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P L D 1985 Lahore 33
Before Mazharul Haq and Qurban Sadiq Ikram, JJ
MUHAMMAD ASIF-Appellant
versus
THE STATE-Respondent
Criminal Appeal No. 380 of 1982, heard on 13th October, 1984.
-- Ss. 302/34 & 324/34 - One of two accused absconding before announcement of judgments by trial Court-Held, there was no bar on announcing judgment in absence of absconder-accused by trial Court.
Ss. 302/34 & 324/34-One of two convict accused not surrendered to custody and still at large--No appeal against conviction of absconding accused filed before High Court-Murder reference of absconding accused, held, could be disposed of alongwith appeal of co-accused (in custody) by High Court-Criminal Procedure Code (V of 1898), S. 374.
Gul Hassan v. State P L D 1969 S C 89 and Hayat Bakhsh v. State P L D 1981 S C 265 ref.
-- Ss. 302/34 & 324/34-Evidence Act (I of 1.872), S. 27 Recovery No evidence forthcoming to indicate that accused passed crime weapon to co-accused-Evidence showing that it was the same weapon with which accused attacked deceased also not present - Recovery evidence not stating as to from whom co-accused obtained crime weapon which be got recovered -Such weapon, held, could not be considered as an incriminating piece of evidence it did not satisfy conditions laid down in S. 27, Evidence Act, 1872.-[Recovery].
Qabil Shah and others v. The State P L D 1960 Kar. 697 ref.
-- Ss. 302/34 & 324/34-Common intention-Appreciation of evidence-No evidence available to show preconcert between two accused-- Accused said to be empty-handed and did not go inside house where incident took place and never incited main accused who attacked- . No evidence present to show that both accused came together at place of occurrence-Accused lived in same street -No evidence forthcoming that accused ran away with main accused after occurrence -Improvements and contradictions about conduct of accused by prosecution witnesses also indicated in record-Mere presence of accused in street at time of occurrence where other neighbours also showed up, and friendship of accused with main accused, held, would per se meaningless for purpose of application of S. 34, P. P. C. and proof of common intention in circumstances-Prosecution case against such accused being not satisfactory, accused was given benefit of doubt and acquitted.-[Common intention-Benefit of doubt].
-- Ss. 302/34 & 324/34-Appreciation of evidence - Solitary eyewitness, a girl who saw her father and mother being stabbed to death and while intervening also suffering injury at hands of accused Witness, though daughter of deceased yet having no axe to grind of her own against accused-No doubt arising about identification of accused by such witness-Such witness was, therefore, a natural witness - Other prosecution witnesses not related to deceased and having no enmity with accused, being neighbours of deceased were also natural witnesses-Held, keeping in view evidence of eye-witness and other prosecution witnesses who reached place of occurrence soon after attack and saw accused jumping down from roof of deceased's house and then running away with weapon in his hand, coupled with evidence of recovery of his blood-stained clothes which he got recovered on following day of occurrence, and there being no reason to disbelieve testimony of such witnesses, prosecution case was, satisfactorily proved against accused-Conviction of accused maintained in circumstances.
-- Ss. 302/34 & 324/34-Sentence - Extenuating circumstances Motive-Story of motive though weak one, but without any excuse accused taking lives of two innocent persons at mid-night who had slept with children in their house-Wife resisting attack on her husband also done to death by accused-Daughter trying to rescue her parents stabbed and injured by accused - Considering brutal conduct of accused, death sentence passed against accused was confirmed by the High Court.-[Sentence].
Sh. Zia Ullah for Appellant.
Hafiz Ghulam Bari for A: G. for the State.
Dates of hearing : 9th and 13th October, 1984.
