MUHAMMAD AMIN Burr, J.-This judgment will disposed of Criminal Appeal Nos. 1119 of 1976, 1120 of 1976, Criminal Revision No. 325 of 1,977 and Murder Reference No. 28 of 1.977 arising out of the judgment dated 22-9-1976 passed by Mr. Muhammad Nasim, Sessions, Judge, Kasur. The learned Sessions Judge tried (1? Muhammad Ashiq son of Abdullah, (2) Muhammad Younas son of Muhammad Ashiq, (3) Amanat Ali son of Muhammad Ashiq, (4) Rehmat Masih son of Sunda, and
(5) Muhammad Sharif son of Muhammad Nawaz for the murder of Muhammad Anwar. While Muhammad Ashiq was acquitted, the rest of them were convicted under section 302/34, P. P. C.
Muhammad Sharif and Muhammad Younas were sentenced to death and a fine of Rs. 2,000 each or in default of payment of fine to undergo further R. I. For a period of one year and Rehmat Masih and Amanat Ali were sentenced to imprisonment for life and a fine of Rs. 2,000 each or in default of payment of fine to undergo further R. I. For a period of one year.
2. Briefly. Stated the facts of the case are that on 26-5-1973 an F. I. R. Exh. P. E. Was lodged by Abdullah P. W. 2, a real brother of Muhammad Anwar deceased, at 1 a. m. At Police Station, Kanganpur, District Kasur stating that at about 8/9 p. m. On 25-5-1973 his brother Muhammad Anwar was done to death by the four appellants and Muhammad Ashiq (acquitted co-accused) in a field within the area of village Ladi, P. S. Kanganpur, District Kasur, which is at distance of about 7 miles from the police station, In the F. I. R. Abdullah P. W. 2 (complainant) stated that about 1 -- months before the occurrence Muhammad Ashiq (acquitted co-accused) approached him with a complaint that his brother Muhammad Anwar deceased had cut joke with Mst. Barkatey, the wife of his son Muhammad Younas appellant and expressed his intention to take revenge from Muhammad Anwar deceased for the insult caused. Muhammad Anwar deceased on being questioned by Abdullah P. W. 2 confirmed the incident and further explained that he had illicit relations with Mst. Barkatey. On the fateful night Abdullah P. W. 2, brothers Abdul Rauf P. W. 3 and Muhammad Anwar deceased were present at their tube-well within the limits of village Lady when Rehmat Masih appellant came to see Muhammad Anwar deceased who went away with Rehmat telling Abdullah P. W. 2 that he had some work and would return soon. After about 15/20 minutes the complainant (Abdullah P. W. 2) and Abdul Rauf P. W. 3 heard an alarm BACHAOO BACHAOO" from the direction of Dingi Nalah some three killas towards east of their tube-well. Abdullah and Abdul Rauf P. Ws. Rushed towards the said Nalah. On their way Muhammad Ishaq P. W. 4, Ahmad Din and Beera P. Ws. (given up) who were also proceeding in that direction joined them. When they reached the bank of Dingi Nalah, they saw Muhammad Anwar deceased lying on the groundMuhammad Ashiq (acquitted co-accused) was holding him by his legs, Amanat Ali appellant holding him by the head and Rehmat Masih appellant holding him from his waist.
Muhammad Sharif appellant, armed with a toka and Muhammad Younas appellant, armed with a chhuri were inflicting blows on the deceased with their respective weapons. The complainant with his companions reached the spot and apprehended Muhammad Sharif appellant with the blood- stained toka. They also overpowered Rehmat Masih and Amanat Ali appellants. Muhammad Younas appellant and Muhammad Ashiq (acquitted co-accused), however, succeeded in escaping from the scene of occurrence. The right thumb of Amanat Ali appellant was chopped off with the toka blow inflicted by Muhammad Sharif appellant. Muhammad Anwar deceased succumbed to the injuries at the spot. Amanat Ali, Muhammad Sharif and Rehmat Masih appellant were handed over to Syed Aftab Ijaz S. I. P. W. -9 when he arrived at the scene of occurrence at about 4 O'clock on tire morning of 26th May, 1973. Thus the prosecution story is that the appellants murdered Muhammad Anwar to avenge the insult caused by the deceased by establishing illicit relations with Mst. Barkatey who is the wife of Muhammad Younas appellant, Bhabi of Amanat Ali appellant and daughter-in-law of Muhammad Ashiq (acquitted co-accused). While Muhammad Sharif appellant is a friend of the appellants and belongs to their party in the village, Rehmat Masih appellant is, however, allegedly an employee of Muhammad Younas and Amanat Ali appellants.
