' Appellant Shamand alias Shaman (21) has been convicted by the Additional Sessions Judge, Sahiwal vide order dated 27-9-1980 for having committed the murder of Shah Muhammad son of Rehana and sentenced to imprisonment for life. He has also been sentenced to pay a fine of Rs, 5,000, in default whereof to suffer 2 years' R. I. The fine, on realisation, has been directed to be paid as compensation to the heirs of the deceased.
2 Muhammad Luciman complainant has filed Criminal Revision No, 1030 of 1980 for enhancement of sentence of the respondent. Since both the matters arise out of the same judgment, they are being disposed of by one judgment.
3. The occurrence in this case took place at 9 a. m. On 22-7-79 near the tubewell of Sardar Muhammad Latif in the area of village Asadullah Fur, Police Station, Depalpur. Formal F. I. R. Exh. PC/1 was recorded at the Police Station at 11-45 a. m. By Asghar Ali, M. H. C. (P. W. 3) on the same day on receipt of statement Exh. P. C. Made by Luuman P. W. 6, son of the deceased at 10-30 a. In. To Khurshid Ahmad, S. I. (not produced) at Dalmain Gunj, where the latter was present in connection with the investigation of some other case.
4. The prosecution case is that on the day of occurrence the complainant and the deceased were going to collect paddy seedling. When, at about 9.00 a. m. The deceased reached near the tube- well of Sardar Muhammad Latif, Shahmand appellant came out of his house armed with a Dauda and started giving injuries on the head and other parts of the deceased. On the noise raised by the deceased, Lucirrian complainant accompanied by Muhammad Amin P. W. 6 and given up P. W.
Abdul Ghafoor, who were following him, reached the spot. Seeing them the appellant ran away.
Shah Muhammad, who had fallen on the ground after receiving injuries, died on the spot.
5. Motive for the occurrence was that wife of Ahrnan, brother of Shamand appellant had returned to her father's house in Bahadur Nagar because of sonic family dispute.
10.12 days prior to the occurrence the father of Mst. Manzuran (the wife of Ahmad) came to their village with a divorce deed and asked the appellant and his brother as to why his daughter has been divorced. The appellant and his brother suspected that this divorce was forged by Shah Muhammad deceased.
6. The other motive was that the appellant wanted the hand of daughter of Muhammad Siddiq son of the Shah Muhammad deceased for marriage but the deceased did not agree, as a result of which the appellant felt annoyed.
7. The appellant was arrested on the same day, i. e. The day of occurrence. On 24-7-79 he led to the recovery of blood-stained soia P. 5 which was taken into possession vide memo. Exh. P. F., attested by Allah Wadaya P. W. 5, P. W. Fazil (given up) and Khurshid Ahmad, S.
1. Investigating Officer. After completion of necessary investigating the challan was put to Court.
8. At the trial the prosecution in all examined ten witnesses. Luqman P. W. 6 stated regarding the motive for the occurrence, and also gave the eye-witness account. He has by and large corroborated statement Exh. P. C. Which he made to the Sub-Inspector Khurshid Ahmad, on the basis of which F. I. R. Exh. PC/1 was recorded. Muhammad Amin P. W. 5 has corrobdrated him regarding the eye-witness account. He has also stated regarding the fact of Rehman's father-in- law having come to the village and having complained that why his daughter was divorced.
' P. W. 9 Allah Wadaya has deposed regarding the alleged recovery of blood-stained sota P. 5 at the instance of the appellant. No other witness has been examined to corroborate his statement.
' Post-mortem on the dead body of Shah Muhammad was performed by Dr. M. A. Rauf Bhatti P. W.
1. He noted the following injuries:-
(1) A lacerated wound 5 cm x 1 cm x bone deep on the left side of head 7 cm above the ear.
(2) A lacerated wound 2 cm x 3 cm x through and through on the left ear.
(3) Multiple contusions with swelling in an area of 10 cm X 8 cm on the outer and upper part of the left neck.
(4) An abrasion 1 cm x 1 cm on the right side of forehead.
(5) A lacerated wound 1 cm x 1 cm x skin deep on the back and left side of head.
(6) A lacerated wound 4 cm x 2 cm x bustle deep on the back and upper part of left forearm. Both the bones underneath were fractured.
' According to his opinion death was due to shock and internal hemorrhage, as a result of Injuries Nos. 1 and 6. In cross-examination he has admitted that there was no fracture underneath Injury No. 1, and that chances of survival are more when there is no fracture of scalp. He also admitted that normally the injury of the type of Injury No, 6 is neither dangerous nor fatal.
9. The appellant in his statement under section 342, Cr. P. C. Denied the allegations. He has also denied to have got recovered blood-stained sota P.
5. In answer to question, 'why this case against you and why the witnesses have deposed against you', he stated : "I have been falsely implicated in this case. Muhammad Siddiq brother of Luqman had filed an application under section 25 of the Guardian & Wards Act for the custody of his children against Mst. Hanifan one year prior to the present occurrence. I use to help Mst. Hanifan against Siddiq. As such Luqman is opposed to me and has implicated me in the present case,"
' In answer to the question, 'have you anything else to say', he stated; "I am innocent. Sardar Muhammad Latif Dogar is supporting Luqman and as such he got the service of Amin, P. W. And produced him against me as a P. W. Shah Muhammad demanded Rs, 1,800 from my father and he had been insisting for the payment of that money but my father was not acceding to the demand of Shah Muhammad deceased. Shah Muhammad was an old man.