MAZHARUL HAQ, J.-Muhammad Yusuf ollas Ilyas (20) and Muhammad Asif (25) were tried for the murder of Ibrahim, his wife Met. Sharifan and for having injured their daughter Mst. Shamim Akhtar. They were also charged for the offence under section 458 read with section 34, P. P. C. On 17-6-1982 Additional Sessions Judge, -Faisalabad, convicted them under section 302/34, P. P. C. On the two counts and sentenced Muhammad 'Yusuf to death with a fine of Rs. 10,000 on each count, in default to undergo two years' R. 1. Muhammad Asif was sentenced to imprisonment for life on the two counts with a fine of Rs. 5,000 on each count, in default to undergo one year's R.I. further. They were also convicted under section 324/34, P. P. C. and sentenced to one year's R. 1. each. Muhammad Yusuf was convicted under section 458, P. P. C. and sentenced to 7 year's R. I. The fine if realized was ordered to be paid as compensation to the heirs of the deceased. The sentences-of Asif were ordered to run concurrently. Asif has come up in appeal. Muhammad Yusuf absconded before the judgment was announced. He is still an absconder. The murder reference is before us for the confirmation of the death sentence alongwith the appeal of Asif.
2. Ibrahim (deceased) ran a shop in the Katchi Abadi, Mubarikpura. Most of the inhabitants of the Katchi-Abadi shifted to 'Mela Mandi' where they were provided with alternate accommodation. It affected Ibrahim's business. With the help of Asif, he took up a job in the factory where Asif and Yusuf were employed. He left the shop to be run by his wife Mst. Sharifan. About 20/25 .days before the occurrence in this case, Asif and his friend Yusuf alias Ilyas were removed from service. Three days later services of Ibrahim were also terminated because of his association with the two accused. Ibrahim's employers owed him Rs. 200 which were not paid to him. Since he had' been removed from service on account of his association with the accused, therefore, he demanded Rs 200 from the accused which they did not pay and bore a grudge against him for the unreasonable demand. This served as the motive for the crime. According to the prosecution on 12-2-1980 in the evening lbrahim with his family was sleeping in one room, its door was left open but before retiring they had bolted the outer door of the house. A lantern was burning in the room. Mst. Shamim Akhtar (informant) slept with her mother. Ibrahim (deceased) and his young son who was a student of 4th class slept on one 'Charpai'. The younger children slept there on another 'Charpai'. At about mid-night, Ibrahim raised an alarm which awakened Ust. Shamim Akhtar and her mother Kist. Sharifan They saw Yusuf alias Ilyas attacking Ibrahim with the knife. Mst. Shamim Aklitar tried to rescue him but was given a 'Chburi' blow on her head. Raising alarm, her mother Mst. Sharifan rushed towards the staircase but she too was stabbed by Yusuf. Thereafter Yusuf went up the roof by the staircase. Raising alram Mst. Shamim Akhtar opened the outer door of the house. She saw P. Ws. Muhammad Tahir and Muhammad Aslam, her neighbours coming towards her. These witnesses saw Yusuf jumping down from roof. Just then Asif was seen in the street and when Yusuf came down, the two accused fled away. Ibrahim died at the spot. Mst. Sharifan was taken to the hospital. On reaching there she too died.
3, Dr. Imtiaz Ahmad Gill, Medical. Officer, D. H. Q, Hospital, Faisalabad examined Mst. Sharnim Akhtar at 3-a.m. on 13-2-1980 and found "an incised wound 4 cm. cm. x scalp on -the right side front of head". The injury was fresh and simple caused by a sharp-edged weapon.
4. After her medical examination, Mst. Shamim Akhtar went to Police Post Factory Area and made statement Exn. P. L. to P. W. 12 Ghulam Mustafa Shah, A. S. I. at 4 a.m. on the basis of which formal F. 1. R. Exh. PL/1 was registered at - Police Station Factory Area, Faisalabad, at 4/5 a.m. The Police Station is at a distance of one mile from the place of occurrence. P. W. 12 Ghulam Mustafa Shah, A. S. 1. went to the place of occurrence. He inspected the spot, prepared the necessary documents and sent the dead body of Ibrahim for its post-mortem examination. He took into possession blood-stained earth through Memo. Exh. P. B. attested by P. W. 2 Abdul Latif and Muhammad Iqbal (given up). He also took into possession lantern P. 1 through Memo. Exh. P. C. attested by the same aforesaid witnesses. Thereafter he went-to the hospital and after preparing the necessary documents, sent the dead body of Mst. Sharifan for its postmortem examination.
