QURBAN SADIQ IKRAM, J.--This is an appeal by Rashid alias Shida 18 against his conviction under section 302, P.P.C. By learned Additional Sessions Judge, Gujranwala, who vide judgment, dated 20- 1- 1982 sentenced him to death plus fine of Rs.5,000 or in default two years' R.I. It was ordered that the entire fine, if recovered, be paid as compensation to heirs of Farooq Azam deceased aged about 20 years.
The appellant, having been sentenced to death, the proceedings are also before us for confirmation of sentence.
2. The occurrence in this case took place at 6-30 p.m. On 10-3-1981 in a field of Nazir Ali in village Khiali, about 3 miles from Police Station Saddar Gujranwala. The formal F.I.R. Exh. P.B./1 was recorded at the police station on 10-3-1981 at 8-35 p.m. By H.C. Sabir Hussain P.W.2 on the basis of statement P.B. Recorded by S.I. Karamat Ullah P.W.11 at 8-25 p.m. On the same day at Sheikhupura Road, Gujranwala at the instance of Muhammad Younas P.W.9.
3. It was stated by Muhammad Younas in his statement Exh.P.B. That Farooq Azam was his son. He had pet pigeons. Rashid alias Shida accused of his village also had pet pigeons. About. One year earlier to this occurrence four pigeons of his son flew to the house of Rashid accused. His son demanded back pigeons from Rashid who refused to oblige. This resulted in quarrel between the two. Rashid gave a knife blow to Farooq Azam who gave a stick blow on the head of Rashid in return. The matter was settled on the intervention of Muhammad Ashraf and Muhammad Yaqoob.
It was stated in the F.I.R. By the complainant that on account of the said compromise he paid Rs.150 to Rashid for treatment of his head injury. He further stated that in spite of the said compromise, Rashid accused maintained hostile stance against his son. About a week prior to this occurrence, Farooq Azam and Rashid again quarrelled. He came to know of this and went to the father of Rashid accused and asked him to tell his son not to pick up quarrel with the deceased. The father of the accused assured him that no incident will happen in future.
Muhammad Younas complainant stated in the F.I.R. That he was keeping a cow -for which he purchased one Kanal Shatala (a kind of fodder) from Razaq Ali Lambardar. A day earlier to this occurrence, his father went to cut fodder from the said land. On 10-3-1981, the mother of Maulvi Younas shopkeeper died. He along with his father Inayat P.W. And Muhammad Ashraf P.W. Joined the funeral procession at about 5-00 p.m. He, therefore, deputed Farooq Azam to cut Shatala. After the burial he along with Inayat and Ashraf P.Ws. Returned home via the field where Farooq Azam was cutting fodder. They reached the said field at about 6-30 p.m. And saw Rashid accused giving Chhuri blows to Farooq Azam who started running towards the Khal (watercourse) to save his life, raising alarm. They tried to apprehend Rashid accused who managed to run away. Farooq Azam died at the spot as a result of injuries.
Muhammad Younas complainant, leaving the dead body in the care of villagers went towards the police station along with Nazar Ali Lambardar. He met S.I. Karamat Ullah in the way near the police station, on Sheikhupura road, and made statement Exh.P.B.
4. The police after registration of the case undertook investigation. The dead body of Farooq Azam was sent for post-mortem examination which was conducted by Dr. Muhammad Zaheer P.W. 8 on 11-8-1981, at 11-20 a.m. The Medical Officer found the following injuries on external examination of the dead body:
(1) Incised wound 1-1/2 c.m. x 3/4 c.m. Going deep on left side of abdomen, one c.m. From midline and 6-1/2 c.m. Up the umbilicus.
(2) Incised wound 1-1/2 c.m. x 1/2 c.m. And muscle deep on left side of chest, on posterior axillary line 15 c.m. Down the axilla.
(3) Incised wound 4-1/2 c.m. x 1 c.m. Muscle deep, on back of left lower abdomen, 9 c.m. From midline and 2-1/2 c.m. Up to the iliac crest.
(4) Incised wound 3 c.m. x 1 c.m x 2 c.m. Deep on back of left thigh, 9 c.m. Down the lower crease of buttock from midline.
(5) Incised wound 1-1/2 c.m. x 1/2 c.m. x 1-1/2 c.m., deep with tailing 8 c.m. Towards radial border of right foream 3 c.m. From mid cubital fossa.
(6) Incised wound 2 c.m. x 1/2 c.m. x muscle deep on back of right lower abdomen, 3 c.m. From the upper crease of buttock, 4 c.m. From midline.
On internal examination, the Medical Officer found the walls of abdomen injured. Peritoneum was cut under injury No. 1 and contained blood. Small intestines had been cut at two sides under injury No.1. The mesentry of small intestines was also cut.
