' LEHRASAP KHAN, J.- Muhammad Arif (20) son of Muhammad Rafiq and his cousin (Khalazad)
Muhammad Amin (17) son of Muhammad Shafi have been convicted by a learned Additional Sessions Judge, Gujranwala, under section 302/34, P.P.C., on 31-5-1982, for causing the murder of Abbas Ali (18) and have been sentenced to imprisonment for life and a fine of Rs,5,000 each or in deafult two years' further R.I. It has also been directed that the fine, if realized, would be paid to the heirs of the deceased as compensation.
2. The convicts aforementioned have challenged their conviction and sentence through Criminal Appeal No,430 of 1982, while the State has filed Criminal Revision No,803 of 1982, seeking enhancement of sentence of life imprisonment awarded to the convicts to death This Criminal Revision, vide this Court's orders dated 23-1-1983 has been admitted for regular hearing and show- cause notice has been issued to the convicts as to why their sentences should not be enhanced.
Nazeer Ahmad complainant has also filed private Criminal Revision No,684 of 1984, seeking enhancement of the sentence awarded to the convicts and also for enhancement of fine so that the compensation to be awarded to him is enhanced. This private criminal revision has been directed to be heard alongwtih the appeal. All these three matters shall be disposed of by this judgment.
3. The occurrence in this case took place during the night between 29-4-1981 and 30-4-1981 at about mid-night in the area of village Gulabpura, District Gujranwala, at a distance of seven miles from the Police Station Saddar, Gujranwala. The matter was reported through statement, Exh. P.C.
Made by Nazeer Ahmad (P.W.7), the father of the deceased before Basheer Ahmad S.I. (P.W.3) on 30-4-1981 in Civil Hospital, Gujranwala, at 4-15 a.m. Formal F.I.R., Exh. P.C/1, was registered at the Police Station at 5 a.m. The same day by Iqbal Akhtar (P.W.11), the then Inspector, S.H.O. Police Station Saddar, Gujranwala. The case was originally registered under sections 307, 326/34, P.P.C., but on 2-5-1981, after the death of Abbas Ali, the offence was amended as 302/34, P.P.C.
4. Regarding motive, it has been alleged that about five months prior to the present occurrence, Muhammad Arif appellant teased Mst. Tanveer Kauser, daughter of Nazeer Ahmad complainant.
The said Nazeer Ahmad when admonished Muhammad Arif appellant, the latter injured the former with Chhuri whereupon a case was registered against Muhammad Arif, which was still pending.
Thus, the appellants, who were cousins inter se, harboured grudge against the deceased and his father.
5. As for the main occurrence, it has been stated that the complainant had sown Chhattala crop (fodder) in his land at Nawan Chah, in the area of Village Gulabpura. As per routine, the complainant and the members of his family used to cut fodder at night and take it early in the morning to Gujranwala for sale. Consequently, on the night preceding the occurrence, the complainant Nazeer Ahmad (P.W.7), his brother Basheer Ahmad (not produced), one Riaasat Ali (P.W.8) and the deceased, after taking their meals, went to their well i.e. Nawan Chah. The deceased slept on a cot at some distance from the complainant and the aforementioned P.Ws.
Who were also sleeping near him. An electric- bulb was also on. Nazeer Ahmad and the other P.Ws.
Heard an alarm raised by Abbas An that he was being killed. Nazeer Ahmad, Basheer Ahmad and Riaasat Ali got up and saw that Muhammad Arif and Muhammad Amin appellants, armed with Chhuris, were causing repeated injuries to Abbas An deceased in his abdomen and flank. The P.Ws.
Tried to catch hold of them but they raising the Chhuris ran away towards the village. Since Abbas Ali was profusely bleeding, Nazeer Ahmad took him to Civil Hospital, Gujranwala, in a wagon.
6. Dr. Harbans Lal, the then Medical Officer, Civil Hospital, Gujranwala (P.W.5), medically examined Abbas All while he was still alive on 30-4-1981 at 2-20 a.m. And found the following injuries on his person:-
(1) Incised would 4 c.m. x 1 c.m. x muscle deep on the left cheek.
(2) Incised would 2 c.m. x c.m. x skin deep on the front of left hand middle finger, middle part.
(3) Incised would 4 c.m. x.1 c.m. x going deep on the left side of the abdomen.
(4) Incised would 2 c.m. x 1 c.m. x going deep on the front of abdomen on left side, 4 c.m. From umbilicus. Omentum was protruding out of the wound.
