' Muhammad Shafi (55) and his son Bashir Ahmad (20), Caste Jat, resident of Chak No, 38/D. N. B., Police Station Dera Nawab District Bahawalpur have been convicted for the murder of Muhammad Ismail and murderous assault on Muhammad Iqbal P. W. And sentenced to imprisonment for life and fine of Rs, 3,000 in default to under go two years' R. I. Each under section 302/34, P. P. C. And two years' R. I. And a fine of Rs, 500 each, in default to undergo further six months' R. I. Under section 307/34, P. P. C. By Sessions Judge, Bahawalpur, vide his judgment dated 23rd February, 1983. The convicts have filed joint appeal (Criminal Appeal No, 19/83/BWP) against their conviction and sentence while Muhammad Iqbal complainant has filed revision petition (Criminal Revision No, 21/83/BWP) for enhancement of the sentence of the appellants. Both appeal as well as the revision shall be disposed of by this single judgment as they arise out of the same judgment.
2. The prosecutions case briefly is that on 4th September, 1981 at 8 a. m., Mst. Maqboolan (P. W. 7) wife of Muhammad Ismail deceased went to the watercourse outside the village for washing wheat grains. Mst. Khurshid Bibi wife of Muhammad Shafi, appellant, and her three daughters also went there. Mst. Khurshid Bibi asked Mst. Maqboolan P. W. As to why she had defamed her daughters among the relatives saying that they dance in marriage parties. Both Mst. Maqboolan and Mst.
Khurshid Bibi first altercated verbally and then grappled with each other. In the process, Mst.
Maqboolan's one ear-ring of gold (Dandi) fell down and was lost. Muhammad Hanif (P. W. 8) came there and separated them. Mst. Maqboolan suspected Mst. Khurshid Bibi to have stolen away her earring. At about noon time her husband Muhammad Ismail (deceased) and son Muhammad Iqbal (P. W. 9) came home and she told them all about the incident. Muhammad Ismail went to Muhammad Siddique Lambardar (P. W. 6) and complained against Mst. Khurshid Bibi. The Lambardar told him that he would convene a Panchayat in the evening and settle the matter. At 9- 30 p. m., Muhammad Ismail deceased and his son Muhammad Iqbal (P. W. 9), Muhammad Sarwar (P. W. 11) and Mukhtar Ahmad P. W. (given up) gathered outside the baithak of Muhammad Siddique Lambardar and sat on a Thara. Muhammad Shafi and Bashir Ahmad, appellants, also reached for participating in the Panchayat. During the proceedings of the Panchayat Muhammad Shafi and Bashir Ahmad, appellants, allegedly got provoked and used harsh language whereupon Muhammad Siddique lambardar asked the parties not to quarrel there and leave his place.
Muhammad Ismail (deceased) and Muhammad lqbal (P. W.) were about to leave when both the appellants whipped out knives from their pockets and attacked Muhammad Iqbal (P. W.) They gave him one blow each. Muhammad Ismail went forward to save Muhammad Iqbal whom Bashir Ahmad, gave a knife blow in the chest while Muhammad Shafi gave two successive blows in the abdomen. As a result, Muhammad Ismail fell down. Muhammad Siddique lambardar, Muhammad Sarwar and Mukhtar Ahmad P. Ws. Attempted to capture the assailants who threatened them with dire consequences and brandishing their weapons ran away. Muhammad Ismail succumbed to the injuries at the spot. Muhammad Iqbal (P. W.) went to Police Station Dera Nawab Sahib at a distance of about 17 miles and lodged F. I. R. Exh-P. H. At 9-30 p. m., the same night with S. I.
Muhammad Mushtaq (P. W. 13). The Sub-Inspector having prepared injury statement of Muhammad lqbal (P. W.) sent him to the hospital for examinations and treatment. The Sub- Inspector then proceeded to the scene of offence. Reaching there, he preparced the injury statement Exh-P.K. And inquest report of Ismail (deceased) and despatched the dead body under the police escort for pot-mortem examination.