The death occurred due to shock and haemorrhage as a result of above mentioned injuries which were sufficient to cause death in ordinary course of nature. The time between the injuries and death was instantaneous and post-mortem was conducted after about 16 hours of death.
The accused was arrested on 11-3-1981 by Inspector Iqbal Akhtar P.W.7. He found to have an injury on his person. He was medically examined by the same witness on 11-3-1981 at 12-30 p.m. Who found a lacerated wound 2 c.m. x 1/2 c.m. x skin deep on. Right thigh at its upper front portion and oblique in direction. The injury had been caused by blunt weapon and was of simple nature. It was of about 18 hours duration. Shalwar had a corresponding cut.
5. S.I. Karamat Ullah P.W. 11 during inspection of the spot took in possession of blood-stained blades of Shatala and pieces of bricks from the place where Farooq Azam deceased was first injured by Rashid accused vide memo. Exh.P.G. The sickle P.6 belonging to the deceased was taken in possession from the spot vide memo. Exh.P.H. A blood-stained Chaddar P.7 belonging to the deceased was found lying at the place of occurrence was taken in possession vide memo. Exh.P.J.
A pair of Chappal P.1/1-2 belonging to Rashid was found lying near the Banna (border) of field of occurrence. It was taken in possession vide memo. Exh.P.K. Some blood-stained earth was also taken in possession vide memo. Exh.P.L.--from the place where the dead-body was found lying. All these recovery memos. Were prepared by S.I. Karamat Ullah P.W.11 and attested by Inayat P.W.10 and Muhammad Ashraf P.W. (not examined).
The accused was arrested on 11-3-1981 by Inspector Iqbal Akbar P.W.7. He handed over the accused to S.I. Karamat Ullah who got removed blood-stained Shalwar P.9 from his person and took the same in possession vide memo. Exh.P.M. Attested by Inayat P.W.10 and Muhammad Ashraf P.W. (not produced).
On 11-8-1981, Rashid accused while in police custody led to the recovery of blood-stained Chhuri P.5 from a place inside the factory about 15 feet from the boundary wall. It was taken in possession vide memo. Exh.P.D. By S.I. Karamat Ullah in presence of Nazar Ali P.W.6 and Abdul Aziz P.W. (not examined).
Chhuri P.5, Chaddar P.7, the blades of Shatala and pieces of bricks were found stained with human blood vide report of Chemical Examiner Exh.P.S. And that of Serologist Exh.P.T. It appears that Shalwar P.9 was not sent for examination to Chemical Examiner.
The accused was challaned after completion of investigation.
6. In support of its case, the prosecution examined 11 witnesses in all. Muhammad Younus P.W.9, father of the deceased and Inayat P.W.10, not related, were examined as eye-witnesses. Inayat P.W.10 also witnessed various recoveries from the place of occurrence during inspection of spot by the Investigating Officer. Muhammad Ashraf, another eye-witness named in the F.I.R. Was unecessary. The recovery of Chhuri P.5 was witnessed by Nazar Ali P.W.6. The medical evidence was furnished by Dr. Muhammad Zaheer P.W.8 as given in detail above. The case was investigated by S.I. Karamat Ullah P.W.
11. The evidence of the rest of the witnesses was of formal nature.
The accused Rashid alias Shida when examined after close of prosecution evidence denied the charge and pleaded innocence. He denied recovery of Chhuri P.5. He admitted the Shalwar P.9 belonged to him and was taken in possession by the police during investigation. Explaining the injury on his person, he made the following statement: "As usual about one hour after the Maghrib prayer on the day of occurrence I had gone to the field to ease myself. Farooq Azam deceased at that time had also gone there for the same purpose as usual. During the course of talking, Farooq Azam deceased developed sexual urge to commit sodomy on me. He tried to open my Azarband. I offered a resistance. Farooq Azam then forcibly tore my Shalwar and started rubbing my buttocks through torn place of my Shalwar. I pushed him aside. He pulled out a pen knife from his `Dub' and threatened me with that knife. I snatched that knife from him and he taking me in his arms started kissing me and I in order to save my honour and life gave him knife blows:'
He tendered in evidence application, dated 5-4-1977 Exh.D.C. And judgment, dated 20-11-1977 in a Payment of Wages Act case Exh.D.D. He did not produce any other defence.
The learned trial Judge placed reliance on evidence of motive, recovery of Chhuri P.5 and the eye- witnesses and convicted the accused as stated above.
7. We have gone through the evidence on record and have heard the learned counsel appearing on behalf of the parties. It is contended on behalf of the appellant firstly that the prosecution has failed to prove motive against the accused and in any case, immediate motive for this occurrence remains a mystery; secondly that the recovery of Chhuri P.5 was not proved on record and was of no avail to the prosecution; thirdly, that the eye-witnesses did not witness this occurrence in any case; were chance witnesses and as such, not reliable. It was finally argued that the defence version set up by the accused was fully supported from evidence on record and in any case, it was not a case of capital sentence. The learned counsel for State has controverted the contentions on behalf of the appellant.
