Ghulam Mustafa and his son Muhammad Javaid were tried for the murder of Ghulam Nabi, -by the Additional Sessions Judge, Sialkot: Both were convicted: under section 302/34, P. P: C. And sentenced to imprisonment for life and a flee of Rs. 10,000 each ; or, in default, to suffer `one year R.Ieach.
The convicts have filed au appeal against the judgment of the trial Court.
Mashooq. Hussain complainant has filedrevision (Criminal Revision No. 239182) for enhancement of the sentence. Both these matters shall be decided by this judgment.
2. On 21-2-1981, Mashooq Hussain had gone to attend a marriage in village Philaura. On 23-2-1981 at 2-30 p.m after attending the marriage, he, Ghulam Nabi (deceased) and one Ghulam Rasul got down from the Bus at Langrewali. Mashooq Hussain and Ghulam Nabi went to purchase cigarettes from a nearby shop. In the meanwhile, Ghulam Mustafa and Muhammad Javaid came there.
Ghulam Mustafa abused Ghulam Nabi. He incited his son to kill him. Ghulam Mustafa caught hold of Ghulam Nabi. Javaid attacked him with dagger. He was injured in the left flank: He collapsed and fell down. Javaid inflicted more injuries. On the hue and cry of Mashooq Hussain, Liaqat Ali and Ghulam Rasul came to the spot. The injured was removed to the hospital where he died on 3-3- 1981.
The motive for the murder of Ghulam Nabi was that 8/9 years ago, he abducted Mst. Naziran wife of Ghulam Mustafa and mother of Javaid. The deceased got her marriage dissolved by a decree of the Court and married her. Prior to the murder of Ghulam Nabi, the parties quarrelled. A criminal case was registered.
On 23-2-1982 at 5-05 p.m. Mashooq Hussain made statement Exh. P.D/1 in the hospital. It was recorded by A. S. I. Muhammad Aslam, who sent the same to Police Station Saddar Sialkot, for formal registration of the case. Initially, a case under section 307 read with 34, P. P. C. Was registered but on the death of Ghulam Nabi, the offence was altered. To murder.
3. Mashooq Hussain and Ghulam Rasul appeared as eye-witnesses.
On 24-2-1981 Muhammad Javaid was arrested. On 1-3-1981, he got recovered blood-stained dagger P.6 from his house. It was taken into possession vide memo. P. M. Attested by Ghulam Rasul.
On 23-2-1981 at 3-45 p.m. Dr. Muhammad Younas examined Ghulam Nabi and on his death the same doctor performed the, post-mortem examina--tion. Injury No. 7 incised wound front of left lower chest 6.8 x 2.5 c.m. In the opinion of the doctor was the cause of death. The rest though incised wounds on different parts of the body but were simple.
4. Motive was admitted by the appellants in their statements before the trial Court. Rest of the allegations were denied and they pleaded not guilty. No evidence was produced by them in defence.
5. According to Mashooq Hussain, when they alighted at Adda Langrewali, the time was 2-30 p.m.
He and Ghulam Nabi had gone to by cigarettes when the two accused appeared. The son had a dagger the father was empty handed. In Mashooq Hussain's presence, Javaid gave, a Khanjar blow to the left flank of Ghulam Nabi. Another blow was given on the left side of his chest. The occurrence was seen not only by Mashooq Hussain but also by Ghulam Rasul and Liaqat.
He also deposed about the motive which has been referred to above.
Ghulam Rasul's statement before the trial Court was that on 23-2-1981 at 2-30 p.m. When he got down alongwith Mashooq Hussain at Bus Stand Langrewali and when the deceased and the first informant went to purchase cigarettes, Ghulam Mustafa and his son Javaid came. The former was empty handed; the latter armed with dagger. Ghulam Mustafa caught bold of Ghulam Nabi and the son stabbed him with the dagger. Number of injuries were inflicted on him.
According to Ghulam Rasul the accused came to the spot from the side of their house: They abused Ghulam Nabi before attacking him. Ghulam Rasul placed the injured in the tonga of Boota.
He was taken to civil Hospital Sialkot. Mashooq Hussain left for his village. Ghulam Nabi died it the hospital.
6. Learned counsel for the appellants contended that Ghulam Mustafa was empty banded. The part of Japha has been attributed to him so as to involve father and his son both. It was next submitted that both the witnesses were interested. They were inimical. The only independent witness Liaqat was given up on the pretext of having been won over. The ocular evidence as such was not reliable. Even, the recovery was doubtful. Both of them are, therefore, entitled to acquittal.
Last of all, learned counsel submitted that the conviction under section 302, P. P. C. Was neither legal nor proper. It was a sudden fight. Only one injury, according to the doctor, was found to be fatal.
7. Learned counsel appearing for the State supported the impugned judgment and the counsel for the complainant argued for enhancement of the sentence.
8. Ghulam Mustafa's participation is not free from doubt. He is about 56. He is getting on. As is evident from the post-mortem report, with the exception of one injury, rest were simple. Those were of minor type. Such injuries could be caused during scuffle between the two. Ghulam Mustafa is, therefore, given the benefit of doubt. He is acquitted. He shall be set at liberty, forthwith, if not required in any other case.
9. I don't think that Muhammad Javaid is entitled to acquittal because the case against him has been proved by the ocular evidence supported by the recovery of blood-stained dagger and the medical evidence. However, his conviction under section 302, P. P. C. Cannot be upheld.
No doubt, his mother after obtaining divorce married her paramour but that was no consolation for the son. When Javaid came face to face with Ghulam Nabi, the past of her mother revived. It was quite natural for a young man of 17 to be furious. His conscience pricked. He lost control and stabbed his mother's lover. In such circumstances conviction under section 302, P. P. C. Is set aside.
Instead, he is convicted under section 30 1, B Part II, P. P. C. And sentenced to five years.
He shall be given the concession under section 382-B, Cr: P. C. For the period during which he remained in custody.
It is not a case where the appellant is to be burdened with fine by way of compensation to the legal heirs of the deceased. The fine is remitted.
The appeal is disposed of accordingly.
10. There being no merit in the revision, it is hereby dismissed.