1983 P Cr. L J 710 

[Lahore]

Before Muhammad Rafiq Tarar and Lehrasap Khan, JJ

MUHAMMAD AYUB AND ANOTHER--Appellants.

Versus

THE STATE-Respondent

Criminal Appeals Nos. 1255 and 1256 of 1979/Murder Reference No. 91 of 1980, heard on 17th May, 1982.

(a) Criminal trial-

--Witness-Evidence----Evidence of hostile witness-Normally loses its evidentiary value and cannot be used either in favour of prosecu tion or against it.

(b) Criminal trial-

--Witness-Evidence-Mere relationship of witnesses with deceased-Not by itself a sufficient ground for discarding their evidence.

(c) Penal Code (XLV of 1860)-

----S. 302 read with Ss. 304(1)& 300, Exception IV-Murder-Sudden fight--Offence, alteration of-Facts and circumstances of case leading to conclusion that an unpremeditable sudden quarrel result ing in a fight between parties in which both deceased on one side and one of accused on other side suffering injuries-Accused armed with daggers while deceased having kassis and nothing to show that accused having taken any undue advantage of situation or acting in an unusual or cruel manner- Offence committed, held, would fall within ambit of S. 304-(I) P. P. C., in circumstances-Accused responsible for taking lives of two brothers, held further, deserved maximum punishment of imprisonment for life.

Muhammad Afzaal Siddiqi for Appellant.

Kh. Ghulam Qadir for the State.

Dates of hearing : 15th, 16th and 17th May, 1982.

JUDGMENT

MUHAMMAD RAFIQ TARAR, J.-Muhammad Ayub (55) son of Ibrahim, Zahoor Ahmad (18) son of Muhammad Ayub, and Muhammad Ilyas (25) son of Muhammad Suleman, all Arain by caste, residents of Harbanspura, Police Station Mughalpura, Lahore, were tried by the learned Additional Sessions Judge, Lahore, under section 302/34. P. P. C. on two counts on the allegations that on 13th July, 1974 at 4 p. m. they committed the murders of their co-villagers Muhammad Ayub and Muhammad Yaqub sons of Nur Elahi in the area of village Harbanspura, in furtherance of their common intention. By judgment dated 19th November 1979 they were convicted on the said charges. Muhammad Ayub appellant was sentenced to death on two counts subject to confirmation by this Court and a fine of Rs. 4,000 or in default in the payment thereof to undergo rigorous imprisonment for three years. The other two were sentenced to imprisonment for life on two counts and a fine of Rs. 2,000 each or in default in the payment thereof to undergo further rigorous imprisonment for one year and six months each. Their sentences of imprisonment were ordered to run concurrently. The fine, if recovered, was ordered to be paid to the heirs of the deceased persons in equal shares. Muhammad Ilyas has filed Criminal Appeal No. 1255 of 1979 while Muhammad Ayub and Zahoor Ahmad have filed Criminal Appeal No. 1256 of 1979 - to challenge their conviction and sentence. Muhammad Latif complainant has filed Criminal Revision No. 977 of 1979 praying that sentence of Muhammad Ilyas and Zahoor Ahmad be enhanced to death. The case is also before us on reference for confirmation of the death sentence of Muhammad Ayub appellant. All these matters shall be disposed of by this judgment.

