' Ghulam Muhammad (appellant in Criminal Appeal No.176 of 2000) and his two sons Abbas and Bashir Ahmad were tried under section 302 read with section 34, P.P.C. In case F.I.R. No.37 registered with Police Station Kathiala Sheikhan, District Mandi Bahauddin on 20-1-1998 for on that date in the area of Mianwal Ranjha within the jurisdiction of aforesaid police station, in furtherance of their common intention committing the Qatl-e-Amd of deceased Muhammad Khan.
2. On the conclusion of their trial, Ghulam Muhammad was found guilty of the Qatl-e-Amd of the deceased and so he was convicted under section 302, P.P.C. For the same and sentenced to death subject to confirmation by this Court and to pay compensation Rs.50,000 to the legal heirs of the deceased as required under section 544-A, Cr.P.C. While the involvement of his said sons in the matter was not found to be above doubt and so they were acquitted of that charge giving them the benefit of doubt.
3. Ghulam Muhammad feeling himself dissatisfied with his conviction and sentence has brought the same under attack by way of his afore-referred Appeal (Criminal Appeal No.176 of 2000).
4. The learned trial Court has submitted the above-mentioned reference to this Court (Murder Reference No.13 of 2000) for confirmation of his death sentence as required under section 374, Cr. P. C .
5. Muhammad Azam complainant, who is the maternal nephew of the deceased has challenged the acquittal of his sons. Abbas and Bashir Ahmad by way of separate appeal (Criminal Appeal No.2052 of 2000).
6. As all the three matters are essentially the outcome of one and the same case and under common sets of facts, hence, these are being disposed of by this single judgment.
7. The facts in detail stand contained in the impugned judgment. These are also available in the paper book. Hence, we avoid to burden this judgment unnecessarily by repeating all those here.
8. However, the facts in brief and strictly relevant for the disposal of these matters are that the said case was registered on the statement Exh.PA of Muhammad Azam (P. W.1).
9. He has mentioned therein that on 20-1-1998 at about 9-30 a.m. His maternal uncle Muhammad Khan went to the shop of blacksmith Ghulam Muhammad alias Gulla is their village to get made tin. He after short while of the same also went there for his own work. He when reached there and saw that Muhammad Abbas and Bashir Ahmad, the sons of said blacksmith had caught Muhammad Khan from his both arms and they were also abusing him and saying that they will teach him lesson for their insult. Ghulam Muhammad inflicted axe (Kulhara) blow to Muhammad Khan on his head, who fell down. In the meanwhile Muhammad Inayat and Mansha also reached there and they also witnessed the occurrence. They all three admonished Ghulam Muhammad and his two sons and got them aside and carried Muhammad Khan to civil hospital, Mandi Bahauddin in serious injured condition. He succumbed to his injury on reaching there.
10. The said blacksmith and his sons had murdered the deceased on suspicion of his illicit liaison with Mst. Seeman, the wife of blacksmith Ghulam Muhammad.
11. The prosecution at their trial has relied upon it's ocular testimony, medical evidence, recovery of crime-weapon blood stained axe P-1 from Ghulam Muhammad and the motive.
12. The said appellant and his two sons have pleaded bare denial. However, appellant Ghulam Muhammad unambiguously has admitted the existence of said motive with him against the deceased. They, however, neither produced evidence in their defence nor deposed on oath in disproof of the allegation appearing against them in the prosecution evidence.
13. The learned trial Court after hearing the parties has, come to the conclusion that as regards appellant Ghulam Muhammad, the charge of Qatl-e-Amd of the deceased stood proved against him to the hilt as per the above referred prosecution evidence on the record, while not against his those sons.
14. It with the same has convicted and sentenced him while acquitted his sons by giving them the benefit of doubt as said earlier.
15. It may be mentioned here 'that his learned counsel while advancing his submissions has frankly submitted that he does not assail his conviction and rather only requests for reduction in his sentence as immediate motive has remained shrouded in mystery and that the deceased had also contributed towards his death by going to his shop knowingly that he was fed up of his character and conduct of maintaining illicit liaison with his wife and so these factors constitute a strong element of mitigation in his favour leaving room for award of lesser penalty to him than death.
16. As against the same the learned counsel for the State assisted by the learned counsel for the complainant has supported the impugned judgment of his conviction and sentence saying that the prosecution as per it's above mentioned pieces of evidence on the record has fully proved the charge of Qatl-e-Amd of deceased against him and he so was rightly convicted and sentenced to death.
17. However, the learned counsel for the complainant Muhammad Azam (appellant in Criminal Appeal No.2052 of 2000) has submitted that the participation of the above two sons of the appellant Ghulam Muhammad also stood proved on the record and so their acquittal on the same sets of the evidence as was against their father was not justified and that the finding of their acquittal is not based on any sound reason borne out from the evidence on the record and it was perverse and capricious.
