LIAQAT ALI PETITIONER VERSUS THE STATE RESPONDENT

1982 PLD 539

Appeal Dismissed

Lahore High Court

Muhammad Ilyas and Sardar Muhammad, JJ

Criminal Appeal No. 1194 and Murder Reference No. 308 of 1979

Date of Decision: 22/3/1982

JUDGMENT
 
MUHAMMAD ILYAS, J.?Liaqat Ali ; aged 20 years ; Muhammad Ilyas, aged 20 years ; and Ghulam Nabi, aged 29 years, all sons of Allah
Ditta, caste Kasab, residents of Chak No. 225/RB., Police Station, Sadar Faisalabad, stood trial on charge, under section 302 read with
section 34 of the Pakistan Penal Code, before the Additional Sessions Judge, Faisal­abad, for having caused the death of a co?villager, Abdul
Ghafoor, in furtherance of their common intention. By his judgment, dated the 29th October 1979, the learned Additional Sessions Judge
acquitted Muhammad Ilyas and Ghulam Nabi, but convicted Liaqat Ali, under section 302 of the Pakistan Penal Code and sentenced him to
death. He was also sentenced to pay a fine of Rs. 1,000 or, in default, to suffer rigorous imprisonment for one year. The fine, if realised, was
directed to he paid to the legal heirs of Abdul Ghafoor deceased, as compensation. Liaquat Ali has filed this appeal against the order of the
learned trial Court. There is also a reference (Murder Reference No. 308 of 1979) for confirmation of the capital punishment awarded to
him. Besides, a criminal revision (Criminal Revision No. 777 of 1980) has been filed by Ghulam Rasul, deceased, against the order of the
acquittal of Gbulam Nabi and Muhammad Ilyas. Ail these matters shall be disposed of by this judgment.
 
2. It is alleged . that on 30th June 1977, at 7?00 a.m., Abdul Ghafoor deceaqed went out alongwitb his mare to serve the mare with water at
a  khal  (watercourse) near the  abadi  of Chak No. 225/R. B. He had hardly reached the  khal  when Liaqat Ali appellant alongwith the
acquitted accused, namely, Muhammad Ilyas and Ghulam Nabi rushed towards him and raised lalkara that he shall not be spared. Liaqat Ali
appellant was armed with churri, Exh. P. 3, while Muhammad Ilyas had knife, Exh. P. 4, with him. Ghulam Nabi was empty handed. On
reaching Abdul Ghafoor, Ghulam Nabi caught bold of him in his clasp while Muhammad Ilyas dealt him two knife blows on the right arm.
On this, Abdul Ghafoor fell down on the ground and then Liaqat Ali appellant inflicted two injuries on his abdomen with his churri. Abdul
Ghafoor died instantaneously. This incident was witnessed by Ghulam Rasul, son of Riaz Ahmad (P. W. 7), who was cutting fodder in a
nearby field. He is brother of Abdul Ghafoor deceased. The occurrence was also witnessed by Ghulam Rasul, son of Ahmad Din (P. W. 8)
who was attracted thereto by the alarm raised at the spot.
 
3. As for motive behind the occurrence, the prosecution case is that 4 or 5 days earlier the deceased had a quarrel with the appellant and the
acquitted accused in connection with some trouble between the children of the parties, but the matter was settled by Noor Elabi (P. W. 10),
who is another brother of the deceased. The appellant and his companions, however, continued to nurse grudge against the deceased and,
therefore, on the day of occurrence, at the time of sunrise, when the deceased went out to ease himself the appellant and Muhammad Ilyas
(an acquitted accused), grappled with the deceased but they were separated by Ghulam Rasul (P. W. 7) and Zia Ilahi (not produced). On this,
the appellant and Muhammad Ilyas went to their houses boiling with anger arid thereafter took the life of Abdul Ghafoor in collaboration
with Ghulam Nabi.
 
4. The incident was reported to the Police by Gbulam Rasul (P. W. 7) by means F. I. R., Exh. P. E. It was recorded by Muhammad Akram (P.
W. 11), who was then posted as S. H. O., Police Station, Sadar Faisal­abad. After recording the F. I. R. the S. H. O. went to the spot and
prepared injury statement Exh. P. K. and inquest report Exh. P. B. in respect of Abdul Ghafoor deceased and despatched his dead body for
post?mortem examination.
 
