1. QURBAN SADIQ IKRAM, J.--This is an appeal by Yasin 40 and his- brother Shah Din 42 against their conviction under section 302/34, P. P. C . And section 323134, P. P. C . By learned Additional Sessions Judge, Bahawalnagar, who vide judgment dated 12-10-1982 sentenced them to death plus fine of Rs.5, 000 or in default to two years' rigorous imprisonment under section 302/34, P.P. C. And to one year rigorous imprisonment under section 323/34, P.P.C. It was ordered that the fine, if recovered will be paid to the children of Mst. Azizan deceased aged about 32/35 years.
2. The two appellants, having been sentenced to death, the proceedings are also before us for confirmation of death sentence.
2. The occurrence took place in between the night of 4th and 5th November, 1978, in the house of Mst. Azizan at Bheni Badrowali in village Sohal Singh about 12 miles from Police Station Minchinabad, District Bahawalnagar. The formal F.I.R. (Exh. P. C./1) was recorded at the police station at 8:05 a. m. On 5-11-1978 on the basis of statement Exh.P.C.) recorded by S. I. Najamuddin (P.W. 10) at Adds Chabiana at the instance of Manzoor Ahmad (P.W.5).
3. It was stated by Manzoor Ahmad in his statement (Exh. P.C.) that he was a Tonga-driver in Bahawalnagar city. His sister Mst. Azizan was married to Mansab Ali who died about six months before this occurrence, leaving two sons and two daughters besides his widow. Thereafter, in order to look after his sister and her children he took up residence at Bheni Badrowali. The Kotha adjoining to the house of Mat. Azizan was occupied by Yasin and Shah Din accused, both brothers of Mansab Ali deceased. After the death of Mansab Ali Yasin and Shah Din accused tried to get.
3. Hold of the land left by Mansab All. Besides this Yasin accused wanted to marry Mst. Azizan, but she did not agree to the proposal. The land left by Mansab Ali was mutated in the names of his children to the annoyance of both the accused who thereafter started threatening Mst. Azizan of dire consequences.
4. It was further stated by Manzoor Ahmad complainant that in between the night of 4th and 5th November, 1978, he was sleeping along with his sister and her children on cots in front of the residential Kotha. He got up on hearing the alarm of his sister. Muhammad Afzal Beg, aged about 7/8 years, son of Mst. Azizan, also got up. They saw Yasin armed with a wooden Sanga and Shah Din armed with Danda inflicting injuries on the person of Mst. Azizan. Afzal Beg P.W. Started weeping and tried to intervene. He was pushed by Yasin as a result of which his head struck the nearby cot.
5. He was injured. He further stated that he also tried to intervene but the accused threatened him not to come near. Mst. Azizan died as a result of the injuries shortly after occurrence. Yasin and Shah Din accused sat near the dead-body. He himself went to inform Akbar Shah Lambardar who along with Chowkidar Muhammad Baluch came to the spot. Leaving them at the spot to guard the dead- body and the two accused, he himself went towards the Police at Adda Chabiana and made statement (Exh.P.C.).
4. The police after registration of the case undertook investigation. The dead-body of Mst. Azizan was sent for post-mortem examination which was conducted by Dr. Wahid Bakhsh Ali Bhatti (P.W.8) on 6-11-1978. On external examination the Medical Officer found the following injuries on the dead-body of Mst. Azizan:-
(1) A contusion 6" x 2" x comminuted fracture of right leg bone below the knee-joint.
(2) A contused wound 1/2" x 1/2" on the back and front of left leg.
(3) A contusion 2" x 2" on right cheek in front of the ear.
(4) A contused wound 1/4" on the left side of forehead.
6. It appears that the Medical Officer did not dissect dead-body to find its internal condition. In the post-mortem examination report he mentioned that cranium, spinal cord, scalp, skull and brain were healthy, thorax was healthy and abdomen was healthy. He noted fracture of right tibia and fibula.
7. In the opinion of the Medical Officer injury No.1 was grievous and other injuries were all simple in nature. The death was due to shock and haemorrhage caused by these injuries which were sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injuries and death was within few minutes to an hour and the post-mortem examination was conducted within 24 hours of the death.
