Muhammad Saeed, 20, was tried by Sessions Judge, Toba Tek Singh for having murdered Tahir Javed on 31-5-1987 at 7-15 p.m. In the Chowk of village 394/J.B. At a distance of eleven miles from Police Station Chutiana, District Toba Tek Singh. Learned trial Judge vide judgment dated 3-3-1988 convicted him under section 302, P.P.C. And sentenced him to undergo imprisonment for life and also to pay a fine of Rs.30,000 or in default of payment of fine to undergo further rigorous imprisonment for five years. A sum of Rs.25,000 out of the fine, on recovery, had been directed to be paid as compensation to the heirs of the deceased.
2. The convict has filed appeal. The complainant has filed revision petition for enhancement of sentence from imprisonment for life to death. The revision petition is still in motion and has been directed to be heard alongwith the appeal. Both the matters are being disposed of together.
3. F.I.R. Exh. P.B. Was recorded at the police station by Allah Bakhsh S.I./S.H.O. (P.W.9) at 10-45 p.m. On 31-5-1987 on the statement of Tariq Javed (P.W.6). According to the F.I.R., a Kabaddi match was played in the Primary School of the village on the evening of the day of occurrence. The complainant and the deceased had gone to see the match. On being free from there, they started for their house, accompanied by Mukhtar Ahmad (P.W.7) and given up P.1N's. Muhammad Amir and Muhammad Bashir. Some other residents of the village were also walking that way. When they reached in the Chowk of the village near the shop of Muhammad Saleem Arain, appellant appeared suddenly from behind holding Khanjar in his hand. He inflicted a Khanjar blow on the right buttock of Tahir Javed. Second blow was given by him to Tahir Javed on the left arm. Tahir Javed fell down after walking a few steps. Muhammad Saeed appellant ran away waving Khanjar.
Tahir laved was taken to his house by the complainant and the other witnesses. Therefrom he was taken to the Civil Hospital, Toba Tek Singh on a trolley driven by tractor. However, he died while on way. The motive for the occurrence given in the F.I.R. Is that Abdul Hameed (father of the appellant) etc. Usually did not help in clearing the Bhal (mud) from the joint watercourse for irrigation purposes and on that account a week before the occurrence Abdul Hameed and Tahir Javed (deceased) had exchanged abuses.
4. Allah Bakhsh S.H.O. After recording the F.I.R. Went to the Civil Hospital and after preparing the injury statement Exh. P.F. And inquest report Exh. P.G. Entrusted the dead body to Muhammad Amir Constable for post-mortem examination. The spot was inspected by him on 1-6-1987 from where he collected blood-stained earth vide memo. Exh. P.C.
The appellant was arrested by him on 17-6-1987. On the same day, he got recovered dagger P.3 by digging the same from the field of Muhammad Aslam. The dagger was taken into possession vide memo. Exh. P.D. Challan was submitted to the Court after completion of necessary investigation.
5. Statements of nine P.Ws. Were recorded at the trial.
Dr. Abdul Jabbar, who had performed the autopsy on 1-6-1987 at 8-30 a.m. Appeared as P.W.5, he had noted the following injuries on the dead body of the deceased: (1)An incised wound 9 c.m. x 2 c.m. x skin deep on outer aspect of lower part of left forearm.
(2)A stab wound 3 c.m. x 1-1/2 c.m. Going deep into the abdominal cavity on lower part of right buttock.
On dissection, abdominal cavity was found full of blood under injury No.2. Small and large intestines were found cut at various places. Urinary bladder was also injured.
Death was opined to have occurred due to injury No.2, which was opined sufficient to cause death in the ordinary course of nature. Injury No.3 was declared simple. Both the injuries were opined to have been caused by sharp-- edged weapon. The time between injuries and death was opined within one to three hours while time that elapsed between death and post-mortem examination was opined to be 8 to 12 hours.
During cross-examination, he stated that death might have resulted between 8-30 p.m. To 12-00 O'clock on the night during 31-5-1987 and 1-6-1987.
