The four appellants, namely, Muhammad Javed (24/25 years), Muhammad Saleem (20 years), Ejaz (18/19 years) and Mushtaq (22 years) Cheema by caste, who are cousins inter se, were tried alongwith Abdul Karim by Additional Sessions Judge, Vehari, for committing the murder of Shabbir Ahmad, aged 20 years, caste Gondal, at lshawela on 15th July, 1975 in the vicinity of Chak No, 313/E.
B., Tehsil and Ditrict Vehari. The trial Court while acquitting Abdul Karim, convicted and sentenced the appellants under section 302/149, P. P. C. To suffer life imprisonment and a fine of Rs, 3,000 each, in default whereof to undergo 2 years' rigorous imprisonment each. It was further directed that half of the fine, if realised, shall be paid to the heirs of the deceased. The appellants have challenged both their conviction and sentence through filing of the instant appeal. Also the complainant has filed criminal revision (Criminal Revision No, 182 of 1980) for enhancement of sentence of the appellants. This judgment shall dispose of both the matters.
2. The incident was reported by Muhammad Ashraf (P. W. 6), father of Shabbir Ahmad, deceased, at Police Station Sahuk at a distance of 4 miles from the place of occurrence vide F. I. R. Exh. P. K.
Recorded by M. H. C. Alamgir, later promoted as A. S.-I. (P. W. 8) at 10 p.m. The same night.
According to the F. I. R. Muhammad Ashraf, complainant, his father Barkat Ali (P. W. 7) and his deceased son Shabbir Ahmad were going to their fields at Ishawela where their cattle were tethered. They had hardly covered a distance of lf acres and neared the Pucca road leading to Diwan Sahib when the appellants accompanied by Abdul Karim, the acquitted accused, confronted them all of a sudden. Mushtaq, appellant, gave the first blow to Shabbir Ahmad with a stick WI his neck as a result of which he fell down. Then Muhammad Javed, appellant, gave numerous hatchet blows in his face region while Mushtaq, Eiaz and Muhammad Saleem, appellants, caused him stick blows. Abdul Karim, the acquitted accused, has been shouting lalkara that Shabbir Ahmad should be done to death. Muhammad Ashraf and Barkat Ali P. Ws. Raised alarm which attracted Hidayat Ullah (P. W. 3) and Said Muhammad P. W. (not produced) who also witnessed the occurrence in the moon light and identified the appellants. The appellants thereafter decamped from the scene. Shabbir Ahmad died of the injuries at the spot. Muhammad Ashraf and his father Barkat Ali P. Ws. Left for the police station for lodging report leaving behind Hidayat Ullah and Said Muhammad P. Ws. To keep guard on the dead body. The motive as set up in the F. I. R.
Was that the appellants suspected the deceased for having illicit connection with Mst. Sajida daughter of Abdul Karim, acquitted accused, and sister of Mushtaq, appellant. A. S.-I. Alamgir after registering the case reached the spot. He collected blood-stained earth, prepared injury statement and inquest report of the deceased Shabbir Ahmad and forwarded the dead body for post- mortem examination under the escort of F. C. Ghulam Siddiq (P. W. 10) and F. C. Ghulam Farid (since retired). He investigated the case for one day and then made over the same to A. S.-I. Gulzar Shah (P. W. 9) who arrested all the accused persons on 18th July, 1975. On 21st July, 1975 Muhammad Javed, appellant, while in custody led to the recovery of blood-stained hatchet P. 3 which was made into a sealed parcel and secured it under memo. Exh. P. H. Likewise the other appellants got recovered a dang each not stained with blood. All these recoveries were witnessed by Barkat Ali and Fazal Muhammad P. Ws. Besides the Investigating Officer A. S.-I. Gulzar Shah. The earth collected from the spot as well as hatchet P. 3 were found stained with human blood vide reports of Chemical Examiner and Serologist Exhs. P. N. And P. O., respectively. After completing the investigation the police submitted the challan for trial to the Court.
