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-- Ss. 302 & 307-Evidence, appreciation of-Parties inimical towards each other and locked up in criminal litigation-Possibility of chance encounter between parties not ruled out and in all probability accused and deceased, exchanged hot words on coming across each other and in course of brawl accused without any premeditation inflicting one injury each on deceased-Fatal injury not on vital part of body and having cut femoral artery and vein, resulting in death of deceased due to bleeding-Accused, held, were individually responsible for their acts-Conviction of accused liable for fatal injury under S. 302, P. P. C. and that of co-accused under S. 307, P. P. C., was found justified and maintained in circumstances.

--- S. 302-Sentence-Mitigation-Accused, youth of 16/17 years of age and himself injured by deceased in earlier incident, about 21 months prior to occurrence-Accused inflicting only one injury on deceased and cutting femoral artery and vein and desisting from repeating blow although nothing to prevent him from doing so-accused, held, entitled to leniency in matter of sentence, in circumstances-Death penalty altered to imprisonment for life.-[Sentence]

Mian Aftab Farrukh and Kh. Hafeez Ullah for Appellants.

Nemat Khan and Faroog Bedar, A. A.-G. for the State.

Dates of hearing : 30th November, 2nd and 6th December, 1986.

IJAZ NISAR, J.-Shahid Majeed (17), Tariq Majeed (23), their father Abdul Majeed Butt (57) and their friend Imdad Ali (25) were tried for the murder of Arshad Mahmood (29/30). The Additional Sessions Judge, Lahore by his judgment dated 27-1-1985 convicted Shahid Majeed under section 302, P. P. C. and sentenced him to death plus a fine of Rs. 10,000 or in default to undergo R. 1. for one year. Tariq Majsed and lmdad Ali were convicted under section 307, P. P. C. and sentenced to 5 years, R. 1. and fine of Rs. 500 each or in default to undergo R. 1. for 6 months.

The fine, if recovered, was ordered to be paid to the heirs of the deceased as compensation. Abdul Majeed Butt accused was, however, acquitted.

2. We have before us reference for confirmation of the death sentence of Shahid Majeed appellant, appeal filed by Shahid Majeed and Tariq Majeed (Criminal Appeal No. 83 of 1985), Criminal Appeal No. 89 of 1985 moved by Imdad Ali alias Samundari, State Appeal No. 508 of 1985 and Criminal Revision No. 57 of 1984 filed by Muhammad Afzal complainant against the acquittal of Tariq Majeed Butt and Imdad Ali of the murder charge. All these matters are being disposed of by this judgment.

8. The prosecution case in brief is that about 21 months prior to the occurrence Arshad Mahmood deceased alongwith others had injured Shahid Majeed appellant for which a case under sections 148 and 307/149, P. P. C. was registered. A cross-case was also registered under section 325. P. P. C. against Shahid Majeed etc. for causing injuries to the party-men of the complainant. Both the cases were pending when the occurrence in question took place. The occurrence was sequel to earlier incident in which Shahid Majeed appellant had received injuries at the hands of the deceased.

On 13-10-1982 at about 12-45 noon Muhammad Afzal P. W. 7 and Muhammad Latif P. W. 8 were proceeding towards the factory of one Zafar and when they reached Chowk Mehr Suba Park they saw the appellants and Abdul Majeed Butt accused (since acquitted) encircling the deceased while his motor-cycle was lying on the ground. Abdul Majeed Butt exhorted his sons, namely, Shahid Majeed and Tariq Majeed not to spare the deceased whereupon Shahid Majeed gave a chhuri blow on the right side below the belly of the deceased. Imdad Ali appellant followed him and gave a dagger blow on the side of the body of Arsbad Mahmood deceased. Tariq Majeed accused gave him a chhuri blow on his thigh. Muhammad Afzal and Muhammad Latif P. Ws. stepped forward whereupon Abdul Majeed Butt fired revolver shots at them which went amiss. Arshad Mahmood deceased fell injured. The appellants fled away. Muhammad Afzal and Muhammad Latif P. Ws. supported the deceased and carried him to Mayo Hospital in a rickshaw but he succumbed to the injuries on the way. Besides, Muhammad Afzal and Muhammad Latif P. Ws. Faqir Muhammad D. W. 3 also witnessed the occurrence.

