RASHID AZIZ KHAN, J,~ Sikandar Beg son of Sohanda Khan (18/19), | Muhammad Khan (59), Abdul Ghaffoor (62), Muhammad Ehsan (58) sons of 1 Hayat Ali, and Sohanda Khan (60) son of Khan Beg were sent up by Police Station Chua Saiden Shah, District Jhelum, for trial for the murder of Ali Gauhar. Sessions Judge, Chakwal, vide his judgment date 15.3.1986, convicted and sentenced Sikandar Beg under section 302 PPC to death with a fine of Rs.5000/-, or in default two years R.I. It was further directed that the fine, if recovered, the whole of it shall be paid to the legal heirs of the deceased. Sohanda Khan and Muhammad Khan were acquitted of the charge of murder but were sentenced under section 323 PPC to the imprisonment already undergone, for causing simple injuries to the deceased. They were also sentenced to a fine of Rs. 1000/- or in default six months R.I.
Each. Abdul Ghafoor was also acquitted of the charge of the murder of Ali Gauhar, but convicted under section 323 PPC and sentenced to the imprisonment already undergone, for causing simple hurt to Mst. Aziz Begum. Muhammad Ehsan was, however, acquitted of all the charges. Convict Sikandar Beg alone has appealed. The case is also before us for confirmation of the death sentence. Muhammad Ajaib Khan PW has also filed a Revision challenging the acquittal of Sohanda Khan, Muhammad Khan, Abdul Ghafoor and Muhammad Ehsan, which was ordered to be heard along with the appeal of Sikandar Beg, convict. All these matters shall be disposed of by this judgment.
2. The prosecution story, in brief, as disclosed by Mst. Aziz Begum, was to the effect that on 5.9.1984 at about Peshiwela, the complainant with her brothers Muhammad Sadiq and Ali Gauhar was present in the house of her uncle Ajaib Khan and were constructing a wall. In the meanwhile, Sikandar Beg armed with hatchet, Sohanda Khan armed with Lathi, Muhammad Khan with hockey came. They were followed by Abdul Ghafoor and Muhammad Ehsan, who were empty handed.
Sohanda Khan told that they were constructing the wall on his land, for which they would have to pay a heavy price. Whereupon, Sohanda Khan exchanged hot words with Ajaib Khan and Ali Gauhar, uncle and brother of the first informant, respectively. Both the sides started pelting stones at each other. Abdul Ghafoor threw' a stone which hit Mst. Aziz Begum on her face, with the result of which her front tooth was broken. Ali Gauhar in order to save himself climbed up the roof of Ajaib Khan. He was followed by Sikandar and his father Sohanda Khan, and Muhammad Khan who were raising lalkaras that he would not be left alive, and also climbed up the roof of the house of Ajaib Khan. The first informant with her brother Muhammad Sadiq and uncle Ajaib Khan also followed them in order to separate them. Within their view Sikandar Beg gave a hatchet blow on the head of Ali Gauhar, whereupon he fell down. It was followed by Sohanda Khan and Muhammad Khan who gave hockey and lathi blows as well as kick blows to him. The assailants ran away from the spot because of the commotion. Ali Gauhar fainted at the spot who was transported to Fauji Foundation Dispensary. The doctor at the Dispensary referred him to Rawalpindi. In order to save the life of Ali Gauhar, the witnesses took him to Civil Hospital, Rawalpindi, where he as well as the first informant was examined by the doctor. Ali Gauhar expired because of the injuries on 6.9.1984.
The motive as given in the FIR was that Ajaib Khan had a dispute with Sikandar Beg and Sohanda Khan about the same property and construction of wall.
3. The occurrence had taken place at peshiwela on 5.9.1984 on the roof of the house of Ajaib Khan, PW-13, in village Titral, three miles from Police Station Chua Saiden Shah. The FIR Exh. PA/1 was registered by Muhammad Ijaz, AS1, PW-4 on 7.9.1984 at 2:15 a.m. On the receipt of statement Exh. PA of Mst. Aziz Begum, PW-9, recorded by Abid Hussain, SI, PW-15 on 6.9.1984 at 4:15 p.m., at Civil Hospital, Rawalpindi.
4. Abid Hussain, SI,PW-15, had received a telephonic message from DHQ Hospital, Rawalpindi on 6.9.1984 at 330 p.m., about the death of Ali Gauhar, therefore, he went to the Hospital and recorded the statement of Mst Aziz Begum and sent the same for the registration of a case. He prepared inquest report Exh. PU of the deceased and sent the dead body for postmortem examination. After the postmortem examination, he took into possession the last worn clothes of the deceased vide memo Exh. PB. Thereafter the investigation was conducted by Ch. Nadir Ali, PW-11, Inspector/SHO, P.S. Chua Saiden Shah. On 7.9.1984 he visited the spot and recorder the statments of the witnesses.
