KHIZAR HAYAT, J.-- Shakeel Ahmad alias Shakeel, son of Nur Muhammad, case Sheikh, aged 20/21 years and Ghulam Hussain son of Allah Wasaya, case Sheikh, aged 30/31 years, both residents of Mauza Basti Jam, Tehsil and District D.G. Khan, have been convicted under section 302/34, P.P.C.
And sentenced to imprisonment for life and a fine of Rs.2S,000 or in default to undergo two years'
R.I. Each, by Special Court for Speedy Trial NOXI, D.G, Khan, vide judgment, dated 8-2-1988. They have been further directed to pay Rs.25,000 each to the heirs of the deceased as compensation or to undergo six months' R.I. Each. The convicts have preferred joint appeal (Criminal Appeal No. 54 of 1988) against their conviction and sentence and State has also filed Criminal Appeal 36 of 1988 seeking enhancement of the sentence of the appellants to death. Both these appeals are being disposed of by this single judgment.
2. The occurrence took place at 6 a.m. On 24-10-1987 within the revenue limits of Basti Jam, at a distance of about 6 miles away from Police Station Choti, District D.G. Khan. The report in this case was made by Ghulam Farid (P.W.1), a real brother of Ghulam Yasin, deceased, through statement Exh.P.A. At Chauk Qasba Choti with Gulzar Ahmad S.I. (P.W.9), the same day at 10-15 a.m. And on its basis A.S.I. Muharrir Amir Ahmad (P.W.5) drew up formal F.I.R. Exh.P.A./1 at Police Station Choti, at 10- 30 a.m.
3. The motive behind the occurrence was stated to be that Shakeel Ahmad, appellant, suspected Ghulam Yasin, deceased, to be having illicit relations with his wife Mst. Maqsood alias Jindi, therefore, both the appellants in order to avenge the grouse m furtherance of their common intention killed the deceased.
4. According to prosecution, Ghulam Farid complainant and Ghulam Yasin, deceased had got 87 Bighas of agricultural land on lease in Basti Jam which they used to cultivate themselves. Allah Dad (P.W.2), their maternal-uncle and Ata Muhammad P.W., their brother-in-law, came from Choti Zereen to see them on the evening of 23-10-1987. Next day at about 6-30 a.m. The complainant alongwith Ata Muhammad P.W. And Ghulam Yasin were going to Hyderabad Bus-stop from where they wanted to proceed to Choti. After they had travelled about half a mile from their residence, Ghulam Yasin, deceased went to the cotton crop of Bakhshu Khosa to ease himself. Meanwhile the complainant and Ata Muhammad P.W. Went ahead for 10/15 Karams when they heard alarm raised by Ghulam Yasin. They turned back and saw Shakeel and Ghulam Hussain, appellants, causing stick blows to the deceased on his head as a result of which he fell down. They tried to capture the appellants but they managed to make good their escape. Ghulam Yasin was removed to Choti Hospital for treatment where Dr. Sajjad Sarwar (P.W.8) examined him at 8 a.m. And noted two injuries on his head i.e. Swelling 2-1/2" x 2-1/2" on the right side of the head and a lacerated wound `L' shaped 2" x 1/2" x 4" above the left eyebrow which was bleeding. Both these injuries were declared grievous and dangerous to life. The doctor issued medico-legal certificate Exh.P.L. And admitted the patient in the hospital who was unconscious at that time. Having received the medico-legal certificate, Ghulam Farid P.W., went to police station for making the report with police and in the way- having met Ghulzar Ahmad S.I. (P.W.9) made statement Exh.PA. Before him, as indicated above.
5. Ghulzar Ahmad S.I. (P.W.9) sent statement Exh.PA. To Police Station Choti for registration of formal F.I.R. And he himself proceeded to Choti Hospital to record statement of Ghulam Yasin. He enquired from the doctor through application Exh.P.M. If Ghulam Yasin was fit to make statement, to which the doctor replied in the negative. He then went to, the spot, secured blood--stained earth from there and recorded statements of the witnesses.
6. As the condition of Ghulam Yasin deceased deteriorated at Choti Hospital, therefore. He was referred to Nisthar, Hospital, Multan where he died on 25-10-1987 vide death slip Exh.P.H. Ghulam Farid P.W. Informed the police about it, whereupon Gulzar Ahmad S.I. (P.W.9) reaching Nisthar Hospital, prepared inquest report Exh.P.J. Of the deceased and sent the dead body to mortuary for post-mortem examination.
7. On 26-10-1987 Dr. Aqeel Ahmad (P.W.7) conducted post-mortem examination on the dead body of the deceased and found underneath the injuries noted by Dr. Sajjad Sarwar (P.W.8), fracture of frontal and right parietal bone and also fracture of left parietal, left temporal and base of the skull.
A bone piece was also removed by the Surgeon 9 c.m. x 5 c.m. In the opinion of the doctor death occurred due to shock and intracranial haemorrhage produced by injuries Nos. 1 and 2 which were sufficient to cause death in the ordinary course of nature.
