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(a) Penal Code (XLV of 1860)‑‑

‑‑Ss. 302 & 452/34‑‑Extra‑judicial confession‑ ‑Lalkaras raised by accused during assault on prosecution witnesses used as extra‑judicial confession‑‑Circumstances not put to accused during examination under S. 342, Cr.P.C.‑‑Such piece of evidence, held, was of no consequence.

(b) Penal Code (XLV of 1860)‑‑

‑‑‑Ss. 302 &452/34‑‑Motive‑‑Deceased having divorced sister of accused 15 years before occurrence‑‑Accused taking no exception to that‑ Accused admittedly having cordial relations with deceased‑‑No direct evidence of accusing sister of accused by deceased and of accused issuing threat to avenge insult‑‑Accused taking deceased from his hotel to his home‑‑Finding of Trial Court that motive had been proved, held, could not be sustained in circumstances.

(c) Penal Code (XLV of 1860)‑‑

‑‑‑Ss. 302 &452/34‑‑Recovery evidence‑ ‑Chhuris, allegedly stained with human blood, recovered after 8 days of occurrence‑‑Recoveries attested by complainant, brother of deceased and Sub‑Inspector‑‑No body called to witness recoveries‑‑Place of recovery accessible to public‑‑Accused having sufficient time to wash off or destroy Chhuris‑‑Recovery of weapons from accused, could not be held to be proved in circumstances.‑ [Recovery].

(d) Penal Code (XLV of 1860)‑‑

‑‑‑Ss. 302 &452/34‑‑Ocular evidence, appreciation of‑‑Ocular testimony furnished by daughter and brother of deceased‑‑Daughter explaining her presence in house of her uncle, place of occurrence‑‑Hotel of complainant at a few yards from his house‑‑Blood‑stained earth collected from room of his house‑‑No previous enmity alleged against witnesses‑ Witnesses subjected to lengthy and exacting cross‑examination‑ Testimony remaining unshaken‑‑Prosecution witnesses, held, were natural, present at spot and had seen occurrence, and their testimony thus could not be discarded merely because of relationship.

(e) Penal Code (XLV of 1860)‑‑

‑‑‑Ss. 302 & 452/34‑‑Two of accused, friends of third accused‑‑Accused having alleged motive were real maternal uncle of witness‑‑No previous enmity existing between parties‑‑Prosecution evidence suggesting cordial relations with accused‑‑Occurrence not pre‑planned‑‑Sudden quarrel appearing to have erupted on way to house of deceased‑‑Injuries caused on non‑vital parts of body with meticulous care‑‑Each accused causing one blow each‑‑Fatal injury attributed to one accused‑‑Accused, held, could not be burdened with intention to kill deceased, however, they certainly had knowledge that such injuries were likely to cause death‑ Provisions of S. 34, P.P.C. would not be applicable but accused were found guilty of offence covered by S. 304, Part II, P.P.C.‑‑ Conviction altered accordingly.

Muhammad Salim's case 1983 S C M R 53 ref.

Malik Muhammad Din for Appellants.

Shaheen Masood Rizvi, A.A.‑G. for the State assisted by A.R. Tayyib for the Complainant.

Dates of hearing: 8th and 9th April, 1985.

Iqbal alias Bali (23 years) and his two friends, namely, Mohayuddin alias Pappu (17/ 18 years) and Sarfraz alias Punnu (18/ 19 years) were tried by Additional Sessions Judge, Bahawalpur, under sections 452 and 302/34, P.P.C. for having intentionally caused the death of Riaz Ahmad (deceased) in furtherance of their common intention by trespassing into his brother's house on 21‑10‑1980. The learned trial Judge convicting all of them on both the counts sentenced Iqbal alias Bali to death and fine of Rs. 5,000 or in default to undergo further 2 years' rigorous imprisonment and Mohayuddin and Sarfraz to life imprisonment each and a fine of Rs.5,000 or in default to undergo 2 years' rigorous imprisonment each under section 302/34, P.P.C. They were further awarded 2 years' rigorous imprisonment each under section 452, P.P.C. vide judgment, dated 3‑7‑1983 with the direction that the fine if recovered shall be paid to the heirs of the deceased as compensation. Being aggrieved the convicts have separately appealed to the Court (Criminal Appeal No. 59 of 1983 by lqbal alas Bali, Criminal Appeal No. 60 of 1983 by Sarfraz alias Punnu and Criminal Appeal No. 86 of 1984 by Mohayuddin alias Pappu) against their convictions and sentences. We also have before us the murder reference (M.R. No. 18 of 1983) for the confirmation of death sentence awarded to Iqbal alias Bali. The three appeals as well as the murder reference which arise out of the same judgment are being disposed of by this consolidated judgment.

