Maqsood Ahmad, aged 12-1/2 years (at the time of trial in September, 1986) was tried by Additional Sessions Judge, Faisalabad, alongwith his brother Saeed, aged 11 years, for having allegedly murdered Mumtaz, at Dopaharwela on 3-6-1985 near Chhaper, in Mohallah Nurpura, in the area of Chak No. 214/R.B. Dhuddiwala, Faisalabad, at a distance of 3 km. From Police Station Sadar, Faisalabad.
The learned trial Judge convicted him under section 302, P.P.C. Vide judgment dated 29-9-1986 and sentenced him to undergo imprisonment for life, plus to pay a fine of Rs.5,000 in default whereof to suffer R.I. For one year. He has also been directed to pay a sum of Rs.5,000 as compensation to the heirs of the deceased, in default whereof to undergo R.I. For six months.
2. The convict has filed appeal.
3. F.I.R. (Exh.P.F.) was registered at Police Station Sadar, Faisalabad by Mehr Khan S.I./S.H.O. (P.W.11) at 1-15 p.m. On 3-6-1985, on the statement of Ismail (P.W.8).
According to F.I.R. The complainant had shifted from village Balawal of District Sheikhupura to Mohallah Nurpura, Chak No. 214/R.B. 13/14 years prior to the occurrence. Muhammad Siddique, his co-villager, had also taken up residence in the same Mohallah 6/7 years prior to the occurrence.
On the day of occurrence, the complainant alongwith P.Ws. Jehangir and Liaqat were present near the shop of Rehmat at Dopaharwela. His son Mumtaz (deceased) was going to Dhuddiwala Town.
When Mumtaz reached near the Khokha of Muhammad Hussain alias Kalu,, which was closed due to Ramzan, Maqsood and Saeed sons of abovementioned Muhammad Siddique, came out from the Chappar, armed with Chhuris and launched an attack on Mumtaz while raising Lalkaras.
Maqsood inflicted two Chhuri blows to Mumtaz on the abdomen. Saeed also gave a Chhuri blow on the abdomen. The complainant and the P.Ws., ran to catch the accused but they succeeded in running away.
The condition of Mumtaz was precarious. His intestines had protruded out. He was taken to the hospital in a wagon. He died in the hospital while being examined by the doctor.
Motive mentioned in the F.I.R. ' is that Mst. Bashiran, sister of the accused, had returned to her father's house after deserting her husband. The deceased was suspected of having illicit relations with her and that he was murdered by the accused for that.
4. Mehr Khan, S.I., after recording the F.I.R. Reached, D.H.Q. Hospital, Faisalabad. He entrusted the dead body to Muhammad A.I and Muhammad Aslam constables, after preparing injury statement (Exh.P.J.) and inquest report (Exh.P.H.), for .Taking the same to the mortuary. He inspected the spot and collected blood-stained earth from there. Maqsood appellant was arrested by him on 4-6- 1985 while acquitted accused was arrested on 6-6-1985. Maqsood led to the recovery of Chhuri (P.4) from his house on 8-6-1985, which was taken into possession vide memo. Exh.P.D. Saeed, on the same day, led to the recovery of Chhuri (P.5) from his house, which was taken into possession vide memo. Exh.P.E.
Challan was submitted to Court after completion of necessary investigation.
5. Statements of 11 P.Ws. Were recorded at the trial.
Dr. Muhammad Ajmal Mian, who had performed autopsy on the dead body of Mumtaz at 5-45 p.m.
On 3-6-1985, appeared as P.W.l. He had noted following injuries on the body of the deceased:- (1)A stab wound, 2 c.m. x 1/2 c.m. Abdomen deep, situated on the right front upper part of abdomen through which a portion of omentum was coming out, cutting the abdominal wall, peritoneum and liver underneath through and through, directed backwards towards the centre of body.
(2)A stab wound, 1-1/2 c.m. x 1/2 c.m. Chest deep directed straight backward cutting sternum, pericardium and right side of heart anteriorly situated on the upper most part of epigastrium over lower middle front chest.
(3)A stab wound. 1-1/2 c.m. x 1/2 c.m. x muscle deep situated obliquely on the lower most part of left chest and upper part of abdomen 14 c.m. Below left nipple.