He in fact went to or house and had a quarrel with my father and mother and abused them... My father and mother retaliated and had a fight with him. Shah Muhammad deceased received these injuries at the hand of my father and mother. I was not present at the time of the occurrence, when I came to my house I learnt this thing from my parents. Not a single witness had witnessed the occurrence but they bore grudge against me as explained above and as such just implicated me falsely in the present case."
' He opted to produce defence vide statement dated 10-8-1980 but on 16-9-80 he stated that he does not want to produce any defence evidence.
10. Learned counsel for the appellant has raised the following contentions:-
(a) that non-production of Khurshid Ahmad, S. I. Who had recorded- the F. I. R., statements of the P.
Ws. Under section 161, Cr. P. C., arrested the appellant and effected the recovery, at the trial has materially prejudiced the appellant. Reliance in this regard has been placed on A. K. M. Reza and others v. State PLD 1958 Dacca 111; whereig the case was remanded for recording the evidence of the Investigating Officer; and Muhammad Sharif and another v. The State 1972 P Cr. L J 1259; wherein the appellant was acquitted;
(b) that secondary evidence produced in this case through the statement of Asghar Ali, Head Constable P. W. 3, has not been done in accordance with law. In this regard, learned counsel has cited:
(i) Chainhal Singh v. Emperor, AIR 1946 P C 1.
(ii) Allah Ditta v. The State PLD 1958 SC 290.
(iii) Abdul Ghani and others v. The State PLD 1959 Dacca 944.
(iv) Farid Khan v. The State PLD 1969 Pesh.
1.
(v) Muhammad Shafi and 3 others v. State PLD 1972 Lah.
661.
(vi) Hussain Bakhsh v. The State 1971 P Cr. L J 1331.
(c) that since the learned trial Court has not believed the evidence of motive, no credence can be given to the other prosecution witnesses as the motive alleged by them has not been proved;
(d) that the eye-witnesses had not seen the occurrence and they have been set up falsely;
(e) that the evidence of production of blood-stained Sota P. 5 by the appellant before the Police cannot be given any credence, as it is not in consonance with the conduct of the appellant who has denied the charges; and
(f) that even if it is accepted that the appellant had attacked and caused injuries to the deceased he cannot be held liable for having committed the murder of his uncle, at the best he can be held liable for having intended to have caused grievous injuries to the deceased. In this regard reliance has been placed on Sobdar and 3 others v. The State 1969 P Cr. L J 1473.
11. Learned counsel 'for the complainant/State have controverted the arguments advanced by the learned counsel for the appellant, and have argued that the prosecution has been able to prove the motive and that the learned trial Court has discarded the evidence of motive for insufficient reasons. It is contended that the complainant in this case is first cousin of the appellant and there is no reason to disregard his evidence while Muhammad Amin P. W. Is an independent witness.
With regard to the objection of not examining Khurshid Ahmad, S. L, it is argued that since he had died, the only course left open was to have produced secondary evidence which has been led through a witness who had served with him and was well versed with his signatures and handwriting. It has been argued that there is no force in the contention of the learned counsel for the appellant that the appellant is not liable for having intentionally committed the murder of Shah Muhammad (deceased).
12. The contention of the learned counsel for the appellant that the process of law was not observed nor due care and diligence was shown by the learned trial Court before allowing the prosecution to produce the secondary evidence regarding the evidence of Khurshid Ahmad, S. I., has no force in view of the fact that the case of the prosecution was not that Khurshid Ahmad, S. I.
Was not available, the prosecution case is that he had died. Asghar Ali, Head Constable P. W. 3 who has deposed regarding the death of Khurshid Ahmad, S. I. Was not cross-examined, which means that the accused did not contest the statement of the witness that Khurshid Ahmad, Sub-Inspector had died. In the presence of the evidence that P. W. Khurshid Ahmad, Sub-Inspector had died, the learned trial Court had to proceed in accordance with the provisions of section 33 of the Evidence Act. All the authorities cited in this regard relate to the witnesses who were alive but were stated to be not available for one reason or the other, and in the circumstances of each case their Lordships came to the conclusion that proper legal steps for their production, and the evidence of their genuinely being not available, was not brought on record. In none of the authorities cited, the secondary evidence was led of a witness who had died. I had put a question to the learned counsel for the appellant if he has the instructions that the witness is still alive, he was not able to say that the witness was alive. As such no benefit can be given to the appellant for non-production of this witness, as he had 'died and the provisions of section 33 of the Evidence Act have been complied with.