6. The ocular account was deposed to by Tariq Javed (P.W.6) real brother of the deceased and Mukhtar Ahmad (P.W.7).
Tariq Javed (P.W.6), after repeating the facts given by him in the F.I.R. Stated during cross- examination that his father and the father of the appellant were step brothers. He gave out that Muhammad Tufail, brother of mother of the appellant, was married to the real sister of the father of the deceased but he had divorced her after birth of a daughter. He categorically stated that his version was that one week before the occurrence, the deceased had abused the father of the appellant and on that account the appellant had felt insulted and had committed the murder. He expressed inability to say whether the deceased wanted to marry Mst. Shahida Parveen, sister of the appellant, or that the appellant had opposed the wish of the deceased. He stated that the house of Muhammad Saleem shopkeeper was adjacent to his shop and the occurrence had taken place at a distance of 3/4 paces from the door of his shop. He stated that Mst. Shahida Parveen was not produced during investigation before the Investigating Officer. In answer to a question he stated that he had joined the University service eight months before the occurrence and had continued studies as a B.Sc. Student as well. He denied the suggestion that he had not witnessed the occurrence and was called from Lahore to become the complainant.
Mukhtar Ahmad (P.W.7) after corroborating the statement made by P.W.6 also claimed to have witnessed the collection of blood-stained earth from the spot as well as recovery of dagger P.3 at the instance of the appellant. During cross-examination, he stated that he had joined the police party from the police station to witness the recovery of weapon at the instance of the appellant.
While admitting that his brother Nisar was murdered by Qamar Yousuf and others, he denied the suggestion that Latif, husband of sister of the appellant, had helped the accused. He stated that he alongwith other P.Ws. Were 2/3 paces behind the appellant. He gave out that 15/16 persons were present at the time of the occurrence in the Chowk. He admitted that neither he nor P.Ws. And the other persons intervened physically to save the deceased.
7. Allah Bakhsh S.H.O. Who had registered the case, arrested the appellant and had completed investigation after recovery of dagger at the instance of the appellant, appeared as P.W.9 and deposed those facts. During cross-examination, he admitted that Muhammad Saeed had pleaded before him and stated that Tahir Javed deceased had insulted and abused his father and had also grappled with him. He, however, denied the suggestion that the appellant had advanced a plea before him that the deceased wanted to marry Mst. Shahida Parveen, his sister, and he used to insult and tease her after the refusal by his father to marry Mst. Shahida Parveen with him. He also denied the suggestion that the appellant had advanced the plea that on the day of occurrence Mst. Shahida Parveen had visited shop of Muhammad Saleem and the deceased had taunted her, teased her and insulted her and that he had come to the spot, on learning about that and he had inflicted injuries to the deceased under grave and sudden provocation. He also denied the suggestion that he had intentionally omitted to record the said plea. He, however admitted that he had not examined Muhammad Saleem shop--keeper. He denied the suggestion that Muhammad Saleem had appeared before him and endorsed the plea of the appellant and he had omitted to record his statement, on that account.
8. The statements of the remaining witnesses are more or less of formal nature. Positive reports EARL and Exh. P.J. From the offices of Chemical Examiner and Serologist with regard to stains of blood on the earth and Khanjar were also tendered in evidence.
9. The appellant during statement under section 342, Cr.P.C. While denying the prosecution case as a whole, pleaded innocence and stated as follows in answer to the question `why this case against you':-- "Two days before this occurrence the deceased had abused and insulted my father Abdul Hameed. On the day of this occurrence as well Tahir Javed deceased again abused my father Abdul Hameed and insulted him. Mst. Shahida Parveen is my sister. The deceased wished to marry my sister Mst. Shahida Parveen but I and my father Abdul Hameed opposed him. Seven days before this occurrence the deceased teased my sister Mst. Parveen. On the day of this occurrence as well the deceased teased my sister Mst. Parveen so that she may be defamed and that we may under such coercion agree to the marriage of my sister with the deceased:"
He also denied to have led to the recovery of dagger.
10. Learned counsel for the appellant, after going through the evidence, criticised the impugned judgment and contended that the eye-witnesses do not appear to have witnessed the occurrence, that the version put forth by the appellant was more probable and nearer the truth than the prosecution version of occurrence. Learned counsel did not deny the motive mentioned by the prosecution for the occurrence. He, however, contended that the immediate motive for the occurrence was the one suggested by the appellant to the Investigating Officer and put up by him while making statement under section 342, Cr.P.C. Learned counsel argued that the prosecution had failed to prove offence of culpable homicide amounting to murder in that, the learned counsel pointed out that the seats of the injuries i.e. Buttock and arm also show that the appellant had no intention to commit the murder.