He secured blood-stained earth vide memo Exh. PG from the spot. On 11.9.1984 he arrested Sohanda Khan, Sikandar Beg, Muhammad Ehsan and Abdul Ghafoor. On the same day, Sohanda Khan produced Lathi P.I, which was secured vide memo Exh. PH. Sikandar Beg produced hatchet P.2, which was secured vide memo Exh. PI. On the same day, Muhammad Khan produced hockey P3 which was seemed vide memo Exh. PJ. On 21.11.1984, he got the site-plans Exh. PF/1-2 prepared from the Draftsman and gave his notes in red ink thereunder. After the completion of the investigation he challaned the accused.
5. Dr. Nasir Mehmood, Medical Officer, DHQ Hospital, Rawalpindi, PW-5, on 5.9.1984 at 7 p.m.
Examined Ali Gauhar, injured, and found the following injuries:-
1. A lacerated wound on left parietal occipital region 6.6 cm x 1 cm bone deep.
2. Bruize on left arm 3cm x 1cm.
3. Bruize on upper part of left side of chest near axilla 6cm x 4cm.
4. Bruize on lower part of left side of chest.
5. Bruize behind the middle of back vertically 2cm x 1.5cm.
The injured was unconscious, therefore, he referred him to Surgical Ward for X- ray of the skull.
6. Said Ali Gauhar died on 6.9.1984 at 1:30 p.m. On 6.9.1984 he conducted the postmortem examination on the dead body of Ali Gauhar and found the same injuries. In his opinion, the death had occurred due to shock and haemorrhage because of injury No. 1 which was sufficient to cause death in the ordinary course of nature. All the injuries were antemortem and caused with blunt weapons. Rest of the injuries were simple.
7. The prosecution in support of its case produced 15 witnesses in all.
The doctor who had conducted the postmortem examination, appeared as PW-5. Muhammad Mukhtar, Constable, PW-1, had escorted the dead body for postmortem examination. Altaf Hussain, Moharrir/HC, PW-2, received sealed parcels in this case on 9.9.1983 and 11.9.1983, which he sent to the office of Chemical Examiner on 8.10.1984 through Munir Ahmad, Constable, PW-3. Muhammad Ijaz, AS1, PW-4, had recorded the formal FIR Exh. PA/1 on 7.9.1984. Nawab Khan, Draftsman, PW-6 had prepared site-plans Exh. PF/1-2 on the directions of the police. Mansoor Alam, PW-7 had witnessed the recovery of blood-stained earth from the spot and signed the memo. PW-8 Muhammad Zahoor had witnessed the recovery of dang P.I at the instance of Sohanda Khan, and blood- stained hatchet P.2 at the instance of Sikandar Beg, and Hokey P.3 at the instance of Muhammad Khan. He had signed all the recovery memos. The ocular account was furnished by Mst. Aziz Begum, Ajaib Khan and Muhammad Sadiq, PWs-9,13 and 14, respectively. Nazir Ahmad, SHO, PW-10, deposed that on 14.4.1984 he had given police help to Ehsan Ahmad, Bailiff of Civil Judge, Pind Dadan Khan for the execution of die court,-order. Ehsan Ahmad, Bailiff, PW-12, deposed that on 14.4.1984 he got A police help and executed the order of the Civil Judge and gave his report Ex3 PQ1 to that effect. The case was initially investigated by Abid Hussain, SI, PW-15, and thereafter by Ch. Nadir Ali, PW-11, who challaned the accused. The A.P.P. Vide his statement dated 25.11.1985 gave up ^Abdul Javed, Abdul Ghafoor and Amir Ali PWs as unnecessary. He tendered in evidence the report of the Chemical Examiner Exh. PV and of the Serologist Exh. PW, and closed the case of the prosecution.
The accused persons appeared and made statements under section 342 Cr.P.C., wherein they denied the prosecution allegations and pleaded innocence.
