1. ' S. USMAN Au SHAH, J.-Accused Sarfaraz alias Faraza (27-28) son of Qadar Bakhsh, resident of village Awan, P. S. Saddar D. I. Khan, was tried under section 302, P. P. C. In the Court of Sessions Judge, D. I. Khan, on the allegation that he had, on 27-5-1975 at 8-30 a.m., committed the murder of Muhammad Nawaz Bailiff of the Court of Senior Civil Judge, D. I. Khan, by inflicting blows on his head and neck with kahi. The learned trial Judge found him guilty of the offence and sentenced him to imprisonment for life. He further fined him in the sum of Rs, 2,000 with direction that on realization, half of the same be paid to the heirs of deceased, or in default, he would undergo further R. I. For one year vide his judgment dated 21-10-1975.
2. ' The convict has come up in appeal to this Court against his conviction and sentence. It may be mentioned that when this appeal came up before a Division Bench of this Court, by an order dated 8-3-1977, their Lordships issued a suo motu notice to the accused to show cause as to why his sentence should not be enhanced from imprisonment for life to that of death. We propose to dispose of this appeal and the suo motu notice by this judgment.
3. ' The report of the occurrence was made by P. W. Ghulam Sarwar at 11 a.m. On 27-5-1975 at P. S. Sadar D. I. Khan, vide, F. I. R. (Exh. P. A.) recorded by A. S. I. Umar Hayat. The sum and substance of the F. I. R. Is that Qadar Bakhsh, the father of accused, was cultivating the agricultural land of P. W.
4. Ghulam Sarwar situated in the area of village Awan. Ghulam Sarwar obtained from the Court of Tehsildar, a decree against Qadar Bakhsh for the attachment of his movable property in lieu of the recovery of produce in respect of the said land. In this respect, the warrant of attachment was entrusted to Muhammad Nawaz Bailiff of the Court of Senior Civil Judge, D. I. Khan for execution. On 26-5-1975, qhulam Sarwar and Muhammad Nawaz Bailiff went to village Awan and stayed for the night with Abdul Aziz Lambardar. On the following morning, Abdul Aziz called P. W. Faiz Muhammad Kotwal and asked him to accompany Muhammad Nawaz Bailiff to the house of Qadar Bakhsh which he did. Shortwhile thereafter, the Kotwal and Bailiff came back to the place of Abdul Aziz telling that Qadar Bakhsh was not available in his house and had gone to the fields. Upon this, P.
5. Ws. Ghulam Sarwar and Faiz Muhammad Kotwal proceeded to the fields along with Muhammad Nawaz Bailiff. While they were on their way to the fields, the accused appeared from behind armed with kahi and asked the bailiff who was he to attach their property and immediately thereafter landed blow with kahi on his head as a result of which he was felled on the ground. While lying on the ground, the accused continued giving blows to Muhammad Nawaz Bailiff. This act of the accused made P. Ws. Faiz Muhammad and Ghulam Sarwar scare away from the scene for fear of their lives. Faiz Muhammad ran to his house, while Ghulam Sarwar took refuge in the Boring (tube- well) of P. W. Allah Wisaya.