5. Autopsy on the dead body of Abdul Ghafoor was performed by Dr. Major Yusaf Ali (P. W. 1), who found the following injuries thereon
:?
 
(1) A stab wound 2' x 3/4" x chest deep right side of the lower part of the sternum which had cut 6th and 7th ribs on right side and also cut
paricardium, right ventricle and left ventricle and lower lobe of the left lung.
 
(2) A stab wound 2' x 1' x cutting 6th and 7th ribs on the right. The wound had pierced, diaphragm and right lobe of the liver. This injury
was situated 2' lateral to injury No. 1.
 
(3) A stab wound 3 ½  ' x 1 ½ ' x whole girth of right arm lateral side near the elbow (entry).
 
(4) An incised wound l ½ ' x 3/4" x muscle wound of exit injury No. 3, medial side of the right lower arm.
 
(5) A contusion mark 1/4" x 1/4" x at the left eye at lateral angle.
 
(6) A contusion mark ½ ' x ½ ' left forehead.
 
It was also noted?by the said doctor that the pleura was out by injuries Nos. I and 2. Right cavity of the lung had fluid blood about 500 cc
but lung was healthy. Cavity of the left lung was full of blood and this lung had been cut by injury No. 1. The paricardium was also cut
injury No. 1 at right and left ventricle. In the opinion of the doctor the deceased, Abdul Gbafoor had died due to shock and haemorrage as a
result of injuries No. 1, 2, 3 and 4. These injuries were caused by sharp weapon and were sufficient to cause' death in the ordinary, course of
nature. Exh. P. A. is the copy of his post?mortem examination report.,
 
6. On 5th July 1977, that is after five days of the occurrence, the appellant and the acquitted accused were produced before the S. H. O. by
their father. At that time, the appellant had produced blood?stained churri, Exh. P. 3, while Muhammad Ilyas, the acquitted accused,
produced, blood?stained knife, Exh. P. 4 which were take into possession by the S. H. O. vide recovery memoranda, Exhs. P. G. and P. H.,
respectively. He also took into possession  kurta  Exh. P. 5 and  chaddar,  Exh. P. 6, both blood?stained, after removing the same from the
person of the appellant. The recovery relating. to these clothes is Exh. P. J. All the memoranda were attested by Dilawar Hussain (P. W. 9.)
and Muhammad Ishaq (not produced). According to the report (Exh. P. M.) of the Serologist all the aforementioned articles were stained
with human blood.
 
7. The appellant and the acquitted accused were eventually ehallaned by the said S. H. O. after completing the investigation.
 
8. The appellant and the acquitted accused denied having killed Abdul Ghafoor. Explaining as to why the case had been brought against
him, the appellant pleaded as following :??
 
"The deceased did not have good character. He developed some illicit relations with some female in the deras of Pathans nearby. My brother
Ghulam Nabi was injured by Khalid and Arshad relatives of Dilawar P. W. whereas a report on 29?11?1979 was registered under sec­tions
307/324/34, P. P. C., at P. S. Sadar. I produce the certified copy of that report Exh. D. B. Ghulam Rasul wanted the hand of my sister
Bashiran in return for the marriage of his sister to my brother Abbas which he declined. The deceased was killed near the cultivated fields in
the dark hour of the morning. We have been falsely involved by Ghulam Rasul and Dilawar, P. Ws."
 
The same plea was raised by the acquitted accused.
 
No evidence in defence was, however, led.
 
9. The learned Additional Sessions Judge acquitted Muhammad Ilyas and Ghulam Nabi for the following reasons :?
 
"The perusal of the statement of the doctor coupled with the post­mortem examination report Exh. P. A., one is led to the conclusion that the
injuries Nos. 1 to 4 were caused on the right side of the deceased, i.e., on the right side of the lower part of the sternum etc. and on the right
arm of the deceased. It is not reasonably possible that all the aforesaid injuries were caused by two persons standing on one and the same
direction. The motive for murdering Abdul Ghafoor deceased by Liaqat Ali accused is not only adequate but sufficient. He kicked Shahbaz,
son of Abdul Ghafoor deceased when Nawaz his cousin cut a joke with Shahbaz, the son of the deceased and Abdul Ghafoor deceased
quarrelled with Liaqat Ali accused. The plea of false implication raised by Muhammad Ilyas and Ghulam Nabi accused thus finds ample
support from the record. The complainant part only left out Abbas, the other real brother of the accused because their sister was married to
him. The 'Gapha' attributed to Ghulam Nabi accused thus appears to be proverbial and the part attributed to Muhammad Ilyas accused is
also not proved from the record. The medical evidence is inconsistent with the ocular evidence against Muhammad Ilyas accused. It is thus
proved that Ghulam Nabi and Muhammad Ilyas accused have been falsely implicated for the murder
of Abdul Ghafoor. The prosecution, therefore, has failed to being home their guilt beyond any reasonable doubt. Thus they are entitled to
the benefit of doubt."
 