2. The incident took place in the house of Fazal Ahmad (P.W.5) situate inside Farid Gate, Bahawalpur, after Maghrib prayers time on 21‑10‑1980, at a distance of about 3 furlongs from Police Station Kotwali, Bahawalpur, and the F.I.R. Exh.P.A. was lodged at the police station by Fazal Ahmad aforementioned at 7‑30 p.m. the same evening which was recorded by H.C. Ghulam Ghaus (P.W. 13).

3. According to F.I.R. Exh.P.A. Mst. Rahmat Bibi, sister of lqbal alias Bali, appellant, was married to Riaz Ahmad, deceased, and Mst. Kalsoom (P.W.4) was born out of the wedlock. Some 15 years before the occurrence the deceased divorced Mst. Rahmat Bibi on account of her bad character, therefore, she remarried one Malook Shah but she kept visiting the house of the deceased to meet her daughter Mst. Kalsoom P.W. The deceased did not like it and forbade her from coming to his house. He also asked Iqbal alias Bali, appellant, to stop his sister Mst. Rahmat Bibi from visiting his house and taunted him for her bad character whereupon Iqbal alias Bali, appellant, threatened to take revenge from him for having accused his sister of bad character. The complainant further alleged in the F.I.R. that on the day of occurrence he and his brother Riaz Ahmad (deceased) came to their hotel after Maghrib prayers' time. A little later the three appellants came there and called Riaz Ahmad (deceased) and took him alongwith them towards his house. As soon as they reached in the street all the appellants attacked the deceased with Chhuris. Fazal Ahmad, complainant and his nephew Muhammad Nawaz hearing the cries, 'Bachao‑Bachao' raised by Riaz Ahmad (deceased) ran in that direction. Riaz Ahmad in order to save his life ran into the house of the complainant but the appellants chased him into the house and after throwing him on the floor all of them inflicted him numerous knife injuries in the presence of Mst, Kalsoom Bibi (P.W. 4), her step mother Mst. Zaibo Mai, her cousin Muhammad Nawaz and the complainant Fazal Ahmad (P.W.5) who rescued the deceased with difficulty whereafter the appellants declaring that they would now punish Bashir Ahmad and Muhammad Safdar P.Ws. in the same manner went away waving their weapons. Riaz Ahmad was removed immediately to B.V. Hospital and Fazal Ahmad repaired to the police station and lodged report Exh. P.A. there.