On opening the chest cavity, sterum, pericardium and right side of heart were found cut.
Peritoneum and liver were also found cut, on opening abdomen.
Death was opined to have occurred due to shock and haemorrhage, resulting from injuries Nos. 1 and 2, which were opined sufficient to cause death individually as well as collectively.
All the injuries were opined to have been caused by sharp-edged pointed weapon. Probable duration between injuries and death was opined to be one hour while duration between post- mortem and death was opined to be five hours.
During cross-examination, he stated that the possibility of injuries 1 to 3 having been caused with one and the same weapon cannot be ruled out because of the identical nature and dimensions of injuries. He also stated that possibility of the injuries having been caused by an ordinary knife (pen knife) cannot be ruled out.
6. The. Ocular account was deposed to by Ismail (P.W:8) and Jehangir (P.W.9). .
Ismail repeated the facts given by him in the F.I.R. During cross---examination, he stated that the deceased was taken to the hospital within 10/20 minutes after the occurrence alongwith P.Ws.
Jehangir and Liaqat. He stated that the doctor had noted all the injuries on the person of his son that deceased had died after about ten minutes after the preparation of M.L.R. And doctor had obtained his thumb-impression on the papers. In answer to another question, he stated that all the residents of the Mohallah had come to the place of occurrence and had witnessed the infliction of injuries to the deceased by the accused. According to him, Rehmat, owner of the grocery shop, was present in his shop at the time of occurrence and had also witnessed the occurrence. He explained that he had gone to the shop for purchasing sugar. He added that many customers were present at the spot at that time. He stated that all the persons present at the spot had gone after the accused to catch them but they had disappeared.
He stated that suspicion of illicit relations of the deceased with Mst. Bashiran had started 2-1/2 years prior to the occurrence. He admitted that Mst. Bashiran after having left the house of her husband at Lahore had come to his house but he had returned her through her uncle. He also admitted that Mst. Bashiran had asked him to marry his son with her. He stated that the Chhaper where the accused had hidden before the occurrence had a door on the back side and was in the shape of a Khokha. He denied the suggestion that neither he nor Jehangir and Liaqat P.Ws. Had witnessed the occurrence. The suggestion that Maqsood had inflicted injuries to Mumtaz under grave and sudden provocation on seeing the deceased committing Zina with his sister was also denied by him. He stated that Maqsood accused had appeared before the police on the very day of the occurrence.
Jahangir (P.W.9) corroborated the statement made by the P.W.8 about the occurrence. He did not state anything about the motive for the occurrence. In fact, during cross-examination, he denied any knowledge about illicit relations of the deceased with Mst. Bashiran. He expressed lack of knowledge about Mst. Bashiran having deserted her husband. He denied that she had ever eloped with the deceased. He categorically stated that he did not know why the accused had killed the deceased. In answer to another question, he stated that except himself, P.W. Liaqat and Ismail complainant, no one else was present at the time of occurrence. Rehmat, according to him, was inside his shop. He explained that he had gone to see Rehmat to get medicines, as he was also a Hakeem. He stated that if anybody concealed himself in the Chhaper, he would not be visible to the parsons passing hither and thither. The Chhaper itself was a hotel and had its walls 3/4 feet high.
Post-mortem, according to him, was performed after Isha prayers. He denied the suggestion that he had not witnessed the occurrence.
7. Zafar, who had witnessed the recovery of Chhuris at the instance of the appellant and the acquitted accused appeared as P.W.7. He claimed to have accompanied the police at the time of recoveries and of having witnessed the same. During cross-examination, he stated that 4/5 persons of Mohallah Nurpura were present at the time of recoveries. He explained that he and Hamaish (given up P.W.) had gone to the police station on that day by chance. He denied the suggestion that no recoveries were effected from the accused.
8. Mehr Khan, S.H.O., who appeared as P.W.11 gave the account of registration of case, arrest of the accused and the recoveries effected at their instances. During cross-examination, he admitted that the murder was a sequal to the illicit relations of the deceased with the sister of the accused.