2. The case of the prosecution is that the lands under the cultiva tion of the parties situate in the area of village Harbanspura are irrigate by an old common watercourse which leads to the land of the complainant party through the fields of Muhammad Ayub appellant. A day prior to the occurrence, the accused persons demolished a portion of the said watercourse. On the fateful day at about 4 p. m. Muhammad Ayub and Muhammad Yaqub deceased were repairing the watercourse when Muhammad Ayub, Zahoor Ahmad and Muhammad Ryas appellants came there on a tractor. Muhammad Ayub appellant told the deceased person that he would not allow them to repair the water course and they could construct a (new) khal on the common southern boundary line. Muhammad Ayub deceased replied that they will recons truct the old watercourse as it was satisfactorily irrigating their lands. Upon this, there was exchange of hot words between the parties. On hearing the noise, brother of the deceased persons, namely, Muhammad Latif, and their father Nut Elahi, who were present at their dera, rushed to the spot. Muhammad Siddiq P. W. who was working in his field, also came there. Within their view Muhammad Ayub appellant gave a dagger blow on the right flank of Muhammad Ayub deceased. The latter, in self-defence, gave kassi blow from the wrong side on the back of left shoulder of Muhammad Ayub appellant. Zahoor Ahmad appellant gave a dagger blow on left upper arm of Muhammad Ayub deceased. Muhammad Yaqub deceased stepped forward to rescue his brother, upon which Ilyas gave a dagger blow on his abdomen. Muhammad Ayub appellant gave a dagger blow on the back of Muhammad Yaqub and Zahoor Ahmad gave a dagger blow on the back of his right thigh. On sustaining the injuries Muhammad Ayub and Muhammad Yaqub started running towards their dera. On reaching there, Muhammad Ayub fell down and breathed his last. The accused got on the tractor and sped it away. Abdul Shakur and Abaid Ullah removed Muhammad Yaqub deceased to the hospital in an injured condition. Leaving Siddiq P. W. and Nur Elahi with the dead body of Muhammad Ayub, Muhammad Latif complainant went to Police Station, Mughalpura and reported the occurrence to Abdul Wahid, Sub -Inspector, at 5-30 p. m. vide F. I. R. Exh. PK.

Muhammad Yaqub deceased also succumbed to his injuries late in the night.         

3. The case was investigated by Abdul Wahid, Sub-Inspector (since dead). During the investigation, Muhammad Ayub, Zahoor Ahmad and Ilyas appellants led to the recovery of blood-stained daggers Exhs. P. 8, P. 9 and P. 10 on 14th July, 1974, 16th July, 1974 and 18th July, 1974, respec tively, which were made into separate sealed parcels vide Memos. Exhs. PJ, PL and PM, respectively. Muhammad Aslam, A. S. I. (P. W. 8), identified these Memos. and various other documents prepared during the investigation to be in the handwriting of Abdul Wahid, Sub-Inspector. After the usual investigation, the appellants were challaned.

4. On 14th July, 1974 Dr. Sabir Ali conducted the autopsy on the dead body of Muhammad Ayub deceased and found the following injuries on it

(1)        Stab wound 2 " x " x going deep transversely on the right side of the chest 4" below and outer to the nipple at 8 O'clock.

(2)        Stab wound 2 " x " on the outer lower half left arm communicat ing with a wound " x " in the lower half of the left arm 2 " apart from each other.

In the opinion of the doctor, death was due to shock and haemorrhage resulting from injury No.1 which caused extensive damage to the vital internal organs and was sufficient to cause death in the ordinary course of nature.

On the same day, the same doctor conducted the post-mortem examina tion on the dead body of Muhammad Yaqub deceased and found the following injuries on it: -

(1)        Stitched incised wound 5" long with a drainage tube in the centre of wound. The wound was placed transversely on the left side of abdomen and it was extending to the back 2" above the highest point of the iliac crest,

(2)        Stab wound 1" x " x 5" placed vertically oblique on the back and at mid-right thigh.

(3)        Incised wound 3" x " x muscle deep on the back of the right chest just over the inferior angle of the scapula.

In the opinion of the doctor, death was due to shock and haemorrhage resulting from injury No. 1 which was sufficient to cause death in the ordinary course of nature.

On 13th July, 1974 at 7 p. m., the same doctor examined Muhammad Ayub appellant and found a contused swelling 5" x 4" on the back of left shoulder and an incised wound 2" x 1/3" x subcutaneous tissue deep on the back inner lower left forearm extending to the wrist. Both the injuries were simple in nature.

5. In support of its case, the prosecution examined three eyewit nesses, namely, Muhammad Latif, Muhammad Siddiq and Nur Elahi. It also relied on the evidence relating to motive and recoveries.