' He has requested that the finding of their acquittal may be reversed to into one of conviction.
18. We have carefully considered the above submissions made on behalf of the parties and gone through the record.
19. As is obvious from the above position that the conviction of appellant Ghulam Muhammad has not been assailed before us by his side and only prayer for reduction in his sentence has been made.
20. As regards his conviction we find that it has rightly not been assailed as the prosecution as per it's above discussed different pieces of evidence on the record has successfully proved the charge against him. It's ocular account has been rendered by the complainant Muhammad Azam (P.W. 1) and Muhammad Mansha (P.W.5).
21. Muhammad Azam has furnished the complete details of the incident. He no doubt is the maternal nephew of the deceased but in no way inimical towards the appellant Ghulam Muhammad. It has also not been found from his evidence on the record that he bore any grudge or any hostility towards him prior to the occurrence. So, he in very sense of the word could be said to be an independent witness for all intent and purpose.
22. Another factor, which has furnished corroboration to his testimony is the promptitude in lodging the F.I.R. The incident had taken place at 9-30 a.m. On 20-1-1998. The report regarding the same was made at the police station at 1-30 p.m. The same day. It is in his evidence that he firstly carried his deceased maternal uncle Muhammad Khan to the hospital at Mandi Bahauddin and when he was found to have expired, he then went to the police station and lodged the said report there.
23. He being close relative of the deceased could be first interested to save his life by providing him medical aid or treatment but the deceased had already breathed his last before it could be done so. The police station is at considerable distance of about ten/twelve miles from his village as per his evidence. So, the lapse of 3/4 hours in between the occurrence and the report to the police, thus, was quite natural and so had fully stood explained reasonably on the record. Hence, it could validly be said to be promptly lodged F.I.R. It had contained all the material details of the incident, i.e. The name of the appellant Ghulam Muhammad the weapon carried by him, the names of the eyewitnesses and the manner of happening of the incident. So, it could legitimately be used to corroborate him.
24. His testimony also stands supported by that of Muhammad Mansha P.W. He as per his evidence has no relationship either with him or the deceased. He also appeared to have no or background of hostility with the appellant Ghulam Muhammad. So, he too could be said to be an independent witness. His testimony is confirmatory to that of Muhammad Azam on all the major and significant details of the incident. There has been found no discrepancy at all inter se them on the material particulars of the prosecution case. They were fully consistent to each other on each such aspect.
So the ocular account has established that it was in fact appellant Ghulam Muhammad, who had caused fatal blow to the deceased with the axe P-1.
25. The learned trial Court, therefore, has rightly received such piece of evidence linking him up with the charge of the Qatle-Amd of the deceased.
26. The medical evidence has lent support to the same inasmuch as that Dr. Masood Ansar (P.W.2) has found the following injuries on the dead body of the deceased.
(i) Abbaded wound 12 c.m. x 3/4 c.m. Into skin deep over the back and lower part of right side of chest.
(ii) An incised wound 18 c.m. x 1-3/4 c.m. Into bone cut off with brain matter was coming out of the wound over the outer part of right side of head extending from the upper part of right ear up to middle of the head.
27. He has mentioned that injury No.1 was with blunt object and Injury No.2 with sharp-edged weapon and the latter proved fatal to the life of the deceased and these were ante-mortem. He has mentioned the time, which elapsed between the injuries and the death was within one hour and between death and post-mortem six hours. This time tallies with the time of infliction of injury to the deceased and occurring of his death and the autopsy on his dead body. It may be mentioned here that though Injury No.1 has been described by him to have been caused by blunt weapon but it is of the type of abrasion. The two eye-witnesses have mentioned that the deceased had fallen on the ground on receipt of injury inflicted to him by the appellant Ghulam Muhammad at his head. So, the Injury B No.1 could be the result of fall on the ground. Hence, it in no way it could be said to be in contradiction to the ocular testimony. This aspect has been attended to only to discharge the solemn duty of dispensation of justice by keeping in view all the. Material pieces of evidence on the record and their implications or effect on the fate of the case of both of the sides.
28. We have also found that the learned trial Court has also attended to this aspect in the evidence of the doctor. It was rightly so. It's observation in respect of this injury was almost the same as has been made by us above. Anyway, the medical evidence has fully supported the ocular testimony. This was rightly received as so by the learned trial Court.
29. As regards recovery of crime weapon bloodstained axe P-1 from the applicant Ghulam Muhammad, the same has been furnished by Muhammad Azam (P.W.1). The report Exh.PK of the Chemical Examiner has shown that the same was stained with blood. According to the report Exh.
PK/1 of the serologist, it was human blood. These reports, therefore, have established that the axe used by the appellant Ghulam Muhammad in inflicting fatal injury to the deceased was stained with human blood. The same was found from the place of occurrence and it was produced by Muhammad Azam before the I.O., who secured the same into possession vide recovery memo.
