' MUHAMMAD MUNIR KHAN, J.-- These Criminal Appeals Nos. 210/1981, 27/1981 and the connected Murder Reference No, 7 of 1982 arise from the judgment of learned Additional Sessions Judge, Multan whereby he on 4-11-1981 while acquitting Nazar Muhammad co-accused convicted Saifal
(22) and Muhammad Ramzan (22) under various sections of P.P.C. And sentenced them as under:-
(1) Under section 452, P.P.C. To five years R.I. And a fine of Rs,1,000 or in default thereof two months R.I. Each.
(2) Under section 307/34, P.P.C. For injuries to Mst. Manzooran, Lal and Hazara P.Ws and sentenced them to five years R.I. And a fine of Rs, 1,000 in default thereof two months R.I.
(3) Under section 302/34, P.P.C. For death of Shahra, Saifal appellant to death and a fine of Rs, 4,000 in default thereof six months R.I. And Muhammad Ramzan appellant to imprisonment for life and a fine of Rs, 4,000 in default thereof six months R.I. It was directed that the fine when recovered, half of it be paid to the legal heirs of the deceased. The sentences awarded in different sections were to run concurrently.
2. The occurrence took place on 1-7-1980 at Shaamwela, in the house of Shahra deceased situated in Chah Chaudhry Wala in the area of Bhuteji of Police Station Lodhran. The distance between the place of occurrence and the Police Station is 10 miles. F.I.R. Exh. P.G. Was lodged by Lal P.W.5 the son of the deceased at 7-30 a.m. On 2-7-1980 which was recorded by Jan Ahmad Ali A.S.I. P.W.B.
Muhammad Ramzan accused is the son of Nazar Muhammad acquitted accused who is the husband of the maternal aunt of Saifal appellant.
3. The motive as alleged by the prosecution was that Shahra deceased had promised to give the hand of his daughter Mst. Manzooran to Saifal appellant in marriage. Subsequently Shahra desired that Muhammad Ramzan's sister be given in marriage to his son Hazara P.W. In exchange of Mst.
Manzooran but Nazar Muhammad did not agree. On this Shahra deceased refused to marry his daughter Mst. Manzooran to Saifal appellant, hence this occurrence.
4. As far the main occurrence it has been stated that at the eventful time Shahra deceased, his son Lal P.W.5, his daughter Mst. Manzooran P.W.7 and his another son Hazara P.W. (given up) were sitting in the Courtyard of their house when Saifal and Muhammad Ramzan appellants armed with Sotas and Nazar Muhammad armed with hatchet tres-passed into the house. They raised Lalkara that they would not spare Shahra alive and would also take away Mst. Manzooran with them.
Shahra tried to get up. Saifal appellant gave Sota blow on his head and he fell down. Nazar Muhammad gave hatchet blow on his right arm. Thereafter Saifal and Muhammad Ramzan started giving him Sota blows. The aforesaid witnesses tried to intervene but Saifal and Muhammad Ramzan injured them with their weapons. The alarm attracted Muhammad Nawaz P.W.6, Jalal Din (not produced) and others to the spot. On seeing them the appellants and Nazar Muhammad made good, their escape carrying the weapons with them. Shahra deceased was carried on a cot towards the hospital but he succumbed to the injuries on the way to the hospital.
5. Dr. Syed Zia-ud-Din Zaidi examined Mst. Manzooran P.W. On 2-7-1980 at 7-00 p.m. He found two contused wounds on her head and left shoulder. The injuries were caused by blunt weapon and were simple in nature. On the same day the Doctor examined Lal complainant. He found two abrasions and one contusion on the nose, left and right scapula which were caused by blunt weapon and were simple in nature. The Doctor also examined Hazara P.W. (given up) on the same day. He found five injuries including abrasions and contusions' on the head, eye brow, back of chest and right liac crest. The injuries were simple in nature. On 3-7-1980 at 6-00 a.m. The Doctor conducted post mortem examination on the dead body of Shahra and found the following injuries:-
(1) Contusion mark on the frontal part of the head obliquely 12 x 3 c.m. All the head was swollen with bleeding from the nose.