8. Muhammad Younas P.W.9 is father of Farooq Azam deceased. He had no enmity with Rashid accused to falsely implicate him in this case. It was stated by him that about one year before this occurrence, four pet pigeons of Farooq Azam strayed in the house of Rashid accused who refused to return them to the deceased. This resulted in a fight between the two. The matter was compromised on the intervention of Muhammad Ashraf and Muhammad Yaqoob as a result of which he had to pay Rs.150 to the accused for treatment of his injuries. It is correct that Muhammad Younas or any other prosecution witness did not see the said quarrel between the deceased and the accused but Muhammad Younas P.W. Had to pay Rs.150 to Rashid accused. He is, therefore, a direct witness to furnish evidence on motive. He is father of the deceased and was therefore, a natural witness to make statement on motive. Besides the above mentioned quarrel between the deceased and the accused, Muhammad Younas P.W. Had no enmity to falsely depose against the accused. After the compromise, the deceased and the accused again had a quarrel about one week before the present occurrence. Muhammad Younas P.W. Reported the matter to father of the accused who assured him that he would ask his son not to pursue the said enmity against the deceased. It, therefore, appears that Rashid accused in spite of the compromise continued to nurse grudge against deceased on account of which the present occurrence took place. In our view, prosecution has successfully proved motive against the accused.
9. The accused was arrested on 11-3-1981 by Inspector Iqbal Akbar P.W.7. He handed over the accused to the Investigating Officer the same day. S.I. Karamat Ullah P.W. 11 interrogated Rashid accused who then led the police and got recovered blood-stained Chhuri P.5. It was argued by the learned counsel that no reliance can be placed on the evidence of recovery firstly because it was improbable that the accused would keep the blood intact on the said Chhuri; secondly, that nobody from the factory was associated to witness the recovery; and thirdly, that the evidence on recoveries was discrepant. We have considered these points but find them without any merits. The learned counsel was not able to point out any material discrepancy in the evidence of two recovery witnesses. We do not find anything unusual if the accused threw away the Chhuri without first removing the blood stains therefrom. It is correct that no one from the factory was associated in the proceedings of recovery but in our view it was not necessary because Nazar Ali Lambardar of the village had joined investigation. It was not a case of search of any place making it necessary for the Investigating Officer to associate persons of locality during recovery proceedings. The accused during investigation had agreed to lead to the recovery of Chhuri P.5. The Investigating Officer associated Nazar Ali Lambardar and Abdul Aziz in the recovery proceedings. It was argued by the learned counsel that Nazar Ali P.W. Was not an independent witness because one Ata Muhammad, maternal cousin of Manzoor father of accused had contested election against him which fact was admitted by Nazar Ali. In our view the fact that Ata Muhammad contested election against Nazar Ali would not mean that he would come forward to falsely implicate Rashid accused in this case. Nazar Ali P.W. Had no direct enmity with Rashid accused or his father Manzoor. He was not related to the deceased. In our view, he was an independent witness. It was contended by the learned counsel that the recovery of Chhuri P.5, from inside the factory was highly improbable because the factory owner Muhammad Rafiq was not on good terms with Manzoor father of the accused. It was admitted by Nazar Ali P.W.6 that Manzoor father of the accused was employed in the factory of Muhammad Rafiq but had left his job one year prior to this occurrence. He further admitted that Manzoor and about 30/32 other workers had filed application in the Labour Court for redress of their grievance. The accused in his defence tendered in evidence copy of an application, dated 5-4-1977 Exh.D.C. By Manzoor Ahmad and others before the authority under Payment of Wages Act and the order in the said application, dated 20-11-1977 Exh.D.D. It appears to us that the accused after the present occurrence threw Chhuri P.5 inside the factory from outside the boundary wall. It remained lying in the grass and was later got recovered by the accused while in police custody. We do not find anything improbable in this conduct of the accused. One can visualize many reasons for which the accused might have thrown Chhuri P.5 inside the factory after the occurrence. On an overall assessment of the evidence, we are of the view that the accused in fact got recovered Chhuri P.5 vide memo. Exh.P.D.
10. The eye-witness account has been furnished by Muhammad Younas P.W.9 and Inayat P.W.10.
These two witnesses had no enmity with the accused to falsely implicate him in this case.