3. After recording the F. I. R. Around 1 a. m. Syed Aftab Ijaz, S. H. O. P. S. Kanganpur, P. W. 9 reached the place of occurrence around 4 a. m. On 26-5-1973, prepared the inquest report and the injury statement of Muhammad Anwar deceased and then sent the dead body to the mortuary for post- mortem examination. Amanat Ali, Muhammad Sharif and Rehmat Masih appellants who had been overpowered by the appellants during the occurrence were formally taken into custody by the Investigating Officer. Muhammad Ashiq (acquitted co-accused) and Muhammad Younas appellant were, however, arrested by the Investigating Officer P. W. 9 on 28-5-1973.
Blood-stained toka P. 1 which was snatched by the P. Ws. .From Muhammad Sharif appellant during the occurrence was produced by Abdul Rauf P. W. 3 which was taken into possession by the Investigating Officer vide memo Exh. P. A. Dated 26-5-1973. The recovery was witnessed by Abdul Rauf P W,
3. Muhammad Tshaq P. W. 4 and Syed Aftab Ijaz P. W.
9. On the same day blood-stained clothes of Muhammad Sharif appellant comprising of chadar P. I1 and kurta P. 12 were taken into possession by the Investigating Officer P. W. 9 vide memo. Exh. P. M. He also took into possession chadar P. 9 and kurta P. 10 of Amanat Ali appellant vide memo Exh. P. N. On the same day he took into possession the blood-stained clothes of Ahmad Din and Beera P. Ws. (given-up). On the same day the Investigating Officer P. W. 9 took into possession the blood-stained clothes of Muhammad Ishaq P. W. 4 comprising of kurta P. 15 and chadar P. 16 vide memo Exh. P. O/1. These recoveries were witnessed by Muhammad Ishaq P. W. 4, Ahmad Dm p. W. (given-up) and Syed Aftab Ijaz S. H. O., P.
W.
9. On the same day the blood-stained clothes of Abdul Rauf P. W. 3 comprising of chadar P. 2 and kurt- P. 3 were taken into nossession by the Investigating Officer P. W. 9 vide memo Exh. P. B.
The recovery was witnessed by Abdul Rauf P. W. 3, Muhammad Ishaq P. W. 4 and Syed Aftab Ijaz S. H. O. P. W. 9: The blood-stained clothes of Abdullah P. W. 2 comprising of shirt P. 6 and dhoti P. 7 were taken into possession by the Investigating Officer P. W. 9 vide memo Exh. P. F. The recovery was witnessed by Ahmad Din P. W. (given-up), Abdullah P. W. 2 and the Investigating Officer P. W. 9.
The recoveries of blood-stained clothes from the prosecution witnesses were effected in order to establish their presence at the time of occurrence. On 28-5-1973 Muhammad Younas appellant led to the recovery of chhuri P, 4 which was taken into possession vide memo. Exh, P. C. The recovery was witnessed by Noor Muhammad P. W. 5, Syed Aftab Ijaz S. H. O. P. W. 9 and Shabab Din P. W. (not produced). The blood-stained toka P. 1 chhuri P. 4 and the blood-stained clothes of the appellants as well as the P. Ws. Were sent to the Chemical Examiner who vide report Exh. P. U. To P. U/6 certified the articles as stained with blood. On a further reference the Serologist vide report Exhs. P. V. To P.
V./6 certified that the same were stainedwith human blood.
4. Dr. Nasim Ahmad Qureshi, M. O., Civil Hospital, Chunian, who conducted the post-mortem examination on the dead body of Muhammad Anwar on 26-5-1973 at 2-30 p. m. Found as many as 21 injuries on his person. In his opinion four of the injuries were individually sufficient to cause death in the ordinary course of nature. 18 injuries had been caused with a sharpedged weapon and 3 had been caused with a sharp-edged pointed weapon. All the injuries were ante-mortem. In the opinion of the doctor the time between injuries and death was some minutes and between death and postmortem was about 12 to 20 hours.