(2) Contused wound on the outer side of right upper arm 3x1/2x1/2c.m. Obliquely, just above the elbow joint.
(3) Contusion mark 8 x 21/2 c.m. Outer side of left upper arm. Swelling and deformity with fracture of left humerous bone.
(4) Abrasion on the back of left scapula 3 x 1/2 c.m. Transversly.
(5) Contusion on the right knee and front of right leg in an area of 8 x 4 c.m.
' On internal examination there was lot of blood clotted under the scalp. There was depressed fracture of the frontal bone in center and cracks in different parts of the frontal part of the skull. The brain was conjusted. A big heamo-toma on the brain in interior cranial fossa. Stomach contained two ounces of semi-digested food.
' In his opinion, death was due to injuries N0,1 leading to the fracture of skull bone, hemotoma and coma. Alt the injuries were caused with blunt weapon. Injury No,1 was sufficient to cause death in the ordinary course of nature. The time between the death and the injury was 10 to 11 hours. The duration between the death and post-mortem was about 25 hours. In cross-examination the Doctor stated that the injured persons were not given any first aid before examination and that injury No,1 of the deceased had rendered him unconscious and this state of coma persisted till his death.
6. On 2-7-1980 the appellants were arrested by Jam Ahmad All A.S.I. P.W.B. On 12-7-1980, Saifal appellant led to the recovery of Sota P.2 which was taken into possession vide memo. Exh. P.G.
Attested by Muhammad Nawaz P.W.6 and Jalal-ud-Din (not produced). On the same day Nazar Muhammad acquitted accused got recovered hatchet P.3 which was taken into possession vide memo. Exh. P.K. Attested by the same witness. On the same day Muhammad Hamzan appellant got recovered Sota P.4 which was taken into possession vide memo. P.L. Attested by the same witness.
It may be noted that Sotas and the hatchet recovered from the appellants and the co-accused were not stained with blood, su were not sent to the Chemical Examiner.
7. To prove its case, prosecution examined nine witnesses. Dr.Syed Zia-ud-Din Zaidi has proved the post-mortem report of Shahra deceased. Lal P.W.5, Muhammad Nawaz P.W.6 and Mst. Manzooran P.W.7 have given the ocular account of the occurrence. They claim to have seen the appellants giving Sota blows to Shahra deceased resulting in his death and injuries to Lal and Mst. Manzooran P.Ws. 5, 7 and Hazara (not produced). They also stated that Nazar Muhammad acquitted accused had given injury on the arm of Shahra deceased with the wrong side of the hatchet. Muhammad Nawaz P.W.6 and Jam Ahmad All A.S.I. P.W.8 have supported the recoveries of Sotas from the appellants. Lal has also deposed about the motive for the murder of Shahra deceased. The rest of the evidence is of formal nature.
8. When examined under section 342, Cr.P.C. The appellants denied all incriminating circumstances. Saifal even denied his presence at the spot. In reply to the question as to why the case against him he stated:- "As already stated, Mst. Manzooran, P.W. Was to be given in marriage to me in exchange of Mst.
Waziran my sister. When Mst. Manzooran P.W. Attained majority both Muhammad Nawaz and Abdul Rahim P.Ws. Became desirous of her hand for their respective sons. It was, however, not agreeable to Mst. Manzooran P.W. Who wanted to marry me alone and no one else. This gave a cause of annoyance to Shahra deceased and others including the said P.Ws. They have falsely involved me in this case due to suspected illicit relations between me and Mst. Manzooran P.W."