Muhammad Younas P.W is father of the deceased but he cannot be disbelieved simply because of this relationship. The house of Inayat P.W. Was to the south of the village in Nai Abadi. It was stated by him that while going to his house from the graveyard he had to pass from near the place of occurrence. He was, therefore, a natural witness. The house of Muhammad Younas P.W. Did not fall on this path. It was stated by him that he followed the said path to see his son Farooq Azam deceased whom he had deputed to cut fodder. The graveyard was only 5 acres (200 Karams) away from the place of occurrence. According to Muhammad Younas P.W., the Shaftal field was visible from the graveyard. In our view, Muhammad Younas P.W. Was also a natural witness. It was contended on behalf of the appellant that in fact Rashid accused had gone to ease himself where Farooq Azam deceased in an effort to commit sodomy on him caused injury on account of which Shalwar P.9 was torn and the accused after snatching pen knife gave injuries to the deceased. Vie have considered this defence version in the light of the evidence on record. According to Rashid accused both he and Farooq Azam deceased had gone to the place of occurrence to ease themselves. The deceased suddenly developed sexual urge to commit sodomy on him. He resisted whereafter the deceased caused him injuries with his pen knife. He snatched the said knife and inflicted injuries on the? Person of the deceased to defend his person. It will be noticed that Farooq Azam deceased and Rashid accused were hostile to each other since about one year before this occurrence. It, therefore, does not appeal to reasons that Rashid accused would go to the said field to ease himself. Secondly, the story that Farooq Azam deceased also came there to ease himself, is not supported by any evidence on record. It was stated by Muhammad Younas P.W. That he had purchased fodder in the said field from Nazar Ali P.W. This statement has been supported by Nazar Ali P.W.6. The recovery of Daranti P.6 blood-stained Chaddar of deceased P.7 and blood-stained blades of Shatala clearly prove that Farooq Azam deceased had gone there to cut fodder under direction of his father. Thus, the defence version that Farooq Azam deceased had gone there to ease himself stands falsified by the prosecution evidence and is accordingly repelled. The recovery memo. Exh.P.E. Shows that the Investigating Officer during inspection of spot took in possession pair of Chappal P.8/1-2 allegedly belonging to Rashid accused which he abandoned while running away from the spot. We find that there is no evidence to prove that the Chappal P.8/1-2 belonged to the accused. This recovery is, therefore, of no help to the prosecution. The Investigating Officer at the time of arrest of Rashid accused took in possession Shalwar P.9 vide memo. Exh.P.M. The accused has admitted that Shalwar P.9 belongs to him and it was taken in possession by the police. It was argued on behalf of the appellant that the cut in the Shalwar lends support to the defence version that the deceased gave knife blow to Rashid accused which also caused corresponding cut on the Shalwar. We have considered this argument and find it without any basis because firstly, the accused was found to have a blunt weapon injury which could not have caused a corresponding cut in the Shalwar. Secondly the cut was on the front outer side of the Shalwar and not on the back and thirdly, according to the accused, Shalwar was torn by deceased before he took out knife which means that cut was not due to use of knife. We have seen the Shalwar. It was not old. If the deceased had used force to tear off the shalwar of the accused, the aperture thus caused would have been of bigger size and of different shape. If the deceased had intended to commit sodomy with the accused, he would have torn the Shalwar from behind and not from front side. In our view, the cut in the Shalwar did not, in any way, support the defence version of the case.
We have carefully gone through the evidence on record and find that Muhammad Younas and Inayat P.Ws. Did witness the occurrence. They are independent witnesses and there is nothing on record justifying exclusion of their evidence from consideration against the accused. Both are truthful witnesses.
11. It was contended on behalf of the appellant that the motive in this case was shrouded in mystery and that the immediate motive being not known, the sentence of death was not justified.
The enmity between the deceased and the accused originated about one year before the present occurrence when four pet pigeons of the deceased flew in the house of Rashid accused. He refused to return the pigeons to the deceased. They both fought which resulted in head injury to Rashid accused. He was paid Rs.150 by Muhammad Younas P.W. As compensation. In spite of the compromise between the two, Rashid accused nourished grudge against the deceased. They both again quarrelled about one week before this occurrence. It could, therefore, not be said that the motive was shrouded in mystery or that immediate motive was not known. Rashid accused nursed grudge against the deceased and was all the time taking chance to take revenge. The deceased Farooq Azam was cutting fodder. He was given Chhuri blows by Rashid at that place. The fodder crop also got stained with blood, a part of which was taken in possession vide memo. Exh.P.G.
Farooq Azam deceased tried to run away to save himself. He was chased by Rashid accused who gave another blow near the watercourse where ultimately deceased fell down. S.I. Karamat Ullah during inspection of spot noticed trail of blood in between the places where the accused gave first Chhuri blows and the place where ultimately the deceased fell after receiving the last Chhuri blow on his person. The accused acted in a cruel manner.
12. In view of the above discussion, we find no merits in this appeal which is accordingly dismissed.
The conviction and sentence of Rashid alias Shida accused is maintained. The sentence of death is Confirmed.
S.A./R-15/LDeath confirmed.