In regard to Liaqat Ali appellant, the conclusion drawn by the Additional Sessions Judge was that case against him had been established
beyond any reasonable doubt. He was, therefore, convicted and sentenced under section 302, P. P. C.
 
10. It was contended by learned counsel for the appellant that no reliance could be placed on the ocular testimony furnished by Ghulam
Rasul (P. W. 7) and Ghulam Rasul (P. W. 8) as they were closely related to the deceased and Ghulam Rasul (P. W. 8) did not reside in Chak
No. 225/R. B. where the occurrence had taken place.
 
11. It is true that Ghulam Rasul (P. W. 7) is brother of the deceased and Ghulam Rasul (P. W. 8) is also related to him. As stated by Ghulam
Rasul (P. W. 8), his son Rafique is married to Mst. Rashidan's daughter, who is real sister of Abdul Ghafoor deceased. The said two
witnesses are, however, not strangers to the appellant because the sister of Ghulam Rasul (P. W. 7) is married to Abbas, a brother of the
appellant and the acquitted accused. The appellant and the acquitted accused are also grand?children of the paternal aunt of Ghulam Rasul
(P. W. 7). Ghulam Rasul (P. W. 8 too is related to the appellant and the acquitted accused. The relationship of the eye?witnesses with the
deceased is, therefore, no good ground for dis­carding their testimony.
 
12. It is not disputed that Ghulam Rasul (P. W. 8) does not live in Chak No. 225/R. B. where the incident had occurred. It was explained by
him that he had come to the said Chak to offer condolence on the death of one Siraj who was uncle of Abdul Ghafoor deceased and
maternal uncle of the accused. It is not the case of the appellant that the said Siraj had not died or he bad nothing to do with Ghulam Rasul
(P. W. 8). We, therefore, entertain no manner of doubt regarding his presence in the said Chak at the time of the occurrence.
 
13. There is nothing to show that the eye?witnesses had any enmity with the appellant. In his statement under section 342 of the Code of
Criminal ',B Procedure it was stated by the appellant and the acquitted accused that Ghulam Rasul (P. W. 7) wanted the hand of their sister
Mst. Bashiran in return of the marriage of his sister with their brother Abbas but they ha not complied with his desire. This plea is an
afterthought because no suggestion in this behalf was made to the said Ghulam Rasul. There is also no evidence to substantiate the plea
relating to the marriage of Mst. Bashiran. We are, therefore, not impressed by it.
 
14. It was submitted by learned counsel for the appellant that the evidence in respect of the recovery of blood?stained churri Exh. P. 3 was
not trustworthy. In addition, it was urged by him that it was highly improbable that after five days of the occurrence the appellant would
produce his blood?stained weapon by entering appearance before the police. As stated above, it was deposed by the S. H. O., Muhammad
Akram (P. W. 11), that after five days of the occurrence the father of the appellant and the acquitted accused had produced them before the
police and at that time the appellant had handed over blood?stained churri, Exhs. P. 3, to the S. H. O. while Muhammad Ilyas, an acquitted
accused had given blood?stained knife, Exh. P. 4.
 
15. The relevant recovery memos. are Exhs. P. G. and P. H. which were attested by the S. H. O. and Dilawar Husain (P. W. 9). Dilawar
Husain was subjected to lengthy cross?examination but nothing was brought out against him. In his statement under section 342 of the Code
of Criminal Procedure, it was? stated by the appellant that Khalid and Arshad, who were related to Dilawar Husain, had injured his
(appellant's) brother Ghulam Nabi and the matter was reported to the police, vide copy of F. 1. R, Exh. D. B There is no mention of Dilawar
Husain in Exh. D. B, It wa.s admitted by Dilawar Husain that Khalid and Arshad were indirectly related to him but he expressed ignorance
regarding the incident to which Exh. D. 19. relates. It is also to be noted that the said report was not made by the appellant or any of the
acquitted accused. Instead, it was lodged by Abdul Ghafoor deceased by stating that Ghulam Nabi was his nephew (brother's
son). If Dilawar Husain had resented the making of that report he should have supported the killers of the maker of the report instead of
appearing as a witness against them. Dilawar Husain has, however, acted conversely by deposing against the appellant and the acquitted
accused who are alleged to have killed Abdul Ghafoor, the maker of the said report. We are, therefore, not inclined to disbelieve Dilawar
Husain for what has been stated in Exh. D. B. There is noting against Muhammad Akram, S. H. O. (P. W. 11) who is the other witness of the
recoveries. We, there­fore, do not agree with learned counsel for the appellant that the evidence of recoveries did not inspire confidence.
 