6. The appellants pleaded not guilty to the charge. Muhammad Ilyas and Zahoor Ahmad appellants stated that they were falsely implicated due to enmity with the complainant party. The latter produced a photo s at copy of his school-leaving certificate (Exh. DD). Muhammad Ayub admitted that his land and that of Nur Elahi, father of the deceased persons, had a common boundary line. He further admitted that Nur Elahi and his sons used to get water for their land from an old watercourse passing from his land. He admitted having caused injuries to the deceased persons but gave a counter-version of the occurrence as under :-

The injuries were caused on my body when I was working in my field and was attacked by Muhammad Yaqoob and Muhammad Ayub deceased persons. Muhammad Yaqoob deceased gave me kassi blow from its wrong side on my head when I tried to save myself, the said kassi blow hit on my left shoulder. When I tried to save myself. I was given a kassi blow from its right side by Muhammad Ayub deceased on my chest. If I had not warded it off it would have caused my death. I warded it off by my left arm which wag injured in the result of the same. I apprehended danger to my life at the hands of both Muhammad Yaqoob and Muhammad Ayub deceased persons who had given blows on my body and also attempted for other blows.

When asked whether he wanted to say anything else, he made the follow ing statement

I all alone was working in my field. I was attacked by Muhammad Yaqoob and Muhammad Ayub deceased persons. I had danger to my life when they injured me then in my right of self-defence I caused injuries to the deceased persons with a knife.

No evidence was led in defence.

7. After examining the evidence on the record, the learned trial Judge came to the conclusion that Nur Elahi and Muhammad Latif P. Ws. had seen the occurrence and although they were related to the deceased, they had no previous enmity with the appellants. He further found that valuable corroboration in the shape of recoveries, motive and medical evidence was available against all the three accused. He, therefore, convicted and sentenced them as mentioned above.

8. The learned counsel for the appellants contended that the first informant, namely, Muhammad Latif first went to the village and then to the police station taking Miraj Din P. W. with him, therefore, possibility of consultation before lodging the F. I. R. could not be ruled out. He further submitted that the presence of the eye-witnesses at the spot was not established and in the circumstances of the case the defence version was more possible. In the alternative, it was contended that if the entire prose cution evidence is accepted, even then the case does not fall under section 302, P. P. C. as Exception IV to section 300, P. P. C. is clearly attracted to the facts of the case.

The learned counsel for the complainant and the State submitted that the statements made by Muhammad Ayub appellant in Court on 29th January, 1979 and 15th November, 1979 are inconsistent and the plea of self-defence was not put to Muhammad Latif and Nur Elahi P. Ws., there fore, there is no possibility of the same being true. They further contended that the eye-witnesses, namely, Muhammad Latif and Nur Elahi had absolutely no motive to falsely implicate any of the appellants, therefore, their evidence has been rightly relied upon by the trial Court.

9. Muhammad Latif P. W. admitted that while going to the police station he first went to his village and from there alongwith Miraj Din P. W. went to the police station. When further cross-examined he stated that from the spot he went to his village as it fell on the way to the police station. Since the village of the first informant was on the way, there was nothing unusual in his going to the village and taking Miraj Din P. W. to the police station. The mere fact that Miraj Din P. W. accompanied him to the police station, is not sufficient to hold that they had any con sultation before making the F. I. R. A suggestion to that effect was put to the first informant but he denied it as, incorrect.

10. The learned counsel for the appellants, vehemently contended that the injuries of Muhammad Ayub appellant do not find any mention in the F. I. R. and the medical evidence revealed that Muhammad Yaqub deceased who according to the F. I. R. suffered only one injury, actually had three injuries on his person, therefore, it can safely be inferred that the first informant was not an eye-witness of the occurrence. At the trial Muhammad Latif and Nur Elahi P. Ws. stated that Muhammad Ayub appellant gave a dagger blow hitting the right flank of Muhammad Ayub deceased and the latter gave the former a kassi blow from the wrong side in self-defence hitting the back of his left shoulder. Then Zahur appellant, gave a dagger blow on the left upper arm of Muhammad Ayub deceased, upon which Yaqub deceased stepped forward to rescue Muhammad Ayub deceased but he was given a dagger blow on his abdomen by Ilyas appellant Muhammad Ayub and Zahur appellants then gave one dagger blow each to Muhammad Yaqub hitting the right side of back and back side of right thigh, respectively. In cross-examination Muhammad Latif complainant admitted that he had not stated in the F. I. R. that Ayub deceased had given a kassi blow to Ayub appellant in self defence. He further admitted that in the F. I. R. he had stated that only Ilyas accused had given one dagger blow to Yaqub deceased hitting his abdomen. He denied the suggestion that he had trade mention of the outer injuries of Yaqub deceased to bring his statement in line with the medical evidence and came up with the explanation that he was in a perturbed condition and some points were missed by him. He further stated that his supplementary statement was also recorded at the spot. Obviously, the first informant was under a very great shock when he lodged the F. I. R. as one of his brothers had already expired and the other had been taken to the hospital in a very serious condition. In the circumstances, the omissions made in the F. I. R. can be ignored.

