & 307/34--Dying declaration--Mere fact that doctor twice reported that deceased was not fit to make statement, held, would not mean condition of deceased throughout remained that serious--Doctor being not interested in complainant party, no reason found to disbelieve certificate of doctor about fitness of deceased to make statement--Dying declaration believed in circumstances.
---Ss. 302 & 307/34--Recovery--Blood-stained weapons of offence found to be stained with human blood--Recovery witness an independent witness, fully supporting recovery--Said witness not found to be inimical to accused--Recovery believed.
---S. 302/34/307/34--One accused giving Chhuri blows to deceased and other accused giving Chhuri blows to injured witness--Presence of eye witness at spot established--Ocular evidence found to be consistent- Dying declaration accepted as an important piece of evidence--Recovery of blood-stained weapons of offence also established--Medical evidence lending support to ocular version--Conviction of both accused maintained.
---S.302/34--Sentence--Accused giving two Chhuri blows to deceased which resulted in death of deceased--Contention that motive incident and main incident was in fact one incident and was purposely split into two by. prosecution or that accused did not inflict two injuries to deceased, not found to be correct--Accused held to be responsible for death of deceased--No mitigating circumstances found in favour of accused--Death sentence maintained and confirmed in circumstances.
---S. 302/34 & 307--Nature of offence--Accused attacking and injuring witness with Churri while co-accused causing injuries to deceased which resulted in his death--Accused not giving any injury to deceased- Prosecution evidence showing that case of accused was of individual liability--Section 34, P.P.C. not found to be applicable--Accused, held, was responsible for his own act--Conviction under S. 302/34, P.P.C. set aside--Conviction under- S. 307/34, P.P.C. for assault on life of injured witness maintained.
---S.307--Fine--Sentence of fine of Rs.1,000 found to be inadequate- Sentence of fine enhanced to Rs.10,000 after giving notice to counsel of accused.--[Sentence].
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---S. 302/34--Accused from beginning was alleged to be empty-handed-- Part ascribed to accused appearing to be an afterthought--Possiq.1ity that accused were involved due to their friendship with other co-accused, held, not ruled out--Maintaining of. sentence and conviction of accused not found to be safe--Accused given benefit of doubt and acquitted.
Ch. Muhammad Anwar Dhemial and Rashid Ahmad Akhtar for Appellants.
Hafiz Ghulam Bari for the State.
Abid Hassan Minto for the Complainant.
Dates of hearing: 17th and 18th November, 1984.
.--Seerat Hussain Shah, Talat Mahmood alias Talli, Tahir Mahmood alias Bina and Asif Mahmood alias Billa, all residents of Jhelum City, were tried by the Sessions Judge, Jhelum for the murder of Abdul Shakoor and murderous assault on Ihsanul Haq. The Sessions Judge by his Judgment, dated 18-4-1982 convicted all of them under sections 302/34 and 307/34, P.P.C. Seer at Hussain Shah was sentenced to death and fined Rs.2,000 or in default to undergo one year's further R.I., under section 302/34, P.P.C; while under section 307/34, P.P.C. he was sentenced to 10 years' R.I. and fine Rs.1,000 or in default to undergo six months' further R.I.
The other three were sentenced to imprisonment for life, each and fine of Rs.2,000 each, under section 302/34, P.P.C., or in default or payment of fine to further undergo one year's R.I. each. Under section 307/34, P.P.C., they were sentenced to 10 years' R.I. each, and fine of Rs.1,000, each, or in default to undergo further six months R.I. The sentences were ordered to run concurrently.
Two separate appeals have been filed by the convicts Seer Hussain Shah has filed Criminal Appeal No. 132 of 1982, while the others have filed Criminal Appeal No.134 of 1982. Reference for confirmation of the death sentence of Seerat Hussain Shah is also before us. The three matters are being decided by this judgment.
On 25-7-1981 at 10.30 p. m., Attiqur Rehman s/o Abdul Latif resident of Machine Mohallah No.2, Jhelum reported the occurrence to Muhammad Khalil A.S.-I. P.S.City Jhelum, who recorded the statement of Attiqur Rehman, Exh. P.J. On the basis of the said statement, formal F.I.R Exh.P.J./1 was lodged at 10.45 p.m. at the said Police Station.