6. ' After recording the report of P. W. Ghulam Sarwar to the above effect. A. S. I. Umar Hayat proceeded to the spot and found the dead body of the deceased lying there. He prepared the injury sheet and inquest report of the dead body and then sent it to the mortuary for post-mortem examination. Thereafter, he recovered from the spot pen (Exh. P. 3), stamp pad (Exh. P. 4), two warrants (Exh. P. G. And Exh. P. G./1) and handkerchief (Exh. P. ,.6). He also recovered from the spot blood-stained earth and a cross belt (Exh. P. 2) of the deceased and thereafter prepared site-plan (Exh. P. B.) and further examined the P. Ws. He then went to the house of accused in order to arrest him but he was not available. Later the investigation of the case was entrusted to S. I. Attaullah Khan. While investigating the case, the S. I. Was informed that the incriminating kahi was lying concealed in the Khola of Qadar Bakhsh, the father of accused, whereupon he went there and recovered the kahi (Exh. P-1) stained with blood. Meanwhile, one Hussainu came and reported to the S. I. That the accused committed a theft of shot-gun from his house. The S. I. Recorded his report in the form of a morasila and sent it to P. S. Paharpur, as the case belonged to that police station. The S. I. Adds that as the accused was not available, proclamation order for his arrest was obtained. Consequently, he was produced before him by All Muhammad, his paternal-uncle, Ghulam Rasool and Ghulam Haider Malik on 10-6-1975. He was found in possession of shot-gun No, 5316 alongwith bandolier containing 21 live cartridges. The S. I. Arrested the accused and sent the aforesaid articles to P. S. Paharpur. According to him, the bloodstained kahi sent to the Serologist was reported by him to be stained with human blood.
7. ' Dr. Jehanzeb Khan (P. W. 1) performed post-mortem examination on the dead body of the deceased on 28-5-1975 at 6-30 a.m. And found the following injuries on his person :- External Examination :
(1) One oblique incised wound on left mid skull 12 x I" scalp deep.
(2) One transverse incised wound on the lop of skull behind injury No, 1, 3" x 1/3' x scalp and bone deep.
(3) One incised wound on the left anterior lateral aspect of neck 2" x 1/2'. Neck vessels were cut.
8. Trachea cut.
(4) One incised wound on front of the upper part of the left chest, 1" x x cavity deep.
(5) Three small abrasions on the left top of shoulder 2/3' x i" each. Internal Examination : ' Cranium and spinal cord.-Scamp and skull injured, parietal bones of both sides fractured, membrance and brain injured.
9. ' Thorax.-Walls injured. Left second rib fractured anteriorly. Left pleura injured. Trachea injured. Left lung injured. Heart healthy and empty.
10. ' Death of the deceased, in the opinion of the doctor, was due to shock and haemorrhage as a result of the injuries to brain, left lung, trachea and left neck vessels. He further opined that the probable time between the injuries and death was within five months.
11. ' In support of its case regarding the guilt of the accused, the prosecution relied on the evidence of P. Ws. Ghulam Sarwar, Faiz Muhammad, Allah Wisaya, Saeed Ahmad, Moharrir of the office of Tehsildar, D. I. Khan, Ghulam Asghar Shah, Civil Nazir of the Court of Senior Civil Judge, D. I. Khan and the two Investigating Officers, namely, A. S. I. Umar Hayat Khan and S. I. Attaullah Khan. It also relied on the abscondence of the accused after the occurrence from 27-5-1975 to 10-6-1975 and the recovery of crime kahi (Exh. P. 1) from the house of the accused. As against this, the accused denied his culpability saying that he was innocent and falsely charged. When asked to explain his absence after the occurrence from 27-5-1975 to 10-6-1975 he stated that :- ' I was present in my village, I was arrested by the police on the very day of the occurrence and taken to police post Kiri Khaisor where I was confined and beaten by them. I was ultimately brought to D.
1. Khan on 10-6-1975 on which date my arrest was shown to have been effected.
12. ' He produced no evidence in defence.
13. ' P. W. Saeed Ahmad, Moharrir of the Office of Tehsildar, D. I. Khan testified to the fact that pursuant to the order of Tehsildar, the two warrants of attachement (Exhs. P. G. And P. G./1) had been issued against Qadar Bakhsh, the father of the accused. P. W. Ghulam Asghar Shah, Civil Nazir of the Court of Senior Civil Judge, D. I. Khan, deposed that the said warrants of attachment had been entrusted for execution to the deceased Bailiff Muhammad Nawaz.