5. P. W. 13 Dr. Major Yousaf Ali, Medical Officer, D. H. Q. Hospital, Faisalabad on 13-2-1980-at 11 a.m. held the autopsy on the dead body of Ibrahim and found the following injuries on it :
"(1) Stab wound 2 cm. x cm. X left abdominal wall umbilical region.
(2) A stab wound 3 cm. x 2 em. x muscle deep back of right shoulder.
(3) A stab wound 4 cm. X 2 cm. X chest deep right posterior axillary fold.
(4) Two stab wounds each 3 cm. X 3-4 cm. x chest deep back of right chest.
(5) A stab wound 4 em. x I em. x chest deep back of base of neck.
(6) A stab wound 21/2 cm. x 3/4 cm. x chest deep lateral left chest.
(7) An incised wound 6 cm. X 4 cm. X skin deep back left elbow.
(8) Two stab wounds each 4 cm. x cm. muscle deep left claf.
(9) A stab wound 3 cm. x I cm. x muscle deep back of left thigh.
(10) Freely mobile both bones of left knee joint."
Right and left pleuras, both lungs, left ventrical of the heart, diaphragm and liver were injured. Stomach contained 2 ounces of undigested food. Left knee joint was dislocated. In his opinion death was due to shock and haemorrhage caused by Injuries Nos. 2, 3, 4, 5 and 6 which were individually sufficient to cause death in the ordinary course of nature. The death was immediate and probable time between death and post-mortem was eight to twelve hours.
6. Same day at 12 noon, the doctor also held the autopsy on the dead body of Mst. Sharifan and. found the following injuries on it :
"(1) A stab wound 4 cm. X 2 cm. abdomen deep on hypochondrioic region.
(2) A stab wound 41/2 cm. x 11/2 cm. abdominal cavity deep left para. umbilical region.
(3) A stab wound 3 cm. X 1 cm. muscle deep left upper arm (inlet).
(4) An incised wound 3 cm. X cm. x muscle deep left chest lateral aspect.
(5) An incised wound 2 cm X 2 cm x muscle deep left upper arm medial aspect of No. 3)."
Peritoneum, stomach, large intestines and liver were injured. In his opinion, death was due to shock and haemorrhage caused by Injuries Nos. 1 and 2 which were individually sufficient to cause death in the ordinary course of nature. According to the doctor, Mst. Sharifan died at 3-50 a.m. in the hospital and the time that lapsed between death and post-mortem was about eight hours.
7. P. W. 4 Abdul Sattar, A. S. I. who also investigated this case, arrested both the accused on 13-2-1980. On investigation Asif in custody led the police to an open plot of one Ch. Tufail from where underneath the heap of earth, he got recovered blood-stained 'Chhuri' P. 2 which was taken into possession and made into a sealed parcel through Memo. Exh. P. D. attested by P. W. 3 Muhammad Rafiq and Faqir Muhammad not produced. The same day Yusuf led the A. S. I. to his house in Abdulldhpur and got recovered his blood-stained shirt P. 3 and Shalwar P. 4 which were taken into possession and made into a sealed parcel vide Memo. Exh. P. E. attested by the same aforesaid witnesses. After completing the investigation, the accused were sent up for trial.
8. At the trial both accused denied guilt. They also denied the recoveries and said that the case was foisted against them due to enmity and party-faction. No accused led evidence in defence.
