MUHAMMAD MUNIR KHAN, J: --This Criminal Appeal No.74 of 1987 and connected Murder Reference No.98 of 1987 arise from the judgment of learned Additional Sessions Judge, Multan, whereby he on 12-4-1987, while acquitting Kala co-accused, convicted Aziz Masih alias Kuddi (23) appellant, Heera and Babu under various sections of Pakistan Penal Code and sentenced them as under:-- (1)Kuddi appellant under section 302, P.P.C. for the murder of Muhammad Abbas.Death and a fine of Rs.5,000 in default thereof two years 'R.I. with the direction that the fine if realized be paid to the heirs of the deceased.
(2)Heera co-accused under section 324, P.P.C.Two years' R.I.
(3)Babu accused under section 323, P.P.C.One year's R.I.
It may be noted here that Heera and Babu have not filed appeal against their conviction and sentence.
2. The occurrence took place on 8-7-1980 at 6-00 p.m. In playground situate in Ward No.10 Kahror Pacca Town at a distance of four furlongs from Policy Station Kahror Pacca. F.I.R. Is statement Exh.P.J. Of Muhammad Ramzan P.W.9 maternal-uncle of the deceased, recorded by Ghulam Mustafa, S.I., P.W.12 on the same day at 7-15 p.m. In Civil Hospital, Kahror Pacca. Formal F.I.R. Exh.P.J./1 was drawn up by Ghulam Rasool, Muharrir Head Constable, P.W.13 on the same day at 7-30 p.m.
3. The motive allegedly was that a day before the occurrence Aziz Masih alias Kuddi after having taken alcohol was creating nuisance near the house of Muhammad Abbas deceased. The deceased came out of his house and stopped him from making noise and also gave him slaps.
Feeling aggrieved, Aziz Masih appellant threatened the deceased with dire consequence.
4. As for the main occurrence, it has been stated that at the eventful time Muhammad Abbas deceased, Muhammad Nawaz P.W.7, Muhammad Rafiq P.W.8 were present in Hockey ground situate in Ward No.10, Kahror Pacca Town, when Aziz Masih alias Kuddi appellant armed with Chhuri, Kala, acquitted accused armed with Chhuri, Heera accused armed with Chhuri and Babu accused empty handed came there. They raised Lalkara that they will teach leason to Muhammad Abbas deceased for insulting Aziz Masih alias Kuddi appellant. Babu accused caught hold of the deceased. Aziz alias Kuddi appellant inflicted Chhuri blow on the chest of Muhammad Abbas who fell down on the ground. Kala, acquitted accused gave Chhuri blow on the chest of Muhammad Nawaz P.W. Heera accused also gave Chhuri blow on the chest and index finger of the left hand of Muhammad Nawaz P.W. Muhammad Rafiq P.W.8 tried to intervene but Babu accused gave a brickbat blow on his face. The alarm raised by the P.Ws. Attracted Muhammad Ramzan P.W.9, Fayyaz and Rasool Bakhsh (both not produced) to the spot. The accused decamped carrying their weapons with their,. Muhammad Abbas deceased and the injured witnesses were removed to Civil Hospital, Kahror Pacca. Muhammad Abbas died in the hospital on the same day.
5. On 9-7-1986, Dr. Muhammad Umar Farooq, P.W.1, conducted post-mortem examination on the dead body of Muhammad Abbas and found following injury:-- "An incised wound 3 x 2 c.m. Into bone deep on left side of chest 6 c.m. Below left nipple:"
On the same day, he examined Muhammad Nawaz P.W. And found 3 incised wounds, out of which two were on the chest and the third was on the left index finger. All the three injuries were caused with sharp-edged weapon and were declared simple.
On the same day he examined Muhammad Rafiq P.W.8 and found one lacerated wound 3 x 1 c.m. x bone deep in outer side of left eye. The injury was caused by sharp-edged weapon and was declared simple,
6. Aziz Masih alias Kuddi appellant, Babu and Heera co-accused were arrested by Ghulam Mustafa, S.I. P.W.12 on 13-7-1986. Kala, acquitted accused was arrested by Muhammad Ismail, S.I. P.W.10 on 23-7-1986. On 13-7-1986 Aziz Masih appellant got recovered blood-stained Chhuri Exh.P.10 from his house, which was taken into possession vide memo. Exh.P.O. Attested by Muhammad Ramzan P.W.9 and Ghulam Rasool (not produced) and Ghulam Mustafa, S.I. P.W.12. On the same day Heera accused produced blood-stained Chhuri Exh.P.9 from his house which was taken into possession vide memo. Exh.P.N. Attested by the same witnesses. No weapon was recovered from Kala, acquitted accused. Serologist Report Exh.P.T. Reveals that Chhuri Exh.P.9 and Chhuri Exh.P.10 were stained with human blood. On 10-7-1986, Muhammad Ramzan P.W.9 produced blood-stained shirt Exh.P.4, Shalwar Exh.P.5 and Bunyan Exh.P.6 of Muhammad Rafiq P.W.8 and blood-stained shirt Exh.P.7, Chadar Exh.P.8 of Muhammad Nawaz P.W., which were taken into possession vide memo.