5. On the same day at 12-50 p. m. He examined Amanat Ali appellant and found the following injuries on his person:
(1) A cut wound almost completely amputating the right hand thumb transversely slightly above its middle. The distal part was attached only with a skin tag 1/10' wide on the front side. ; The distal part of the thumb was cold.
(2) A cut wound on the back of the right hand at the base of the index finger extending to the radial border and front of the right palm, size 2" x --''. Bone underneath' was partly cut. The extensor tendon of index finger was cut. He could not extend the index finger.
(3) An abrasion on the front of left knee size 1 -- '' x -- ''.
(4) An abrasion on the back of the left elbow size 1 -- '' x -- ''.
Injury No. 1 was grievous. Injury No. 2 was kept under observation and later declared grievous.
Injuries Nos. 3 and 4 were simple. Injuries Nos. 1 and 2 were caused with a sharp-edged weapon.
Injuries Nos. 3 and 4 were caused with a blunt weapon. Duration of the injuries was about 12 to 18 hours.
6. The appellants when examined under section 342, Cr. P. C. Pleaded not guilty. Muhammad Ashiq (acquitted co-accused) and Muhammad Younas appellant claimed that they were at Sarai Mughal on the date of occurrence and knew nothing about the incident.
Muhammad Sharif appellant claimed that he had a dispute with Abdullah P. W. 2 over the payment of the balance of the price of a buffalo sold by him to Abdullah P. W. 2 upon which he had taken back the buffalo while Abdullah P. W. 2 insisted on its return and had falsely involved him in this case.
Rehmat Masih appellant admitted that the deceased used to send messages to Mst. Barkatey through him and used to pay him for the service. He said that on the date of occurrence he carried a message from Muhammad Anwar deceased to Mst. Barkatey to meet him at the place where they used to meet earlier. He admitted having conveyed the message but asserted that after the occurrence Abdullah P. W. 2 bad informed ham that he had disclosed this message to Amanat Ali appellant who had surprised them and killed Muhammad Anwar. He contended that he had himself appeared before the police on being summoned. .
Amanat Ali appellant, however, admitted that-he had killed Muhammad Anwar but contended that he saw Muhammad Anwar deceased having sexual intercourse with his bhabl Mst. Barkatey.
He also stated that Muhammad Anwar deceased, who was armed with a toka at the relevant time, inflicted a blow with it which deprived him of his right thumb. He claimed to have snatched the toka from the deceased and caused his death with it. Thus while the first part of his claim if established would enable him to set up a plea for grave and sudden provocation, the second part if established would enable him to put up a case for self-defence.
7.i Before us Mr. Barkat Ali Saleemi, the learned counsel for Muhammad Younas, Amanat Ali and Muhammad Sharif appellants vehemtnly argued that the entire occurrence as alleged in the F. I. R.
Is a fabrication and that it was a night time occurrence and the deceased had been killed by some unknown assailants.
8. Both the prosecution and the defence admit that the deceased had illicit relations with Mst.
Barkatey. The defence story, however, is that they came to know of the relationship only on t ha date of the occurrence. The existence of such relationship is also discernible from the statement of Rehmat Masih appellant. The immediate cause of murder of Muhammad Anwar deceased, according to the statement of Amanat Ali appellant, is also the illicit relations between Mst.
Barkatey and the deceased. The F. I. R. Clearly records the fact that three of the appellants, namely, Muhammad Sharif, Rehmat Masih and Amanat Ali were apprehended by the P. Ws. At the time of occurrence. Later they were handed over to the police. In the occurrence Amanat Ali appellant lost his thumb with the toka blow inflicted by one of the appellants during the course of occurrence.
Amanat Ali appellant, however, ascribes this to the deceased. He claims that the deceased was armed with a toka while he was committing a sexual intercourse with Mst. Barkatey which goes to suggest that he apprehended attack from the appellants.
We are not inclined to agree with the learned counsel for the appellants that at the time of occurrence the deceased, armed with a toka, was having a sexual intercourse. Apart from the fact that this fact is not established by evidence, we consider it is highly improbable that the deceased having an apprehension of attack would also carry a toka as he had sex affairs with Mst. Barkatey.