. 16. As regards the plea  of  learned counsel for the appellant that the story of production  of  the churri by the appellant was highly
improbable, it was ruled in Nawab and 3 others v. The State PLD1965SC 522, that the production of weapon of offence by the accused is
not unreasonable or unnatural. We are, therefore, not inclined to overtook the recovery of churri merely for the reason that it was produced
by the appellant himself. The blood found on it was reported to be of human origin and, therefore, it connects the appellant with the injuries
which are alleged to have been caused by him.
 
17. This brings us to the motive for the offence in question. The evidence of motive was furnished by Ghulam Rasul (P. W. 7) and Noor
Elahi (P. W. 10). It is clear from their testimony that bad blood had been created between the parties due to the quarrel, involving their
children, which had taken place about 4/5 days before the occurrence. Also, on the' day of occurrence, shortly before Abdul Ghafoor was
done to death, the appellant and Muhammad Ilyas, an acquitted accused, had grappled with the deceased but they were separated by
Ghulam Rasul (P. W. 7). Noor Elahi (P. W. 10) is witness of the incident which had occurred about 4 or 5 days before the occurrence. As
stated above, Ghulam Rasul is closely related to both sides. Noor Elahi was not at all subjected to cross?examination. We are, therefore,
convinced that the appellant had motive to inflict fatal injuries to the deceased.
 
18. The injuries resulting in the death of Abdul Ghafoor were allegedly caused by churri, Exh. P. 3 and knife, Exh. 4. It was also deposed by
Dr. Major Yousaf Ali (P. W. 1) who had performed autopsy on the dead body of Abdul Ghafoor that injuries were inflicted with sharp
weapon. The medical, evidence is, therefore, in tune with the ocular testimony.
 
19. The plea raised by learned counsel for the appellant in relation to the medical evidence was that it had not been stated by Dr. Major
Yousaf Ali that the injuries attributed to the appellant were by themselves, sufficient to cause the death of Abdul Ghafoor in the ordinary
course of nature and, therefore, the appellant could not be convicted under section 302 of the Pakistan Penal Code for committing the
offence of murder. According to him, at best, he was guilty of making a murderous assault punishable under section 307 of the Pakistan
Penal Code.
 
20. In reply, it was submitted by learned counsel for the State that the injuries attributed to the appellants were on the vital part of the body
and were of serious nature and, therefore, the appellant was primarily responsible for the murder of Abdul Gbafoor.
 
21. As pointed out earlier, injuries Nos. I and 2 are alleged to have been caused by the appellant and injuries Nos. 3 and 4 by an acquitted
accused, namely, Muhammad Ilyas. The said four injuries are reproduced below for facility of reference :?
 
(1) A stab wound 2" X 3/4'° x chest deep right side of the lower part of the sternum which had cut 6th and 7th ribs on right side and also cut
pericardium, right ventricle and left ventricle and lower lobe of the left lung.
 
(2) A stab wound 2' x 1" x cutting 6th and 7th ribs on the right. The wound had pierced, diaphram and right lobe of the liver. This injury
was situated 2' lateral to injury No. 1.
 
(3) A stab wound 21 ½  x 1 ½  " X whole girth of right arm lateral side near the elbow (entry).
 
(4) An incised wound 1 ½ " X  ½  x muscle wound of exit injury No. 3 medial side of the right lower arm.
 
The extent of the damage done by injuries Nos. 1 and 2, as reported by the doctor, was as under :?
 
"The pleura was cut by injuries Nos. 1 and 2. Right cavity of the lung had fluid blood about 5jO cc but lung was healthy. Cavity of the left
lung was full of blood and this lung had been cut by injury No. 1 The pericadium was also cut by injury No. 1 at right and left ventricle."
 