3. On 7th September, 1981 both Muhammad Shafi and his son Bashir Ahmad were arrested from Hasilpur Bus-stand 100 miles away from their place. On 9th September, 1981 Bashir Ahmad got recovered blood-stained knife P. 4 from the sugarcane crush lying in a sugarcane field in the area of Chak No, 34/D.N.B., which was secured under memo. Exh. P.D. He also got recovered his blood- stained shirt P. 8, Chaddar P. 9 from a room of his house in Chak No, 38/D. N. B., which were seized under memo. Exh-P. G. The same day, Muhammad Shafi, while in custody got recovered blood- stained knife P. 5 from his house which was secured under memo. Exh-P. E. Likewise his shirt P. 6, Chaddar P. 7, both stained with blood, were seized under memo. Exh-P. F. All these recoveries were attested by Muhammad Siddique (P. W. 6) and Muhammad Sharif P. W. (not produced) besides S. I.
Muhammad Mushtaq (P. W. 13). The knives and clothes recovered from the appellants and the earth collected from the scene were found besmeared with human blood vide reports Exhs. P.N.
And P. O. Of Chemical Examiner and Serologist respectively. After usual investigation the case was sent to Court.
4. Dr. Javed Hassan (P. W. 1) conducted autopsy on the dead body of Muhammad Ismail on 5th September, 1981 at 10-30 p.m. And noted the following injuries :-
(1) A stab wound on left side of the chest about 4 cm above left nipple. It was 4 cm x 2 cm x lungs deep.
(2) A stab would 31 cm x 2 cm x abdomen deep on the right side of abdomen at the level of umblicus about 4 cm above.
(3) A stab wound just below injury No,
2. It was 31 cm x 2 cm x abdomen deep.
' The stomach under injury No, 1 and intestines under injuries Nos, 2 and 3 were cut. In the opinion of the doctor, death of Muhammad Ismail had occurred due to shock caused by intrathoraxic and intraabdominal haemorrhage due to the injuries to lung and stomach. Injury No, 1 supplemented by injuries Nos. 2 and 3 was found sufficient to cause death in the ordinary course of nature. The probable time between the injuries and death was half an hour and between death and post- mortem about 12 hours.
5. On the same day at 5 a.m., the same doctor examined Muhammad Iqbal P. W. And noted the following injuries on his person :-
(1) An incised stab wound on the back of chest, right side near middle line and near lower and inner margin of right scapula measuring 3i cm x 1 x cm 1 cm.
(2) A small incised wound in front of right shoulder joint measuring 1/2 cm x 1/4 x 1/4 cm.
' Both these injuries were found simple after X-ray examination.
6. At the trial, 14 witnesses were examined by the prosecution. Of them, Muhammad Iqbal (P.W. 9), Muhammad Siddique (P. W. 10) and Muhammad Sarwar (P. W. II) gave ocular account of the incident ; Mst. Maqboolan (P. W. 7) and Muhammad Hanif (P. W. 8) narrated the motive ; while Muhammad Siddique (P. W. 6) and S. I. Muhammad Mushtaq (P. W. 13) proved the incriminating recoveries and Dr. Javed Hassan (P. W. 1) proved injuries of Muhammad Ismail (deceased) and Muhammad Iqbal (P. W.). The appellants admitted to have participated in the punchayat convened at the baithak of lambardar Muhammad Siddique for deciding if the ear-ring of Mst.
Maqboolan was stolen by Mst. Khurshid but denied that the occurrence took place in the manner narrated by the prosecution-witnesses. They claimed to have acted in self-defence and gave a counter-version which in the words of Bashir Ahmad, appellant, is as under :- "On the day of occurrence at 9-30 p.m., myself and my father went to 'dera' of Muhammad Siddiq P. W. To participate in the panchayat convened by him. My father carried "huqqa" with him. We sat on the thara of the baithak of Muhammad Siddiq P. W. Where Ismail deceased and Iqbal P. W.
Came later on. On the inquiry of Muhammad Siddiq P. W. My father pleaded that my mother was innocent. At this Ismail deceased and his son started showering abuses on my mother and sisters.
My father protested. Ismail deceased, who was a wrestler, caught hold of me by my throat, felled me on the ground and after mounting on me started throttling me. I pulled out my knife from my dab and in order to save myself gave three blows to Ismail deceased who fell down. I then saw that Iqbal P. W. Had felled my father on the ground and was pressing his throat. In order to save my father I gave two blows with my knife to Iqbal P. W. And thus rescued my father. I threw away my knife at the spot."