Exh.P.M. Attested by Muhammad Ali P.W.6 and Ghulam Mustafa S.I. P.W.12.
7. To prove its case, prosecution produced 13 witnesses. Muhammad Nawaz P.W.7, Muhammad Rafiq P.W.8 and Muhammad Ramzan P.W.9 have given the ocular account of the occurrence. They have fully supported the prosecution version of the occurrence as detailed above. They claim to have seen Aziz Masih appellant inflicting fatal blow to Muhammad Abbas deceased. Muhammad Nawaz P.W.7 further stated that Kala, Heera had caused injuries on his person. Muhammad Rafiq P.W.8 stated that Babu accused had injured him with brickbat. Muhammad Ramzan P.W.9 and Ghulam Mustafa, S.I. P.W.12 have supported the recoveries of blood-stained Chhuris Exhs.P.9. And 10 from Heera accused and Aziz Masih appellant. Dr. Muhammad Umar Farooq, P.W.1 has proved the post-mortem examination report of Muhammad Abbas deceased and medico-legal reports of Muhammad Nawaz and Muhammad Rafiq P.Ws. The rest of the evidence is of formal nature.
8. When examined under section 342, Cr.P.C. Aziz Masih appellant raised the plea of grave and sudden provocation and of self-defence. In reply to Q.No.8, he stated:-- "The complainant party has got me and my co-accused falsely implicated in this case so that no one from my family may remain outside to pursue the case on our behalf. The actual facts of the occurrence are that Abbas deceased tried to develop illicit relations with my sister Mst. Zeenat. She declined and informed me, my father and her husband about this fact. On the day of occurrence at about quarter to six p.m. My sister Mst. Zeenat was present all alone in our house when Abbas deceased, Muhammad Nawaz and Muhammad Rafiq P.Ws. All armed with Chhuris, trespassed into our house and forcibly abducted my sister Mst. Zeenat for the purpose of illicit intercourse with her and dragged her out of our house up to a distance of one Kanal. On her alarm I came to the spot in order to rescue her. I picked up a brickbat and threw the same towards Abbas deceased but the brickbat hit Muhammad Rafiq P.W. And due to the striking of the brickbat, the Chhurr in the hand of Muhammad Rafiq P.W. Fell down and the same was picked up by me and in order to save Mst.
Zeenat from the clutches of the deceased and the P.Ws., I in self-defence and under grave and sudden provocation, injured Abbas deceased and Muhammad Nawaz P.W. With that Chhuri and rescued my sister Mst. Zeenat. Soon afterwards I went to the Police of Police Station Kahror Pacca and narrated the above-mentioned story about the occurrence and requested the police to register, a case of abduction of my sister against the deceased and the P.Ws. But the police instead of registering the case on my behalf, registered this false case against me and my co-accused in connivance with the complainant party and under the influence of the local councillors. Heera, Babu and Kala accused were not present at the spot at the time of the occurrence."
The remaining accused denied their participation in the occurrence. Aziz Masih did not give evidence on oath in disproof of the charge against him. However, he produced his sister Mst.
Zeenat as D.W.1. She supported the defence plea taken by the appellant.
9. Believing the prosecution case and evidence produced by it and disbelieving the defence version and the statement made by Mst. Zeenat, the trial Court has convicted and sentenced Aziz Masih appellant and his co-accused Heera and Babu as stated above.
10. Learned counsel for the appellant argued that the eye-witnesses are closely' related to the deceased; that they are not truthful witnesses; that their evidence has been disbelieved to the extent of Kala, acquitted accused; that although the occurrence took place in the Hockey ground where many persons were present yet not a single independent witness has been produced by the prosecution; that the motive is farfetched and flimzy; that no witness of the motive incident was produced and that the investigation was unfair and as such, the prosecution has failed to bring home the guilt to the appellant beyond reasonable doubt. Conversely, the learned counsel for the State has supported the judgment of the trial Court.