' Exh. P.E. Is the correct carbon copy of the medico-legal report, bearing the signatures of this witness. He noticed that the condition of Abbas All was serious; he was unconscious; his pulse was weak and B.P. Was not recordable. He opined that all the injuries were caused by sharp-edged weapon; these injuries were fresh. Injury No,1 was declared as grievous while injury No,3 was kept under observation and the rest were declared as simple.
7. On the same day, Basheer Ahmad S.I. (P.W.3) moved an application, Exh. P.B., enquiring from the doctor that if Abbas All injured was in a fit condition to give a statement. Dr. Harbans Lal recorded his opinion, Exh. P.B/1, to the effect that the injured was not in a fit condition to make statement whereupon the Sub-Inspector recorded statement, Exh. P.C., of Nazeer Ahmad (P.W.7) on the basis of which F.I.R., Exh. P.C./1, was registered at the Police Station.
8.. After the death of Abbas Ali, the autopsy on his dead body was performed on 2-5-1981 at 10-30 a.m. By Dr. Ishfaq Ahmad, the then Medical Officer, D.H.Q. Hospital, Gujranwala.. (P.W.6) He noticed one labarotomy surgical stitched wound, a corrugated rubber drain between pubic symphysis and umbilicus, a colostomy (descending colon) done through a wound measuring 4 c.m. x 1 c.m. x going deep on the left side of abdomen, an incised would 3 c.m. x 1 c.m. x going deep on the front of left side of abdomen 4 c.m. From umbilicus, a stitched incised wound 4 c.m. With three stitches on the left cheek and an incised wound 2 c.m. With 3 stitches on middle finger of left hand. He found the wall of abdomen was injured; paritoneum was injured and there was blood in the paritoneum; all the cuts of the intestines were repaired; one cut of the large intestine was also repaired. He opined that the death of the deceased occurred due to shock and haemorrhage as a result of injuries Nos.3 and 4, which were sufficient in the ordinary course of nature to cause deah. He further opined that injuries Nos.3 and 4 were grievous in nature and 3 to 6 were caused by sharp-edged weapon while injuries Nos. 1 and 2 were surgical wounds. Exh. P.F. Is the correct carbon copy of the post-mortem report while Exh. P.F. /1 is the pictorial presentation of the injuries.
9. Both the appellants were arrested by Fazal Mehdi Shah (P.W.13), the then incharge of Police post, Rahwali on 2-5-1981 from Village Gulabpura.
10. On 4-5-1981, Muhammad Arif appellant got recovered blood-stained Chhuri (P.6) from underneath a reed bush near the Pacca grave of Ehsan Bari in the graveyard, which was taken into possession vide memo. Exh. P.K., which was attested by Muhammad Ashraf (P.W.10), Muhammad Ashraf son of Allah Rakha (nor produced) and Iqbal Akhtar, the then Inspector of Police (P.W.11). On the same day, Muhammad Amin appellant also led to the recovery of blood-stained Chhurri (P.7) from underneath a dub bush near a Chhachhra tree in the same graveyard. This Chhurri was taken into possession vide memo. Exh.P.L., which was attested by the same P.Ws.
11. Vide Chemical Examiner's report P. Q, both the aforementioned Chhuris were found to be stained with blood. The Serologist, vide his report Exh. P.R. Opined that the Chhuris, recovered from both the appellants, were stained with human blood.
12. P.W.7, Nazeer Ahmad and P.W.8, Riaasat Ali testified at the trial as eye-witnesses to furnish the ocular account of the prosecution version and they fully supported the prosecution case as narrated above.
13. Both the appellants totally denied of having committed the murder of Abbas An deceased and pleaded that they have been falsely involved in this case on account of previous animosity and suspicions. They also denied the recovery of blood-stained Chhuris at their instance.