' Almost similar statement has been made by Muhammad Shafi, appellant. They produced Riaz Hussain (D. W. 1) in defence who stated that he was present at the baithak of Faqir Muhammad about 8/9 Karams away from the scene of offence. At 9-30 p.m. He saw Muhammad Shafi and Bashir Ahmad, appellants, passing along the baithak of Faqir Muhammad. At that time Bashir Ahmad, appellant, held a stick while Muhammad Shafi had a Huqqa in his hands. A little later they heard shouts of abuses. He alongwith Faqir Muhammad went to the place of occurrence and saw that Ismail deceased was mounting on the chest of Bashir Ahmad and Muhammad Iqbal P. W. Was sitting on the chest of Muhammad Shafi. Bashir Ahmad, appellant, had a chhuri with him and within his view Ismail deceased fell aside on receipt of injuries. Bashir Ahmad then gave chhuri blows to Muhammad Iqbal P. W. Both the appellants then ran away. About 45 minutes after the occurrence two constables from Police Post Head Rajkan came there. In cross-examination, he stated that he had gone to the place of Faqir Muhammad in order to get his tractor on loan. He lived at a distance of 6 Acres from the Abadi of Chak No, 38/ D. N. B. He also admitted that he had not made any statement before the Police during the investigtaion. He conceded that Muhammad Siddique, Muhammad Sarwar and Mukhtar Ahmad P. Ws. Were present at the spot and were forbidding the parties not to fight.
7. The learned trial Court on consideration of the evidence observed in paragraph 11 of its judgment that the parties exchanged hot words immediately before the occurrence which showed that the occurrence took place in the heat of passions but since the appellants took 'unfair advantage' and gave repeated injuries to Muhammad Ismail (deceased) and his son Muhammad Iqbal (P. W.) who were unarmed, their case did not fall under exception 4 of section 300, P. P. C., rather they were guilty of committing offence of -murder and murderous assault punishable under sections 302 and 307 read with 34, P. P. C.
8. I have heard learned counsel for the appellants, the State and the complainant as well and perused the record with their assistance.
9. Learned counsel for the appellants submitted that the eye-witnesses have delibetately suppressed the material facts, therefore, their testimony cannot be implicitly relied upon ; that the defence version of the appellants being equally probable must be preferred over the prosecution story ; that the investigations carried out in the case were dishonest so much so that the recovery of blood-stained weapons and clothes was planted on the appellants which must adversely affect the prosecution case. Lastly, he argued that the facts of the case even if believed on their face value are clearly covered by exception 4 of section 300, P. P. C., punishable under section 304, P. P.
C. As it was a sudden and premeditated incident. As against this, learned counsel appearing on behalf of the State as well as for the complainant submitted that appellants plea of self-defence was rightly rejected by the trial Court in the circumstances of the case and the conviction of the appellants recorded under section 302/34, P. P. C. Should be maintained, who have already been dealt with leniently in the award of sentence.
10. I may state certain undisputed facts of the case here. Mst. Maqboolan (P. W. 6) wife of Muhammad Ismail (deceased) is the real sister of Muhammad Shafi, appellant. Muhammad Iqbal (P. W.) is son of the deceased and sister's son of Muhammad Shafi, appellant. This Muhammad Iqbal is married to real niece of Muhammad Shafi, appellant. Also, Muhammad Ismail deceased's sister is married to Khushi Muhammad, a brother of Muhammad Shafi appellant. These inter- marriages show how closely the two parties are related. They belong to Jat family, a well-known agriculturist tribe of Punjab. The house of the deceased is situated towards the south at a distance of 20/24 Karams from the place of occurrence while the appellants situate at a distance of 2 Acres towards its north. There did not exist any blood-feud between the parties before the occurrence.
