M. Naeemullah Khan Sherwani, J.--Riaz Ahmad son of Allah Diwaya aged 24 years, was tried by a learned Additional Sessions Judge. Multan for the murder of one Shaukat Hussain, aged 20 years.
Through his judgment dated 20.12.1993, the learned trial Judge found him guilty of the said charge, convicted him under Section 302(b) P.P.C. and punished him with death.
2. Murder Reference No, 391 of 1998 seeks confirmation of the said sentence of death while the convict approached this Court with Criminal Appeal No, 1 of 1994 to impugn the above noticed conviction and sentence passed against him. Both the matters are being disposed of through this single judgment.
3. Occurrence of the alleged incident took place on 28.7.1992 at about 3.30 p.m. in the area of Adda 9-Kassi, Chak No, 3/MR, situated at a distance of five kilometers from the Police Station Makhdoom Rashid, District Multan and the matter was reported to the police at 4.00 p.m. on the same day at the police station by Muhammad Shafi complainant.
4. Muhammad Shafi complainant had put the matter succinctly by stating that he alongwith his son Shaukat Hussain runs a sweat Meat Hotel at Adda 9-Kassi in the area of Chak No, 3/MR. On the eventful day, at about. 3.30 p.m. he alongwith his sons Shaukat Hussain, Falak Sher and one Muhammad Akram Aasi was available at the hotel of one Noor Jamal at the above said Adda.
While sitting on cots, they were discussing their domestic affairs. Riaz Ahmad appellant while armed with Churri arrived there. He gave a blow with the same on the person of Shaukat Hussain on right side of his thorax region. A finger of his right hand was also injured in consequence of the same blow. Shaukat Hussain fell on the cot and breathed his last. The complainant, his son Falak Sher and Muhammad Akram Aasi had witnessed the entire occurrence and they made an effort to apprehend the appellant, who extended threats to their lives and decamped from the spot while still brandishing his Chhurri.
Motive behind the occurrence was that the appellant purchased sweats from Shaukat Hussain on credit. Abdout 5/6 days earlier,' Shaukat Hussain asked the appellant for payment of the credit money, who treated it as his personal insult. The appellant had issued threats of life to Shaukat Hussain. Due to this reason, the appellant had killed Shaukat Hussain.
5. Leaving Falak Sher and Muhammad Akram Aasi by the side of death body, Muhammad Shafi complainant left for the police station to set the police machinery into motion alongwith one Wahid Bakhsh. Muhammad Mansha, S.I. (P.W. 9) drew up F.I.R. (Exh.PG) correctly, as per dictation of Muhammad Shan (P.W.4).
6. Muhammad Mansha, S.I. (P.W.9) took over the uphill task of investigation. After assuming the role of an investigator, he hurriedly rushed towards the spot, carried out spot inspection, secured blood stained soil from the venue of occurrence. He also inspected the dead body, prepared injury statement and inquest report, and despatched the dead body to the mortuary for postmortem examination, to precisely know extent, nature, number of injuries and causative weapon. Last worn clothes of the deceased were also taken into possession by him. He arrested the appellant and effected recovery of blood stained Chhurri at his instance and sent him to the judicial lock up under valid orders of the Court when no longer required for investigation purposes. During process of investigation, he recorded statements of all the concerned witnesses and gave a final shape to the case. He challaned the accused to stand trial for the charge of murder.
7. On receipt of challan sheet, learned trial Judge indulged into scrutiny of the same and found it a fit case to proceed with the trial. After fulfilling all the legal formalities, a formal charge against the accused was framed and prosecution was directed to adduce evidence in order to bring home guilt to the accused.
8. Prosecution in order to achieve its object, ventured to produce as many as ten witnesses in all.
Brief reference to the evidence furnished by the witnesses is as under:-- P.W.1-Dr. Abdul Aziz, SMO, on 29.7.1992, performed autopsy on the dead body of Shaukat Hussain, and during external examination observed following injuries on his person:-- "1. Spindle shaped incised wound 4 cm x 1.5 cm x chest deep in front, lower and left side of chest with corresponding cut in shirt.
2. An incised wound 2 cm x 1/2 cm x skin deep with flap upward on the inner side of the right little finger.
During the process of dissection, sixth and seventh sternal end of cartilage were found to be cut.
Right ventricle pericardium were also found cut. Right ventricle of the heart was also cut. Four ounces of semi digested food was present. Urinary bladder contained two ounces of urine. Rest of the organs were found healthy.
Injury No, 1 was found sufficient to cause death in the ordinary course of nature, which was an ante-mortem injury caused by a sharp pointed weapon. Injury No, 2 was declared Ghair Jaifah Damihah Probable time that elapsed between injury and death was immediate and between death and postmortem was between 15 to 29 hours. Last worn blood stained clothes of the deceased having corresponding cuts were handed over to the constable alongwith other documents. Doctor prepared postmortem report (Exh. PA). Exh. PA/1 is pictorial diagram of the injuries. All the papers were duly signed by him. Shaukat Hayat, Draftsman (P.W.2) on asking of the police conducted spot inspection and on pointation of the prosecution witnesses prepared site plans in triplicate (Exhs. PD.PD/1 & PD/2). All the drawings and notes in black ink were in his hand and signed by him.