8. Gulzar Ahmad S.I. (P.W.9) on 30-10-1987 arrested both the appellants. On 31-10-1987 Shakeel Ahmad appellant while in custody got recovered blood--stained Sota P.1 from his house which was secured under memo. Exh.P.C. And on the same day Ghulam Hussain appellant got recovered blood-stained Sota P.2 from his house in the same fashion which was secured under memo.
Exh.P.D., both attested by Allah Dad (P.W.2) besides the Investigating Officer.
9. At the trial the prosecution examined 9 witnesses Ghulam Farid complainant (P.W.1) and Allah Dad (P.W.2) narrated the eye-witness account as well as the motive. Allah Dad (P.W.2) also stated about the recovery of weapon of offence effected from the appellants. Dr. Aqeel (P.W.7) and Dr. Sajjad Sarwar (P.W.8) have furnished the medical evidence.
10. In their statements under section 342, Cr.P.C. The appellants denied the recovery of weapons of offence. They also denied the presence of the eye--wtinesses but admitted the occurrence raising the plea of self-defence and sudden provocation in the following words:- "Previously I and my co-accused did not suspect any illicit relations of my wife Mst. Maqsood alias Jindi with the deceased but on the day of the occurrence at the morning time I and my co- accused Ghulam Hussain were going with our donkeys and my said wife was behind us at some distance. Ghulam Yasin deceased tried to outrage the modesty of my wife Mst. Maqsood alias Jindi, whereupon on her cries, I and my co--accused came back and inflicted blows with our donkeys driving sticks on the person of the deceased, as we wanted to rescue Mst. Maqsood alias Jindi."
No witness was examined in defence.
11. Learned trial Court, as indicated above, convicted and sentenced the appellants, hence this appeal.
12. We have heard learned counsel for the appellants as well as learned AA.-G. And also perused the record.
13. Appellants' learned counsel submitted that both the eye-witnesses, namely, Ghulam Farid (P.W.1) and Allah Dad (P.W.2) are close relations of the deceased. Both of them lived miles away from the place of occurrence therefore, their presence at the time of occurrence was doubtful. The argument appears to us as without substance. It is well-settled that mere relationship of a witness with the deceased is not sufficient to discard his evidence. It is in evidence that there did not exist any enmity between the parties, before the occurrence therefore, the A complainant party cannot be said to be interested to falsely implicate the appellants in this case. The testimony of both the eye-witnesses is consistent and convincing. The presence of Allah Dad P.W. Has been established beyond doubt but even if his statement is kept out of consideration there still remains unquestionable testimony of- Ghulam Farid complainant implicating the appellants. He is a person who took the deceased to the hospital at Choti. His I name appears in the medico-legal report Exh.P.L. Which is a positive proof of the fact that he was present at the time of occurrence and was thus able to remove B the deceased for treatment immediately after the occurrence to the hospital. It is no wonder if no wayfarer other than the eye-witnesses, namely, Ghulam Farid and Allah Dad happened to be present at the time of occurrence since it was early morning time.
14. Learned counsel emphasized that the deceased, according to prosecution, accompanied the witnesses for getting change of 500 rupees note as he had to make payment to the labourer but that 500 rupees note was not found on the person of the deceased. This question was not asked from the complainant. Learned counsel has lost sight of the fact that the deceased had not expired on the spot. He was first removed to Choti Hospital and then Nishtar Hospital for treatment. It is also in evidence that local medicines were C administered to the deceased obviously therefore, the money was needed for purchasing medicines and it is just possible that the money found on the person of the deceased was spent by his relatives. Failure of defence counsel tee ask about` 500 rupees note carried by the deceased from the eye-witnesses goes against him and it has not caused any dent in the prosecution case.
15. We have considered the defence version by placing it in juxtaposition with the prosecution case and we are of the view that no reasonable possibility of I defence story being true exists there for the reasons--namely, that it is highly improbable that when Shakeel, husband of Mst. Jindi and Ghulam Hussain her relative were present only 15 Karams away from her, the deceased dared to catch I hold of her, who, according to the defence, was an unwilling party. This plea is afterthought and that is why Mst. Jindi was not produced during investigation and even at the trial. We have not, therefore, permitted the appellants to lead defence evidence at this stage.
16. On the other hand, the presence of the eye-witnesses at the time of occurrence was probable.
Their testimony is straightforward and confidence inspiring. To our mind the trial Court rightly held the appellants as responsible for causing the death of the deceased. Both the appellants though gave one blow each but since they inflicted it on the head of the deceased a vulnerable part of the body and with such force which resulted in multiple fractures of the skull so it shows that they intended to cause death of the deceased. We, therefore, agree with the finding of the learned trial Court that they are guilty of committing offence of murder.
17. Coming to the question of sentence, suffice it to say, that on the prosecution's own showing the deceased was suspected of having illicit relations with the wife of Shakeel Ahmad appellant and relative of Ghulam Hussain appellant, therefore, they are entitled to lesser penalty. Consequently, while maintaining conviction and sentence we dismiss the appeal of the appellants as well as the State appeal seeking enhancement of sentence of the appellants.