On receiving an intimation from the hospital Ghulam Qamar S. I. P. W. 12 reached there and recorded statement Exh. P. E. of Muhammad Afzal at 2-30 p.m. on 13-10-1982. He prepared the injury statement Exb. P. K. and the inquest report Exh. P. L. of the deceased. He then visited the spot and took into possession blood-stained earth and motorcycle of the deceased. Muhammad Afzal and Muhammad Latif P. Ws. produced before him their blood-stained clothes Exhs. P. 4, P. 5, P. 6 and P. 7.

Ghulam Qamar S. I. P. W. 12 arrested Abdul ' Majeed Butt. Tariq Majeed on 15-10-1982 and Shahid Majeed on 17-10-1982. Imdad Ali, however, absconded. Proceedings under section 87/88, Cr. P. C. were initiated against him and he was arrested from Faisalabad on 25-11-1982 by S. I. Nazir Ahmad P. W. 14.

On 24-10-1982 Shahid Majeed led to the recovery of blood-stained chhuri P. 9 from his house through memo. Exh. P. J. attested by Liaqat Ali P. W. 9, Bashir Ahmad A. S. I., P. W. 11 and Tausif Ahmad (not produced). On 25-11-1982 Imdad Ali appellant led to the recovery of dagger P. 10 from Raja Hotel, Faisalabad through memo. Exh. P. M. attested by Muhammad Sadiq F. C. P. W. 10, Muhammad Ishfaq P. W. 13 and Nazir Ahmad S. I. P. W. 14. Chhuri P. 9 was sent for chemical examination and according to the report Exh. P. O. of the Serologist was found to be stained with human blood.

4. Dr. Khalid Hassan P. W. 1 conducted autopsy on the dead body of Arshad Mahmood, aged 29/30 years, on 14-10-1982 and found the following injuries thereon :

(1) An incised woupd 7 x l c.m. on the back of right thigh, muscle deep. Cuts were present on the Shalwar corresponding to the injury (simple).

(2) An incised wound 3 x 1 c.m. on the outer aspect of the right ingunial region of the thigh parallel to and below the ingunial ligament. The injury had cut the muscle femoral artery and vein. Corresponding cut was present on the Shalwar (fatal).

(3) A stab wound 0. 5 x 0. 5 c.m. on the front upper right chest about 6 c.m. above and inner region to the right nipple Cuts were present on the shirt and Bunyan. The injury was., skin deep (simple).

All the injuries were ante-mortem and were caused by sharp-edged weapon. Injury No. 2 was sufficient to cause death in the ordinary course of nature. Cause of death was shock and haemorrhage due to injury to the blood vessels. Injuries Nos. 1 and 3 were simple in nature. The duration between injuries and death was within 15 minutes to one hour and that between death and post-mortem 18 to 24 hours.

5. The appellants denied the prosecution allegations and attributed the case to enmity. Explaining his involvement in the case Shahid Majeed made the following statement :

"The complainant party had a serious enmity with me as I got a case under section 307, P. P. C. registered against Arshad Mahmood deceased and his other family members. I was seriously injured and I refused to effect a compromise so 1, my father and my brother were involved in this case due to enmity by the complainant party. Actually, in the days of occurrence I was confined to bed and my wounds became septic. I was unable to move about so my participation in the crime does not arise."

