Abdullah (58), his son Muhammad Yousaf (20), his brother Islam Khan (55) and his nephew Amanat Khan (24) and Nazir (22) were tried alongwith 'Ikram Khan (acquitted accused) on the charges of rioting, murder and murderous assault by Additional Sessions Judge, Sahiwal, who by his order dated 20th March, 1980 convicted and sentenced them as under.
NameConviction under sectionSentence Charge Abdullah Khan and Muhammad YousafTo three months R.I each.For having injured Muhammad Yaqoob P.W in attempt to commit culpable homicide in furtherance of their common intention.
Islam Khan, Muhammad Yousaf, Amanat Khan and Nazir.302/34, P.P.CTo life imprisonment each and a fine of Rs. 2,000 each in default thereof to undergo further six months--- R.IFor causing death of Tariq deceased in furtherance of their common intention.
All the convicts have preferred joint appeal (Criminal Appeal No. 443 of 1980) against their convictions and sentences. Muhammad Ashraf complainant (brother of both Tariq deceased and Muhammad Yaqoob injured P. W.) has filed a revision (Criminal Revision No. 439/80) praying for enhancement of the sentences of the appellants. Since both the criminal appeal and the criminal revision arise out of the same order, therefore, they are being disposed of by this single judgment.
2. The incident took place at 3-30 p. m. On 5th May, 1976 in a street of Chak No. 82/6-R, Sahiwal, at some distance from the house of Abdullah appellant wherein Tariq was killed and Muhammad Yaqoob P. W. Wasinjured. The police were informed of the occurrence by Muhammad Ashraf (P.W.
10), who lodged F.I.R. No. P.W. 10/A, recorded by Safdar Hussain Nazir, S.-I. (P. W. 13) at 4-30 p. m. The same day, at Police Station Sadar, Sahiwal at a distance of about 2 .Miles fror4 the place of occurrence,
3. The prosecution case as narrated in the F. I. R. Briefly is that Abdullah appellant suspected- Muhammad Yaqoob (P. W. 12) for having an affair with his daughter Mst. Shahnaz Akhtar. On the morning of the day of occurrence, he gave her beating on account of this suspicion and then approached Muhammad Ashraf (informant) and asked him to persuade his brother Muhammad Yaqoob P. W. To desist from maintaining liaison with Mst. Shahnaz. The same day at about 3-30 p.m. Muhammad Yaqoob happened to pass through the lane, where Mst. Shahnaz Akhtar resided.
He was attacked there by Abdullah and his son Muhammad Yousaf appellants with a hatchet and a stick respectively. Muhammad Yaqoob P. W. And Muhammad Siddiq P. W. (not produced) raised alarm which attracted, Muhammad Ashraf informant, his brother. Muhammad Tnriq (deceased) and Muhammad Umar (P. W. 11). They rescued Muhammad Yaqoob by requesting aforesaid two appellants to spare his life. Muhammad Ashraf with the help of Muhammad Siddiq were carrying Muhammad Yaqoob P. W. Towards his house while Muhammad Umar (P W. 11) and Muhammad Tariq deceased followed them at a distance of 10/12 Karams. As soon as they reached near the shop of Wali Muhammad, they were surprised by the appellants namely, Islam Khan armed with spear, Abdullah with hatchet, Muhammad Yousaf, Nazir and Amanat with sticks and Ikram Khan (acquitted accused) with a Barchi. Islam Khan allegedly raised lalkara that no body from the complainant party be allowed to escape alive and simultaneously they surrounded Muhammad Tariq. Muhammad Umar (P. W. 11) beseeched them for mercy but they turned deaf ear to his requests and started inflicting injuries to. Muhammad Tariq. Islam Khan gave him a spear blow in the chest, Muhammad Yousaf dealt three blows with stick on his head and right shoulder, Amanat caused injury on his chest, and Nazir gave stick blow on his left leg. As a result, Muhammad Tariq fell down. Abdullah appellant declared that 'he would take revenge for illicit relations of Muhammad Yaqoob with Mst. Shahnaz from the whole of his family. Thereafter, all the appellants disappeared from the scene. The witnesses went near Muhammad Tariq only to know that he had died. In the meantime, Ch. Sultan Mahmood uncle of the deceased and one Muhammad Yousaf reached there. Leaving the dead body of Muhammad Tariq under their care Muhammad Ashraf immediately removed the injured, Muhammad Yaqoob (P. W.) to Sahiwal hospital for treatment and got him admitted there. He then lodged report Exh. P. W. 10/A at Police Station Saddar, Sahiwal recorded by ,S.-I. Safdar Hussain Nazir (P. W. 13).