3. Prosecution examined 10 witnesses in support of its case and mainly relied on the evidence of Muhammad Ashraf, Barkat Ali and Hidayat Ullah, the eye-witnesses and the medical evidence furnished by Dr. M. A. Saleemi (P. W. 1) besides the recovery of blood-stained hatchet P. 3 from Muhammad Javed, appellant, proved by Muhammad Fazil (P. W. 5) and A. S.-I. Gulzar Shah. The appellants suggested to almost all the eye-witnesses that on the night of occurrence Shabbir Ahmad, deceased, was spotted in compromising position with Mst. Sajida in a grove of trees by Mushtaq, appellant, while returning home from his fields with a hatchet in his hands and that he alone under grave and sudden provocation caused injuries to the deceased with the right as well as wrong side of the hatchet but Mst. Sajida slipped away unhurt. However, at the conclusion of the prosecution evidence the appellants gave up the aforesaid plea and pleaded denial simpliciter.
Abdul Karim (the acquitted accused) stated that land of Muhammad Nawaz and Mahmood Ahmad (brothers of wife of Muhammad Ashraf complainant) was under his cultivating possession as tenant since 1972. Because the owners wanted to dispossess him from the said land, therefore, he (Abdul Karim) and his relatives have been involved in this case. He further stated that aforesaid land, after the occurrence has been given to Hidayat Ullah P. W. For cultivation and, therefore, he has offered himself as an eyewitness in the case. The appellants have examined no witness in their defence.
4. Learned trial Court relying on the motive and the ocular, medical and recovery evidence accepted the prosecution case, gave benefit of doubt to Abdul Karim whom only proverbial lalkara had been attributed and held' the remaining four accused (appellants) guilty on the charge of murder and sentenced them as indicated in para. 1 of the judgment. It is noticed that in the impugned judgment the learned Additional Sessions Judge has not convicted the appellants under section 148, P. P. C. Although they were tried under this charge as well obviously for the reason that after Abdul Karim's acquittal, number of the accused had been reduced from five to four, yet he, by oversight, convicted them under sections 302/149, P. P. C. Instead of 302/34, P. P. C.
5. Dr. M. A. Saleemi, Medical Officer, Civil Hospital, Vehari (P. W. 1) conducted autopsy on the dead body of Shabbir Ahmad on 16th July, 1975 at 4-30 p.m. And noted following injuries thereon :- (1)Incised wound 5" x i" x bone cut on the front of chin extending to the cheek.
(2)Incised wound 4" x 4" x bone cut on the right side of cheek extending to the neck.
(3)Incised wound 2" x 4" x bone cut below the chin on right side.
(4)Incised wound 4" x 1/4" x 1/4" below the chin on left side.
(5)Bruise 6" x 1" on the front of neck on right side at mid area.
(6)Bruise 7" x on the front of chest at upper area 24" from injury No, 5.
(7)Bruise 74" x 1/2" across the chest at lower area.
(8)Verticle bruise 2" x 1/4" on the front of right side of chest, 2" from the right nipple. Note : There was congestion and ecchymosis of blood underneath the injuries Nos. 6 and 7. The muscles were also torn. The hyoid bone was broken on right side ; right maxilla and mandible on both sides were cut.
According to the doctor, the death was a result of strangulation and also the injuries which were sufficient to cause death in ordinary course of nature. Injuries Nos. 1 to 4 were caused with sharp.
Edged weapon while injuries Nos. 5 to 8 were caused with blunt weapon. The probable time elapsed between injuries and death was about 5 minutes and between death and post-mortem examination was about 12 to 24 hours. In cross-examination the doctor stated that injuries Nos. 5 resulted in strangulation which was ante-mortem. When asked if injury Nos. 7 and 8 (bruises on chest) indicate the possibility that the deceased's neck was pressed by somebody sitting on his chest when he laid on the ground, the doctor replied that "in view of the dimensions of the injuries there was rare possibility" of such injuries on the chest being caused with knees. He also opined that the deceased had taken his last meals about 3 hours prior to his death in view of the condition of the stomach contents round by him.