9. Trial Court heard the arguments in this case on 12-5-1982 and fixed the case for judgment for 15-5-1982 on which date Yusuf accused who was on bail absented himself without reason. His warrants of arrest were issued for 22-5-1982 and notices were issued to his sureties who appeared on the said date and took time to produce the absconder-accused. The case was adjourned to 30-5-1982. Warrants of arrest of Yusuf were repeated for this date but he could not be traced a& reported by the constable. Separate proceedings against the sureties were drawn up and the case was fixed for 9-6-1982. Since the warrants could not be served, the case was re-fixed for 14-6-1982 for arguments on the, point whether the judgment in the case could be announced in the absence of Yusuf. Trial Court rightly determined that there was no bar in announcing the judgment in the absence of the absconder-accused. The same was pronounced on 17-6-1982.
Yusuf accused has not surrendered to custody nor is there any appeal by him. The murder reference for the confirmation of his death sentence and the appeal filed by Asif have come up for hearing. Learned Advocate-I General contended that Yusuf is an absconder, therefore, the murder reference can be disposed of with the appeal of Asif. In support of his submissions, he relied on the principle laid down by the Supreme Court in the case of Gul Hassan v. State (P L D 1969 S C 89) and Hayat Bakhsh v. State (P L D 1981 S C 265). The facts of the first cited case are that Gul Hassan and Bahadur convicts in that. case after their conviction under section 302, P. P. C. executed a power-of-attorney for filing an appeal. Later on their way to the District Jail they escaped from police custody. Bahadur was, however, re-arrested but Gul Hassan remained at large. The appeal was dismissed and the death sentence was confirmed by High Court in the absence of Gul Hassan. In the petition for Special Leave to Appeal before the Supreme Court, it was argued that High Court should not have heard the reference and the appeal filed by the Attorney till, Gul Hassan's arrest. It was laid down by the Supreme Court that the appeal filed by the counsel on the basis of the power-of-attorney executed by Gui Hassan in favour of a person before his absconsion was thus not properly constituted and should have been dismissed by the High Court on that score alone and in this view Gul Hassan being a fugitive from law and a contemner was not entitled to a hearing. Leave granted to him on the limited questions of law was rescinded and the view adopted by the Judges to the High Court was endorsed that if a person decamps he thereby forfeits the right of audience, the sentence of death may be confirmed in his absence. The same view was reiterated in the second case cited above. In the instant case Yusuf convict has not surrendered to custody and is still at large. We are, therefore, of the view that the murder reference can be disposed of alongwith the appeal of Asif.
Relying on the evidence of the eye-witnesses, the recovery of the crime weapon from Asif and the recovery of Yusuf's blood-stained clothes, trial Court concluded that the prosecution case was satisfactorily proved against both accused.
Criticizing the finding, learned counsel for the appellant contended that admittedly Chhuri P. 2 was recovered from an open plot which is accessible to all. Moreover, the 'Chhurri' was said to have been used by Yusuf, accused, therefore, its recovery at the instance of Asif will carry no corroborating evidentiary value. Further contended that Asif is admittedly a 'Mohallahdar' of the deceased. - His presence in the lane at the time of occurrence was per se no evidence of common intention. It was next contended that in so far as the motive story was concerned, the mere fact that Asif was instrumental in getting the deceased employed in a factory was a circumstance in favour of Asif and the deceased should have had no grievance against the accused because he lost his job on account of his association with them, particularly when they were also removed from service. Under these circumstances, deceased's demand of Rs. 200 from the accused which admittedly his employer owed him was not such a serious matter for which the accused were alleged to have gone to the extent of committing the double murder.
We have considered the contentions. True, according to the prosecution it was deceased's employer who actually owed money to him and not the accused but since the deceased believed that be had lost this money because of the accused and his unreasonable demand from the accused may have provoked them. In any case it appears to be a weak motive.
As to the recovery of 'Chhurri' at the instance of Asif, there is no evidence to indicate that Yusuf passed it on to Asif. There is also no evidence to indicate - that it was the same weapon with which Yusuf attacked the deceased. A reference may also be made to its recovery memo. Exh. P. D. wherein it is not mentioned from whom Asif obtained the 'Chhurri' which he' got recovered. This Chhurri' therefore cannot be considered as an incriminating piece of evidence in this case because it did not satisfy the conditions laid down in section 27 of the Evidence Act. We are fortified in our view by the judgment delivered in Qabil Shah and others v. The State (P L D 1960 Kar. 697).