4. After registering the case, the Sub-Inspector left for the spot. Reaching there, he prepared inquest report of the deceased Exh. P. W., 13/A and sent the dead body for post-mortem examination. He collected blood--stained earth from the places where Muhammad Tariq was lying dead and also where Muhammad Yaqoob P. W. Fell injured, through separate Memoranda. He visited the house of one Dari and found Mst. Shahnaz lying there in injured condition and collected blood-stained earth from ,there also, vide memo. Exh. P. L.
5. He arrested all the appellants on 9th May, 1976. Blood-stained shirt P-10, and chaddar P-11, were removed from the person of Islam Khan appellant; blood-stained shirt P-13 and Chaddar P-14 were removed from the person of Abdullah appellant and blood-stained shirt P-15 and chaddar P-16 were seized from the person of Muhammad Yousaf appellant. Islam Khan led to the recovery of blood-stained spear Exh. P-17 from his kotha ; Abdullah got recovered blood-stained hatchet Exh.
P-21 from his house and Yousaf in the same manner got recovered blood-stained stick Exh. P-22 from behind an iron box in his residential kotha on his pointation. All these clothes and weapons were found stained with blood of human origin vide report of the Chemical Examiner. Exh. P. A. A.
And that of the Serologist Exh. P. B. B. After completing usual investiga--tion, challan was put in Court for trial.
6. Lady doctor Miss Nasim (P. W. 1) examined Mst. Shahnaz Akhtar daughter of Abdullah appellant on 5th May, 1976 at 5-30 p. m. And found following injuries on her-person:-
(1) A lacerated wound 3/4' x 2/10" into bone deep op the right side of skin.
(2) A lacerated wound x (star shape) 2" x 1 -- " on the head 4 -- " from the right ear, which is bone deep.
(3) A bruised wound 2" x 2" on the back of right of shoulder.
(4) A swelling on upper right eye-lid 3" X 2'.
(5) A swelling on the tip of nose 1/2" x 1/2".
These injuries were caused with blunt weapon within the probable duration of 12 hours.
7. Dr. Muhammad Amin Chaudhry (P. W. 2) examined Muhammad Yaqoob P. W. And noted more than 30 injuries spread all over his body caused with blunt as well as sharp-edged weapons which were ultimately found simple in nature. His injures Nos. 15, 17, 19 and 20 were described as multiple contusion/ wounds.
8. On the same day, the same doctor conducted post-mortem examination on the dead body of Muhammad Tariq and found thereon the following injuries :-
(1) A stabbed wound of entry 2 -- " x 1/4" x deep going on the front of left chest on and below the middle of left clavical.
(2) An incised wound of exit 1/2" x 1/4" x deep going on the back of left chest upper part 1" inner to the medial border of scapula 3" above the inferior angle of scapula.
(3) A contusion mark 4" x I/2" on the left chest in the auxiliary line about its middle.
(4) A contusion mark 4" x 1 -- " x on the top of right shoulder.
(5) A contusion mark 2" x 1" on the back of right elbow.
(6) A contusion mark 2" x 1" onthe left knee underneath patella fractured.
(7) A contusion mark 3 -- " x 1/2" on the inner and upper part of left leg.
(8) An abrasion 2--- 1/2" on the front and upper part of left leg 3" below the knee.