6. 1 have heard learned counsel appearing on behalf of the appellants as well as for the State assisted by Dr. Khalid Ranjha, Advocate, counsel or the complainant, at a considerable length and also perused the record with their assistance.
7. Learned counsel appearing on behalf of the appellants submitted that the eye-witnesses are interested witnesses, inasmuch as they are related to the deceased and inimical to the appellants, therefore, their testimony could not be relied without independent corroboration which is not forthcoming in this case. He next contended that recovery of Dangs P. 1, P. 2 and P. 3 from Muhammad Saleem, Mushtaq and Ejaz, appellants, is of no consequence as they were not stained with blood. As for hatchet P. 3, he submitted that the evidence of Barkat Ali and Muhammad Fazil P.
Ws. Cannot be acted upon because they are also interested witnesses and one tainted piece of evidence cannot corroborate another tainted piece of evidence. Further, he urged that the medical evidence in this case is in direct conflict with the ocular testimony for the reasons, first, according to the medical evidence the deceased had died of strangulation but none from the eye-witnesses stated to have seen anybody strangulating the deceasd at the time of occurrence; and secondly, Muhammad Ashraf P. W. Stated that the occurrence took place about two minutes after they had taken their meals while the doctor stated that the condition of the stomach of the deceased showed that he had taken his meals some 3 hours prior to his death. This contradiction, according to the learned counsel, has rendered the claim of eye-witnesses that they were in the company of the deceased at the time of occurrence as false. In reply, it has been argued on behalf of the prosecution that no concrete evidence of previous enmity between the appellants and the complainant party has been produced and, therefore, the testimony of the eye-witnesses though related to the deceased cannot be discarded simply on the ground of relationship. He next contended that the recovery of blood-stained hatchet stands established by the evidence of Muhammad Fazil (P. W. 5) who is not connected with the complainant party in any manner. As for the eye-witnesses it was submitted that Hidayat Ullah (P. W. 3) no doubt is a tenant of Muhammad Nawaz and Mamood Ahmad, maternal-uncles of the deceased but he had no personal axe to grind by deposing falsely against the appellants on a capital charge and is thus an independent reliable witness. About the objection regarding conflict between ocular and medical evidence he submitted that the term "strangulation" should not be misunderstood that Shabbir Ahmad's neck was pressed with hands or with a ligature in order to strangle him to death. This term in fact implies that the death had occurred due to asphyxia caused by blockade in the wind-pipe. According to the learned counsel, blockade in the trachea of the deceased had actually occurred due to stick blow given on the right front side of his neck by Mushtaq, appellant, and resulted in stoppage of breath contributing towards his death besides injuries caused by sharp-edged weapon, in the facial region.
8. It is true that Muhammad Ashraf and Barkat Ali P. Ws. Are father and grandfather of the deceased respectively and Hadayat Ullah P. W. Is from his brotherhood besides being a tenant of his maternal-uncle. Hidayat Ullah P. W. Also admitted in cross-examination that he was cited as a prosecution witness previously against Muhammad Javed and Mushtaq, appellants, in a criminal case under section 452, P. P. C. Lodged by one Muhammad Ramzan. But it is noteworthy that Muhammad Ramzan had not been shown as having any connection whatsoever with the complainant party. Again, according to Hidayat Ullah, the said criminal case was compromised by the parties. Although Abdul Karim, the acquitted accused (a close relation of the present appellants) was a tenant on the land of Mahmood (maternal-uncle of the deceased) but it has not been proved that aforesaid Mahmood had ever tried to dispossess him from his land. There is no material on the file, therefore, indicating that there existed enmity between the appellants and prosecution-witnesses prior to the occurrence. I am, therefore, of the view that the eyewitnesses cannot be treated as "interested witnesses" as we know that the interested witness is that who not only is related to the deceased but also A has interest to implicate the accused falsely as had been held in Nazir v. State . Since I have held that the eye-witnesses in this case are not 'interested witnesses', therefore, their testimony can be safely relied upon without corroboration provided it otherwise inspires confidence. I have-carefully gone through their statements and find that they carry a stamp of truth. They do not suffer from any improbability either. It does not appear to be unusual that the deceased while going in the company Muhammad Ashraf and Barkat Ali P. Ws. At Ishawela to their fields to sleep there for the night in order to keep guard on their animals tethered there was waylaid by the appellants and the witnesses happened to see the occurrence. The F. I. R.