14. ' The learned trial Judge disbelived the evidence of P. W. Allah Wisaya. It may be mentioned that he has not been named in the F. I. R. To have seen the occurrence nor has he claimed to have been the eye-witness. Even so, his evidence would appear to be contradictory and discrepant in character. We would, therefore, recall with approval the following observations of the learned trial Judge in respect of P. W. Allah Wisaya contained in Para. 7 of his judgment :- ' The name of Allah Wisaya is not mentioned in the F. I. R. As a witness. Nor is there otherwise any reference to him in relation to the occurrence. It is, therefore, contended by the counsel for the defence that he is a got-up witness and unworthy of reliance. It may be correct that he owns a tube-well near the spot, because there is nothing on the record to suggest to the contrary. But it seems either he was not present at the tube-well at that time or he did not learn of the occurrence in the manner claimed by him because his statement to the police and that made by him here and before the Inquiry Court are at variance in regard to his assertion that the accused confessed his guilt to him and that he or Ghulam Sarwar were present around his tube-well. He told to the police that the accused shouted to him from outside that he had killed a man who had fought with him and he should convey the information to his home people, but when he came out he found the accused going towards the village. At the trial he said that he was called out of his house by Sarfaraz accused and was told by him that he had killed a man and was going. There is apparent difference in these two statements and it cannot be said which one is correct. It can also not be understood as to why the accused had to tell the same to Allah Wisaya when he himself was proceeding towards the village. It seems ridiculous on the part of the accused to have said so and no sane man would do so to create evidence against himself. Then there were tenants present with him, but none of them came out on hearing the shout of the accused. The shout was not of ordinary type. It was about the murder of a person. If in fact the shout was made, the same could be heard by the tenants as it was heard by him (the witness Allah Wisaya). The simple fact that none out of the tenants got out of the house would show that there was no such shout made by the accused. Then he says that he called Ghulam Sarwar while he stood 40 paces to the North of his house and enquired from him about the matter and thus learnt about the occurrence from him, but Ghulam Sarwar has a different story to tell in this regard. According to him, as stated before the Inquiry Court, it was Allah Wisaya who shouted him that the Bailiff had expired and he should go back to the spot. This would suggest that he knew about the occurrence already and did not enquire from Ghulam Sarwar about it. The F. I. R. Shows that Ghulam Sarwar had himself gone to the tube-well and was not called by Allah Wisaya, because it is alleged there in that Ghulam Sarwar was empty handed and had gone for refuge to the boring . Of Allah Wisaya. In view of these variations and the omission of Allah Wisaya's name from the F. I. R. As a witness, I consider it unsafe to rely on Allah Wisaya.
15. ' We are now left with the evidence of P. Ws. Ghulam Sarwar and Faiz Muhammad Kotwal. There is no denying the fact that Ghulam Sarwar was the landlord of Qadar Bakhsh, the father of the accused, against whom the warrants of attachment of his movable property were issued. P. W.
16. Ghulam Sarwar is the resident of village Maryali and Qadar Bakhsh is the resident of village Awan where the land of Ghulam Sarwar under the cultivation of Qadar Bak Ilsh is situated. It would, therefore, be obvious that Ghulam Sarwar must have accompanied the deceased Bailiff Muhammad Nawaz to village Awan in connection with the attachment of the movable property of Qadar Bakhsh. P. W. Ghulam Sarwar stated that he and the deceased Bailiff stayed for the night at village Awan at the Chowk of Abdul Aziz Lambardar. He further deposed that :- "In the morning, Abdul Aziz Lambardar sent for the village Kotwal who came and accompanied by the Bailiff went: to the house of judgment-debtor, Qadar Bakhsh. I stayed behind at the Chowk of Abdul Aziz. After a shortwhile both the Kotwal and the Bailiff returned to the Chowk and said that Qadar Bakhsh was not present at this house and was away to his fields. Accordingly, I, Muhammad Nawaz Bailiff and Faiz Muhammad Kotal proceeded towards the fields. Faiz Muhammad Kotwal was ahead of us all, followed by the Bailiff and me. I was at a distance of 10/15 paces from the Bailiff. When we passed the Tube-well of P. W. Allah Wisaya, Faiz Muhammad Kotwal looked back and found the accused, son of the judgment-debtor, coming. He pointed out to the Bailiff that Sarfaraz, son of the judgment-debtor, was coming. I stood aside. Sarfaraz passed by me and was shown the warrants of attachment by the Bailiff on seeing which he told the Bailiff, who was he to attach the property of his father. Sarfaraz accused had a 'Kahl' with him with which he hit the Bailiff Muhammad Nawaz, deceased, on his head. The Bailiff on receipt of the blow on head fell to the ground. While the Bailiff lay on the ground, Sarfraz accused gave further blows with Kahl on different parts of the body. One of these blows landed on his neck and the other on his ribs. I could not see where the other blows hit him because out of fear I ran away. I knew the accused Sarfaraz previously because he was the son of Qadar Bakhsh my tenant. We were empty handed. I ran towards the East where the Tube-well of Allah Wisaya is situate. The Kotwal ran in a different direction."