4. H.C. Ghulam Ghaus (P.W. 13) having recorded the F.I.R. sent the file of the case to A.S.I. Nisar Ahmad (P.W.9) to B.V. Hospital where he had already reached at his asking. The Assistant Sub‑Inspector carried out the initial investigation. He prepared injury statement Exh.P.K. of Riaz Ahmad, deceased, and procured medico‑legal report Exh.P.J./2 from the Medical Officer besides Chadder P.4, shirt P. 5 and Bunyan P.6 of the injured. He enquired from the doctor if the injured was in a position to make a statement and the doctor reported vide Mark 'A' on Exh. P.L. in the negative. He was still in the hospital when S.I. Syed Muhammad Rafiq Shah (P.W. 11) reached there and took over the investigation. He inspected the spot and collected blood‑stained earth from the rooms of the house of Fazal Ahmad P.W. On his transfer from the police station the investigation was taken up by S.I. Muhammad Rafiq (P.W. 10) on 27‑10‑1980. It appears that the appellants were arrested by S.I. Muhammad Aslam (P.W.12) on 28‑10‑1980 and S.I. Muhammad Rafiq (P.W. 10) interrogated them. On 31‑10‑1980 Iqbal alias Bali got recovered blood‑stained Chhuri P.7 while Sarfraz alias Punnu got recovered blood‑stained Chhuri P.8 and Muhayuddin alias Pappu got recovered blood‑stained Chhuri P. 9 on 30‑ 10‑ 1980 from a graveyard. They were sealed and secured separately vide memos. Exhs. P.F., P.G. and P.H., respectively, attested by Bashir Ahmad P.W. (not produced) and Fazal Ahmad (P.W.5) and were found to be stained with human blood vide reports Exhs. P.T. and P.U. of the Chemical Examiner and the Serologist, respectively.

5. Dr. Muhammad Akhtar Khan (P.W. 8) examined Riaz Ahmad while he was still alive at 8‑50 p.m., on 21‑10‑1980 and found following injuries on his person:‑---

(1) Following incised wounds were found on the right hip:

(i) 4 c.m. x 1‑1/2 x c.m. 3/4 c.m., wound was bleeding repeatedly.

(ii) 3‑1 /2 c.m. x 1 c.m. x 4/5 c.m., wound was bleeding.

(iii) 1‑1/2 c.m. x 1 c.m. x 4/5 c.m., wound was bleeding.

(2) An incised wound 3 c.m. x 3/4 c.m. x 1 c.m. on the left hip.

(3) The patient was complaining pain in the head and there was little bleeding from mouth. X‑ Ray skull advised.

The injured died later in the hospital and the doctor informed the police about it whereupon the charge from section 307, P.P.C. was altered to section 302, P.P.C. The same doctor carried out post‑mortem examination the next day at 9 a.m., and noted almost all the injuries found by him in his ante‑mortem examination. However, on dissection he found that peritonium and large gut under injury No. 2 had been cut and the stomach contained partly digested food matter. In the opinion of the doctor, the deceased had died of the above‑mentioned injuries which in the ordinary course of nature were sufficient to cause irreversible shock resulting in death. The probable time between injuries and death was within 8 hours and between death and post‑mortem examination within 12 hours. In his cross‑examination the doctor stated that injuries Nos. 1 to 3 were spaced, from each other, at a distance of 2 to 4 inches. He carried out the examination within 8 to 10 minutes. Injuries Nos. 1 and 2 were not inflicted with friendly hand. He further stated that when he informed the police on telephone about the serious condition of the deceased he was told that some police officer was already on the way to the hospital. Then A.S.I. Nisar Ahmad came and he gave him medico‑legal report Exh.P.J./2.

6. At the trial the prosecution in support of its case examined 13 witnesses. Mst. Kalsoom (P.W.4) and Fazal Ahmad (P.W.5) are the eye witnesses. Muhammad Sardar (P.W.1) and Bashir Ahmad (P.W.3) Stated that they were attacked by the three appellants at their shops at Maghribwela on the day of occurrence and at that time all the three appellants had shouted that they had also killed Riaz Ahmad, deceased. Fazal Ahmad P.W. narrated about the recoveries of blood‑stained Chhuris from the appellants also while A.S.I. Nisar Ahmad (P.W.9), S.I. Muhammad Rafiq (P.W.10), S.I. Syed Muhammad Rafiq Shah (P.W. 11) and A.S.I. Muhammad Aslam (P.W.12) deposed about their investigations made in this case.