Recorded at 10-30 p.m., the same night, indicates that it was lodged within couple of hours after the occurrence at the police station which is 4 miles away from the place of occurrence, particularly giving name of the assailants, weapons and their role. Report B made with such a promptness, to my mind, excludes the possibility of any deliberations and false implication. The number and nature of injuries is also quite commensurate with the number of the assailants mentioned.
9. Muhammad Ashraf, complainant, stated that about 20 days before the occurrence Abdul Karim, father of Mushtaq appellant and Mst. Sajida, had complained to him about Shabbir Ahmad deceased's pursuing the illicit relations with his daughter. The appellants denied that they ever, suspected the deceased for having a liaison with Mst. Sajida, in their statements made under section 342, Cr, P. C. But the fact remains that almost all the eye-witnesses were suggested in cross-examination that on the night of occurrence Mushtaq, appellant, having spotted the deceased and his sister Mst. Sajida as flagrante delicto killed the deceased under grave and sudden provocation. This suggestion in cross-examination renders some strength to the motive set up by the prosecution. Muhammad javed Muhammad Saleem and Ejaz, appellants, are admittedly close relations of Mushtaq, appellant, therefore, it appears that they had made it a common cause to do away with the deceased who brought bad name to their family.
10. I have given my anxious thought to the arguments of the learned counsel for the appellants that there is conflict between the medical and ocular evidence. It is argued vehemently that since the1 deceased died of asphyxia due to strangulation, therefore, the neck of the deceased must have been pressed by one of the assailants while others caused injuries with blunt sharp-edged weapons which resulted in the death of the deceased and because none of the eye-witnesses has stated to have seen anybody pressing neck of the deceased, therefore, their claim that they had seen the occurrence is falsified. It is there in the prosecution evidence that Mushtaq, appellant, opened the attack and gave first dang blow to Shabbir Ahmad hitting him on his neck as a result of which he fell down and thereafter, the other appellants dealt blows with their respective weapons to the deceased who then lay on the ground. According to Dr. M. A. Saleemi (P. W. I), the strangulation was the result of injury No, 5 which is a bruise 6" x on the front and right side of neck at mid area. It may be pointed out here that neither any ligature mark nor marks of fingers were found around the neck. The doctor also found that hyoid bone from its right side was broken. I am, therefore, of the view that this injury on the neck was caused with stick blow by Mushtaq, appellant, in a karate fashion as a result of which Shabbir Ahmad fell unconscious and the remaining appellants caused him injuries when he was lying motionless and that is why they were able to cause extensive injuries, the length of most of them varies from 4" to n". In the process suffocation was also caused, first, due to breakage of hyoid bone and secondly, due to profuse bleeding from facial injuries into the throat. I stand fortified in my view by the expert opinion of Modi, a renowned authority on medical jurisprudence who expressed at page 282 of his book, Modi's Medical Jurisprudence as under :- "A forcible blow on the front of the neck may cause unconsciousness or even death by a reflex inhibitory action or by fracture of the larynx usually involving the thyroid and cricoid cartilages, and consequent suffocation from hemorrhage or oedema of the larynx. The mucous membrane of the trachea or larynx may get torn and give rise to submucosal emphysema reaching upto the neck and mediastinum and cause death by asphyxia."