17. ' Substantially to the same effect is the statement of P. W. Faiz Muhammad Kotwal and thus he supports P. W. Ghulam Sarwar. There is no reason to doubt the testimony of these witnesses, as it squares up with the circumstances of the case. The learned counsel fcir the accused contended that it is in evidence that at the behest of Abdul Aziz Lambardar, Faiz Muhammad Kotwal first accompanied the deceased Bailiff to the house of Qadar Bakhsh, the father of accused, but P. W.
18. Ghulam Sarwar did not accompany them and thus the prosecution case would appear to be doubtful. He added that had P. W. Ghulam Sarwar been really there, he would also have accompanied them in order to show to the plaintiff the house of Qadar Bakhsh. He, therefore, attempted to argue that P. W. Ghulam Sarwar was not at all present in village Awan at the time of occurrence. We do not see any force in this contention. The learned counsel conveniently forgets that for the purpose of showing the house of Qadar Bakhsh to the Bailiff and to help him in other respects, Faiz Muhammad Kotwal had accompanied the deceased Bailiff.
19. ' The learned counsel for the accused next contended that when P. W. Ghulam Sarwar did not accompany Faiz Muhammad Kotwal and the deceased Bailiff to the house of the accused, he could also be assumed to have not accompanied them to the fields thereafter in order to search Qadar Bakhsh. In view of this, the learned counsel urged that the two eye-witnesses would appear to have come forward to falsely depose against the accused. We are not impressed by this contention. It is true that P. W. Ghulam Sarwar deposed that he had not accompanied the deceased Bailiff and P. W. Faiz Muhammad to the house of Qadar Bakhsh. But this would not becloud his testimony. The learned counsel forgets that the deceased Bailiff had gone to the house of Qadar Bakhsh for the purpose of attaching his movable peoperty. It can thus be safely concluded that P. W. Ghulam Sarwar had not accompanied them to the house of Qadar Bakhsh for the fear that he would pick up quarrel with him, as his movable property against the decretal amount had to be attached and the presence of Ghulam Sarwar was not prudent on that occasion. In this view of the matter, the evidence of P. W. Ghulam Sarwar inspires confidence. Had he been a liar, he could as well state that he had accompanied the deceased Bailiff and P. W. Faiz Muhammad to the house of Qadar Bakhsh. We are, therefore, convinced that when the deceased Bailiff and P. W. Faiz Muhammad did not find Qadar Bakhsh in his house, they came back and took P. W. Ghulam Sarwar along with them, because their mission then was to search Qadar Bakhsh, only. Unfortunately, however, the accused met them in the way and assaulted the deceased with kahi resulting in his death.