He admitted that it had come to his knowledge that the sister of the accused had eloped with the deceased once or twice before the occurrence and that the deceased used to hang over, after her to continue his illicit relations. He denied the suggestion that Ismail complainant had informed him that his son was murdered with the conspiracy of Mushtaq. According to him, the shop of Rehmat at the place of occurrence was close due to month of Ramzan and so he could not examine him.
He stated that he had not examined anyone from the adjoining shops as none of them was present at the time of occurrence. He admitted that Mst. Bashiran had appeared before him but he had not recorded her statement. He explained that she was not willing to make any statement. He denied the suggestion that he had planted the recoveries of Chhuris. He did not accept the suggestion that the appellant had taken up the plea before him at the time of arrest that he had killed the deceased due to Ghairat on seeing him committing Zina with his sister. He admitted that .Adam, A.S.I. Of his police station had died in an accident while going to Feroze Wattooan, in District Sheikhupura to find out if Saeed accused was there on the day of occurrence, as pleaded by him.
The statements of other witnesses are more or less of a formal nature.
9. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case. He admitted that the deceased had illicit relations with his sister, Mst. Bashiran, who had deserted her husband after marriage and had returned to their house. He stated that the accused had abducted his sister a year prior to the occurrence but was restored through Punchayat: While answering question about the occurrence, he stated as follows:- "It is correct. In fact I was all alone when I saw both the: deceased and my sister in an objectionable position in a Khokha. I had a pen knife with me. I was highly provoked to see the situation and lost self-control and caused knife blows to the deceased while my sister managed to escape. It was all due to sudden and grave provocation. There was no witness at that time. I myself went to the police station and narrated the incident. Subsequently, the police twisted the story and imported the witnesses. Saeed co-accused was not at all with me. He had gone to Feroze Wattooan, a few days prior to the occurrence."
He denied that he had led to the recovery of Chhuri. He took up the plea that he had appeared before the police soon after the occurrence of his own, and produced knife with which he had inflicted the injuries.
Saeed, his co-accused, denied the prosecution case as a whole and pleaded innocence.
Both of them made statements on oath under section 340(2), Cr.P.C. And repeated the stands taken by them in their statements under section 342, Cr.P.C.
10. I have gone through the record with the assistance of the learned counsel for the appellant and have considered the contentions raised by the learned counsel for the parties.
11. The contention of the learned counsel for the appellant that the stance o the appellant that the complainant and the witnesses named in the F.I.R. Had not witnessed the occurrence, finds support from the record. In that both the witnesses, i.e. P.W.8, father of the deceased, and Jehangir (P.W.9), have in certain aspects made contradictory statements while in other aspects their testimonies do not inspire confidence.
The statement made by P.W.8 that many people other than himself and the two witnesses named in the F.I.R., including the owners of the nearby shops, customers and other persons, had also witnessed the occurrence, has been categorically contradicted by P.W.9, who categorically stated that except himself, Liaqat and complainant none else was present at the time of occurrence. He also ruled out the witnessing of occurrence by Rehmat shop-keeper, as according to him he was inside his shop at that time.
The statement made by the complainant that he had taken his son whilst alive to the hospital where the doctor had examined him and had prepared M.L.R. Whereon he had put thumb- impression, on being asked, and that deceased had died ten minutes thereafter, does not find support from anything on record. Neither the doctor, who is alleged to have medically examined him (deceased) and prepared M.L.R. Was produced at the trial nor the doctor, who had performed autopsy stated any such thing. This fact, therefore, also casts doubt about his presence at the spot.
His claim that he had gone to purchase sugar from the shop of Rehmat and that the shop was open and many other customers were also present there at the time of occurrence also stands negated. In that Mehr Khan, S.H.O. (P.W.11) clearly stated during cross-examination that he could not record the statement of Rehmat as his shop was close due to Ramzan. The interpretation of this statement by the trial Judge that the S.I. Might have meant that his shop was close' when he had gone to record his statement, in my view is not correct reading of the statement. In that, the S.I.
Clarified that he had gone to the spot on the same day soon after visiting the hospital and had found the shop closed. He did not say that the shop was closed when he visited the spot. He stated that shop was closed due to Ramzan, which means that the shop was not opened since morning.