(9) A lacerated wound 2" x 1/4" bone deep on the left side of head 4' above the left ear.
(10) A lacerated wound 1" x 1/4" bone deep on the left side of head 1/2-- (above) behind injury No. 9.
There was fracture of left temporal bone under injuries Nos. 9 and 10. Walls of the chest and left plurae were found injured under injuries Nos. I and 2.Left parietal bone was fractured under injury No 6. Death in the opinion of the doctor occurred due to haemorrhage and shock resulting from injury No. 1 which was sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was about half an hour and between death and post-mortem examination was about three to six hours.
9. At the trial the prosecution relied on the following categories of evidence.
(a) Evidence of motive deposed to by Aziz-ur-Rehman (P. W. 9) and Muhammad Ashraf (P. W. 10).
(b), Ocular account furnished by Muhammad Ashraf (P. W. 10), Muhammad Umar (P. W. 11) and Muhammad Yaqoob injured (P. W. 12) ;
(c) Incriminating recoveries sought to be proved by Aziz-ur-Rehman (P. W. 9). Besides Safdar Hussain Nazir, S.-I. (P. W. 13) ; and
(d) Medical evidence provided by lady doctor Miss Nasim (P. W. 1) and Dr. Muhammad Amin (P. W.
2) as to the injuries of Mst. Shahnaz Akhtar and Muhammad Yaqoob P. W. And death of Tariq by violence.
10. The appellants admitted their relationship inter se i. e. Nazir and Amanat appellants are sons of Islam Khan appellant, who is real brother of Abdullah appellant, and Muhammad Yousaf appellant is the son of Abdullah appellant. Nazir, Amanat and Islam Khan appellants denied their presence and participation in the occurrence. They attributed their involvement to their close relationship with Abdullah appellant. However, Abdullah and his son Yousaf appellants have admitted their participation and raised two-fold plea of "grave and sudden provocation, and self-defence, Abdullah appellant in reply to the question "why this case is against you"? Made the following detailed statement :-, ---Ans. Mst. Shahnaz Akhtar, my daughter had intimacy with the daughter of Dari of my village being our neighbourer. On the alleged day of occurrence Mst. Shahnaz Akhtar, my daughter happened to be in the house of Dari mentioned above when none amongst the inmates of the house of Dari was there. I learnt about the presence of Mst. Shahnaz Akhtar in the said house. I, therefore, went there followed by Yousaf my co-accused. We found Mst. Shahnaz and Muhammad Yaqoob P. W. Sitting in the said house in an objection--able position. We lost self-control and, therefore, injured Muhammad Yaqoob P. W. And Mst. Shahnaz Akhtar under the stress of grave and sudden provocation. Tariq deceased also arrived in the meanwhile. He attacked us and we, therefore, apprehending danger of death or grievous hurt at the hands of Tariq deceased who was armed with a $un at that time we injured him while exercising the right of private and self-defence; when still under the incessant influence or grave and sudden provocation and apprehending a concerted attack on the part of Tariq deceased." The statement of Muhammad Yousaf is also in the same strain. They did not call any witness in defence.
11. The learned trial Court on a detailed examination of the material appearing on record disbelieving the motive stated by the prosecution, held that Muhammad Yaqoob P. W. Was spotted sitting in an objection--able position with Mst. Shahnaz in the house of one Dari and was attacked by Abdullah and Yousaf appellants under grave and sudden provocation. He, therefore, acquitted them from the charge under section 307/34, P. P. C. And convicted them under section 308/34, P. P.
C. This finding of the learned Additional Sessions Judge appears to me as based on correct appreciation of evidence and valid reasoning, hence unexceptionable. The recovery of blood- stained clothes removed from the persons of Islam Khan, Abdullah and Muhammad Yousaf appellants some 4 days after the occurrence has been rightly discarded a being improbable.