20. ' The learned counsel for the accused next contended that Abdul Aziz Lambardar is the sister's husband of P. W. Ghulam Sarwar and thus highly interested person. He urged that P. W. Faiz Muhammad must have, under the direct influence of Abdul Aziz Lambardar, come forward to falsely depose against the accused. This contention would appear to be untenable. P. W. Faiz Muhammad is the Kotwal of the village and it is customary in the villages that Lambardar administers such like affairs of the village through Kotwal. It was, therefore, not unusual for Abdul Aziz Lambardar, to have asked P. W. Faiz Muhammad Kotwal to accompany the deceased Bailiff to the house of Qadar Bakhsh or to go along with him to the fields in search of Qadar Bakhsh. The contention of the learned counsel can be repelled on another ground also. There is nothing in the evidence to show that Faiz Muhammad Kotwal was in any way inimical towards the accused. We, therefore, do not see as to how Faiz Muhammad should falsely involve the accused in a murder case which was to result in his death sentence or imprisonment for life.
21. ' The learned trial Judge has suspected the recovery of crime kahi (Exh. P 1) from the Khola of the accused observing that it was not recovered in the presence of the accused and his father. We do not agree with him. The prosecution case is that the accused had dealt kahi blows to the deceased Bailiff. The medical evidence lends ample support in this respect. Furthermore, the kahi was found by the Serologist to be stained with human blood. In the circumstances, there can, therefore, be no doubt that the accused had used the crime kahi in the commission of the offence.
22. ' On a careful review of the evidence on record, we have come to the conclusion that when the complainant party first went to the house of Qadar Bakhsh who was found absent there, the accused came to know of the attachment of the movable property of his father and this annoyed him. He then armed himself with kahi and went after the complainant party for no other purpose than to make a murderous assault at them. It is understandable that when the complainant party met him in the way, the deceased Bailiff would have apprised him of the attachment of the movable property of his father whereupon the accused started giving blows to him with kahi.
23. ' The ascendance of the, accused after the occurrence from 27-5-1975 to 10-6-1975 and the recovery of shot-gun from his possession allegedly stolen by him from the house of one Hussainu are also corroborative pieces of evidence which establish the guilt of the accused. We do not see any force in the statement of the accused that he was arrested on the very day of occurrence by the police and taken to Police Post Kiri Khaisor. He had been directly charged in the V. I. R. For the murder of the deceased Bailiff and there was no reason for his confinement in the post by the police. Had there been any truth in this assertion, he would have made a similar statement before the Committing Magistrate. It is in evidence that the police had made hectic efforts to arrest the accused but he was avoiding his arrest. It was only in view of the arrest of his father and the seizure of his house hold effects that the accused was obliged to Court his arrest. As regards the theft of the shotgun from the house of Hussainu by the accused, it possibility also cannot be ruled out. In our view, he had committed the theft of the shot-gun for self-protection, as he was an absconder in a murder case.
24. As a result of the foregoing discussion, were entirely satisfied that the accused is guilty of an offence under section 302, P. P. C. However, the question would be whether the sentence of imprisonment for life awarded t the accused by the learned trial Judge was proper and adequate.
25. We have already come to the conclusion that the accused had gone after the complainant party armed with kahi in order to make a murderous assault at them, as he could not countenance the attachment of movable property of his father and when informed by the deceased Bailiff that he had brought the attachment order alongwith him for compliance, the accused inflicted a blow with kahi on his head as a result of which he dropped to the ground. Yet his passion was not assuaged and while the deceased was lying on the ground he gave four more blows on his head and neck which are vital parts of the body. All this is symptomatic of his obduracy. His intention was, therefore, no less than to see that the deceased was put to death on the spot. We do not agree with the learned counsel for the accused that PLJ 1977 (?) at p. 29 is attracted to this case. The facts of that case would in no way fit in with facts of the present case and again th accused in that case had dealt only one blow to the deceased, whereas in th present case, the accused has dealt as many as five blows to the deceased. It was, therefore, clearly a deliberate murder of a public servant on official errand committed by the accused very brutally to satisfy his vanity. In view of the evidence on record, we do not see any mitigating circumstance to let the accused-appellant go free with the lesser penalty of imprisonment for life awarded to him by the learned trial Judge. In our opinion, he richly deserves the normal penalty of death prescribed by the law.
26. ' In the result, while dismissing this appeal, we enhance the sentence of the accused from imprisonment for life to that of death.