' Muhammad Ramzan appellant while admitting his presence at the time of occurrence has stated that Shahra deceased received the fatal injury, when his head struck against the wall when he was pushed by Razzaq and Allah Wasaya. As far the injuries on the P.Ws. He stated that the same were given in self-defence. In reply to the question as to why the case against him he stated:- "On the night intervening 1st and 2nd July, 1980, 1 was sleeping towards the west of my residential Kotha. My parents were away on that night and my sister, Naziran, was sleeping in the Courtyard towards its East. At about 11 p.m. Or 12-00 mid night, Hazara P.W. (given up) son of Shahra deceased teased my said sister, whereupon she started abusing him. I was attracted to the spot. I got annoyed and abused Hazara. In the meantime, family members of Hazara including Shahra deceased and Lal P.W. Crossed over the intervening wall, about 2 feet high, and attacked me.
Shahra and Lal were carrying sticks. On my hue and cry, Razzaq son of Azam and Allah Wasaya came to the spot to my rescue and pushed aside Shahra deceased, Lal and Hazara P.Ws. During scuffle Shahra deceased, Lal and Hazara P.Ws. Sustained injuries. Shahra received the fatal injury when his head struck against the wall when pushed by Razzaq and Allah Wasaya aforementioned.
I was also injured at the hands of the deceased and the said P.Ws. The P.Ws also received some injuries during scuffle. These injuries were given in self defence.".
' The appellant did not produce any witness in defence. Muhammad Ramzan produced extracts Exh. D.I. And D.D./1 from the voters list, electoral No, 89/M Tehsil Lodhran, District Muitan, issued by the Election Officers. He tendered in defence Exh. D.F. Copy of Khasra Girdawari from Kharif 1978 to Rabi 1981 of the land of Muhammad Nawaz P.W. He also tendered Exh. D.F. Of Khasra Girdawari from 1970 to Rabi 1980 of the land of the deceased, situated in Mouza Bhuteji.
9. The trial Court while giving benefit' of doubt has acquitted Nazar Muhammad co-accused. It has believed motive, ocular evidence furnished by the prosecution and has disbelieved the version of the occurrence given by Muhammad Ramzan appellant.
10. The learned counsel for the appellants contended that the alleged motive is false as the proposed marriage of Mst. Manzooran with Saifal appellant had been refused three years before the occurrence; that the eye-witnesses are not reliable; that the ocular evidence is in conflict with the medical evidence; that the time of occurrence given by the eye-witnesses and the time of occurrence which appears from thb post-mortem report do not tally; that there is inordinate delay in the medical examination Of the injured witnesses by the Medical Officer; that the recovery is fake and that there is a reasonable possibility of the occurrence having taken place in the manner as stated by Muhammad Ramzan appellant inasmuch as the appellants had voluntarily appeared before the Police as admitted by Muhammad Nawaz P.W. Conversely the learned counsel for the State has supported the judgment of the trial Court.
11. We have considered the arguments advanced by the learned counsel for the parties with care.
We have not been able to persuade ourselves to agree with the learned counsel for the appellants.
Keeping in mind the guiding principle laid down by the superior Courts for the appreciation of evidence in such like cases, we propose to examine prosecution case and its evidence more particularly the ocular testimony first in order to arrive at independent conclusion as to the truth of the prosecution case and credibility of the eye-witnesses. We find that the occurrence took place at Shaamwela on 1-7-1980. The F.I.R. Was lodged at 7-30 a.m. On the following day. Lai" P.W. Has explained the delay. He has stated that after the occurrence they placed Shahra on a cot and removed him to civil hospital Lodhran. He, however, succumbed to the injuries before we could reach the Hospital. Thereafter leaving the dead body in the hospital, he went to lodge the report.
The conduct of the complainant of having removed Shahra to Civil Hospital Lodhran first, does not run counter to the natural probabilities. There is no evidence of any deliberation or consultation by the complainant with someone else before lodging report. The names of the appellants, the weapons carried by them and the manner of occurrence all are detailed therein. The F.I.R. Thus can be used to corroborate the statement of Lal complainant. There are three eye-witnesses of the A occurrence. By the fact of injuries on the persons of Mst. Manzooran and Lal, their presence on the spot is very much established. Muhammad Ramzan has also not denied their presence on the spot. Muhammad Nawaz P.W.6 lives near the house of Shahra deceased. He has given probable cause of his presence near the place of occurrence at the eventful time. No doubt he is related to the deceased but relationship alone is not sufficient to discard his statement. He had no serious enmity with the appellants. He has successfully faced the cross-examination. The statements given by these witnesses are inconsonance with the probabilities and fit in with the other evidence.
