This is an appeal by Allah Bakhsh 40 against his conviction under section 302, P.P.C. By learned Additional Sessions Judge, Toba Tek Singh, who vide judgment, dated 30-10-1983 sentenced him to imprisonment for life and fine of Rs.5,000 or in default six months' R.I. It was ordered that the entire amount of fine, if recovered, will be paid as compensation to heirs of Mst. Shamim deceased.
Muhammad Bakhsh 33, Fazil 30 and Mukhtar 32, co-accused of the appellant were, however acquitted by the same judgment.
Namdar complainant filed Criminal Revision 749 of 1983 for enhancement of sentence of Allah Bakhsh appellant and for re-trial of the three acquitted accused. This revision was not admitted and only ordered to be heard alongwith the connected appeal. Both these matters will be disposed of by this judgment.
2. The occurrence in this case took place on 17-4-1982 at 6 p.m. At the Dera of Namdar complainant in Chak No. 747-G.B., about 21 K.M. From Police Station Pir Mehal, District Toba Tek Singh (earlier District Faisalabad). The F.I.R. Exh. P.L. Was recorded at the police station on 18-4-1982 at 6.15 a.m. By A.S.I. Faiz Ahmad P.W.15 at the instance of Namdar complainant P.W. 6.
3. It was stated by Namdar complainant in his first information report that he alongwith his family members resided at his Dera in Chak No. 747-G.B. Muhammad Bakhsh accused suspected his son Zahoor Ahmad of having illicit relations with his were Mst. Balqees. On 17-4-1982 Pir Israr Hussain Shah was expected to visit his Dera. As such his daughters Mst. Sakina, Mst. Manzooran and her husband Muhammad Shafi had come there. The Pir did not arrive according to the programme At this Mst. Manzooran, her husband Muhammad Shah and Mst. Sakina left for their house at 5 p.m.
When they reached near the land of Miran Bakhsh Lambardar suddenly Fazil accused came out of ambush. He removed the Dopatta of Mst. Manzooran to take revenge of illicit relations of Zahoor with Mst. Balqees and tried to molest her. Muhammad Shafi husband of Mst. Manzooran caught hold of Fazil accused and beat him. They were separated by the respectables of the locality.
Muhammad Shafi, Mst. Manzooran and Mst. Sakina instead of proceedings further to their house returned to his Dera.
At about 6 p.m. He (Namdar) alongwith Mst. Manzooran P.W Mst. Shamim Bibi deceased went to the Warra of sheep in their Dera. He entered the said Warra while Mst. Manzooran and Shamim stood outside. In the meanwhile Muhammad Bakhsh armed with Dandali (Fork used for wheat thrashing), Fazil and Allah Bakhsh armed with sticks and Mukhtar alias Mokhi empty-handed came there. Mukhtar threw a challenge saying that they should take revenge of the insult of Fazil from Mst. Manzooran were of Muhammad Shafi P.W. Simultaneously Fazil accused tried to catch hold of Mst. Manzooran, who was standing outside the Warra. Mst. Shamim deceased tried to rescue Mst.
Manzooran any abused Fazil accused. At this Allah Bakhsh accused gave a Sota blow on the head of Shamim Bibi who fell down, where after Muhammad Bakhsh and Fazil accused gave stick blows to her. Abdul Sattar, Manzoor and Muhammad Shafi P.Ws. Who were present nearby came forward to help Mst. Manzooran P.W. And Shamim deceased. They were given stick blows by Muhammad Bakhsh, Allah Bakhsh and Fazil accused with their respective weapons. The alarm attracted Pehalwan and Chiragh P. Ws. Who also witnessed the occurrence. The accused ran away from the spot. Mst. Shamim Bibi died in few minutes as a result of the injuries.
Namdar P.W. Leaving the dead body of Mst. Shamim Bibi in the care of the witnesses went to the police station and lodged the F.I.R. Exh. P.L. It was stated by him that he could not reach the police station earlier as no transport was available at that time immediately after the occurrence.