In reply to a question, Sohanda Khan accused further asserted that there was an altercation between the women folk of both the parties who pelted stones at each other. The altercation started because the women folk of the complainant side tried to demolish the property in dispute in his possession. He also relied upon a number of documents showing his possession on the land in dispute. H
8. It was argued that there was unexplained delay in the registration of the case which casts a serious doubt. It was contended by learned counsel for the appellant that the prosecution failed to establish its case against the appellant beyond reasonable doubt because the presence of the eye witnesses at the spot was extremely doubtful. In support of his contention he argued that a dispute of the appellant side about the property was going on with Ajaib Khan, PW-13, therefore, had he *>een present at the spot he would have been the first target. Contended that even otherwise als . The prosecution story, as disclosed in the FIR, was to the fact that the appoint had given a blow with the right side of the hatchet on the head of the deceased, yet the doctor observed that the injury was caused with a blunt weapon. It was also argued in the alternate that the appellant side was in possession of the property in depute while prosecution side tried to dispossess them, therefore, they had the right to defend their property, and in such circumstances, the case would not fall under section 302 PPC. The contentions were opposed by learned counsel for the State as well as for the complainant. According to them, the possession of the complainant side over the property in dispute was established beyond doubt in view of the statement of the Bailiff of the Civil Court who delivered the same to Ajaib Khan, PW. It was pointed out that prior to the present occurrence the appellant side had tried to dispossess Ajaib Khan, PW, for which contempt proceedings were also initiated, which would establish that he was in possession of the disputed property. Argued that Mst. Aziz Begum, complainant, was injured, therefore, her presence at the spot could not be ruled out. Similarly, the occurrence took place inside the house of Ajaib Khan, thereby he became a natural witness.
9. We have heard the learned counsel at length and gone through the evidence with his assistance. The prosecution in order, to establish its case relied upon ocular account and the recovery of hatchet at the instance of Sikandar Beg, appellant. It is in evidence that the appellant was arrested on 11.9.1984, whereas the occurrence had taken place on 5.9.1984. On the same day he produced bloodstained hatchet P.2 which was taken into possession by Nadir Ali, PW-11. The recovery of hatchet was witnessed by Muhammad Zaheer, PW-8 who stated that on 11.9.1984 Sikandar beg appeared before the investigating officer and produced hatchet P.2, which was taken into possession vide memo Exh. PI, which he signed. He was cross-examined wherein he admitted his relationship with the complainant side. Mst Aziz Begum, complainant in the instant case, was his wife. He was resident of the same village. Being close relation of the deceased it was natural for him to have associated himself with the investigation. When he was present with the I.O., the appellant appeared and produced hatchet P.2 which he witnessed. He had very frankly conceded in cross-examination that he did not know anything about the occurrence, which shows that he is a truthful witness and can be relied upon. Therefore, we hold that the recovery of hatchet, which subsequently was found to be stained with human blood, is proved.
10. The ocular account has been furnished by Mst. Aziz Begum, Ajaib Khan and Muhammad Sadiq, Pws-9, 13 and 14, respectively. Mst. Aziz Begum corroborated the version given by her in the FIR by stating that on the fateful day they were busy in constructing the wall of the house of her uncle Ajaib Khan when the appellant armed with a hatchet, with his co-accused, came there. Co- accused of the appellant had objected to the construction of the wall which led to the exchange of abuses. Abdul Ghafoor, co-accused of the appellant, hurled a stone which hitman the face of the first informant and broke her tooth. Thereafter, the appellant with his co-accused raised lalkara that Ali Gauhar be not spared. Ali Gauhar in order to save his life climbed on the roof of the house of Ajaib Khan, PW. The appellant also followed him along with Sohanda Khan and Muhammad Khan, armed with Lathi and Hockey, respectively. The appellant gave a blow with the hatchet on the head of Ali Gauhar who fell down. Thereafter, the other co- accused gave him injuries with their respective weapons as well as kick blows. The condition of Ali Gauhar became serious, therefore, they took him to the village dispensary but he was referred to DHQ Hospital, Rawalpindi because of his serious condition. She further stated that the condition of her brother Ali Gauhar was precarious, therefore, they kept on attending to him and could not inform the police regarding the incident. The witness was cross-examined at length but the defence could not bring anything on the record which could indicate that she was also a party in the dispute regarding the house. The only discrepancy which has come to light in her statement was that in the FIR she had stated that the appellant had given a hatchet blow with its right side on the head, but at the trial stage she stated that wrong side of the hatchet was used on the head of Ali Gauhar, deceased. We have examined this aspect carefully and me convinced that it is not such a discrepancy which would render her statement doubtful. A close scrutiny of the statement of this witness reveals that Ali Gauhar climbed on the roof of the house of Ajaib Khan when threatened by the appellant. The appellant followed him with his two co-accused. In order to rescue Ali Gauhar, this witness along with others followed the assailants and saw Matchet blow being given to Ali Gauhar. In such circumstances, while she was trying to climb the roof of the house, it is just possible that she may not have notice exactly whether the right side of the hatchet or otherwise was used. As far as the seat of the injury is concerned, there is no discrepancy. She was injured and was examined by the doctor the same day. In such circumstances, her presence at the spot cannot be doubted. Therefore, we hold that the witness was present at the spot and had witnessed the occurrence.