The daily routine of Attiqur Rehman, a Typist in Muslim Commercial Bank, Dina Branch, was that after he was off from his duty, he would return to his home in Jhelum. On the day of occurrence, in the evening, he alongwith Muhammad Asghar son of Malik Ahmad Din and Tahir Mahmood son of Muhammad Ali, both residents of Machine Mohallah No.2, was present nebr the Petal-Cigarette shop of Iqbal Malik in his Mohallah. Ihsanul Haq son of Muhammad Sadiq was present outside his timber shop. In the meanwhile, all the four appellants came to Ihsanul Haq. Talat Mahmood and Seerat Hussain Shah were armed with a Chhuri, each. Asif Mahmood and Tahir were empty-handed. They asked Ihsanul Haq about Qasim Mahmood son of Azizul Haq. He expressed his ignorance. At this, Asif Mahmood shouted at Ihsanul Haq that they would teach him a lesson for assaulting Sadiq Ali alias Sada.
Thereafter Talat Mahmood attacked lhsanul Haq. He gave him three Chhuri blows--first on front of his neck, the second in his chest and the third on the back of chest. Ihsanul Haq fell down. On his alarm, Abdul Shakoor son of Haji Roshan Din, who was then present at the shop pf Dr. Aslam, rushed to the scene to rescue lhsanul Haq. Tahir caught hold of him, while Seerat Hussain Shah attacked Abdul Shakoor with Chhuri. Abdul Shakoor received first blow in his abdomen on the right side. The second blow injured his right index finger. Attiqur Rehman, Muhammad Asghar and Tahir Mahmood came forward to rescue the injured. The appellants took to their heels while raising Lalkaras.
The complainant alongwith others took Ihsanul Haq and Abdul Shakoor, the two injured, to the Civil Hospital, Jhelum. On 30-7-1981 Abdul Shakoor died.
The motive was that just about an hour before the occurrence there was a dispute between Sadiq alias Sada and Qasim Mahmood, a friend of Ihsanul Haq. The latter also abused Sada. This offended the appellants. In retaliation they attacked the complainant side.
Attiqur Rehman and Ihsanul Haq appeared as eye-witnesses. The rest of the evidence consists of dying declaration of Abdul Shakoor, medical evidence and the evidence pertaining to the recpvery of Chhuris.
Attiqur Rehman when examined on oath repeated his statement made to the police. However, while deposing about the motive, he said that when Sadiq alias Sada fought with Qasim Mahmood, Ihsanul Haq came forward and gave 2/3 slaps to Sada. At that time, Talat Mahmood was also present.
lhsanul Haq, who was injured in this fight, corroborated the statement of Attiqur Rehman. He said that the appellants came to him and asked about the whereabouts of Qasim. Thereupon Asif Mahmood shouted that they would teach him a lesson for beating Sadiq alias Sada. Ihsanul Haq held Talat Mahmood responsible for his injuries. The injuries to Abdul Shakoor were ascribed to Seerat Hussain Shah. He further said that Tahir alias Bina caught hold of Abdul Shakoor while Seerat Hussain gave him Chhuri blows. He also deposed aboutthe motive, which has been referred to above.
Statement of Abdul Shakoor (Ex & P. R.) was recorded by Muhammad Khalil A.S.-I. while he was lying injured in the hospital. Before recording the statement the Investigating Officer took the necessary precautions and the doctor certified that Abdul Shakoor was in a fit condition to make statement. Abdul Shakoor gave a detailed statement which supported the testimony of Ihsanul Haq. He held Seerat Hussain Shah responsible for injuring him.
On 29-7-1981, the appellants were arrested by Muhammad Khalil A.S.-I. On 7-8-1981, he recovered blood-stained Chhuris EXh.P.l and P.2 at the instance of Seerat Hussain and Talat Mahmood, respectively. Those were taken into possession by the A.S.-I. vide recovery Memos. Exhs. P. K . and P. L, respectively. The memos were witnessed by Manawar Hussain (P. W. ), who testified the factum of the recovery at the trial. The Chhuris were found to be stained with human blood, vide report of the Serologist.