The next question for determination would be whether Asif shared the common intention. Admittedly there is no evidence of preconcert between the two, therefore, the question would be whether on the evidence of this case it can be said that common intention developed during the occurrence. The answer is in the negative because Asif was said to be empty-handed. He did not go inside the house where the attack was made, he neither incited Yusuf. His mere presence in the lane would not be enough because there is no evidence that they came together. It is in the evidence of this case that Asif lived in the same 'Mohallah' at a distance of cnly 200 yards from the house of the deceased, therefore, his presence in the lane when the other neighbours also showed up was per se meanineless for the purpose of the application of section 34, P. P. C. True, there is evidence that he ran away with Yusuf. Mst. Shamim Akhtar said that after Yusuf jumped over from the roof of their house, Asif fled away with him. In this context, P. W. 10 Muhammad Tahir and P. W. 11 Muhammad Aslam supported Mst. Shamim Akhtar. P. W. 11 Muhammad Aslam made an improvement by saying that he heard I Mst. Shamim Akhtar raising alarm that her parents had been killed by Yusuf, and Asif. This fact was, however, not mentioned by her. In his police' statement Exh. D. B. Muhammad Aslam had not said that Ust. Shamim Akhtar had also named Asif. Under cross-examination Mst. Shamim Akhtar also said that P. Ws. Tahir and Aslam tried to apprehend the accused but they raised a Lalkara that if any one came near would be killed, but on the other hand, we find that P. VY. 10 Muhammad Tahir only named Yusuf who raised the Lalkara. Both P. Ws. Aslam and Tahir admitted that they did not try to apprehend Yusuf when he jumped down from the roof, because Yusuf had held out a threat to there. In view of these improvements and contradictions, it cannot be said that Asif had also held out a threat. He may have run away with Yusuf because they were known to be friends and friendship alone is no proof of common intention. There is no overt act committed by Asif, towards the commission of tie crime, under these circumstances, we are not satisfied with the prosecution case against him. Giving the appellant tbP benefit of doubt, we accept his appeal and acquit him of the charges.
In so far as Yusuf is concerned, Mst. Shamim Akhtar (informant) was, the solitary witness who saw her father and mother being stabbed to death and while intervening she also suffered an injury at the hands of Yusuf. True, she was the daughter of the deceased but she had no axe to grind against Yusuf. Undoubtedly she was a natural witness. It is in her evidence that a lantern was burning inside the room which the Investigating Officer took into possession. Moreover, an electric bulb was also lit near the verandah in the lane, as such there could be no doubt about the identification of Yusuf, accused, by her and her two neighbours who saw Yusuf coming down from the roof of deceased's house. P. Ws. Tahir and Aslain are not related to the deceased nor they have enmity with Yusuf. Being deceased's neighbours they were natural witnesses. We find no reason to disbelieve their testimony. Keeping in view the evidence of Ust. Shamim Akhtar and that of P. Ws. Tahir and Aslam who reached the house of the deceased soon after the attack and saw Yusuf, accused, jumping down from the roof of deceased's house and then running away with a Chhurri in his hand, coupled with the evidence of the recovery of his blood-stained clothes which he got recovered on the following day of the occurrence, we are satisfied with the prosecution case against Yusuf. His conviction is, therefore, maintained.
As to sentence, there are no extenuating circumstances in this case. True, the motive story is a weak one, but on the other hand, without any excuse Yusuf took the lives of two innocent persons at mid-night, who had slept with their children in their house. As Mst. Sharifan resisted the attack on her husband, she was also done to death. Their daughter Alst. Shamim Akhtarl tried to rescue her parents, she too was stabbed and injured on the head. Considering the brutal conduct of convict-Yusuf, we confirm the death sentence.
Asif accused is on bail. He shall be discharged of his bail bonds.
M. Z. M, Order accordingly.
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