11. It was next contended that Muhammad Latif and Nur Elahi p. Ws. though very closely related to the deceased persons, did not try to rescue them nor took Muhammad Yaqub injured to the hospital and their above conduct lends support to the view that they were not present at the spot. This contention is also without any substance. Muhammad Latif and Nur Elahi P. Ws. rushed to the spot from their dera situate 25 or 30 Karams away on hearing the noise. In cross-examination Muhammad Latif P. W. stated that when he and his father started from their dera to the spot they had not taken any weapon alongwith them. Nur Elahi P. W. stated that the appellants threatened him and he `could not advance' towards them due to fear. Since the P. Ws. were empty-handed and had seen the fate of the unfortunate victims, they were not expected to make any effort to rescue them.

Muhammad Latif and Nur Elahi P. Ws. admitted that Abdul Shakur and Abaidullah P. Ws. had taken Muhammad Yaqub deceased to the hospital in injured condition. This circumstance does not in any manner show that Muhammad Latif and Nur Elahi P. Ws. were not present at the spot. It is on the record that Muhammad Latif had gone to the police station to lodge the report and Nur Elahi remained at his dera with the dead body of Muhammad Ayub deceased. It was for this reason that Muhammad Yaqub deceased was taken to the hospital in injured condition by Abdul Shakur and Abaidullah P. Ws.

12. Out of the three eye-witnesses, Muhammad Siddiq did not support the prosecution and was declared hostile. The evidence of a hostile witness normally loses all its evidentiary value and it can neither be used in favour of the prosecution nor against it. Muhammad Latif and Nur Elahi P. Ws. A supported the prosecution version as detailed in the earlier portion of this judgment. Muhammad Latif is the brother of the deceased persons and Nur Elahi P. W. is their father. However, the mere relationship of the eye-witnesses with the deceased persons is not by itself a sufficient ground for discarding their evidence. There was no background of previous enmity between the parties which could motivate the aforesaid B eye-witnesses to falsely implicate the appellants in a heinous crime like murder. The case of the prosecution is that the three appellant armed with daggers caused injuries to the two deceased persons resulting in their death. Muhammad Ayub appellant admits having caused injuries to the aforesaid deceased persons, but his version is that they attacked him with kassis when he was working all alone in his field and he caused injuries to them in self-defence. His statement under section 342, Cr. P. C. has been reproduced in the earlier portion of this Judgment. Having juxtaposed both the versions we are of the view that the version put forth by Muhammad Ayub appellant is absolutely unbelievable and there is not the slightest possibility of its being true. If he had been all alone in the field and attacked by the two deceased persons who pad kassis with them they would not have permitted him to come near them to attack them. It is a case in which two persons lost their lives due to violence. The number of the appellants is such as was required for an attack of this type and they are so connected with each other that they were expected to join hands in the commission of offence. At this stage it need be mentioned that the plea taken by Muhammad Ayub appellant was not suggested either to Muhammad Latif complainant or to his father Nur Elahi P. W. The defence version as put to Muhammad Latif complainant rather was that Muhammad Yaqub deceased married one Mst. Shaman after abducting her and her relatives became dead enemies of the complainant party. It is also important to note that in his earlier state ment dated 29th January, 1979, Muhammad Ayub appellant had not taken this plea and when asked to explain his injuries he stated. I do not remember as to how I was injured in respect of the injuries questioned. The defence version was, therefore, rightly rejected by the learned trial Judge. On the basis of evidence on the record, we are satisfied that it were the appellants who killed both the deceased persons.

