LEHRASAP KHAN, J.--Vide judgment, dated 24-9-1985, the learned Sessions Judge, Jhang, has convicted Khuda Bakhsh alias Gulli aged 35, son of Muhammad Usman, under section 302, P.P.C.
For causing the murder of his co-villager Ghulam Muhammad (30), and has sentenced him to death and a fine of Rs.10,000 or in default three years' R.I. It has also been directed that the fine, if realized, would be paid to the legal heirs of the deceased as compensation.
2. The convict aforesaid has challenged his conviction and sentence through the present appeal while the matter also stands referred to us under section 374, Cr.P.C. Seeking confirmation of death sentence awarded to Khuda Bakhsh. The appeal as also the murder reference shall be disposed of by this judgment.
3. The occurrence in this case took place on 5-10-1984 at 4-30 p.m. At an open space near the house of the deceased in the area of village Barana at a distance of 1/20 kilometre (according to the F.I.R.) and half a furlong (per statement of Safdar Ali, S.I. P.W.8) from Police Station Barana.
The occurrence was reported to the police by Ahmad Bakhsh P.W.5, the father of the deceased at the police station at 4-45 p.m. On the same day vide F.I.R. Exh.P.E. Which was recorded by Safdar Ali S.I./S.H.O. (P.W.8).
4. Regarding motive it has been alleged that the deceased suspected illicit relations of his wife with the accused and three days before the occurrence, he asked the accused not to come towards his house. On the said occasion hot words were exchanged between the two and the accused held out threat of dire consequences to the deceased.
5. As for the main occurrence, it has been stated that on 5-10-1984 at 4-30 p.m. The complainant Ahmad Bakhsh P.W.5 accompanied by his brother Farid P.W.6, was sitting on a cot outside his house. They saw that Ghulam Muhammad deceased came out of the house and proceeded towards north to ease himself. When he reached near the Ihata of Muhammad Yousuf son of Allah Ditta, Khuda Bakhsh appellant came there armed with a spring knife saying that he would teach him a lesson for the insult. Simultaneously, he gave two knife blows to the deceased; one in the chest and the other on his back. After receiving these injuries Ghulam Muhammad fell down and succumbed to the injuries. On the alarm raised by Ahmad Bakhsh P.W.5 and Farid P.W.6, Muhammad Yousuf son of Muhammad Bakhsh and Allah Yar son of Jiwan (both not produced) were attracted to the place of occurrence. They too witnessed the occurrence. The accused ran away along with the knife.
6. Autopsy on the dead body of Ghulam Muhammad deceased was performed by Dr. Abdullah Shah Hashmi, the then Medical Officer, Rural Centre, Lalian on 6-10-1984 at 8-00 a.m. Vide post- mortem report Exh.P.G. Dr. Abdullah Shah died before the trial and his post-mortem report has been formally proved by recording the statement of Ashiq Ali Dispenser P.W.7, who was acquainted with the handwriting and signatures of Dr, Abdullah Shah deceased. As per contents of the post- mortem report, the following injuries were noticed on the dead body at the time of post-mortem examination:-
(1) A stab wound 3 c.m. x 1 c.m. Chest cavity 7 c.m. Below the left nipple on the left side of chest.
(2) A stab wound, 4 c.m. x 2 c.m. Abdominal cavity, on the lumber region with protusion of the intestines.
It has been opined that death occuired due to shock and haemorrhage resulting from injuries Nos.
1 and 2 which were sufficient to cause death in the ordinary course of nature individually as well as collectively. Both these injuries were ante-mortem and caused by sharp--edged weapon.
7. The appellant was arrested on 7-10-1984 by Safdar Ali S.I. (P.W.8). On the same day while in custody the appellant led to the recovery of blood-stained knife P.3 from his house vide memo.
Exh.P.C. Which has been attested by Muhammad Arif P.W.4, Muhammad Asadullah (given up) and Safdar Ali S.I. P.W.8. At the same time the appellant also led to the recovery of his blood-stained clothes i.e. Kurta P.4 and Shalwar P.5 vide memo. Exh.P.D. In the presence of the aforementioned witnesses.
As per reports Exh.P.L. Of the Chemical Examiner and Exh.P.M. Of the Serologist the knife and the clothes allegedly recovered at the instance of the appellant were stained with human blood.
8. Ahmad Bakhsh P.W.5 and Farid P.W.6 testified at .The trial as eye--witnesses to furnish the ocular account of the prosecution version. Both these witnesses have fully supported the prosecution case. They have also deposed about the motive.
9. The appellant did not plead guilty and in reply to question No. 6, why this case against you', stated:- "The deceased Ghulam Muhammad was of insane mind who used to have fits of insanity and in this condition used to assault passersby. He remained under treatment for a sufficient long time at Mental Hospital, Lahore. I am married person having children and wife and used to reside in a room at the grinding machine of my father and work as a school teacher. On the day of occurrence, Fateh Bibi wife of Ghulam Muhammad came down to our grinding machine to get wheat grinded.