However, believing the eye-witness account and the recovery of weapons the learned trial Court found the appellants, excepting Abdullah, guilty under section 302/34, P. P. C., for the murder of Muhammad Tariq deceased but refrained from imposing upon them the normal penalty of death as he thought that the reasons for killing Tariq deceased has remained shrouded in extreme mystery.
12. I have heard the learned counsel for the appellants as well as for the State and also perused the record with their assistance.
13. Learned counsel appearing on behalf of the appellants vehemently argued that defence plea being equally probable should have been accepted in preference to the prosecution story. He emphasised that Nazir, Amanat and Islam Khan, who denied their participation deserved acquittal specially because Abdullah and Yousaf who admitted their participation had clearly stated that none else was with them. Lastly he argued that the learned trial Court despite having held that Muhammad Yaqoob P. W. Was attacked under grave and sudden provocation, when spotted in the company of Mst. Shahnaz Akhtar, in an objectionable position in the house of Dari, failed to appreciate that when Tariq deceased was attacked by Abdullah and Muhammad Yousaf, appellants they were still in an agitated and provoked state of mind, therefore, the benefit of Exception I of section 300, P. P. C. Accrued to at least Muhammad Yousaf, appel--lant because Abdullah has already been acquitted of murder charge.
14. As against this learned counsel for, he complainant as well as for the State argued that the pleas of self-defence and grave and sudden provocation were not available to the appellants in the circumstances of the case because Tariq deceased neither caused any provocation muchless "grave and sudden provocation" making the appellants to loose self-control and kill him, nor he had injured any one on complainant side.
15. It is desirable to examine the defence version by putting it in juxtaposition with the prosecution case for evaluating as to which out of the two is reasonably true and that whether or not the special pleas raised by Abdullah and Muhammad Yousaf appellants fit in the facts and circum-- stances of the case?
16. Muhammad Yaqoob P. W. Stated that at 3-30 p. m. On the fateful day he was passing through the lane of Abdullah appellant for going to Sahiwal, when Abdullah and Yousaf appellants attacked him. His cries attracted his brother Muhammad Ashraf and Tariq deceased besides Umar P. W.
He denied that Abdullah and Yousaf attacked him, on account of suspicion for having an affair with Mst. Shahnaz, although, prosecution had alleged this suspicion as motive for the attack. It is also in the evidence that when Muhammad Ashraf and Muhammad Umar P. Fir. Reached the spot Muhammad Yaqoob was already under attack, obviously therefore, they could not know as to what precisely preceded the attack on him. Since Mst. Shahnaz was found lying injured at the relevant time, in the house of Dari by the Investigating Officer, the learned trial Court, as observed earlier, rightly inferred that Muhammad Yaqoob P. W. Was spotted while sitting with list. Shahnaz in the house of Dari in an objectionable position by Abdullah and Yousaf, and was attacked by them under grave and sudden provocation.
17. The second part of the prosecution story that Tariq was murdered because Abdullah appellant had shouted out that they would take revenge of the illicit relations of Yaqoob P. W. With Mst.
Shahnaz Akhtar from whole of latter's family does not ring true. It is plain logic that if Abdullah and Muhammad Yousaf had such intentions then they would have attacked Muhammad Ashraf and Tariq both as soon as they reached the spot to rescue Muhammad Yaqoob, their brother. But they did not do so. Rather they had allowed: them to remove Muhammad Yaqoob alive who was actually found playing with their family honour. It seems that prosecution has deliberately suppressed as to what had prompted the appellants to select Tariq deceased as main target of their aggression. On the other hand the plea of Yousaf and Abdullah appellants that Tariq (deceased) duly, armed with gun came to the house of Dari where Muhammad Yaqoob and Mst.