The doctor had opined that Abdul Ghafoor had died due to shock and haemorrhage caused by injuries Nos. 1, 2, 3 and 4, which were
sufficient to cause death in the ordinary course of nature. It was not stated by him that injuries Nos. 1 and 2 were individually of collectively
sufficient to cause death in the ordinary course of nature. When cross?examined it was told by him that injuries Nos. 3 and 4 were not fatal
independently.? This means that in the absence of injuries Nos. 1 and 2 Abdul Ghafoor would not have died.
 
22. In cases like the one before us medical opinion is obtained with a view to finding out whether the injuries suffered by the deceased
could be caused by the weapon by which they are alleged to have been inflicted and his death could be the result of those injuries. While
giving his opinion if proper assistance is not rendered by the medical expert due to inexperience, inefficiency or any other reason, this does
not preclude the Court from drawing proper conclusion from the material available on the record. To hold otherwise would amount to
conceding the authority of the medical expert to decide the fate of such a case for which there is no warrant in law. If the assailant in a
criminal case breaks the head of his victim and thus hacks him to death but the medical expert opines that the injuries suffered by the victim
were not sufficient to cause his death in the ordinary course of nature, will the Court feel helpless in the matter and let off the assailant? The
answer, in our opinion, would be in the negative.
 
23. We regret to say that in the instant case the doctor did not give a?complete picture of the matter due to reasons best known to him. He
had not even spelt out the nature of the injuries which is generally done by stating that the injuries were grievous or simple. It was not
specifically stated by him that injuries Nos. 1 and 2 were sufficient to cause the death of Abdu Ghafoor in the ordinary course of nature but
this commission on his part ' of little consequence. It has already been noted that injuries Nos. 1 and attributed to the appellant were caused
on the abdomen of the deceased whir is a vital part of the body. They had gone very deep and had done extentiv damage. This clearly shows
that he had inflicted injuries with the intention of causing the death of Abdal Ghafoor. His intention to take the life of Abdul Ghafoor is also
discernible from the challenge thrown to him before he was assaulted. According to the eye?witnesses the appellant and the acquitted
accused had, before pouncing upon the deceased shouted that he shall not be spared. We, are, therefore, convinced that the appellant caused
injuries Nos. 1 and 2 with the intention of killing Abdul Ghafoor and that object was actually achieved. In this view of the matter, we are
unable to agree with learned counsel for the appellant that the appellant was not res­ponsible for the murder of Abdul Ghafoor.
 
24. In his statement reproduced above, the appellant made an . attempt to convey that Abdul Ghafoor had developed illicit relations with the
female of Pathans families having their deras near his Chak, and, therefore, the Pathan might have caused his death in the "dark hours of the
morning. There is no evidence to support this plea. Certain suggestions in the matte were made to the eye?witnesses but they were refuted.
We are, therefore. not inclined to believe that the Pathans had taken the life of Abdul Ghafoor.
 
25. Looking at the ocular testimony, the evidence of recovery of blood­stained  churri,  Exh. P. 3, the evidence of motive and the medical
evidence we are fully satisfied that the appellant bad intentionally caused the. death of Abdul Ghafoor. We, therefore, uphold his conviction
under section 302 of the Pakistan Penal Code.
 
26. As for the sentence, there is no mitigating circumstance in favour of the appellant. It was a premeditated murder which was committed
by the appellant in the broad day light. He, therefore, deserves no leniency. Accordingly, the death sentence awarded to him is confirmed.
This disposes' of the reference made by the learned trial Court. The other sentence imposed on him also does not call for any interference
and is, therefore, maintained. His appeal is dismissed.
 
 27. The revision petition filed by Ghulam Rasul (P. W. 7.) who is complainant in the present case, is against the acquittal of Muhammad
Ilyas and Ghulam Nabi. The revision has not so far been admitted to regular bearing. The incident had taken place about five years ago.
According to clause (a) of subsection (4) of section 439 of the Code of Criminal Procedure, we cannot convert the order of their acquittal
into the order of conviction. Even if after the admission of the, revision it is accepted the case will hay to be remanded for retrial. We are not
in favour of the retrial of the ca after five years, and are inclined to dismiss the criminal revision. In talon this view we are fortified
by Moulvi Asir?ud.Din Chowdhry v. The Crown PLD1953FC125, Resultantly, the criminal revision is dismissed in limine.