P.W.3-Muhammad Asghar, constable got conducted postmortem examination of the dead body from Dr. Abdul Aziz (P.W.1). He received last worn clothes of the deceased i,e, shirt (P1) and Shalwar (P2), which he made over to the Investigating Officer, who secured the same through recovery memo Exh. PE.
Most prominent of all the witnesses are Muhammad Shafi (P.W.4) and Muhammad Akram Aasi (P.W.5). They are eye-witnesses in the case and gave full account of the occurrence witnessed by them. P.W.4Muhammad Shafi complainant corroborated First Information Report lodged by him, in all its material aspects. P.W.5-Muhammad Akram Aasi also furnished ocular account in its entirety. Motive was also described by both the witnesses in their statements. They were cross- examined at length by the defence, but their testimony remained unshaken.
P.W. 6-Wahid Bakhsh identified dead body of Shaukat Hussain and attested recovery memo Exh. PE relating to last worn blood stained clothes of the deceased.
P.W.7-Iqbal Hussain joined investigation with the Investigating Officer. The appellant while in police custody had led to the recovery of a blood stained Chhurri (P3) from within an iron box lying inside his residential room voluntarily, which was taken into possession by him through recovery memo Exh. PH. The blood stained Chhurri was converted into a sealed parcel. Recovery memo Exh. PH prepared by the Investigating Officer was attested by him. Sketch of the Chhurri was also drawn by the investigating officer. The witness is a paternal cousin of the complainant and maternal cousin of Muhammad Akram Aasi (P.W.5).
P.W.8-Ghulam Sarwar, HC, on 9.8.1992, had delivered two sealed parcels allegedly containing blood stained soil and blood stained Chhurri to Muhammad Asghar constable for their onward transmission to the office of the Chemical Examiner. These parcels remained in tact in his custody throughout.
Muhammad Mansha, S.I. was the next to be examined by the prosecution as P.W.9. According to this witness on 28.7.1992, he was contacted by Muhammad Shan complainant in the precincts of the police station, who dictated First Information Report (Exh. PG) to him. He left for the spot, prepared injury statement (Exh. PB), inquest report (Exh. PC) and deputed Muhammad Asghar, constable (P.W.3) to escort the dead body to the mortuary for its postmortem examination, which he accordingly did. After post-mortem examination he received last worn clothes of the deceased from the above said constable and secured the same through recovery memo Exh. PE, attested by the witnesses. He prepared rough site plan of the place of occurrence (Exh. PJ). Blood stained soil was also collected by him from the spot through memo Exh. PF. He got prepared the site plans in triplicate (Exhs. PD, PD/1 & PD/2) from Shaukat Hayat, Draftsman (P.W.2) and recorded statements of all the relevant witnesses under Section 161 Cr.P.C. After a good deal of efforts, he became successful in arresting the appellant on 1.8.1992 and interrogated him about crime imputed to him. The accused accordingly led to the recovery of blood stained Chhurri (P3) from an iron box lying in a residential room of his house. It was made into a sealed parcel and taken into possession through memo Exh. PH. He delivered case property to the Muharrir for retaining the same in the Malkhana to be dealt with in accordance with the rules of investigation. On finalization of investigation, he prepared challan against the accused and submitted it to the Court in due course of time. P.W. 10-Manzoor Hussain, H.C., Muharrir of the police station received a sealed parcel containing blood stained soil from the Investigating Officer and then on 5.8.1992 he received another parcel allegedly containing blood stained Chhurri from him, which was kept in the Malkhana by him.
Nobody tampered with the above said parcels as long as the same remained in his custody.
9. Learned Prosecutor gave up Falak Sher. Rab Nawaz and Abid Hussain P.Ws. as being unnecessary and then by tendering into evidence reports of the Chemical Examiner and Serologist as Exhs. ,PK and PL, respectively, declared prosecution case close.
10. The appellant was then examined under Section 342 Cr.P.C. by the trial Court. All the incriminating evidence was put to him in order to enable him to offer some handsome explanation qua the crime imputed to him. He emphatically denied correctness of the allegations and set up his own version while answering Question No, 8, 'why this case against you and as to why the P.Ws. have deposed against you?" It would be beneficial to reproduce his answer in extenso: One person namely Kala son of Elahee Bakhsh who was servant of Shaukat deceased and his father Muhammad Shafi left their service from their sweet meat shop and joined my further as a servant in cultivation. Due to this reason Shaukat deceased and Muhammad Shafi suffered loss in their business and they got annoyed over me because they had doubt that on my instigation their servant Kala had left their service. On the day of occurrence it was about 2'0 Clock when, I was sitting at the Hotel of Noor Jamal under a Chapper built on four pillars in front of the hotel at a distance of 8/10 feet from the hotel, Shaukat Hussain deceased came there abusing me and saying that due to my instigation their servant Kala had left their service and they suffered loss and that he will teach him a lesson. Firstly he tried to grapple with me then he ran into the hotel and picked a Chhurri meant for cutting vegetables from there and when he tried to rush towards me, hotel wala Noor Jamal tried to capture him. Noor Jamal released him but due to his foot being entangled into his Shalwar he fell down on the ground and in this way by his own hand coming under neath of his body Chhurri pierced into his body. I am innocent. Shaukat Hussain deceased was himself responsible for his death. P.Ws. Muhammad Shafi. Falak Sher, Muhammad Akram Aasi were never present there. All the P.Ws. being close relative inter-se manufactured this false story and have falsely deposed against me."