11. We have anxiously attended to the arguments addressed by the learned counsel for the parties and have carefully reviewed the entire evidence that has been produced by the prosecution; statements of the accused; statements made by the defence witnesses and the circumstances appearing in the case. Since it is a case of two versions, so we propose to consider the prosecution case and evidence produced by it, first. The occurrence took place at 6-00 p.m. And the F.I.R. Was lodged at 7-15 p.m. There is nothing in evidence to show that the F.I.R. Was really recorded on the spot after investigation. The names of the appellant and his co---accused, the names of the witnesses, the weapons carried by the accused and the manner in which the- occurrence took place have specifically been mentioned in the F.I.R. The medical evidence confirms the injuries on the person of the deceased and the injured P.Ws. The eye-witnesses are closely related to the deceased but their statements cannot be discarded on this ground alone. The occurrence took place in Hockey ground. The reasons given by Muhammad Nawaz and Muhammad Rafiq P.Ws., the eye-witnesses, that they had gone there to see the boys playing Hockey is quite plausible. By the fact of the injuries on the person of Muhammad Nawaz and Muhammad Rafiq P.Ws., their presence on the spot is very much established. Furthermore, their presence has not been denied by the appellant. Muhammad Ramzan P.W. Resides near the place of occurrence. He has also given plausible cause of his attraction to the place of occurrence. The witnesses have stood the test of cross-examination. Nothing adverse to their veracity could be elicited. The statements made by them do not suffer from major contradictions and material discrepancies. The number of the injuries suffered by the deceased and the witnesses commensurates with the number of the assailants/accused named by them. The recoveries of blood-stained Chhuri from Heera accused, Aziz Masih-appellant not only connect them with the occurrence but also lend support to the prosecution version of the occurrence. The eye--witnesses have not been disbelieved to the extent of Kala. He has given the benefit of doubt. No doubt, the occurrence was witnesses by many persons but it is by now a matter of common experience that independent persons do avoid to be cited as witness. Therefore, the statements of the relative witnesses, who otherwise inspire confidence cannot be rejected for the failure on the part of the prosecution to produce independent persons. The alleged motive is also proved by the fact of declaration made by the appellant and his co-accused that they had come to teach lesson to the deceased for insulting Aziz Masih appellant, as stated by the eye-witnesses. For all these reasons, the prosecution version and the statements of the witnesses cannot be excluded from consideration.
12. The further question arises as to whether the appellant has been able to prove defence version or there is any reasonable possibility of his version being true. The place wherefrom blood-stained earth was removed falsifies the entire story of the defence and also the statement made by Mst.
Zeenat D.W.1. The blood-stained earth was taken into possession from the hockey ground. Had the occurrence taken place in a manner alleged by the defence and also in the manner as deposed by Mst. Zcenat D.W., then there would have no blood in the hockey ground. Instead it would have been on a place at a distance of 200 paces from the house of the appellant. Furthermore, there would have been marks of violence/dragging on the person of Mst. Zeenat. According to the defence version, the deceased and his companions were armed with weapons. Strangely neither the appellant nor his sister did receive any bruise or abrasion at the time of occurrence.
Furthermore, Aziz appellant alone could not have caused the death of Abbas and injuries to the two prosecution witnesses as claimed by him. Mst. Zeenat D.W. Neither appeared before the Investigating Officer, nor she had sent any application in support of the defence version to the police hierarchy. The appellant had not disclosed the defence version to the Investigating Officer at any stage of the investigation. We are convinced that prosecution version of the occurrence rings true and there is no reasonable possibility of the defence version being true. As such no exception can be taken to the conviction of the appellant recorded by the trial Court.
13. Carefully considering the question of sentence of Aziz Masih alias Kuddi appellant, we find that there are mitigating extenuating circumstances in his favour for lesser penalty, inasmuch as the deceased had publicly insulted and slapped him without any authority on the night preceding the day of occurrence. So, his act of killing the deceased appears to be somewhat provoked.
14. Pursuant to the above discussion, the appeal is dismissed and while maintaining his conviction under section 302, P.P.C. For the murder of Muhammad Abbas, the sentence of death is reduced to imprisonment for life. The fine imposed by the trial Court or imprisonment in default thereof and direction for its payment to the legal heirs of the deceased are upheld. The appellant will get the benefit of the provisions of section 382-B, Cr.P.C.
DEATH SENTENCE IS NOT CONFIRMED.
N.H.Q./A-1112/L