4. The police after registration of the case undertook investigation.
The dead body of Mst. Shamim Bibi aged about 25/26 years was sent for post-mortem examination which was conducted on 18-4-1982 at 6 p.m. By P.W.2 Dr. Ghulam Ahmad. On external examination the medical officer found "a contused wound 7 c.m. x 2 c.m. x bone deep on the head longitudinal in direction just near the midline on the left fronto-parietal region". He also noted "an abrasion 1 c.m. x -- c.m. On the upper part of dorsum of right hand with no bony injury under it".
On dissection the medical officer found a fracture of underlying frontal and left parietal bone. The fractured bone extended into left temporal bone. The skull was found having clotted blood over the brain under the fractured bones.
The death was due to shock and haemorrhage due to injury No. 1 which was sufficient to cause death in ordinary course of nature. Both the injuries were by blunt weapon. Injury No. 1 was grievous and fatal while injury No. 2 was simple in nature. The probable time between injuries and death was within a few minutes and post-mortem was conducted within 24 hours of death.
5. Dr. Aaghar Ali P.W. 1 on 19-4-1982 at 12.25 p.m. (noon) medically examined Mst. Manzooran P.W.
And found 3 skin scratches of various dimensions on outer part of right wrist joint and left elbow joint. These injuries were simple in nature by blunt weapon and of 40/42 hours duration.
At about the same time the same medical officer examined Abdul Sattar P.W. And found four skin scratches of various dimensions on ring and middle fingers of left hand, left knee pint and middle and anterior part of head. There was a swelling on right side of chest and the patient felt pain on the back of left shoulder. These injuries were caused by blunt weapon of simple nature and of within 40/42 hours duration.
At about same time the same medical officer examined Manzoor P.W. And noted three dark reddish marks of various dimensions on left scapula bone and right shoulder joint. There was skin scratch on occipital region and a contusion wound on left parietal bone. These injuries were simple in nature caused by blunt weapon of within 40/43 hours duration.
At about the same time the same medical officer examined Muhammad Shafi P.W. And found a contusion above the forehead and also noted the swelling between neck and right shoulder. These injuries were simple in nature caused by blunt weapon and of 40/43 hours duration.
6. A.S.I. Faiz Ahmad P.W. 15 on 18-4-1982 during inspection of spot collected blood-stained earth, vide memo. Exh. P.M.
On 20-4-1982 Allah Bakhsh accused while in police custody led to the recovery of blood-stained Sota P. 4 which was taken in possession by A.S.I. Faiz Ahmad P.W. 15 in presence of Muhammad P.W.
12 and Hott (given up P.W.).
On 20-4-1982 Muhammad Bakhsh accused led to the recovery of Sota P. 5, vide memo. Exh. P.O.
And Fazil accused led to the recovery of Sota P. 6, vide memo. Exh. P.P. These recovery memos.
Were prepared by A.S.I. Faiz Ahmad P.W. 15 and attested by Muhammad P.W. 12 and Hott Khan P.W.
(not examined).
The Sota P. 4 was found stained with human blood, vide report of Chemical Examiner Exh. P.T. And that of Serologist Exh. P.U.
The accused were challaned after completion of investigation.
7. In support of its case, prosecution examined 15 witnesses in all. P.W. 6 Namdar, P.W. 7 Muhammad Shafi, P.W. 8 Abdul Sattar, P.W. 9 Manzoor, P.W. 10 Mst. Manzooran Bibi, P.W. 13 Chiragh and P.W. 14 Pehalwan were examined as eye-witnesses. The incriminating recoveries were witnessed by Muhammad P.W.
12. The medical evidence was furnished by P.W. 1 Dr. Asghar Ali and P.W. 2 Dr. Ghulam Ahmad as given in detail above. The case was investigated by Faiz Ahmad A.S.I. P.W. 15.