He had expressed his desire to produce defence evidence, so he himself appeared as D.W. 1, but he opted not to make statement in disproof of the allegations brought against him as envisaged by the relevant provisions of Section 340(2) Cr.P.C.
11. Learned trial Judge after taking into his full consideration all facts and circumstances of the case, found and adjudged the appellant guilty of the charge, convicted him under Section 302(b)
P.P.C. and awarded him death sentence. He did not direct him to pay compensation to the legal heirs of the deceased, which was by all means imperative. Hence, this appeal.
12. Learned counsel for the appellant while arguing this appeal pressed into service following points for our consideration:--
(i) That Muhammad Shafi (P.W.4) and Muhammad Akram Aasi (P.W.5) were not only related inter- se, but also closely related to the deceased. Their presence at the spot was extremely doubtful.
(ii) That motive was not satisfactory proved, recovery evidence was also highly discrepant and not reliable one, and that the defence version might be true cannot be ruled out of the consideration.
(iii) That the extreme penalty of death was not called for in the peculiar circumstances of the case.
12-A. Conversely, learned counsel for the complainant assisted by the learned State counsel argued that the matter was reported to the police soon after the occurrence with due haste.
Presence of the witnesses was natural and that they had fully supported the prosecution story.
Learned State counsel however, submitted that, in any case, sentence of death was severe.
13. We have attentively heard respective arguments of both the sides addressed at the bar. After fullest evaluation of facts and circumstances of the case, we find that information of the said occurrence was laid before the police at the police station with utmost haste, which fact eliminates altogether any chance of deliberations and conference with each other on export of the complainant side to build up the story. Maximum importance is to be attached to the First Information Report because it is prompt and straight forward and contains all the material information regarding the offender, weapon used by him and the ideally specific part played by him during the course of incident.
Whatever motive was known to the complainant was also narrated by him in the first information report. There is no dispute with regard to time, date and place of occurrence. The appellant has expounded his own theory of actual manner and mode of occurrence in his statement.
We have exhaustively examined his version to ascertain truth of the matter. We find his version as absurd, ridiculous, fantastic and illusionary one. There is no ring of truth in it. It also does not appeal to reason or logic. It was never adopted by the appellant before the police during the course of investigation nor he produced any witness to substantiate the same. Thorough and discrete investigation was carried out by the investigating officer at the spot, but none came out with this version. Suffice it would be to remark here that the occurrence could not take place in the manner suggested to by the appellant. All that has been said by him in his statement is a mass of lies. It is a day time occurrence and it is not a case of mistaken identity. Presence of the eye-witnesses was most natural. They cannot be dubbed as chance witnesses. They had no earthly reason to implicate maliciously the appellant in this case. The statements of the eye-witnesses tally with each other and are confidence inspiring. The mere fact that they are related witnesses would not constitute a sufficient ground for en-bloc rejection of their evidence. Although they were subjected to lengthy cross-examination, yet, their testimony remained unshaken and no dent could be created in structure of the case.
14. Bad feelings amongst the two were there and, as such, occurrence took place when they both came across each other by chance. The deceased had to obtain credit money from the appellant and possibility that he may have used some insulting language against the appellant could not be ruled out altogether. What led to the occurrence or what transpired between the two immediately before the occurrence has also not been described by the eye-witnesses. We are of the view that some utterance was made by the deceased because of which emotions of the appellant became volatile. It is a sudden incidental affair, in which impulsive attack was made by the appellant. It is a case of solitary injury and the attack was not repeated. Doctor has admitted in cross-examination that a slight change in the direction of injury would not have consumed life of the deceased. The facts mentioned above can be treated as a mitigating circumstance in the matter of sentence.
15. Consequently, we find it absolutely unsafe to confirm the sentence of death awarded to the appellant, which is hereby set aside and we instead direct him to suffer imprisonment for life under Section 302(b) P.P.C. We also extend him benefit of Section 382-B Cr.P.C.
16. Taking into consideration that the learned trial Judge had not passed any order pertaining to payment of compensation to the legal heirs of the deceased as envisaged by the relevant provisions of Section 544-A Cr.P.C. we issue notice to the appellant to show-cause why he should not be ordered to pay compensation to the legal heirs of the deceased. Learned counsel for the appellant accepts the said notice. He simply prayed for leniency regarding amount of compensation.
17. Having heard learned counsel for the parties. We direct the appellant to pay a sum of Rs, 25,000/- as compensation to the legal heirs of the deceased and in case of default in payment thereof, he shall suffer simple imprisonment for further six months.
18. Murder Reference No, 391 of 1998 and Criminal Appeal No, 1 of 1994 are disposed of in the above terms. Death sentence is not confirmed.