Tariq Majeed stated that he was innocent and had been so found by all the three Investigating Officers including two gazetted police officers C. W. 1 and C. W. 2. According to him, the d.-ceased was a bad character and used to tease girls and was murdered by some unknown persons and the complainant had involved him, his brother and his father due to previous enmity. Abdul Majeed Butt also denied his participation in the occurrence and stated that he had been found innocent by the Investigating Officers. Imdad Ali alias Samundari appellant denied being friendly to the other appellants and stated that on 28-9-1982 Muhammad Afzal and Muhammad Latif P. Ws. had a quarrel with him in Mohallah Gobindpura. Consequently, he filed a private complaint in the Court of Mr. Abdul Majeed Saggo, M. I. C., Faisalabad on 13-10-191 2 and on that day at 12 noon had appeared before the said Magistrate and got his statement recorded and so his participation in the crime at Lahore on that day was not possible. He produced certified copies of the complaint Exh. D. F. ,his statement Exh. D. G., dated 13-10-1982 and certified copy of the interim orders Exh. D. H. passed by the Ilaqa Magistrate.

Shahid Majeed appellant examined defence evidence. Ismail Abid D. W. 1 stated that the deceased was a bad character and used to tease girls. Dr. Muhammad Want D. W. 2 stated that in the last days of September, 1982 he had examined Shahid Majeed appellant and found a number of injuries on his person. The wounds had already been stitched and were septic with puss. He stated that he kept on visiting him for about 12 to 14 days and had advised him not to walk as there was likelihood of the wounds getting reopened and when he again went to his house after 12 to 14 days he learnt about his arrest by the police. Faqir Muhammad D. W. 3 who was cited as an eye-witness in the F. I. R. but was given up by the prosecution as having been won over, stated that Saleem Bhayya and Gohar Siddique and an unknown person had an altercation with the deceased on 13-10-1982 at 12-45 p.m. and they had attacked the deceased as a result of which he died on the spot. He had informed Muhammad Afzal, brother of the deceased about the incident whereupon he and some other persons reached the spot. According to him he had not seen any of the four accused at the spot.

6. Relying on the motive, the ocular testimony furnished by Muhammad Afzal P. W. 7 and Muhammad Latif P. W. 8 and the recovery of blood-stained chhurl P. 9 at the instance of Shahid Majeed the trial Court convicted and sentenced the appellants as described above.

7. Assailing the judgment, learned counsel for the appellants states that both the eye-witnesses are related, inimical and chance witnesses and no independent person from the vicinity has been examined and further that Tariq Majeed and Abdul Majeed Butt had been found innocent during the investigation. Further that the injuries attributed to Tariq Majeed and Imdad Ali are not characteristic of weapons like chhuri and dagger. The origin of occurrence is shrouded in mystery because according to the eyewitnesses the occurrence was already on when they reached the spot, he adds.

8. Learned Assistant Advocate-General who has appeared in support of the State appeal against the acquittal of Tariq Majeed and Imdad Ali of the murder charge contends that the F. I. R. was promptly lodged and the presence of the eye-witnesses was most natural because the clothes which they were wearing at that time got besmeared with blood and the presence of motive strongly proves their preconcert and intention to do away with the deceased. Mr. Talib H. Rizvi, learned counsel for the complainant has also advanced the same arguments.

9. The occurrence took place on 13-10-1982 at 12-45 noon while the F. I. R. containing full particulars of the assailants as well as of the persons witnessing the occurrence was lodged in a period of less than 2 hours in the hospital. This circumstance excludes the possibility of the report having been made after deliberations and consultations. No doubt, Muhammad Afzal P. W. 7 is real brother of the deceased while Muhammad Latif is his brother-in-law but this circumstance alone is not enough to discard their evidence which stands corroborated by the medical 'evidence, the motive and the recovery of blood-stained chhuri at the instance of Shahid Majeed appellant. Human blood was found on chhuri P. 9 recovered from the house of Shahid Majeed appellant. The motive set up by the prosecution is not even denied by the appellants.