13. I have considered the evidence of motive. Learned counsel for the appellant has pointed out that no question has been put to P. W. 6 Muhammad Luqman regarding the motive arising out of the allegation of divorce of Mst. Manzuran having been sent, and of Ghular Nabi, her father's having come to the village and having complained. With regard to the other motive learned counsel for the appellant has pointed out that a suggestion was put on behalf of the appellant to P. W. 6 that the appellant has been involved in this case in order to do away with him as he was going to marry Mst. Shiman. In this view of the matter, the observations made by the learned trial Court with regard to this piece of evidence do not seem to be substantially correct. The evidence in this regard, as such cannot be lightly discarded.
14. The objections raised regarding the evidence of production of blood-stained Sota by the appellant before the Police seem to have weight, The appellant, according to the prosecution had appeared on the third day of the occurrence. It does not seem probable that he would have appeared and produced the Sota, and that too without removing the blood from the same. The statement of p. W. 9 in this regard does not find corroboration from any other evidence.. The other recovery witness-has not been produced while the Sub-Inspector before whom the Sota was produced, had died.
15. There seems to be no good and cogent reason to discard the eyewitness account. One of the witnesses, although is son of the complainant, c but he is first cousin of the appellant also. No good ground has been made out to discard his evidence. After all, why should he falsely depose against his own uncle's son. The other witness is an independent witness. There is no allegation that he was inimical to the appellant or was friendly to the deceased or the complainant. The only allegation is that he was also a `Raiyat' of Sardar Muhammad Latif, of whose `Raiyat' the complainant is also stated to be. The complainant and his father were cultivating the land of one Ghulam Muhammad.
Muhammad Amin P. W. Was earning his livelihood by running a Bicycle Repairing shop. If both of them had agreed to help Sardar Muhammad Latif for collecting the seedling of paddy or for sowing the same, this would not mean that same relationship had developed between the two.
May be, both of them were engaged for the job, and may be, both' of them had been requested.
Mere fact of the getting together for doing some job of a third person does not mean that relationship had developed between the two. The reasons deposed by these witnesses for being near about the place of occurrence finds corroboration from the statement of Sardar Muhammad Latif. The discrepancies pointed out in their evidence and some slight improvements made by them, do not mitigate the evidentiary value of their statements in any manner, and as such .1 do not fell inclined to agree with the learned counsel for the appellant that the eye-witness account in this case cannot be relied upon.
' In the circumstances, no doubt is left in my mind that the appellant had attacked Shah Muhammad (deceased) and caused him injuries on the day of occurrence.
16. There seems to be weight in the contention of the learned counsel for the appellant that the appellant cannot be burdened with the intention of having intentionally committed the murder of Shah Muhammad. Th D motive alleged against the appellant does not make out a case of development of inimical relations between the appellant and the deceased, for the reason that the forged divorce of Mst. Manzuran regarding which complaints were made that the same had been posted by the deceased, was regarding the wife of Ahmad, primarily he was affected. The appellant at the best would have felt some annoyance being a member of the family. In the case of other motive, it is on record that Mst. Shiman was in the custody of Mst. Hanifan, her mother, and was residing in a different village and the son of the deceased who was father of Mst. Shiman had filed a civil suit for custody. Obviously, the deceased was not in a position to straightaway marry Mst. Shiman with the appellant, even if he wanted so. The admission of the fact of the appellant being a supporter of Mst. Hanifan by the complainant, of course, shows his interest, and for that reason he might have felt that but for the suit filed by the son of the deceased, he may be able to get the hand of the girl. This again, at the best would have caused some disappointment, as such it is hard to believe that for these E reasons the appellant would have decided to murder Shah Muhammad who was his real uncle.
17. This is not the prosecution case that the parties were inimical for any other reason or that any quarrel or incident had taken place between the families or between the appellant and the deceased before the present occurrence.
18. The intention can also be gathered from the weapon used and the/ acts done. The weapon of offence in this case was admittedly a Sota,r which had been removed from a Phaura. Phaura attached to the Sota would have been a very deadly weapon. It was an ordinary `Kikar' Sota with which the appellant chose to cause injuries. Except injury on the arm none of the other injuries had caused any fracture. Although three injuries were found to have been caused on the head, but one of them was an abrasion while the other two were only skin deep. According to the doctor there was no fracture beneath Injury No. 1 which was the cause of death coupled with Injury No,
6. In the circumstances it is difficult to hold that the appellant had intention or knowledge to kill his own uncle. The facts G of the cases reported in 1969 SCMR 644 and 1969 P Cr. L J 1473; are to a great extent, similar. In both the cases cited above, convictions of the appellants were altered from section 302, P. P. C. To section 325, P. P. C.
' For 'the reasons enumerated above, the conviction of the appellant under section 302, P. P. C. Is set aside. He is convicted under section 325, P. P. C. And sentenced to undergo 7 years' R. I. He is also sentenced to pay a fine of Rs, 5,030, in default whereof to suffer one year R. I. Whole of the fine, on recovery, shall be paid as compensation to the heirs of the deceased. Learned Collector, Okara shall be directed to take steps to recover the fine.
' The appellant shall be given the benefit of the provisions of section 382-B, Cr. P.
' Since the conviction of the appellant under section 302, P. P. C. Has been set aside and he has been convicted and sentenced under section 325, P. P. C., there is no question of enhancement of his sentence. Criminal Revision No, 1030 of 1980 stands dismissed.