We do not see material contradictions and major discrepancies in the ocular and medical evidence. No doubt in the F.I.R. It has been stated that Nazar Muhammad had inflicted injury to the deceased with his hatchet but it has not been stated therein as to whether the hatchet was used from sharp-edged side or wrong side. Mst. Manzooran and Muhammad Nawaz P.Ws have stated that Nazar Muhammad had used wrong side of the hatchet. We do not see any noticeable difference between the time of occurrence given by the eye-witnesses and by the medical evidence. The injured witnesses were examined after 24 hours of the occurrence and the medical evidence has also given the duration as about 24 hours. The number of the injuries found on the person of the deceased and the injured witnesses commensurate with the number of the accused named by the eye-witnesses. Since the co-accused Nazar Muhammad was given benefit of doubt therefore his acquittal has no adverse evidentiary effect upon the statements of the eye-witnesses.
For all these reasons, we do not feel inclined to discard prosecution case or exclude ocular evidence from consideration.
12. This brings us to the defence version given by Muhammad Ramzan in his statement recorded under section 342, Cr.P.C. We proceed to examine the two rival cases placing in juxta-position and will review the entire evidence and the circumstances at the close, to arrive at a conclusion regarding the truth or falsity of the defence plea and will estimate its total effect in relation to two questions. I. Is the plea of the appellants satisfactorily established by the evidence and circumstances appearing in the case?
II. If the answer be in the negative, is there yet a reasonable possibility that the plea of self-defence raised by the appellants might be true so as to cast a reasonable doubt upon the prosecution case. I. In his statement recorded under section 342, Cr.P.C. Muhammad Ramzan appellant has stated that immediately before the main occurrence Hazara P.W. Had teased his sister Naziran, but Mst. Naziran has not been produced to prove that Hazara had in fact teased her. According to him Razzaq and Allah Wasaya had come to the spot, rescued him and pushed aside Shahra deceased hitting his head against the wall yet they have not been produced. The appellant could have proved his version by producing these witnesses but for the reasons best known to him, the witnesses named by him have not been produced. So the answer to question at No,I is in the negative. II. As far question at No, II, we find that according to the defence version, Shahra deceased and Lal had attacked and injured Muhammad Ramzan with sticks, yet there is no proof of the injuries on his person. Had he been injured during the occurrence then he would have got himself medically examined prior to his appearance before the Police or the Police itself might have got him medically examined. The absence of injury on his person negates the existence of the reasonable possibility of the defence version being true. The defence version is also not spelt out from prosecution evidence or from the circumstances appearing in the case.
For all these reasons, the submissions made by the learned counsel for the appellants do not hold any water. We are convinced that the trial Court has rightly convicted the appellants under sections 452/307/34 and 302/34, P.P.C.
13. This brings us to the question of the sentence of the Saifal appellant. Having considered the matter carefully, we find extenuating circumstances in his favour for lesser penalty inasmuch as Shahra deceased after having promised to give the hand of Mst. Manzooran in marriage to Saifal appellant had refused to fulfil his promise therefore, the act of Saifal of causing the death of Shahra appears to be somewhat provoked by the deceased.
14. The upshot of the above discussion is that while maintaining the convictions of the appellants under various sections recorded by the trial Court, we alter the sentence of death of Saifal appellant to imprisonment for life. The fine awarded by the trial Court, sentence in lieu thereof and the direction for the payment of the fine to the legal heirs of the deceased are however maintained. The sentence awarded to Muhammad Ramzan appellant under section 302, P.P.C. And the sentence awarded to both the appellants under sections 452/307/34, P.P.C. Are maintained.
' The sentence of death is not confirmed.