8. The same Medical Officer on 5-11-1978 medically examined Muhammad Afzal Beg P.W. And found a contusion 1/2" x 1/2" on the right fronto-parietal part of the head. The injury was simple in nature. It had been caused by blunt weapon within a duration of 12 hours.
5. Yasin and Shah Din accused were found present at the place of occurrence. They were arrested on 5-11-1978. At the time of arrest Yasin accused produced blood-stained Sanga (Exh. P.6) which was taken into possession by S. I. Najamuddin (P.W.10) in the presence of Muhammad Umar (P.
9. W.6) and Muhammad Yasin (P. W.9), vide memo. Exh. P. E.
10. Shah Din accused at the same time and same place produced blqod-stained Danda (Exh. P.5) which was taken into possession by S.I. Najamuddin P. W. Vide memo. Exh. P. F. In the presence of same witnesses.
11. Sanga (Exh.P.6) and Danda (Exh. P.5) were found stained with human blood. Vide report of the Chemical Examiner (Exh. P. H.) and that Serologist (Exh.P.J.).
12. The Investigating Officer S.I. Najamuddin P.W during inspection of the spot on 5-11-1978 collected blood-stained earth from the place of occurrence vide memo. Exh.P.D.
13. The accused were challaned after completion of the investigation.
6. The prosecution in support of its case examined ten witnesses in all P. W.5 Manzoor Ahmad, a brother of Mst. Azizan deceased, and P. W.7 Muhammad Afzai Beg, a son of the deceased, were examined as eye-witnesses. The incriminating recoveries were witnessed by Muhammad Umar (P.W.6) and Yasin (P.W.9). The medical evidence, as given in detail above, was furnished by P. W.8 Dr. Wahid Bakhsh Ali Bhatti. The case was investigated by S.I. Najamuddin (P.W.10). The evidence of the rest of the witnesses was of formal nature.
14. The two accused, when examined after close of prosecution evidence, pleaded innocence. They denied the recoveries of crime weapons from them and attributed this case on account of enmity.
15. They did not lead any evidence in defence.
16. The learned trial Judge placed reliance on the evidence of the eye-witnesses, recoveries of crime weapons and motive and convicted the accused as stated above.
17. 7.We have carefully gone through the record of this case and have heard the learned counsel for the appellant. It is contended by him that all the injuries on the person of Mst. Azizan were on non- vital parts of her body and as such, it could not be gathered from the evidence that the accused inflicted those injuries with intention to murder; secondly, that Manzoor Ahmad (P.W.5) was resident of Bahawalnagar; he was not present at the spot at the time of occurrence and has come forward to depose against the accused on account of his relationship with the deceased. It is further contended that Muhammad Afzal Beg P.W. Has given a different version of motive than the one stated by Manzoor Ahmad P. W. And as such, was not reliable and thirdly that there was no immediate motive for the accused to murder Mst. Azizan and as such, there was no justification to award death sentence to the two appellants. The learned counsel for the State has controverted these contentions. A perusal of the statement of P. W.8 Dr. Wahid Bakhsh Ali Bhatti would show that there was a contusion 6"x 2" which fractured the right leg bone below the knee-joint. He also noted a contusion 2" x 2" on right cheek in front of the ear. There was another contused wound on the left side of forehead of the deceased. It is correct that the Medical Officer stated that only injury No. 1 was of grievous nature but in our view even if injuries Nos.3 and 9 were of simple nature and had not caused fracture of any bone, then also on account of their location, these two injuries could have resulted in the death of Mst. Azizan. The parietal region of head is very vital and tender part of the body. Even a slap on this part of the head can cause instantaneous death. The Medical Officer while recording his opinion stated that death was due to shock and haemorrhage caused by these injuries. He further stated that these injuries were sufficient to cause death in the ordinary course of nature. He also stated that death occurred within one hour of receipt of the injuries. We are, therefore, satisfied that the accused caused these injuries with clear intention to murder Mst.
18. Azizan.
19. Manzoor Ahmad (P. W.5) is brother of the deceased and Muhammad Afzal Beg (P.W.7) son of Mst.
20. Azizan deceased. These witnesses are, therefore, closely related to the deceased but their evidence cannot be excluded from consideration simply because of this relatiouship. They had no enmity against the accused to falsely implicate them, Muhammad Afzal Beg (P.W.7) was a minor son of the deceased. He was injured during the occurrence. He is a natural witness. It was stated by him in the examination-in-chief that the accused murdered Mst. Azizan firstly because she refused to marry with any of them and secondly because she refused to mutate the land of Mansab Ali in their name. We do not find any reason to disbelieve this witness.