Muhammad Ismail (deceased) owned one square of land in the village whereas the appellants being landless used to cultivate land as tenants in the adjoining Chak No, 33/D. N. B. Situate at a distance of about on mile from the village in the days of occurrence. Ghtrlam Sarwar (P. W.) appears to be having some soft corner for the complainant party although he is not proved to be having joint sugar business with them as, suggested by the defence. It is also worth noting that the statements of the prosecution witnesses were got recorded by the Police under section 164, Cr. P. C.
Obviously to bind them down to prosecution story.
11. According to prosecution Mst. Maqboolan P. W. Had accused three young daughters of Muhammad Shafi, appellant, that they dance in the marriage parties which was resented by appellant's wife Mst. Khurshid and over it Mst. Khurshid and Mst. Maqboolan had _quarrelled in the morning of the eventful day and M. Maqboolan's one ear-ring of gold got lost during the scuffle and she suspected Mst. Khurshid to have stolen it away. Mst. Maqboolan P. W. Has admitted that Mst. Khurshid offered her to pay the price of the ear-ring provided she (Mst. Maqboolan) takes oath in the village mosque that it was stolen by her (Mst. Khurshid), but the offer was not accepted. On the complaint of Muhammad Ismail (deceased), therefore, Muhammad Siddique lambardar P. W.
Called a panchayat to settle this matter if the ear-ring of Mst. Maqboolan was stolen away by Mst.
Khurshid. It is in evidence that the appellants joined the panchayat held at the thara of Muhammad Siddipue larnbardar at the call of the lambardar. The deliberations went on peace fully for about half an hour whereafter the parties as stated by Muhammad Iqbal P. W. Started exchanging hot words and Muhammad Siddique lambardar asked both the parties to leave his place if they were to quarrel. They were about to leave for their houses when the appellants allegedly attacked Muhammad lqbal (P. W.) and Muhammad Ismail (deceased) with knives. To my mind, it is essential to know as to what had particularly happened which led to the exchange of hot words between the parties and then cluminated into attack with knives by the appellants.
Muhammad Siddique lambardar tells us that when he informed Muhammad Shafi, appellant, about the accusation that his (appellant's) wife had beaten up Muhammad Ismil's wife and also stolen away her ear-ring of gold, the appellant started abusing the wife of Muhammad Ismail (his own sister), therefore, he (lambardar) dispersed the panchayat. Muhammad Sarwar (P. W.) on this point stated that lambardar Muhammad Siddique P. W. Had asked Muhammad Shafi, appellant, to offer his explanation to the allegation levelled by Muhammad Ismail (deceased) against his wife, whereupon Muhammad Shafi started abusing Mst. Maqboolan, therefore, the lambardar dispersed the Panchayal and asked the parties to leave. Both Muhammad Siddique and Muhammad Sarwar P. Ws. Have categorically denied that Muhammad Ismail and his son Muhammad Iqbal exchanged hot words or abuses with the appellants but to the contrary, Muhammad Iqbal (P. W.) stated that when Muhammad Shafi, appellant after hearing the allegations against h is wife had pleaded innocence of his wife and during the subsequent con versation both the parties exchanged hot words and when they got up for going to their houses the appellants attacked him and his father Muhammad Ismail (deceased). In F. I. R. Muhammad lqbal stated that "during the conversation Muhammad Shafi and Bashir Ahmad got provoked and used hot words". Muhammad Siddique and Muhammad Sarwar P. Ws. Appear to have deliberately concealed exchange of hot words by the deceased and his son with the appellants obviously to minimise their fault and to make the act of appellants look graver that is that they committed murder of Muhammad Ismail in cold blood.
They also suppressed that on hearing allegation about his wife, Muhammad Shall, pleaded her innocence and the discussion subsequent thereto had led to the exchange of hot words as has been admitted by Muhammad Iqbal P. W.
12. Mst. Maqboolan admittedly called the daughters of Muhammad Shafi, appellant, as "dancers" and she had the audacity to insist on it. While appearing as witness she stated in the cross- examination "All the three daughters of Muhammad Shafi accused are of young age. They used to dance on the occasions of marriage in the Chak. I disapproved of their dancing". On the other hand, the attitude of the appellant is that despite undesirable utterance were made by Mst.