Shahid Majeed admitted the registration of case against him at the instance of Arshad Mahmood deceased under sections 148, 307/149, P. P. C. The fatal injury to the deceased is also attributed to Shahid Majeed appellant. The evidence of Faqir Muhammad D. W. 3 that the murder had been committed by Saleem Bhayya and Gohar Siddique and one other unknown person is not convincing and was discarded by the trial Court for good reasons. He was given up by the prosecution as having been won over. In the course of examination he admitted his involvement in about 10 to 12 criminal cases. Some of the cases in which he was involved pertained to consumption of liquor by him. The evidence of other D. Ws. that the deceased was a bad character and used to tease girls is not convincing because it could not be proved that any such case had ever been registered against him. The evidence of Dr. Muhammad lkram D. W. 2 that on the date of occurrence Shahid Majeed appellant had been under his treatment is .not credit worthy because nobody says that Shahid Majeed was not in a position to move about during those days. He is a Homoeopath and it does not appeal to reason that he would have attended Shahid Majeed appellant for the treatment of septic wounds. The circumstance that Tariq Majeed and Imdad Ali appellants had been found innocent during investigation does not help them because of the strong and unimpeachable ocular testimony furnished by Muhammad Afzal P. W. 7 and Muhammad Latif P. W. 8. The prosecution has fully succeeded in establishing the participation of the appellants in the crime and bringing home guilt to them. As to the origin of the occurrence the eye-witnesses stated that the appellants were encircling the deceased when they reached the spot. Muhammad Afzal P. W. 7, brother of the deceased stated that he could not say as to what had happened between the accused and his brother earlier to that. Thus, the possibility of chance encounter between the parties cannot be ruled out. In all probability the appellants and the deceased who were locked up in criminal litigation exchanged hot words on coming across each other and in the course of the brawl the appellants; without any premeditation inflicted one injury each on the deceased. Out of three injuries received by the deceased at the hands of the appellant only one was fatal while the other two were simple in nature. The fatal injury was not on vital part of the body and had cut femoral artery and vein resulting .in the death of Arshad Mahmood due to heavy bleeding. The other two injuries attributed to Tariq Majeed and Imdad Ali appellants were either muscle deep or skin deep. In this view, of the matter, it was rightly held by the trial Court that pre-concert anal common intention between the appellants was not proved and thus they were individually liable for their acts. The conviction of Shahid Majeed who caused the solitary fatal blow under section 302, P. P. C. and of Tariq Majeed appellant and lmdad Ali appellants who caused sharp-edged weapon injuries to the deceased under section 337, P. P. C. was, therefore,, justified and is accordingly maintained. The sentence awarded to Tariqv Majeed and Imdad Ali was quite proportionate to the part played by them in the occurrence and does not call for any interference. However, as regards the sentence awarded to Shahid Majeed appellant it requires some modification. He is a youth of 16/17 years of age and had been himself injured by the deceased in the earlier incident taking place about 2,1 months prior to the occurrence. He inflicted only one injury on the deceased cutting the femoral artery and vein and did not repeat the blow although there was nothing to prevent him from doing so.

In the above circumstances, we consider him entitaed to leniency in the matter of sentence, and think that ends of justice will be met if death penalty is altered to imprisonment for life. We order accordingly and sentence him to imprisonment for life and a fine of Rs. 20 OOU or in default, to undergo two years' R. I. The fine, if recovered, shall be paid to the heirs of the deceased as compensation.

With the above modification in the sentence of Shahid Majeed, the appeals filed by the appellants fail and are dismissed accordingly.

10. The death sentence of Shahid Majeed appellant is not confirmed.

11. In the light of the above discussion, State Appeal No. 508 of 1585, Criminal Appeal No. 89 of 1985 filed by Imdad Ali alias Samundari and Revision No. 57 of 1985 filed by Muhammad Afzal complainant against the acquittal of Tariq Majeed and Imdad Ali appellants of the murder charge fail and are dismissed accordingly.

s. G. D. Order accordingly.

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