While the prosecution does not suggest that Mst. Barkatey was present at the spot either before or during the occurrence, The defence has failed to establish the presence of Mst. Barkatey at the place of occurrence. In fact, she has neither been questioned nor medically examined. If that were done, perhaps the commission of sexual intercourse or her presence at the spot could be established.
The learned counsel for the appellants asserted that Abdullah P. W. 2 in his statement has admitted that his family owned two tube-wells, one of which was at a distance of about 3 to 4 killas and the other between 10 and 11 killas from the place of occurrence. He wants us to believe that the P. Ws.
Were at the distant tube-well from where they could not have possibly heard the alarm raised by the deceased who was killed near Dingi Nalab by some unknown assailants in' the darkness of the night; and that later on the prosecution got hold of the appellants and fabricated the case and planted the recoveries. He contended that the complainant is shown to have taken almost 4 hours to reach the police station while his relations from distant villages which are as far as 20 miles away from the place of occurrence had learnt of the occurrence and arrived at the spot before the police arrived there. This according to him is a case of deliberate delay in the lodging of the F. I. R.
And meditation to involve the appellants who were innocent.
9. Having gone through the evidence and considered the points raised by the learned counsel for the appellants, we feel that we are unable to agree with the proposition sought to be advanced by the learned counsel. There is no evidence on the basis of which we could assume that at the time o occurrence the prosecution witnesses happened to be at Daneywal or the distant tube-well and could not have possibly heard the alarm raised b Muhammad Anwar deceased. The fact that Rehmat Masih, Muhamma Sharif 'and Amanat Ali appellants were overpowered with blood-stained toka P. I. Is clearly recorded in the F.
1. R. The Police arrested the three overpowered appellants and took into possession toka P. I in the early hours of the morning of 26th of May, 1973. The clothes of Amanat Ali and Muhammad Sharif appellants were also stained with blood which the Serologist has certified to be of human origin.
Muhammad Ashiq (acquitted co-accused) and Muhammad Younas appellant are stated to have escaped. While Muhammad Ashiq was given the benefit of doubt and was acquitted by the learned Sessions Judge, we find that chhuri P. 4 was recovered at the instance of Muhammad Younas appellant. While the clothes of all the prosecution witnesses and the appellants were found as being stained with human blood, no clothes bearing blood stains have been recovered from or.
At the instance of Muhammad Younas appellant.
We have gone through the statements of Abdullah P. W. 2, Abdul Rauf P. W. 3, and Muhammad Ishaq P. W. 4, the three prosecution witnesses of the occurrence with the assistance of the learned counsel for the appellants and although they were subjected to a very lengthy cross-examination, the defence has not been able to get anything of consequence in its favour from them. The statements of the three witnesses are clear and consistent and do not admit of any material doubt.
10. Having reviewed the evidence we feel satisfied that the prosecution has succeeded in proving its case against Muhammad Sharif and Amanat Ali appellants beyond reasonable doubt, and the learned Sessions Judge has rightly relied on their apprehension from the spot at the time of occurrence as also the recovery of blood-stained clothes and the blood-stained .Toka P. 1 from Muhammad Sharif appellant.
The trial Court also recorded the finding that Amanat Ali appellant did not inflict any fatal blow to the deceased and awarded him lesser penalty. Muhammad Sharif appellant was, however, shown to have inflicted the fatal injuries on the person of the deceased.
11. The learned counsel for the appellants in the alternate prays this is a case in which the appellants have acted to defend their family honour and under the circumstances like the present maximum penalty of death should not be awarded. Reliance in this behalf has been placed on Fazal Khan v. State (PLD 1964 SC 54), Behram v. State (PLD 1965 Quetta 15), Umar Hayat v. State (PLD 1966 SC 602), Khudadad v. State (1974 SCMR 485). The authorities support the proposition that where the male relatives of a woman subjected to carnal desire have committed an offence under section 302, P. P. C. In the course of defending their family honour the maximum punishment prescribed by section 302, P. P.' C. Should not be awarded.