7. When examined under section 342, Cr.P.C., the appellants denied the allegations and attributed their involvement to enmity with the complainant. Sarfraz and Muhayuddin, appellants, stated that S.I. Muhammad Rafiq Shah (P.W. 11) carried out false investigation and due to his friendship with Fazal Ahmad, complainant, had involved them in this case. They examined 4 witnesses in their defence, namely, O.A.S.I. Hidayat Ullah (D.W.I), A.S.I. Muhammad Ashraf, Reader to Superintendent of Police, Bahawalpur (D.W.2). Abdul Hamid Langah, Senior Clerk/Incharge Record Section, S.P. Office, Bahawalpur (D.W.3) and Israr Ahmad, Inspector of Police/C.I.A. Staff, Bahawalpur (D.W.4). They tried to prove that S.I. Muhammad Rafiq Shah (P.W. 11) did not care for Israr Ahmad, Inspector (D.W.4) while he was holding the supervisory charge of his police station. On the report of the Inspector S.I. Muhammad Rafiq Shah was charge‑sheeted for having carried out investigation in the instant case in a negligent manner. Israr Ahmad, Inspector (D.W.4), however, averred that he had verified the investigation of this case which was found to be correct whereby the appellants were found guilty.

8. The learned trial Court on detailed examination of the material on record held that the motive was proved; that the appellants' participation in the occurrence was established by ocular testimony, recoveries of Chhuris effected from them, and the extra‑judicial confession made by all the appellants during attack on Muhammad Safdar (P.W.1) and Bashir Ahmad (P.W.3) by shouting that they had already killed Riaz Ahmad (deceased) and ultimately finding them guilty on both the counts sentenced them as indicated above. We have heard the parties' counsel and also perused record.

9. We may express at the outset that the learned trial Court has erred in law by using appellants' Lalkaras raised at the shops of Muhammad Safdar (P.W.1) and Bashir Ahmad (P.W.3) during the assault as extra‑judicial confession against them for the simple reason that this circumstance had not been put to them under section 342, Cr.P.C., to provide them opportunity to explain it, hence this piece of evidence is rendered of no consequence.

10. According to prosecution, Iqbal alias Bali, appellant, attacked and killed the deceased with the help of his friends because the deceased had levelled false charge of bad character against his sister Mst. Rahmat Bibi and on this account the appellant had threatened him to take revenge from him. Admittedly, the deceased divorced Mst. Rahmat Bibi some 15 years before the occurrence yet Iqbal alias Bali, appellant, had not taken any exception to it despite having come of age 5/6 years earlier. As for the allegation of accusing Mst. Rahmat Bibi as bad character by the deceased and issuance of threat to him to avenge the insult by the appellant, there is no direct evidence to prove it. Contrarily, Mst. Kalsoom P.W. candidly admitted that Iqbal alias Bali used to frequently visit their house and sit with the deceased for gossips. In the circumstances, we would not believe that there existed bad blood between them much less on account of deceased's calling Mst. Rahmat Bibi as bad character. Had Iqbal alias Bali threatened Riaz Ahmad, deceased, prior to this occurrence, then he would have not accompanied the appellants readily on being approached at his hotel by them, so the finding of the learned trial Court that motive has been proved cannot be sustained.

11. The other piece of evidence against the appellants is recovery of blood‑stained Chhuris at their pointation from a graveyard on 30‑10‑1980 a which were later found as stained with human blood vide reports Exhs. P.T. and P.U. of the Chemical Examiner and the Serologist, respectively. As stated earlier, the appellants were arrested on 28‑10‑1980 i.e., 8 days after the occurrence. These recoveries have been attested by Fazal Ahmad P.W. who is real brother of deceased and a complainant in this case. S.I. Muhammad Rafiq (P.W.10) stated that he did not call anybody from the locality to witness the recoveries. Again the place of recovery is accessible to the public at large. Besides this, the appellants had full one week's time at their disposal to wash off and destroy the Chhuris before they were arrested. Furthermore, the recovery is sought to be proved through Fazal Ahmad P.W., real brother of the deceased alone and to withhold the production of the other recovery witness on the part of prosecution is obviously designed to avoid discrepancy in their statements on the point of recovery and the emergence of whole truth. Keeping all these facts in view we find that recovery of weapons from appellants is not established beyond reasonable doubt and we are constrained to keep the same out of consideration.