The stance of P.W.9 that he did not know anything about the illicit intimacy of the deceased with Mst. Bashiran, sister of the appellant, does not sound well. It appears from the evidence that the illicit relations of the deceased with Mst. Bashiran were no secret and were widely known. She had not only deserted her husband's house and taken up residence with her father, but had also been abducted twice before the occurrence by the deceased, as stated by the S.I. (P.W.11). In fact, the complainant, who is father of the deceased, also admitted that Mst. Bashiran had once come to his house and had asked him to marry her with his son (deceased). The attempt made by this witness to withhold such information becomes significant in view of the fact that he had appeared after such suggestions had been put to the complainant (P.W.8), before his appearance at the trial.
The claim of this witness of having witnessed the occurrence also becomes doubtful in view of the statement made by him that the post-mortem was performed after Isha prayers. This fact stands rebutted from the statement of the doctor, according to whom the post-mortem was performed at 5-45 p.m. Even if the doctor had not given time, it is known that the post-mortems are not performed after sunset unless special orders are passed in that regard.
12. The presence and claim of the two eye-witnesses at the trial to have witnessed the occurrence seems to be highly doubtful and not worth acting upon.
It is worth mentioning that the prosecution version of the appellant having led to the recovery of Chhuri (P.4) was not believed by the trial Judge. The reasons given in the impugned judgment for that, in my view, also hold well and do not call for any interference.
13. Coming to the version put forth by the appellant of having acted under sudden and grave provocation on seeing his sister in compromising position with the deceased, I find weight in the argument of the learned counsel for the State that the same neither appears to be true nor probable, first, for the reason that it is impossible to believe that the deceased and his fiance would have indulged in such an act in a Chhaper which did not have roof and walls at midday in a public place, and secondly, for the reason that the deceased, according to the inquest report, was found not only wearing Bunyan and shirt but also wearing loin cloth. The doctor had also noted these wearings on the body of the deceased. If the deceased had been done to death while committing Zina, he would not have been found wearing Chaddar. Moreover, the doctor might have also been able to note that the deceased was done to death while being in such a position, which fact does not find mention in the statement of the doctor.
14. However, there seems weight in the argument of the learned counsel for the appellant that the appellant must have seen the deceased in the company of his sister, with whom his illicit intimacy was widely known, and he had abducted her also once or twice before the occurrence, and so might have felt enraged and attacked him, on seeing them in hand and gloves and that he might have exaggerated by stating that he had seen them committing Zina. This argument finds support from the evidence on record. In that, the claim made by the appellant that he had appeared before the police soon after the occurrence has been admitted by Ismail (P.W.8), father of the deceased, in spite of the fact that the S.I. Had shown the arrest of the appellant on 4-6-1985, i.e. a day after the occurrence.
The statement made by the appellant that he had inflicted injuries to the deceased with a knife also finds support from the material on record. In that, the dimensions of the injuries and the damage done by the injuries do not appear to J have resulted from the Chhuri blows, which is alleged to have been recovered from the appellant. The length of the Chhuri, according to the recovery memo. Was 9 inches while it had a breadth of one inch. In the given situation, the injuries must have been caused with a venom. If the same had been done with the Chhuri of that size and length, it would have pierced deeper and done more damage. The dimensions of the injuries would also have not been as noted by the doctor. In that one of the injuries had a dimension of 2 c.m. x 1/2 c.m. Abdomen deep, while the other two were 1-1/2 c.m. x 1/2 c.m. With chest depth and muscle depth. The injuries of such dimensions rather could have resulted from a pen knife, whose length is normally between 2-/12 to 3-1/2 inches. The doctor, who had performed a autopsy had also accepted the possibility of the injuries having been inflicted by an ordinary knife like pen knife.
15. For all the reasons noted above, I am of the view that the prosecution version of the occurrence is not believable while the version put forth by the appellant seems to be probable to the extent of his having seen the deceased in the company of his sister in seclusion, whereupon he acted under sudden 1 provocation and had infected injuries to the deceased, which resulted in his death. His conviction and sentences under section 302, P.P.C. Are, therefore, set aside. Instead he is convicted under section 304, Part 1, P.P.C. And sentenced to undergo R.I. For ten years, plus to pay a fine of Rs.1,000 in default whereof to suffer R.I. For six months.
The appellant shall be given the benefit of the provisions of section 382-B Cr.P.C.
SA./M-1342/L