14. The appellants in their defence examined D.W.1, Muhammad Sarwar, Ahlmad of the Court of Mien Basheer Ahmad Rustam Bhatti, Magistrate Section 30 Gujranwala, D.W.2 Inayatullah Patwari, Halqa Gulabpura, Gujranwala, and D.W.3 Makhdoom Altaf Hussain, S.D.O. Electricity WAPDA, Talwandi Musa Khan, District Gujranwala. D.W.1 Muhammad Sarwar brought file of a criminal case which was earlier brought by Nazeer Ahmad (P.W.7) against Muhammad Arif under section 397/324/279, P.P.C. In that case, Riaasat Ali was cited as recovery witness. The statement of Muhammad Sarwar Ahlmad has no bearing on the facts of this case, except that P.W.8 Riaasat Ali in a previous case also testified as witness against Muhammad Arif appellant. Through Inayatullah Patwari D.W.2, it was sought to be proved that Nazeer Ahmad (P.W.7) owned only 3 Kanals and 3 Marlas of land at Chah Nawan of village Gulabpura and, therefore, there was hardly any occasion for the P.Ws. And the deceased to be present-at the said Chah Nawan, during the odd hours of the night at which the occurrence allegedly took place. This witness, however, admitted that Nazeer Ahmad cultivated land belonging to Mst. Reheem Bibi as tenant at the same well and that some area of that well now formed part of the Cantonment and the Cantonment Board used to give that area on lease to contractors. This witness could not contradict that the Cantonment Board had leased out the land at the same well to Faqir Muhammad who in turn had given the same on lease to Nazeer Ahmad P.W. The Patwari did not bring with him the records of the Cantonment Board. He admitted that Nazeer Ahmad was in possession of land measuring 24 Kanals and 17 Marlas at that well. The statement of this D.W. Is, therefore, not of any help to the appellants and does not set at naught the prosecution version that the complainant and his family had sown Chhattala crop (fodder) at the well which they used to cut during the night and sell in the morning at Gujranwala.
Makhdoom Altaf Hussain (D.W.3) stated that there was an electric connection vide Account No,RW- 1791 in the name of Malik Nawab Khan resident of village Gulabpura for tubewell, but that connection was ordered to be disconnected on 21-4-1981 .For non-payment of some dues. He further disclosed that Inayat Ali, Line Superintendent disconnected the connection on 25-4-1981.
The prosecution case was that at the place of. Occurrence, electric bulb was installed by Nazeer Ahmad and his son Abbas Ali deceased and for that connection they used to get electricity from the meter of Malik Nawab Khan. The appellants wanted to show that since prior to the occurrence, the meter of Malik Nawab Khan was disconnected, therefore, no electric light could be available on the night of occurrence. The S.D.O. Viz. D.W.3, Makhdoom Altaf Hussain, in cross-examination admitted that the disconnection of Malik Nawab Khan's meter was temporary. The electric wires were not removed. Only fuse wires were removed. He further admitted that the reading of the account showed that there had been consumption of electricity even after the temporary disconnection. This admission leads to the conclusion that the consumer availed of the electricity even after temporary disconnection and, therefore, from his meter P.W.7 Nazeer Ahmad also could avail of the electricity for the electric bulb installed at his premises at Chah Nawan.
15. It has been contended on behalf of the appellants that, in fact, it was an unwitnessed occurrence which took place during a pitch dark night when no arrangements of light were available. It has also been argued that there was no occasion for Nazeer Ahmad, Basheer Ahmad and Riaasat Ali to be at Chah Nawan during the mid-night when the occurrence took place and it was highly unusual to cut fodder crop at night.
16. We have considered and analysed the contentions raised on behalf of the appellants. As already observed, the statement of D.W.3, Makhdoom Altaf .Hussain does not rule out the possibility of the electricity being available to the premises of the complainant through the meter of Malik Nawab Khan during the night of occurrence. The admission of Makhdoom Altaf Hussain that even after the temporary disconnection ordered by him, the reading of the meter did show that the electricity was being consumed, sufficiently suggests that electricity was available at the connection of Malik Nawab Khan from where the complainant could get the electricity. It is not unusual for the farmers to cut fodder during the night and sell the same in the city in the morning. If the fodder is cut during the day time, it cannot be taken to the market in the city in the morning in fresh condition. Moreover, in the present case, it is sufficiently established by the statement of Dr. Harbans Lal that he medically examined Abbas Ali while he was still alive on 30-4-1981 at 2-20 a.m.
Nazeer Ahmad (P.W.7) was accompanying his son at that time. It has also been opined by Dr. Harbans Lal that the injuries on the person of Abbas Ali were fresh. This shows that Nazeer Ahmad was present with his son when he received injuries and he immediately' took him to the hospital at Gujranwala where he was medically examined at 2-20 mid-night. The complainant was also able to report the matter to the golice at about 4-15 a.m. If the deceased would have been all alone at the well at the time of occurrence, his father and other relations would have learnt about the occurrence in the morning. He could not, therefore, have been taken to the hospital at 2-20 at night. The appellants and Nazeer Ahmad (P.W.7) as' also Riaasat Ali (P.W.8) belong to the same village and they knew each other very well, therefore, there can be little doubt about the identification of the appellants by the eye-witnesses even during the night, because the electric light was available at the place of occurrence.