11. Learned counsel for the State/the complainant defended the judgment of the learned trial Court.
Learned counsel argued that there was hardly any reason to disbelieve the statement of P.W.7 who was an independent witness by all means Learned counsel added that statement of P.W.6 as well cannot be discarded merely on account of being brother of the deceased as his statement inspired confidence. Learned counsel also banked upon the evidence of the recovery of Khanjar at the instance of the appellant, Learned counsel for the petitioner in the criminal revision, while arguing in favour of the prayer made in the petition for enhancement of sentence from imprisonment for life to death, contended that since the appellant took the life of his cousin, he should have been dealt with severely and should not have been given the concession of lesser imprisonment.
12. The infliction of injuries and killing in this case has not been denied by the appellant. In fact, a clear suggestion was put on hip behalf during the cross---examination to the Investigating Officer that the appellant had afflicted injuries to the deceased while acting under grave and sudden provocation, although while making statement under section 342, Cr.P.C. He did not specifically state having caused the injuries but gave all other facts from which clear inference can be drawn that he was pleading to have acted under exceptional circumstances. The question, therefore, which needs examination in this case is whether the prosecution version of the occurrence is correct or the version put forth by the appellant is more probable and nearer the truth.
13. Prosecution version of the occurrence is that the incident took place when the complainant, the deceased, the P.Ws. (who were three in number) and other residents of the village were returning to their houses after the Kabaddi match was over, (it is on record vide the statement of P.W.7 that 15/16 other persons were also present at the Chowk when the occurrence had taken place and they were only at a distance of 3/4 steps from the appellant when he had launched the attack). Apart from that, there were residential houses around the place of occurrence. Shop of one Muhammad Saleem was also there. Firstly, it looks rather improbable that in the presence of so many persons the appellant could have succeeded in running away. Secondly, it seems rather odd that the appellant would have chosen to launch the murderous assault in such a situation.
He was barely 19 at that time (his age at the time of trial was noted to be 20 which had taken place a year after the occurrence). Such a large number of persons, if had been present there, they would not have allowed him to run away. He was not armed with a fire-arm all that he was holding was a Khanjar, which is not that dangerous a weapon. As against that, the version of the occurrence put up by the appellant finds support from the material on record, in that, the appellant had suggested that to the complainant that the deceased had a desire to marry Mst. Shahida Parveen, sister of the appellant, and that the appellant and his father had not agreed to that, in view of the previous history of relationship between the parties particularly the situation that arose because of the divorce of the real sister of the father of the deceased by the maternal-uncle of the appellant. The complainant instead of denying that suggestion only stated that he did not know that. A clear suggestion was put on behalf of the appellant to the S.H.O. That the appellant had put up a version before him that he had acted under grave and sudden provocation on the deceased having teased and taunted his sister shortly before the occurrence. The appellant while making statement under section 342, Cr.P.C. Also mentioned those facts. It was also suggested to the S.H.O.
That Muhammad Saleem shop-keeper had endorsed the plea advanced by the appellant. The S.H.O. While denying that took up the stand that he had not examined Muhammad Saleem at all.
Now this is something strange.
The occurrence had taken place right in front of the shop/house of Muhammad Saleem. He should have been the most relevant man to be asked about the occurrence during investigation. Of course, the S.H.O. Was not bound to name him as a witness but he was supposed by all means to make inquiry from him to arrive at a fair and correct conclusion.
The seats of the injuries also lend some support to the arguments of the learned counsel for the appellant that the appellant, in the above-noted circumstances, might not have clear intention to commit the murder. Of course, the injury on the buttock did such a damage, which finished the life of the deceased, but the fact remains that the buttock was not a vital part.
14. For all the reasons noted above, I am of the view that the probability of the occurrence having taken place in the manner stated by the appellant is more probable and nearer to the truth than in the manner stated by the prosecution. In the circumstances, the appellant cannot be burdened with the possibility of having committed culpable homicide amounting to murder. His conviction and sentence under section 302, P.P.C. Are, therefore, set aside. He is instead held liable under section 304, Part. 1, P.P.C. And sentenced to undergo rigorous imprisonment for ten years plus a fine of Rs.5,000, in default whereof to undergo further rigorous imprisonment for two years. He shall be given the benefit of section 382-B, Cr.P.C. The appeal is disposed of with the above alteration in the conviction and sentence.
Since the conviction of the appellant under section 302, P.P.C. Has not been maintained the question of enhancement of his sentence does not arise. The revision petition therefore, fails and stands dismissed.