21. P. W.5 Manzoor Ahmad has given a plausible explanation of his presence at the spot. It was stated by him that Mst. Azizan was his sister. After the death of Mansab Ali the accused wanted his land to be mutated in their names and secondly, Yasin accused wanted to marry Mst. Azizan which proposal was not accepted by her. The land was also mutated in the name of the children of Mansab Ali to the annoyance of the accused. It was, therefore, natural for Manzoor Ahmad P. W. To put up residence with his sister Mst. Azizan deceased. He was a natural witness of the occurrence and we do not find any circumstance to exclude his evidence from consideration. Booth the eye- witnesses were subjected to lengthy cross-examination but nothing came out in their statements to favour the accused.
22. The evidence of two eye-witnesses finds corroboration by recoveries of Sanga (Exh.P.6) and Danda (Exh.P.5), both blood-stained. These recoveries were witnessed by Muhammad Umar and Yasin P.Ws. Both of these P. Ws. Are related to the deceased but are in no way inimical towards the accused. They have consistently supported these recoveries during the trial.
23. It was argued that the prosecution story that the deceased and the witnesses were sleeping in the courtyard was improbable because of winter season. This argument is without any substance.
24. Firstly, the witnesses were not cross-examined on this point. Secondly, Minchinabad landscape in mostly desert and as such, winter sets in very late and thirdly, the police collected blood-stained earth from the place of occurrence which establishes the spot not disputed by accused.
25. It was urged by learned counsel that Afzal Beg P.W. Did not know the names of accused. He referred to the statement wherein this witness had stated: "I have 9 uncles. Out of them I can name the present two accused Shahu and Bagh Ali. The names of the others are not known to me. Shahu my uncle was not in the house at the time of occurrence. He had gone to the fields."
26. We have gone through the English as well as Urdu record of evidence. The words "present two accused" are not relatable to words "Shahu and Bagh Ali". The statement of Afzal Beg clearly means the names of the present two accused and names of Shahu and Bagh Ali, During his examination- in-chief this witness went to both accused and stated that one was Yasin and the other was Shah Din. It is not the case of appellants that they did not have brothers by the names of Shahu and Bagh Ali. The learned counsel who cross-examined this witness tried to confuse Afzal Beg P. W.
27. Although it appears that he in his own mind was clear that Shahu and Shah Muhammad were two distinct persons. It was argued that the statements of two eye-witnesses were discrepant on material points. The learned counsel was, however, not able to point out even a single such discrepancy.
28. The contention on behalf of the appellants that there was no immediate motive for the accused to murder Mst. Azizan is not without force. Mansab Ali, husband of Mst. Azizan deceased, was real brother of Muhammad Yasin and Shah Din accused. He died about six months before this occurrence. Muhammad Yasin accused wanted to marry Mst. Azizan but she did not agree. The land left by Mansab Ali was mutated in the name of his children some time before this occurrence.
29. There is nothing to show as to what happened after sanction of the mutation of inheritance till this occurrence. There is also no evidence to show as to what happened immediately before the occurrence at that odd hour, of the night on account of which the two accused killed Mst. Azizan.
30. The immediate motive is shrouded in mystery.
8. In view of the above discussion we find no merits in this appeal which is accordingly dismissed.
31. The conviction of Muhammad Yasin and Shah Din accused under sections 302/34 and 323/34, P.P.C. Is maintained. However, their sentence of death is reduced to imprisonment for life.
32. Muhammad Yasin and Shah Din appellants are sentenced to imprisonment for life plus fine of Rs.5,000 or in default to two years' rigorous imprisonment under section 302/34, P. P. C. And to one year's rigorous imprisonment under section 323/34, P.P.C. Both the sentences will run concurrently.
33. The sentences of death are not confirmed. The entire amount of fine, if recovered, will be paid as compensation to the children of the deceased. The two appellants will be given benefit of the provisions of section 382-B, Cr.P.C. At the time of computation of their sentence of imprisonment. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.