Mr. Amjad Ahad Sheikh, the learned counsel for the complainant contended that the benefit of lesser penalty ought not to be allowed to a person who i$ not a "family member" and who is shown merely to be a friend or belonging to a party of the assailants. The argument loses sight of the social background of the Province of Punjab where friends so often lay down their lives defending the persons or "family honour" of their friends and do participate in such occurrence with a genuine belief in what is a common saying `a friend's sister is their own sister'.. Thus they associate themselves with the offence in no lesser degree than the nearest relatives of the wronged woman.
No independent motive has been urged qua Muhammad Sharil appellant and the prosecution is unable to deny that motivation in his case was not different from the other appellants who committed the offence in the course defending their family honour. If a different motive was established, the prosecution plea for a different treatment could have some force. Having given the matter our anxious consideration in the context of the circumstances of the case we have come to the conclusion that the cases of friends who participate in such occurrences motivated by the. Sole desire to defend the family honour of friends ought to be governed by the same principle and awarded lesser penalty. Having reviewed the evidence we feel statisfied that the prosecution has succeeded in establishing beyond a reasonable doubt the complicity of Muhammad Sharif appellant in the murder of Muhammad Anwar deceased and his conviction under section 302, P. P.
C. Is accordingly maintained. However, having regard to the motive as alleged by the prosecution in the light of the aforesaid discussion we have come to the conclusion that the sentence of death awarded to Muhammad Sharif appellant should be converted into that of life imprisonment.
12. We now proceed to deal with the case of Muhammad Younas appellant who was not arrested from the place of occurrence but the prosecution had succeeded in recovering blood-stained chhuri P. 4 at his instance which is witnessed by Noor Muhammad P. W. 5 who happens to be a resident of a village 25 miles away from the place of occurrence. His presence at the spot on the date of occurrence is open to serious doubt. He appears to be partisan and claims to have reached the spot at 3-30 a. m., identified the dead body and witnessed the recovery of chhurl P. 4 on 28-5-1973. The learned counsel for the appellant rightly pointed out that at the most he could be a chance witness but the prosecution has not bothered to explain the reasons for his presence in village Lady on the date of occurrence. The testimony of this witness does not inspire confidence.
Shabab Din the only other person who is alleged to have witnessed the recovery was not examined. We are not satisfied that the recovery of chhuri P. 4 has been made in accordance with the requirements of section 103, Cr. P. C. No blood-stained clothes were recovered from Muhammad Younas appellant although the prosecution has been successful in producing the blood-stained clothes of all the persons present at the time of occurrence including the prosecution witnesses. In the circumstances we feel that the complicity of Muhammad Younas appellant with the commission of this offence is not free from doubt. Accordingly we grant Muhammad Younas appellant the benefit of doubt, set aside his conviction and sentence and acquit him of the charge of murder. He shall be released forthwith from jail unless he is wanted in connection with any other case.
13. Mr. Hassan Ahmad Kanwar, the learned counsel for Rehmat Masih appellant has drawn our attention to the fact that Rehmat Masih had no motive to kill the deceased and that according to the evidence led by the prosecution he carried some message for the deceased which prompted the deceased to accompany him to the place of occurrence. The prosecution case is that Rehmat Masih appellant held the deceased from waist while Muhammad Sharif and Muhammad Younas appellants inflicted as many as 21 injuries on his person. However, he is the only person who was apprehended from the place of occurrence but his clothes were not found to be stained' with blood. It is highly improbable that if he actively participated in the occurrence and held the deceased from his waist, his clothes would not be stained with blood. We feel that the prosecution has failed to prove its case against Rehmat Masih appellant beyond reasonable doubt. We, therefore, grant him the benefit of doubt, accept his appeal (Crl. Appeal No. 1119 of 1976), set aside his conviction and sentence and acquit him of the charge of murder. He should be released from jail unless he is wanted in connection with any other case.
14. In the result Criminal Appeal No. 1120 of 1976 filed by Muhammad Younis, Amanat Ali and Muhammad Sharif appellants succeeds to the extent that Muhammad Younas appellant is acquitted but the conviction and sentence of Amanat Ali appellant is maintained. However, the sentence of Muhammad Sharif appellant is reduced to imprisonment for life but the sentence of fine is maintained.
Criminal Revision No. 325 of 1977 for enhancement of sentence of Amanat Ali and Rebmat Masih appellants is, however, dismissed.
The sentence of death awarded to Muhammad Younis and Muhammad Sharif appellants is not confirmed.