Muhammad Iqbal 35 was convicted by learned Sessions Judge, D.G. Khan under section 302, P.P.C.
For the murder of Khuda Bakhsh aged 20/22 years, vide judgment dated 3-6-1984 and sentenced to suffer imprisonment for life and fine of Rs.10,000 or in default three years'. R.I. He was allowed benefit of section 382-B, Cr.P.C. It was ordered that half of the fine, if recovered, will be paid as compensation to heirs of the deceased.
2. The prosecution case in brief, as disclosed in the statement Exh. P.B. Of Umar complainant is that on 12-7-1983, at about 12 noon Umar complainant, his brother Khuda Bakhsh deceased, his uncle Ghulam Muhammad P.W. And Isan Chowkidar P.W. Were proceeding from their house to the shop of Yasin to make purchases. When they reached the said shop, they found Muhammad Iqbal already present there. He challenged Khuda Bakhsh deceased saying that he would take revenge of his insult. Simultaneously he took out .32 bore pistol from his Dab and fired at Khuda Bakhsh who was hit in the right flank Khuda Bakhsh fell down on receipt of injury. The accused ran away with his pistol. The occurrence was witnessed by Umar complainant and his two other companions.
The motive was stated to be that about 2/3 months earlier Khuda Bakhsh deceased had given beating to Iqbal accused while cutting crops.
Khuda Bakhsh deceased, while still alive was taken to Civil Hospital D.G. Khan. He was given treatment and medically examined. Thereafter Umar complainant proceeded to lodge the report at Police Station Choti. He met S.I. Ghulam Qasim P.W. 11 at bus stand Choti who recorded his statement Exh.P.B. At 9-30 P.M. On 12-7-1983, on the basis of which formal F.I.R. Exh.P.B/1 was recorded at 10 p.m. On the same day by H.C. Muhammad Khalid P.W.5.
3. The police after registration of the case undertook investigation. S.I. Ghulam Qasim reached the spot at about 11 p.m. On 12-7-1983. During inspection of spot on 13-7-1983, he picked up crime empty P.1 which was taken in possession vide memo Exh. PC. And sealed in a parcel in presence of Ghulam Muhammad P.W.10 and Isan giver, up P.W. No blood-stained earth was found at the place of occurrence.
The accused Muhammad Iqbal was arrested on 19-7-1983. At the time of his arrest pistol P. 4 and five live cartridges P.5/1-5 were recovered on his personal search and taken in possession by S.I.
Ghulam Qasim P.W.11 vide memo Exh.P.J. In presence of Ghulam Muhammad P.W.10 and Isan given up P.W.
The crime empty P.1 was found to have been fired from pistol P.4 vide the report of Forensic Science Laboratory Exh. P.L.
4. Khuda Bakhsh deceased when still alive, was taken to Civil Hospital D.G. Khan where he was medically examined by P.W. 7 Dr. Shabbir Hussain on 12-7-1983 at 4-30 p.m. The medical officer found a fire-arm wound --"x --" x skin deep on the posterolateral aspect of right chest at lower most part. The abdomen was distended. The patient was vomitting and was under shock. The shirt was stained with blood and had a corresponding hole. X-ray of the abdomen was advised in sitting position. The injury was grievous and kept under observation for X-ray and further observation of the patient. The injury had been caused by fire-arm and was of three to six hours duration.
5. Khuda Bakhsh was referred to Nishtar Hospital Multan where he died on 23-7-1983 at 9-30 p.m.
P. W. 6 Dr. Riazuddin on 24-7-1993 conducted post-mortem examination on the dead body of Khuda Bakhsh.
On external examination the medical officer found "a circular lacerated wound with inverted edges of 2 c.m. Circumference opening into abdominal cavity situated at the level of 11th and 12th rib on the back of right chest, 10 c.m. From midline and 35 c.m. Below root of neck." He also noted a repaired surgical incised wound with stitches on front of right abdomen, a circular hole for drain (by Surgeon) in the right sub diaphragmatic space and another hole on the left side.
On dissection, the peritonium was found gangrenous with pus and foul smell. The small and large intestines were also gangrenous. Liver was surrounded by pus. The death was due to gangrenous toxaemia with gangrene of abdominal organ, as a result of injury No.1 which was sufficient to cause death in the ordinary course of nature. This injury had been caused by fire-arm while the remaining four injuries were the result of incisions by surgeon. The death occurred in about 11 days of the receipt of injury while the post-mortem was conducted in about 24 to 36 hours of the death.
The accused was challaned after completion of the investigation.
6. The prosecution during the trial examined 11 witnesses in all in support of its case. P.W. 9 Umar brother of deceased and P.W.10 Ghulam Muhammad uncle of deceased were examined as eye- witnesses. Isan Chowkidar was given up having been won-over by the accused. Ghulam Muhammad P.W.10 also witnessed recovery of crime empty P.1 from the place of occurrence and pistol P.4 from Iqbal accused. The medical evidence was furnished by P.W.7 Dr. Shabbir Hussain and P.W.6 Dr. Riazuddin. The case was investigated by S.I. Ghulam Qasim P.W.11. The evidence of rest of the witnesses was of formal nature.