12. We are now left with the ocular testimony furnished by Mst. Kalsoom and Fazal Ahmad P.Ws. It is true that Mst. Kalsoom (P.W.4) is the daughter of the deceased and Fazal Ahmad (P.W.5) is his real brother. It is also correct that Mst. Kalsoom did not live in the house where the occurrence took place. It may be stated that mere relationship is not enough to discard their evidence. Again, it does not seem unusual or improbable, as stated by Mst. Kalsoom P.W., that she had come to see television in the house of her uncle Fazal Ahmad (complainant) at the relevant time. The hotel of Fazal Ahmad is also a few yards away from his house. Blood was also collected from the rooms of his house. All these circumstances go a long way to prove that the occurrence took place in the house of Fazal Ahmad and was witnessed by Fazal Ahmad and Mst. Kalsoom P.Ws. who are the natural witnesses. No previous enmity has been alleged against them by the appellants and despite lengthy and exacting cross‑examination to which they had been subjected we find that their testimony remained unshaken. We, therefore, feel no hesitation in agreeing with the findings of the learned trial Court that these witnesses were in fact present at the spot and had seen the occurrence which took place at the time and place narrated by them. Consequently, the participation of the appellants in the occurrence has been established beyond doubt.

13. Next question which needs to be determined in this case is as to what offence the appellants had committed Sarfraz and Mohayuddin, appellants, in reply to question No. 4 put to them in their examination under section 342, Cr.P.C., have admitted to be the friends of Iqbal alias Bali, appellant, who is real maternal uncle of Mst. Kalsoom (P.W.4). No previous enmity, as observed earlier, has been proved between the parties, rather prosecution evidence shows that the relations of the deceased with Iqbal alias Bali, appellant were cordial. The fact that the appellants took the deceased from his hotel towards his house further shows that they had not pre‑planned to do away with him. Had it been so, then the appellants would have taken him to some other direction rather than towards his house and could have attacked him at some far away place, than at a distance of few yards from his hotel. In the circumstances, it appears to us that there erupted sudden quarrel between the deceased and the appellants while going towards house of the deceased, wherein the tempers went high and the appellants attacked the deceased with ordinary knives carried by them. It. is further pertinent to note that the three appellants while causing injuries 'to Riaz Ahmad, deceased, with knives took meticulous care and did not select vital parts of his body for inflicting injuries. The number of injuries is four. It means that each one of them gave one blow only and injury No. 2 seated on the left hip involving cutting of the large gut appears to be fatal. This is attributed to lqbal alias; Bali, appellant. As, the occurrence took place all of a sudden and the appellants having not inflicted injury on any vital part of the deceased as they are seated at the back and outer side of upper part of thigh, therefore, they cannot be burdened with the intention to kill the deceased, as has been held in Muhammad Salim's case 1983 S C M R 53. However, they certainly had knowledge that by causing such injuries the deceased's death was likely to occur, as the doctor has clearly stated that the above mentioned injuries in the ordinary course of nature are sufficient to cause irreversible shock' resulting in death. Although section 34, P.P.C. would not apply but as stated earlier, injury caused by each appellant contributed towards death of the deceased. For all these reasons, the appellants are held guilty of committing an offence covered by the provisions of section 304, Part II, P.P.C. Their conviction is, therefore, altered from section 302 to 304, Part II, P.P.C. and are sentenced to ten (10) years' rigorous imprisonment and fine of Rupees five thousand (Rs.5,000 only) each, in default whereof they shall further undergo rigorous imprisonment for two (2) years each. The fine if realised shall be paid to the heirs of the deceased as compensation. The conviction and sentence of the appellants recorded by trial Court under section 452, P.P.C. is, however, maintained. The sentences of imprisonment shall run concurrently and the appellants shall also be given benefit of provisions of section 382‑B, Cr.P.C.

14. In the result, the appeals are partly accepted in the terms indicated above. The murder reference is rejected and the death sentence awarded to Iqbal alias Bali, appellant is NOT confirmed.

S.A./I‑14/L Appeal partly accepted.

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