Shahnaz were being belaboured by them, and attacked them and that apprehending threat to their lives they (appel--lants Abdullah and Yousaf) caused him fatal injuries, is equally uncon-- vincing. Had Tariq gone to the house of Dari armed with a gun then he would have fired at Abdullah and Yousaf and injured them from a safer distance without being hurt by them. Again if Tariq was injured fatally at Dari house as pleaded by Abdullah and Yousaf appellants then the question arises as to what had happened to his gun after he had fallen down. It has neither been found at the spot nor produced by or recovered from the appellants during the investigation. I have also noticed that the appellants have been continuously shifting ground during the trial e. g., in the first instance it was suggested to Muhammad Umar P. W. That the stick wielded by Yousaf appellant was iron shod, and therefore, some of the injuries found on the person of Muhammad Yaqoob P. W.
Showed characteristics of an injury caused with a sharp-edged weapon. This was an attempt on the part of the defence to falsify the prosecution story that Abdullah appellant had used hatchet in the occurrence and caused with it injuries to Muhammad Yaqoob P. W. Later another difficulty confronted them i. e. a stab wound, "through and through" found in the chest of Tariq deceased; which remained unexplained as it could not possibly be caused with an iron shod stick. In order to explain away this injury, another somersault was taken, and it was suggested to Muhammad Yaqoob P.W. That Yousaf was armed with "Ghandhala" type of weapon with which he caused injuries to Tariq deceased, and by making yet another shift, Muhammad Yousaf appellant in his statement under section 342, Cr. P. C. Stated that he was carrying a "Ghandhala having sharp- edged point" with which he caused injuries to Tariq in self-defence. A question would arise that if Yousaf was armed with "sharp-pointed weapon" then why Muhammad Yaqoob P. W., the first victim of aggression, did not suffer any stab wound. It is not his case that he had changed the weapon in between. It seems that the defence at first attempted to explain the incised wound of Muhammad Yaqoob, by suggesting that Muhammad Yousaf appellant had used an iron shod stick which caused wound to Muhammad Yaqoob injured P. W. Later on, in order to=explain the stab injury of Tariq deceased they placed Ghandhala (described as sharp-pointed weapon) in the hands of Yousaf. In the circumstances, I am not at all impressed that the defence version is reasonably probable muchless to be accepted in preference to the prosecution case. On the B other hand statements of Muhammad Ashraf and Muhammad Umar P. Ws. Are quite in line with the medical evidence as they stated that the spear blow was given by Islam Khan in the chest of Tariq deceased and the medical witness found a "through and through stab wound" in the chest of the deceased. The remaining injuries of deceased are the result of blunt weapon attributed specifically to each appellant. In view of the above discussion, I find that Muhammad Yaqoob was surprised along--with Mst. Shahnaz in objectionable position in the house of Dari by c Muhammad Yousaf and his father Abdullah and was attacked there. Muhammad Yaqoob ran into the street to save his life but was pursued and overtaken at some distance. Hearing alarm of Muhammad Yaqoob, his brother Tariq (deceased) and Muhammad Ashraf (informant) and Muhammad Umar P. W. Reached there and rescued him. When Muhammad Yaqoob was being taken home by Muhammad Ashraf etc. Tariq deceased followed them at slow pace and meanwhile other relatives of Abdullah namely, Amanat, Nazir and Aslam Khan appellants also arrived at the scene duly armed. It seems that Tariq having felt deeply perturbed seeing extensive injuries on his brother, Muhammad Yaqoob would have thrown some insulting remarks or abuses to the appellants, which flared up the appellants _who attacked him and giving formidable blows killed him while he was empty handed. To me, the attack appears to be under "sudden provocation" offered by the deceased to the appel--lants, but the provocation was certainly not "grave" so as to deprive the D appellants of their self-control to cause his death by giving numerous injuries.
18. For what has been said above, I hold that the learned trial Court has rightly convicted the appellants under section 302/34, P. P. C. For the murder of Tariq and sentenced them to life imprisonment. As the deceased had offered the provocation, therefore, the extreme penalty o death sentence, in the circumstances of the case, is not called for and the B sentence of life imprisonment is quite appropriate and adequate to meet the ends of justice. Consequently, I dismiss the appeal and maintain the convictions and sentences of the appellants. The revision petition seek in enhancement of sentence also fails and is hereby dismissed in limine.