17. On behalf of Muhammad Amin appellant, it has been urged that his name was, in fact, Iftikhar Ali and he has been falsely involved in this case because Nazeer Ahmad, P.W.7, wanted to marry his daughter with his brother Riaz, but latter's father was agreeable to it. Muhammad Amin produced certificate, Exh. D.C. Issued by the Headmaster, Government Primary School, Gulabpura, Tehsil and District Gujranwala, certificate, Exh. D.D., issued by the Headmaster Government High School, Rahwali (Gujranwala); certificate, Exh. D.E., issued by the Headmaster, Government High School, Gakhar. These certificates pertain to Iftikhar All son of Muhammad Shafi and bear the photograph of Muhammad Amin appellant. The learned trial Judge has observed that on all these three certificates, recent photographs of Muhammad Amin accused were pasted and that none of the issuing authorities of these documents have been examined in the Court to prove the photograph recently pasted on the certificates to be those of Iftikhar Ali and not of Muhammad Amin. It has also come in evidence on the records that another brother of this convict had already died. In fact, he was . Named as Muhammad Amin and after his death, the appellant was called as Muhammad Amin. Whatever may be the case, the P.Ws. And the appellants belong to the same village and hail from the same brotherhood. There can be no doubt about the identity of the appellants so far as the P.Ws. Are concerned as the appellant Muhammad Amin is known with this name in the village.
May be that in the school records, he has been recorded as Iftikhar AIL.
18. The learned State counsel and the learned counsel for the complainant have supported the trial Court's judgment.
19. We have also noticed that in this case the recovery of weapons of offence viz. The blood-stained Chhuris at the instance of the appellants has been sufficiently established by the depositions of P.W.10 Muhammad Ashraf and P.W.11 Iqbal Akhtar. Both these witnesses are quite independent and there is nothing on the record to doubt their veracity. The reports submitted by the Chemical Examiner and the Serologist are to the effect that both these Chhuris were stained with human blood. The recovery of weapons of offence, therefore, furnishes support an corroboration to the ocular account given by Nazeer Ahmad (P.W.7 and Riaasat Ali (P.W.8) who are quite natural witnesses of the occurrent because at dead of night, they could only be present at Chah Nawa where they had gone in the company of the deceased to cut Chhattal crop (fodder) which was to be sold in the morning in the market.
20. In the light of the above conclusions, we fined that it has been fully established beyond any reasonable doubt that the appellants cause the fatal injuries to Abbas All deceased intentionally.
The motive against them has also been fully proved. We, therefore, uphold their conviction under section 302/34, P.P.C.
21. Regarding sentence we have noticed that the learned trial Judge has recorded the following reasons for not awarding the normal penalty of death to the appellants:- "Only one fatal injury has been attributed to each of the accused and keeping in view their age I am of the opinion that they do not deserve capital punishment."
22. We have considered these reasons and we do not find the same to be justified. As a matter of fact the deceased suffered four incised wounds at the hand of the appellants and it is immaterial that in each case one wound has been opined by the Medical Officer to be fatal. Muhammad Arif appellant is 20/22 and this age cannot by any stretch of imagination be considered as a valid ground for not imposing the normal penalty of death after convicting him under section 302, P.P.C.
It has come on records that Muhammad Arif earlier teased the sister of the deceased and when the father of the deceased admonished him he injured him with Chhuri and thus a criminal case was registered agains Muhammad Arif. In a desperate manner to avenge the grudge of registration of the criminal case this appellant fatally injured the deceased in the company of his cousin (Khalazad) Muhammad Amin, the co-appellant. He, therefore, does not deserve any leniency. We accordingly enhance his sentence from imprisonment for life to death and direct that he be hanged by neck till he be dead.
23. So far as the case of Muhammad Amin is concerned, he was admittedly about 16 at the time of occurrence and it appears that he acted under the influence of his elder cousin Muhammad Arif. In his case, therefore, the sentence of imprisonment for life, as awarded by the learned trial Judge, would meet the ends of justice. His sentence, viz. Imprisonment for life is, therefore, maintained.
24. The sentence of fine, as imposed by the learned trial Judge and the imprisonment to be suffered in default thereof as also the direction regarding payment of fine as compensation to the legal heirs of the deceased are maintained.
25. Criminal Appeal No,430 of 1982 in the above terms is dismissed. Criminal Revision No,803 of 1982 is partially accepted inasmuch as sentence of Muhammad Arif of imprisonment for life is enhanced to death, but in case of Muhammad Amin this revision is dismissed. Criminal Revision No,684 of 1984 has become infructuous so far as the prayer for enhancement of sentence of Muhammad Arif appellant is concerned and for the remaining reliefs, the same shall be deemed to have been dismissed in limine.