Exh.PB. This recovery is further supportive circumstance to the ocular testimony. It was also rightly received as so by the learned trial Court.
30. The motive set up by the prosecution against appellant Ghulam Muhammad stands admitted by his own self unambiguously. Hence, no discussion in respect of the same is called for. This was a strong circumstance in corroboration to the ocular testimony.
31. So as regards the appellant Ghulam Muhammad, his involvement in the matter of Qatl-e-Amd of the deceased stood proved on the record beyond any reasonable doubt. He, therefore, was rightly convicted for the same. However, in this regard it may be mentioned here that the learned trial Court has convicted him under section 302, P.P.C., while it should have been under section 302(b), P.P.C. As Ta'zir. We, therefore, maintain his conviction for the Qatl-e-Amd of the deceased but alter it to be one under section 302(b), P.P.C. As Ta'zir from section 302, P.P.C.
32. As regards the question of sentence to him, we find that no doubt he had suspicion of illicit intimacy of the deceased with his wife Mst. Seeman Bibi but what actually had happened between the two at the time of incident, which actually had prompted him to take away his life, is unclear from the evidence on the record. So the immediate motive, which has played in the matter has remained shrouded in mystery.
33. We have also found that it was the deceased, who in fact has contributed towards his death at the hands of the appellant Ghulam Muhammad on the relevant day. It is because of the fact that the said appellant had grudge against him on account of his having maintained illicit liason with his wife and he was sick of him on that account. This has so been found from the evidence of Muhammad Akram, I/Investigating Officer (P.W.9). According to him in the cross-examination, the people had told him that the appellant Ghulam Muhammad had wanted to leave the village out of grief on account of existence of illicit intimacy between his wife and the deceased but they had persuaded him to not to do so and convinced him that they will make the deceased to understand to desist from the same.
34. This shows that the appellant though was in the know of such state of affairs but he on the relevant day was particularly provoked by the visit of the deceased to his shop in that background.
So, seemingly the immediate cause of the Qatl-e-Amd of the deceased at the hands of the appellant was visit to his shop-cumdera. He thus, in fact by going there in that state of affairs had himself asked for his death at the hands of the appellant Ghulam Muhammad. These circumstances, definitely constitute a strong state of mitigation existing in his favour warranting lesser penalty in his case than of death.
35. We, therefore, have been persuaded to exercise our discretion in the matter of his sentence for safer administration of justice and so alter his sentence to imprisonment for life from death.
36. The learned trial Court has not mentioned that what will be the consequence of his failure to pay the compensation to the legal heirs of the deceased. We, therefore, have considered it necessary to mention such consequence to follow in such an eventuality. He shall suffer six months'
S.I. In the event of failure to pay the above mentioned amount as compensation to the legal heirs of the deceased. He shall be also extended the benefit of section 382-B, Cr.P.C.
37. With the above alteration and modification in his sentence, we dismiss his Appeal (No. 176 of 2000). The Murder Reference is answered in negative. The death sentence is not confirmed.
38. As regards the question of involvement of his two sons Abbas and Bashir Ahmad in the matter of Qatl-e-Amd of the deceased, the same undoubtedly has remained unproved on the record beyond any shadow of reasonable doubt. It is because of the fact that as per the ocular testimony, they both had held the deceased from his arms when their father Ghulam Muhammad had inflicted him fatal blow at his head.
39. They, firstly during the investigation were found to be not involved in the matter by not participating in the occurrence. Though this is mere opinion of the police regarding the question of their non-culpability in the matter and so it should have not been attached much weight to but it to some extent has left room to entertain doubt qua the question of their complicity in the matter.
40. Secondly, they if had caught the deceased from his arms as mentioned by the eye-witnesses and their father had intended to inflict injury to him with a formidable weapon like the axe, then there was every possibility with them to have suffered harm to their own selves in the event of infliction of injury to him. So, it is quite easily conceivable that no sane person will catch hold of a person from such an angle when someone is going to inflict him injury with a weapon of that kind.
Hence, on that count too the question of their participation in the occurrence to us has appeared to be quite doubtful.
41. We, therefore, have found that the learned trial Court has rightly exercised caution in analyzing the question of their involvement in the matter in the light of the above circumstances appearing from the prosecution evidence on the record. They, therefore, have rightly been extended the benefit of doubt.
42. The finding of their acquittal, thus, in really based upon the evidence on the record and not outside the same. The reasons advanced in basing the same are quite cogent and close to reality.
These were in no way artificial, fanciful or shockingly absurd. The finding of their acquittal, therefore, is maintained.
43. We, therefore, have found the Appeal (No.2052 of 2000) preferred by complainant Muhammad Azam to be without any force and dismiss the same summarily in accordance with section 421, Cr.P.C.