The evidence of the rest of the witnesses was of formal nature.
The accused when examined after close of prosecution evidence denied the charge and pleaded innocence. They denied recoveries of sticks at their instance. It was stated by them that in fact Abdul Sattar P.W. Had come to the Dera of Namdar to take back his daughter Mst. Shamim deceased. The complainant party resisted which result in fight between them in which Mat.
Shamim Bibi was injured. The, accused did not produce any evidence in defence.
It was held by the learned trial Judge that Namdar, Pehalwan and Chiragh P.Ws. Did not witness the occurrence and that the story of the expected arrival of Pir Israr Hussain was not correct. The learned trial Judge placed reliance on the evidence of motive, recovery of Sots P. 4 and the injured eye-witnesses and convicted Allah Bakhsh appellant as stated above.
8. I have gone through the record of this case with the assistance of the learned counsel for the appellant and the State. It is contended on behalf of the appellant that the witnesses were interested and, therefore, not reliable. Secondly, that there was no independent corroborating evidence against the accused. Thirdly, the injuries of, the persons of the injured witnesses were fabricated and finally the even if the prosecution case is accepted then also no offence undo section 302 , P.P.C. Could be said to have been made out against the appellant. It was argued that the appellant could be convicted order under section 304 (1), P.P.C. In the circumstances of this case. The learned counsel for the State controverted the contentions on behalf the appellant. No one appeared on behalf of the complainant during arguments of this appeal or connected revision.
9. Allah Bakhsh, Muhammad Bakhsh and Fazil accused are brothers inter se. A sister of Mukhtar accused was married to a cousin of Allah Bakhsh accused.
Mst. Manzooran Bibi P.W. Was daughter of Namdar P.W. Manzoor P.W. Was son of Namdar P.W.
Muhammad Shafi P.W. Was husband Mst. Manzooran P.W. Abdul Sattar P.W. Was a cousin of Namdar P.W and father of Mst. Shamim deceased were of Muhammad Yar a son of Namdar complainant. Chiragh and Pehalwan P.Ws. Were not related Namdar complainant. Muhammad P.W. 12 who witnessed the recovery Sota P. 4 was a nephew of Namdar complainant.
Mat. Balqees, daughter of Abdul Sattar P.W. And real sister Shamim Bibi deceased, was were of Muhammad Bakhsh accused. Muhammad Shafi P.W. Was a cousin of Allah Bakhsh appellant.
Mukhtar acquitted accused was his maternal-uncle.
It is apparent that not only witnesses are closely related inter se but the accused were also related to the witnesses. The parties did not have any inter se enmity prior to the present occurrence. It is stated by Abdul Sattar P.W. That his daughter Mst. Balqees was sort to his house about two months before this occurrence. The suspicion, about the connection of Balqees and Zahoor was raised about three months before the occurrence and that the distance between the Dera of Namdar and the Dera of accused was two Acres (80 Karams). The evidence on motive has, therefore, been supported by Abdul Sattar P.W. Father of Mat. Balqees and father-in-law of Muhammad Bakhsh accused and also by Muhammad Shafi P.W. 7 who stated that as the Pir. Sahib had not arrived at the Dera of the complainant he alongwith his were Mst. Manzooran and her sister Sakina left for their house further stated that Fazil accused had tried to assault his were which resulted in altercation between them at about 5 p.m. On the day of present occurrence. In my view the motive stood fully proved against the accused from the evidence of Muhammad Shafi P.W. 7 and Abdul Sattar P.W. 8.
The trial Court disbelieved the evidence of Namdar, Chiragh and Pehalwan P.Ws.1, therefore, need not consider their evidence.
Muhammad Shafi P.W. 7, Abdul Sattar P.W. 8, Manzoor P.W.