At page 244 of Taylor's Principles and Practice of Medical Jurisprudence it is observed that :- "Facial (nose, mouth, jaw) wounds are capable of dangerous bleeding into the throat and bronchial tree, but rarely otherwise giving rise to serious symptoms. Such injuries are the most dangerous to life if they have caused concussion for in the period of unconsciousness that ensues, the cough reflex is dulled or lost and asphyxia may result."
In yet another famous work on medical jurisprudence known as Forensic Medicines by Mr. J. K.
Mason, at page 153 it is opined that,- "Regarding question as to how much force is required to cause a fracture of the larynx, the answer is bound to be subjective. However, damage to the larynx beyond fracture of the cornua of the thyroid and hyoid, will imply "considerable force", this type of fracture may result from the karate- blow type of assault rather than from simple throttling."
To my mind, therefore, the medical evidence has no conflict with ocular testimony rather it confirms it. As far the objection that deceased took meals 2/3 minutes before the occurrence as stated by Muhammad Ashraf P. W. Is not in keeping with the opinion of the medical witness, according to whom the deceased had taken meals 3 hours prior to his death, I am of the view that it is not damaging for the prosecution because Muhammad Ashraf P. W. Did not state specifically that Shabbir Ahmad (deceased) had also taken meals before leaving for the fields in his company.
The words he used are,- " We had taken our dinner a little earlier before our departure. In fact we started off after we had taken our meals. It took us only about two minutes after our meals that this occurrence took place."
I think the word "We" used by the witness does not necessarily include the "deceased" because the persons who left together for their fields were Muhammad Ashraf as well as his father Barkat Ali besides the deceased. Again, it is worth noting that the occurrence took place in July, 1975, whereas the statement of the witness was recorded in October, 1979, that is, four years later. It would be too much to expect a witness to remember a fact of such an insignificant nature after years, therefore, no benefit of this obscure type of answer made by the witness can be given to the defence.
11. Learned counsel has lastly argued that because the occurrence took place at night time when there was no source of light at the scene of offence the identification of the appellants was not possible by the witnesses particularly by Barkat Ali P. W. An old man of 70 years. The argument overlooks the fact that the parties are closely related. Muhammad Ashraf P. W's. Wife is the first cousin of Abdul Karim, father of Mushtaq appellant. They reside in the same village and have their lands adjacent to each other. Occurrence took place on 5th of lunar month (Rajab) when the moon has some light at Ishawela wherein the identification of a co-villager and a relative from a closer distance is possible. In the circumstances, I hold that the appellants were correctly identified by the witnesses, and I find no valid reason to disagree with the finding of learned trial Court that it were the appellants who had caused the death of Shabbir Ahmed in the manner and mode alleged by the prosecution. Consequently, I uphold their conviction with the modification that it be read as conviction under section 302/34 instead of under section 302/149, P. P. C. For the reasons given in para. 4 of the judgment.
12. Coming to the question of sentence ; the learned trial Court has refrained from imposing the extreme penalty on the appellants for according to him it was not known as to who caused the fatal blow. The observation is not 'borne by 'record, rather the fatal injuries have been clearly attributed to Mushtaq and Muhammad Javed, appellants. However, I find that the lesser penalty awarded to the appellants is quite appropriate for the reason, the deceased had an affair with Mst.
Sajida, a close relation of the appellants and they had killed him obviously to vindicate their family honour. Since I have held the sentence of life imprisonment to be appropriate in the circumstances of the case, therefore, the revision filed by the complainant seeking enhancement of sentence automatically fails.
13. The result is that the appeal as well as the revision for enhancement of sentence are dismissed.
It is, however, directed that benefit of the provisions of section 382-B, Cr. P. C., shall be given to the appellants while computing their term of imprisonment. PLD 1962 SC 269