On 25-7-1981 at 9.30 p. m. Dr. Abdul Karim, Medical Officer, D.H.Q. Hospital, Jhelum medically examined Ihsanul Haq. He found three incised wounds on the front of neck, right side of chest and on the right side of back, respectively. The injuries to the neck and the chest, according to the doctor, were grievous. The injury in the back was simple. All the injuries were caused by sharp-edged weapon.
On the same date at 10.00 p. m. the same doctor medically examined Abdul Shakoor and found two incised wounds on his person. The first one was on the right side of loin penetrating to viscera 1/2" x 3/4". The second was on the right index finger at the terminal phalanx. The former injury was declared grievous while the latter simple. Both the injuries were caused with sharp-edged weapon.
Abdul Shakoor died on 30-7-1981 at 3-30 a. m. Dr. Abdul Karim performed his autopsy at 7-45 a.m. the same day. He noticed the same injuries, as referred to above. In his opinion, the death was the result of peritonitis as a result of injury No.1, which was sufficient to cause death in the ordinary course of nature.
Talat Mahmood, appellant, when gave his statement under section 342, Cr.P.C. denied all the allegations. He pleaded not guilty, declined to produce any defence and said that Ihsanul Haq and the deceased Abdul Shakoor were of bad character The appellant and his companions belogned to their opposite faction. They always hated the nefarious activities of Ihsanul Haq and Abdul Shakoor in the Mohallah. Talat Mahmood further said that the occurrence took place during the dark hours of the night and the complainant had not been able to identify the assailants) who injured Ihsanul Haq and Shakoor. He said that on account of opposition, the complainant party had involved him as well as his co-accused falsely in this case.
The other appellants also, in their statements under section 342, Cr.P.C., denied the allegations, pleaded not guilty and declined to produce any defence. They adopted the statement of Talat Mahmood, as referred to above.
Learned counsel for Talat Mahmood and others, appellants in Cr.Appeal No.134/82, submitted that no reliance could be placed on the ocular version. The evidence of the eye-witnesses was of interested type. It was submitted that Attiqur Rehman was not present when the alleged occurrence took place; and though Ihsanul Haq was injured yet he was not telling the truth being hostile to the appellants. While dealing with the evidence of Attiqur Rehman, it was argued that the same was full of contradictions and so was the evidence of Ihsanul Haq. The ocular evidence, according to the counsel, therefore, deserved to be discarded. He submitted that if at all it was to be taken into consideration, then the prosecution was under legal duty to furnish some independent reliable evidence to support the ocular testimony. No such evidence was forthcoming.
The evidence of, recovery and dying declaration was also severely criticised by the learned counsel for the appellants.
Learned counsel further contended that if at all the prosecution evidence was to be accepted then the incident did not take place as alleged by the prosecution. It was one incident, which took place in the evening, in which Ihsanul Haq slapped Sadiq alias Sada, friend of Talat Mahmood. The entire incident took place at the spur of moment. The prosecution brought in break in order to make out a case for murder.
Counsel submitted that no sanctity could be attached to the dying declaration as it was recorded by the Police Officer after the doctor had twice declared the injured being unfit to make a statement. He submitted that even at the time when Abdul Shakoor is said to have made the statement, he was not fit for making the statement. Such a detailed statement could not be made by him.
Learned counsel submitted that the evidence of recovery was not reliable. It was an afterthought. The accused were arrested on 29-7-1981 while the recoveries were allegedly made on 7-8-1981.
The counsel for Seerat Hussain Shah, appellant, adopted most of the arguments of the learned counsel for Talat Mahmood, etc. He further submitted that if, at all, the prosecution version was to be accepted, then Seerat Hussain inflicted a solitary blow. The infliction of second blow was not proved beyond doubt. Hence the extreme penalty ,if death was not called for.