9. Manzooran Bibi P.W. 10 were injured during the occurrence. The presence of Abdul Sattar P.W. 8 is even admitted in the defence version set up by the accused. It was contended on behalf of the appellant that the injuries on the person of the four injured witnesses were fabricated. In support of this contention the learned counsel drew my attention to the statement of Dr. Asghar Ali P.W. 1 who in cross-examination stated that he had asked the injured persons the time of infliction of injuries upon them and that in the injury statements the police had stated that they were injured on 17-4-1982 at 6 p.m. It was admitted by this witness that before giving the duration of injuries he had seen the injury statements and had also asked from the injured persons. The precise argument of the learned counsel was that as the medical officer gave duration of injuries on the information supplied to him by the witnesses and the police, it could not be said that the duration of the injuries received by the witnesses coincided with the time of occurrence. I find no force in this contention. The medical officer was not further cross-examined about the colour of injuries and other data on which he had based his opinion regarding duration of the injuries. The information supplied by the witnesses and the police was one of the consideration and not the only consideration to, give duration of injuries. The medical officer clearly stated that the injuries were of 40 to 43 hours duration. This duration corroborates the ocular account furnished by these witnesses. It was contended by the learned counsel that the injuries on the person of Mst. Manzooran were not mentioned in the F.I.R. Or even in the statements of the witnesses during the trial. It is not the prosecution case that Mst. Manzooran was given any stick blow by the accused. The only allegation is that she was caught hold of by the accused in order to drag her away. According to the medical evidence she had three scratches on right wrist joint and left elbow joint. As such the omission to mention stick blows to Mst. Manzooran Bibi P.W.
Did not in any way affect the merits of the case. I am not prepared to agree with the learned counsel that these injuries were fabricated by the witnesses themselves. They were sent for medical examination to Kamalia hospital but the medical officer failed to examine them. The witnesses, therefore, went to Sandhilianwali rural dispensary where they were medically examined on 19-4-1982. The injuries on the persons of these witnesses proved their presence at the spot at the time of occurrence. There is nothing to support the view that the injuries on the person of the witnesses were fabricated.
It is correct that the eye-witnesses were closely related to each other but they are also related to the accused The parties did not have any enmity before the present occurrence. The eye- witnesses who were injured during the occurrence could not be disbelieved simply because they were related to the deceased. They have been corroborated by the injuries on their persons, and the evidence on motive. The injuries on the person of Shamim Bibi deceased and the presence of Abdul Sattar P.W. At the time of the receipt of injuries by Mst. Shamim is even admitted by the accused. I, therefore, am of the view that the injured witnesses received injuries during the occurrence. They have made truthful statements.
It is correct that there is some disparity in the evidence ca: A.S.I. Faiz Ahmad P.W. 15 and H.C.
Muhammad Iqbal P.W. 4 on the point as to when the parcel containing Sota P.4 was deposited for safe custody in Malkhana. According to Muhammad Iqbal P.W. 4 it was deposited on 19-4-1982 while according to A.S.I. Faiz Ahmad P.W. 15 it was deposited on 20-4-1982 after recovery from the accused Allah Bakheh. Muhammad Iqbal P.W. While making statement in Court did not refer to any record. He appears to have made statement by mistake. Even if the recovery of stick P. 4 is excluded from consideration then also the case against Allah Bakhsh appellant is proved beyond any reasonable doubt by the evidence of four injured witnesses and the evidence on motive.
The argument that only the offence under section 304(1), P.P.C. Is made out against the appellant is without any substance. Mat. Shamim Bibi deceased belonged to weaker sex. She was giver, blow on her head with full force. She died within a few minutes of receipt of injury on her person. These facts clearly indicated the intention of Allah Bakhsh appellant to murder her.
9. As a result of the above discussion, I find no merits in this appeal which is accordingly dismissed.
The conviction and sentence of Allah Bakhsh appellant is maintained.
10. In view of the above decision in appeal the connected revision is dismissed in limine.