Muhammad Iqbal accused when examined under section 342, Cr.P.C. Denied charge and pleaded innocence. He denied recoveries of incriminating articles from him. He stated that on the fateful day he was coming to his house after saying Eid prayer. When he reached near his house at some distance he saw the were of his brother Khadim Hussain in the sexual lap .Of the deceased in bushes. He, therefore, lost self-control. He had an illicit pistol with him and at once fired at the deceased. He being a T.B. Patient could not run after his sister-in---law. He thereafter went to police station and informed about the occurrence. He did not produce any evidence in defence.
The learned trial Judge placed reliance on the evidence of the eye-witnesses, recoveries of incriminating articles and convicted the accused as stated above.
7. I have gone through the record of this case with the assistance of learned counsel for the appellant. It is contended on behalf of the appellant that the two eye-witnesses were false witnesses that they were not present at the time of alleged occurrence and that the accused acted under grave and sudden provocation and, therefore, was not guilty for the offence under section 302, P.P.C. The learned counsel for the State has controverted these contentions.
I have considered the arguments addressed on behalf of both the parties.
The recovery of pistol from the accused is not of much consequence because the accused has admitted that he fired at Khuda Bakhsh deceased with a pistol.
The motive in this case was stated to be that 2/3 months before, the present occurrence Khuda Bakhsh deceased had given beating to Iqbal accused. However, it is not clear as to why Khuda Bakhsh had beaten Iqbal accused and what was the precise nature of the dispute between the two. It was stated by Umar P.W.9 that both of them were harvesting the crops when the accused abused his brother which resulted in altercation between them because accused had forbidden his brother from cutting crop to which the deceased had not agreed. These details were not stated by him in the F.I.R. Nor did he state in Exh. P.B. That he had seen the earlier fight between them. I, therefore, find that the prosecution has failed to prove motive in the instant case.
The ocular account has been furnished by Umar P.W.9 and Ghulam Muhammad P.W.10. They are closely related to the deceased. On a perusal of their evidence I have noted material discrepancies in their statements. According to Umar P.W. He was to purchase clothes from the Bazar. Khuda Bakhsh deceased had not to purchase any thing and was accompanying him because he was to make payment far his purchases. He further stated that Ghulam Muhammad P.W. And Isan Chowkidar had B to purchase nothing. On the other hand Ghulam Muhammad P.W. Stated that he and Umar P.W. Had to purchase salt and chillies while Khuda Bakhsh deceased had to purchase vegetable. These are material discrepancies in the statements of the two eye-witnesses. According to Umar P.W. They all were going together and that they all did not offer Bid prayer on the day of occurrence. On the other hand Ghulam Muhammad P.W. Stated that he went to offer Eid prayer whereas Khuda Bakhsh, Umar and Isan went to Bazar for purchases. He further stated that he joined them in the Bazar, after offering Eid prayer, in front of shop of Janan. He admitted that it was Eid day and many Shops were open at the time when he was in the Bazar. This was also a material discrepancy in the statements of these two witnesses.
According to Ghulam Muhammad P.W.10 the accused had fired at Khuda Bakhsh deceased from a distance of 9". There was however, no C blackening or charring of the wound on the person of the deceased which means that the medical evidence did not support this witness.
According to Ghulam Muhammad P.W.10 the Sub-Inspector had arrived at the place of occurrence at sunset time. This again proves that Ghulam Muhammad P.W. Was telling lie because the F.I.R.
Was recorded at 9-30 p.m. And the S.I: had reached the 'place of occurrence at 11 p.m. Ghulam Muhammad P.W. Stated that his statement was recorded by the police at police station on the evening of the incident. On the other hand, the Investigating Officer stated that he recorded his statement at the place of occurrence. Ghulam Muhammad further stated that after the occurrence they had gone to the police station where they learnt that the Thanedar was on leave and the Munshi of police station told them that the reports stood registered and that they should go to the hospital for treatment of the injured. This fact is not supported by Umar P.W.9 who stated that they engaged a special bus from Choti Bala where the doctor was not available and left for D.H.Q. Hospital D.G. Khan. He made no mention of their visit to the police station and meeting with Munshi of the Thana This also is a material discrepancy in their statements. According to the medico-legal report, Khuda Bakhsh when still alive was taken to the hospital by his brother Fazal.
On the other hand the two eye-witnesses did not name Fazal as one of their companions.
According to Umar P.W. It was he who took Khuda Bakhsh to the hospital. All these facts would suggest that the two eye-witnesses did not witness the present occurrence. They had taken Khuda Bakhsh deceased when still alive to the medical officer Choti who was not there. They could have reported the matter to the police at the police station which was close to the Choti hospital. This was not done. The report was lodged after much delay which in the circumstances of this case has not been satisfactorily explained. No blood-stained earth was found at the place of occurrence which is disputed by the accused.
As I have disbelieved the presence of the two eye-witnesses- at' the place of occurrence at the time of occurrence, the statement of the accused has to be accepted as a whole. It was admitted by Ghulam Muhammad P.W.10 that the accused was suffering from T.B. The accused admitted to have fired and injured Khuda Bakhsh. It was pleaded by him that he fired and killed him under grave and sudden provocation. As such the offence under section 302, P.P.C. Could not be said to have been made out against the accused. I, therefore, acquit Muhammad Iqbal accused from the charge under section 302, P.P.C. And instead convict him under section 304(1), P.P.C. And sentence him to 5 (five) years R.I. As the appellant acted under grave and sudden provocation the sentence of fine is set aside. He will be given benefit of section 382-B, Cr.P.C. As well.
8. With the above modification this appeal is dismissed.