13. Now we proceed to consider the question whether Exception IV to section 300, Pakistan Penal Code, is attracted to the present case or it falls under section 302, P. P. C. The prosecution version is that the lands of the parties are irrigated by an old common watercourse which leads to the land of the complainant party through the fields of Muhammad Ayub appellant. According to the F. I. R., a day prior to the occurrence the appellants demolished a portion of the said watercourse and on the day of occurrence at about noon time Zahur appellant again started demolishing it. Nur Elahi P. W. stopped him from doing so and he went away. It is alleged that the occurrence took place due to these incidents. At the trial Muhammad Latif P. W. admitted that the accused persons had not demolished the watercourse in his presence. He is, therefore, not an eye-witness to the aforesaid incident. Nur Elahi P. W. stated that one day prior to the occurrence Zahur and Ilyas had demolished his water course and on the day of occurrence Zahur again demolished the same, upon which he stopped him (page 34 of the paper-book). Subsequently he gave out that one day prior to the occurrence the watercourse in question was demolished by all the three accused and on the day of occurrence it was demolished by Ayub accused (page 39 of the paper book). His evidence on these incidents is inconsistent and reason for the same seems to be that this old man of 70 was subjected to a very lengthy cross-examination. Be that as it may, there being no other evidence regarding these incidents, we are of the view that the prosecution has not been able to prove that any incident of the type had taken place a day prior to the occurrence or on the fateful day fore the main occurrence.

 

The circumstances rather suggest that the occurrence happened all of a sudden when the deceased persons were repairing/clearing the water course. Nur Elahi P. W. stated that his deceased sons told the accused persons that "they will construct the Khal because they had to irrigate their land during the night", upon which the accused persons replied that they would not allow them to construct the Khal but the deceased persons insisted that they will construct the same. In his statement before the committing Court with which he was duly confronted, he had stated that there was an exchange of abuses between the parties. He admitted that an altercation took place between his deceased sons and the accused persons at the time of occurrence, It is also in his statement that at the time of "the start of the fight there were Kassis in the bands of Ayub and Yaqub deceased persons". The facts and circumstances of the case thus lead to the conclusion that there was no premeditation and a sudden quarrel resulted in a fight between the parties in which both the deceased persons on one side, and Muhammad Ayub appellant from the accused side, suffered injuries. The appellants were armed with daggers and the deceased persons bad Kassis in their hands. There were two injuries on Muhammad Ayub deceased and three on Muhammad Yaqub deceased. Muhammad Ayub appellant had two injuries on his person. 1n the circumstances, the appellants cannot be held to have taken any undue advantage of the situation or acted in a cruel or unusual manner. We are, therefore, of the view that Exception IV to section 300, P. P. C., is attracted to the facts of this case and the offence committed by the appellants falls within the ambit of section 304 (Part I), P. P. C. We, therefore, alter their conviction from section 302/34, P. P. C. to section 304 (Part I) read with section 34 of the same Code.

 

14. This brings us to the question of sentence. The appellants took the lives of two persons who were real brothers, therefore, they deserve the maximum punishment provided by section 304 (Part I), P. P. C. We, therefore, sentence Muhammad Ayub appellant to imprisonment for life and a fine of Rs. 2,000 on two counts. In default of payment of fine he shall undergo rigorous imprisonment for one year on each count. The sentence of imprisonment for life of the other two appellants, namely, Zabur and Ilyas, on two counts is maintained. Their sentence of fine of Rs. 2,000 each is also maintained. In default of payment of fine they will undergo rigorous imprisonment for one year each. The fine, if recovered, shall be paid to the heirs of the deceased persons in equal shares as directed by the trial Court. The sentences of imprisonment for life on each count in case of each appellant shall run concurrently. The death sentence of Muhammad Ayub appellant is not confirmed.

 

Criminal Revision No. 977 of 1979 automatically fails and is dismissed.

 

Order accordingly.