11. Ajaib Khan and Muhammad Sadiq, PWs-13 and 14, respectively, gave a detailed account of the occurrence by corroborating the statement of Mst. Aziz Begum. Both of them were cross-examined at length. Muhammad Sadiq admitted that he was brother of Ali Gauhar, deceased, and Ajaib Khan was uncle of the deceased. All of them were present in the house helping a mason in constructing a wall. They were cross-examined at length but the defence has not been able to bring anything on the record which could suggest that they were not present at the relevant time.
Admittedly, it was the house of Ajaib Khan where the occurrence took place, and in such circumstances, his being present there would be most natural. All of them gave an explanation with regard to the delay in the registration of the case, which is convincing. Both of them stated that in view of the condition of Ali Gauhar, they stayed at the Hospital. On the following day, Ajaib Khan came to his village in order to get the case registered, where he was informed by the concerned police station officials that they had received a wireless message from the Hospital with regard to the occurrence and an FIR had already been registered. This part of the statement has also been corroborated by the investigating officer. After careful perusal of the statements of the eye-witnesses, we are convinced that they were present at the spot and witnessed the occurrence.
They can safely be relied upon.
12. The next contention of the learned counsel for the appellant that the appellant-side was in possession of the property in dispute and in such circumstances, if the complainant side came to dispossess them, they had the right of defence of the property. The argument has been considered but we do not find any force in the same, because Ehsan Ahmad, Bailiff of Civil Court, PW-12, stated that in pursuance of a decree of the Court he delivered the possession of the property to Ajaib Khan on 14.4.1984 after getting the help of the police. He also produced a copy o the warrant of possession Exh. PQ. Subsequently, the appellant side tried to interfere with the possession of Ajaib Khan, PW, regarding the same property, therefore, he got a case registered against them on 12.5.1984 under section 452/448 PPC, wherein he had asserted that on the said date the accused persons while armed with lethal weapons came to his house, broke-open the locks and disturbed his possession. Even in that FIR it was not asserted that he was forcibly dispossessed. Similarly, Ajaib Khan filed an application for contempt of Court before Civil Judge on 13.5.1984 wherein also he asserted that the appellant with his co-accused came armed and broke-open the lock and the door of the house and went away. The appellant side in reply (Exh. PR/1) to the application for contempt of court, stated that they had not taken possession of the house in possession and the contempt application was not correct. The appellant and his other co-accused in their statements under section 342 Cr.P.C, had also not asserted that they were in possession of the property in dispute. Even otherwise also, admittedly the deceased was done to death on the roof of the house in dispute. It was not the case of the defence that the deceased came to take forcible possession of the same and climbed on the roof of the house. This fact also establishes beyond doubt that the complainant side was in possession of the house, because only then the deceased could have climbed on the roof in order to save himself. For what has been discussed above, we have no doubt in our mind that on the fateful day Ajaib Khan, PW was in possession of the house.
13. The last contention of the learned counsel for the appellant that in any case it was not a case for capital punishment, needs consideration. We have noticed that all the witnesses in cross- examination stated that only one blow was given by the appellant to the deceased and no attempt was made by him to repeat the blow. In these circumstances, we hold that the sentence of imprisonment for life would adequately meet the ends of justice.
14. Ajaib Khan, PW, had also filed a Revision challenging the acquittal of the respondents for an offence under section 302 PPC. It was prosecution's own case that Abdul Ghafoor and Muhammad Ehsan were not even armed. They came subsequently at the spot. In such circumstances, it cannot be held by any stretch of imagination that they shared the common intention with the appellant.
As far as the other respondents are concerned, they are alleged to have caused simple injuries, for which they were convicted under section 323 PPC. After hearing the learned counsel for the appellant and going through the judgment impugned, we hold that the trial court has given cogent reasons for not holding them responsible for an offence under section 302 PPC. No exception to the reasons of the trial court can be taken. Therefore, the revision fails which is, accordingly dismissed.
For what has been discussed above, we hold the prosecution has been able to prove its case beyond reasonable doubt against the appellant. Therefore, while dismissing the appeal, we convert the sentence of death to imprisonment for life. The sentence of fine shall, however, be maintained. The appellant shall also be given the benefit of section 382-B Cr.P.C. The death sentence is not confirmed.