During her stay there, she started talking to me in a jolly mood and laughed. Ghulam Muhammad deceased saw his wife talking to me and so he reached there, caught hold of his wife and dragged her away to his house. Thereafter when I was on way to the oil agency to purchase oil, Ghulam Muhammad armed with a knife reached at the place of occurrence and attacked me. I snatched the knife from Ghulam Muhammad but he thereafter, wanted to throttle me and took hold of me from my neck. In order to save my life I caused injuries with the said knife to Ghulam Muhammad and thereafter, I myself went to the police station and reported the matter. None out of the P.Ws.
Was present there at the time of occurrence. The complainant is a tenant of Col. Pervaiz Bhatti and so under the influence of the said colonel I have been falsely involved in this case."
In his defence the appellant examined D.W.1 Dr. Imran Sadiq, Registrar, Department of Psychiatry, Mayo Hospital, Lahore. It has been disclosed by Dr. Imran Sadiq that the deceased remained admitted in his Department in the Mayo Hospital from 23-3-1980 to 14-4-1980 as he was suffering from chronic schizophrenia. He further stated that in 1982 again the deceased remained admitted in the hospital on account of the same disease from 5-5-1982 to 16-5-1982, 14-8-1982 to 2-9-1982 and 10- 11-1982 to 29-11-1982. Dr. Imran Sadiq made a statement with reference to the record which he produced before the Court. He, however, admitted that the patient was never referred to the Mental Hospital. For treatment and that the record on the basis of which he made the statement was not in his hand.
10. The learned counsel for the State while supporting the judgment under appeal vehementally urged that this is a case in which occurrence took place during the broad daylight and it was reported to the police very promptly i.e. Only 15 minutes after the occurrence, single accused is involved in the case and, therefore, there cannot be chances of any substitution or fabrication,
11. On behalf of the appellant, however, it has been urged that the defence as disclosed by the appellant in his statement recorded under section 342, Cr.P.C. Was quite possible and probable in view of the state of mental health of the deceased and that there was no direct evidence on the records about the motive as alleged by the prosecution. It has thus been maintained that even if the plea of exercise of right of private defence raised by the appellant was not accepted, he was entitled to the reduction of sentence as the motive was not proved.
12. As already observed, there are two eye-witnesses in this case, namely, Ahmad Bakhsh P.W. 5 and Farid P.W.
6. They are father and paternal uncle, respectively, of the deceased. There is no previous background of enmity whatsoever between the parties. Mere relationship of these witnesses with the deceased does not furnish any justification to disbelieve them. Their presence close to the place of occurrence, as the incident took place in front of the house of the deceased and Ahmad Bakhsh P.W. 5 is quite natural and probable. Ahmad Bakhsh is an elderly person. He is Imam Masjid. His testimony which is corroborated by that of Farid P.W. 6 when analysed to assess its intrinsic value, rings true.
Both Ahmad Bakhsh and Farid have also stated about the motive that the deceased suspected illicit liaison between the appellant and his wife Mst. Fateh Bibi and that three days prior to the occurrence hot words were exchanged between the two when he asked the appellant not to be seen in the future near their house. Ahmad Bakhsh admitted that he was not present on the said occasion, but he being the father of the deceased and head of the family is supposed to have direct knowledge of such an occurrence. It is a common ground between the parties that virtues of Mst. Fateh Bibi, the wife of the deceased were involved and led to this occurrence. It cannot, therefore, be said that the motive as alleged by the prosecution has not been proved.
The recovery of blood-stained knife, the weapon of offence, at the instance of the appellant also lends support to the prosecution case. Even if the recovery is taken out of consideration on the ground that the only attesting witness who appeared at the trial happened to be the first cousin of the deceased, the direct evidence sufficiently establishes the prosecution case against the appellant beyond any reasonable doubt. His plea that he acted in exercise of right of private defence does not appear to be convincing and believable, apart from the fact that no evidence has been led in support of this plea. The fact that the deceased suffered from schizophrania in 1980 or 1982 cannot lead to the conclusion that he still suffered from this disease in 1984 when the occurrence took place and that state of his mental health and his aggressive nature were responsible for this occurrence. There is no evidence that in 1983 or 1984 he suffered any attack of such a disease. He did not visit Psychiatry Department of Mayo Hospital during these two years.
13. In the light of the above discussion, we have come to the positive conclusion that the appellant is liable for the broad daylight murder of the deceased. He developed intimacy with his wife and done the deceased to death when he objected to his liaison with the latter's wife. There is no mitigating circumstance in his favour. In this view of the matter, we dismiss his appeal and confirm his death sentence.
S.A./K-14/LDeath confirmed.