We have also heard the learned counsel appearing on behalf of the State. He has supported the impugned judgment and submitted that the case against the appellants has been proved beyond doubt They have been rightly convicted and sentenced.
There is no doubt about the presence of Ihsanul Haq at the spot as he was injured. According to his testimony the fatal blow given to Abdul Shakoor was by Seerat Hussain, appellant. Talat Mahmood, appellant, was the one who injured Ihsanul Haq.
Presence of Attiqur Rehman at the spot is also established. He accompanied Ihsanul Haq in the car when the latter was being to the hospital.
With the exception of few minor omissions in the statement of the two eye-witnesses we have not come across anything substantial so as to discard their testimony. About the actual occurrence, the evidence is consistent and there is no element of doubt with regard to fatal blow being given to Abdul Shakoor by Seerat Hussain Shah and the injuries having been caused to Ihsanul Haq by Talat Mahmood.
The mere fact that the doctor twice reported that Abdul Shakoor was not fit to make statement does not mean that his condition throughout remained so serious. In the absence of the doctor being interested in the complainant side there is no reason to disbelieve the certificate of the doctor that Abdul Shakoor was fit to make statement. We, therefore, accept the dying declaration as an important piece of evidence.
The two Chhuris recovered at the instance of Seerat Hussain Shah and Talat Mahmood were found to be stained with human blood. Manawar Hussain, who is an independent witness, fully supported the recovery. He was not in any away inimical to the appellants.
The medical evidence lends support to the ocular version that the deceased died as a result of the injury caused by sharp-edged weapon and the injuries of Ihsanul Haq were also by a sharp-edged weapon like Chhuri.
We are, therefore, of the view that there is no doubt about Seerat Hussain Shah being killer of Abdul Shakoor, who was first injured but died later on. We have not seen any mitigating circumstances in his favour nor are we inclined to agree with the learned counsel for this appellant as well as other appellants that it was one incident and C was purposely split into two by the prosecution or that Seerat Hussain did not inflict two injuries. We, therefore, hold him responsible for the murder of Abdul Shakoor. In our view, he has been rightly convicted. We accordingly confirm his death sentence.
It is also proved to the hilt that the assailant of Ihsanul Haq was Talat Mahmood. He attacked and injured him with Chhuri. There is no evidence that Talat Mahmood gave any injury to Abdul Shakoor. After taking the entire evidence into consideration, we are of the view that it is a case of individual liability. Section 34, ,P.P.C is not H applicable. Talat Mahmood is held responsible for his own act. His conviction under section 302/34, P.P.C. is not maintainable and the same is hereby set aside. However, his conviction under section 307, P.P.C. for assault on the life of Ihsanul Haq is maintained, but the sentence is reduced to the one already undergone by him.
Similarly the conviction and sentence of Seerat Hussain Shah under section 307/34, P.P.C. is not maintainable and is hereby set aside. He is acquitted of the charge under section 307/34, P. P. C.
The fine imposed upon Talat Mahmood, appellant, by the trial Court was inadequate. We, therefore, gave notice to the counsel for enhancement of fine. The counsel accepted the same. The fine is accordingly enhanced' to Rs.10,000. In default of payment of fine, the I appellant shall undergo one year's R.I. In case the fine is paid, the appellant shall be set at liberty forthwith, if not required in any other case.
The entire amount of tine so realized shall be paid as compensation to Ihsanul Haq, the injured P.W.
So far as the remaining two appellants, namely, Tahir Mahmood and Asif Mahmood are concerned there is element of doubt about their participation in the crime. The case of the prosecution from the beginning is that both of them were empty-handed. The part ascribed to these two appears to be an afterthought. The possibility cannot be ruled out that they were involved being friends of the other two appellants. We,
therefore, do not think it safe to maintain their conviction and sentence.
We give them benefit of doubt. They are acquitted and shall be released forthwith, if not required in any other case.
The result is that the appeal of Seerat Hussain Shah against his conviction under section 302, P.P.C. is dismissed. His death sentence is confirmed. The appeal of Talat Mahmood is partly accepted while that of Tahir Mahmood and Asif Mahmood is accepted in toto.
H . A . K .
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