Maqboolan, against their girls on that very morning and called Mst. Khurshid a thief they did not go to her house to protest against it and went to attend the panchayat receiving a word from chowkidar that lambardar wanted them in the panchayat. In the panchayat they heard the allegation and pleaded innocence, The proceedings of the panchayat went smoothly for half an hour. This clearly shows that the appellant had not gone to the panchayat in agitated mood or with any design to fight. In the circumstances, I am led to believe that the prosecution witnesses have concealed that real fact which gave ugly turn to the situation when deliberations were obviously going on in the panchayat in normal way. May be that they suppressed that part of the story due to the fear that they were bound by the earliet version recorded under section 164, Cr. P. C. Likewise the accused side has given highly improbable and exaggerated counter-version. In a situation where both the parties given exaggerated or incomplete stories, the Court shall make its own inferences. It appears to me that when the matter of dropping of ear-ring during grappling of Mst.
Khurshid with Mst. Maqboolan at the watercourse was being thrashed out by the Panchayat, the question as to why the ladies grappled would have come under discussion and . Mst. Maqboolan's utterances calling the appellant's daughters as 'dancers' would have been repeated and most probably Muhammad Ismail (deceased) and Muhammad Iqbal (P. W.) tried to justify the remarks which in all probability gravely provoked the appellants. The appellants have stated that "filthy abuses" were hurld on their womanfolk by the deceased and his son. It is common knowledge that in our society calling a gril as 'dancer' imputes to her unchastity and moral laxity. The degree of provocation caused to the appellants belonging to Jat tribe can well be imagined whose daughters/sisters were called unchaste and immoral. In my view these remarks were sufficient to provoke gravely and disturbed the appellants' mental equilibrium. The words used in the F. I. R. By Muhammad Iqbal {{URDU TEXT}}further support the above inference.
13. I do not think that carrying knife of ordinary type in pocket by an agriculturist would necessarily indicate that he had intention to use it for attack. The peaceful behaviour exhibited by the appellants in the Panchayat for half an hour completely negatives such conclusion. Knives P. 6 and P. 7 alleged to have been recovered from the appellants are of unusual shape and size and I have grave doubt if they were used in the occurrence by the appellants or have been recovered from them. The appellants were arrested from Hasilpur on fourth day of the occurrence about 100 miles away from their residence. Therefore, they had ample time to wash off and destroy them successfully. The appellants have admitted their presence and participation in the occurrence, therefore, the question of recoveries is not of much importance. I have made these observations only because the learned trial Court appears' to have been greatly influenced by the recovery of the knives. Furthermore, according to the doctor, all the injuries suffered by the deceased were not individually fatal. If the knives P. 6 and P. 7 having long blades have been used then the injuries in the abdomen of the deceased should have been much deeper and injuries would have proved individually fatal but it is not so, According to the doctor, death of Ismail occurred due to collective effect of the injuries. The eye-witnesses in this case, as observed earlier, deliberately concealed the important part of story. On the other hand, I must say, the defence version, is improbable and unbelievable. While lying underneath Muhammad Ismail '(deceased) it would not be possible for Bashir Ahmad appellant to take out knife, open it and then give three successive blows to Muhammad Ismail. Had the occurrence taken place in this way then appellants must have suffered visible injuries on the face, back etc. And would have been captured at the spot without any diffictflty.
14. For the above discussion, I find that appellants' case falls under Exception 1 of section 300, P. P. C.
For they caused death of Muhammad Ismail and murderous assault on Muhammad Iqbal P. W.
Under grave and sudden provocation. Accordingly I alter their conviction from 302/34, P. P. C. To 304, Part I, P. P. C. Read with section 34, P. P. C. And 308/34, P. P. C. They are sentenced to 10 (ten) years' rigorous imprisonment plus fine of Rs, 20,000 (Rupees twenty thousand only) each in default whereof A to further undergo 3 (three) years' rigorous imprisonment each under section 304/34, P.
P. C. And to 2 years' R. I. And a fine of Rs, 500 each in default 6 months' R. I. Each under section 308/34, P. P. C. If fine is recovered, whole of it shall be paid to the heirs of the deceased as compensation under section 544-A, Cr. P. C.
15. In result the appeal is partly accepted in the terms indicated above and the revision petition for enhancement fails automatically which is dismissed in limine.