SARDAR MUHAMMAD DOGAR, J.--- Amir (38), Hazoor, his brother (56), Ramzan his son (20) and Waryam (53) husband of his sister were tried by the Additional Sessions Judge, Am& for having murdered Malik Sher at 12-00 noon on 14-7-1988 at the Dhari of Muhammad Ismail in Basti Riazabad Dakhli Chak No.87 Ghumnana, at a distance of 4 miles from Police Station Sadar, Jhang.
Learned trial Judge vide judgment, dated 30-9-1989 convicted all of them under section 302/34, P.P.C., and sentenced them to death, plus to pay a fine of Rs.10,000 each, in default whereof to undergo R.I. For 3 months each. --Each one of them was also directed to pay a sum of Rs.5,000 as compensation to the heirs of the deceased, in default of payment of which to undergo R.I. For one month each.
2. The appeal filed by the convicts and the reference made by learned" trial Judge for confirmation of death sentence are being disposed of together.
3. F.I.R. Exh.P.C./1 was registered at the police station by Aman Ullah, A.S.I. P.W.3 at 1-45 a.m. On receipt of statement Exh.P.C. Of Falak Sher P.W,6, recorded by S.I. Muhammad Afzal, P.W.8 on the same day at 1-30 p.m. At Chowk Satellite Town, Jhang Sadar.
According to F.I.R. The complainant and Amir Appellant were neighbours. In fact they had a common wall. On the day of occurrence the complainant was sitting in his house alongwith his father Muhammad Din and brother Malik Sher (deceased). Ramzan appellant who was serving with Muhammad Ismail came there and asked Malik Sher to accompany him to the Dhari of Ismail, as he wanted him to repair his tape-recorder. Malik Sher while leaving alongwith Ramzan, also asked his brother Falak Sher (complainant) to accompany them suggesting that after repairing the tape-recorder they will return home after taking bath at the tube-well of Muhammad Ismail near his Dhari. Consequently Falak Sher complainant also accompanied them. Ramzan was holding a screw-driver at that time. Falak Sher stopped at the tube-well, while Ramzan and Malik Sher went away towards the Dhari. In the meantime Muhammad Din (father of the deceased) also came to the tube-well for taking bath. They were yet preparing to take bath when they heard hue and cry of Malik Sher. They ran towards the Dhari and saw Ramzan armed with a Gandhala, Hazoor armed with a Lathi, Amir and Waryam armed with Sotas, inflicting blows to Malik Sher in a vacant room at the Dhari. Malik Sher fell down faceward, whereafter Ramzan inflicted a blow with the Gandhala on his left thigh. Thereafter, he (Ramzan) threw away the Gandhala and started throttling him (Malik Sher), by catching him by the neck, while others caused him injuries with their respective weapons, on the buttocks, calfs and other parts of the body. When the complainant and Muhammad Din went ahead to save Malik Sher they were threatened by the accused with dire consequences. In the meantime Haq Nawaz P.W.7 and Nur, who were cutting grass in the nearby fields, also reached there and witnessed the occurrence. The accused threw out Malik Sher in dying state and ran away, threatening the P.Ws. Malik Sher died at the spot.
4. Motive for the occurrence was suspicion of the accused of illicit relations of the deceased with a girl of their family.
5. Muhammad Afzal, S.I. After despatching statement Exh.P.C. To the police station for registration of case, went to the spot. He sent the dead body for post-mortem after preparing necessary papers, i.e. Inquest report and injury statement. During the spot inspection he picked up screw-driver P.7 and took the same into possession, vide memo, Exh.P.H.
All the accused were arrested by him on 18-7-1988. Sotas P.3, P.4 got recovered by Amir and Hazoor on the same day, Gandhala P.5 got recovered by Ramzan and Sota P.6 got recovered by Waryam, also on the same day, were taken into possession by him vide memos. Exhs.P.D., P.E., P.F. And P.G.
Respectively. Challan was submitted to Court after completion of necessary investigation.
5-A: Statements of eight P.Ws. Were recorded at the-trial.
Dr. Muhammad Khalid Bhatti who had performed autopsy on 15-7-1988 at 7-00 a.m., appeared as P.W.9. He had noted following injuries on the body of the deceased:--
(1) A contusion mark 3 c.m. x 4 c.m. On the right cheek.
(2) A contusion mark 3 c.m. x 2 c.m. On outer side of the right eye.
(3) Contusion mark 2 c.m. x 3 c.m. On the right side of forehead.
(4) Contusion mark 5 c.m. x 2 c.m. On right submandibular region.
(5) A contusion mark 2 c.m. x 3 c.m. On left side of the neck upper part.
(6) Clinical fracture of left thigh middle part (contused swelling) 17 c.m. x 8 c.m. And contusion mark 5 c.m. x 3 c.m. Deformity shortening. Abnormal movement. (Sardar Muhammad Dogar, J)
(7) Clinical fracture of left index finger and swelling 5 c.m. x 3 c.m.
(8) Contusion mark 2 c.m. x 2 c.m. On outer side of left forearm middle part and swelling 7 c.m. x 7 c.m.
(9) Multiple contusion mark in an area of 25 c.m. x 16 c.m. On back of right buttock.
(10) Contusion mark 12 c.m. x 8 c.m. On the back of right shoulder with, swelling 8 c.m. x 7 c.m.
(11) An abrasion 2 c.m. x 2 c.m, on the back side of right thumb distal part.
(12) Multiple abrasion in an area of 5 c.m. x 4 c.m. On dorsum of left foot.
(13) There was fracture of hyoid bone.
(14) There was fracture of left temporal bone with contusion of left temporal muscle.
According to his opinion the deceased had died due to haemorrhage and shock resulting from injuries Nos.6 and 14. Probable time between injuries and death was opined to be half an hour while the time between death and post-mortem was opined to be 18 to 20 hours.
6. Allah Ditta who had witnessed the recoveries of weapons of offence from all the appellants, appeared as P.W.4 and deposed that fact.
During cross-examination he admitted that he was married to a sister of the deceased and was his cousin also. He admitted that none of the weapons recovered, was stained with blood. He denied the suggestion that no recoveries had been effected at the instance of the appellants or that he had made a false statement.
7. Muhammad Inayat who had witnessed the taking into possession of the screw-driver by the S.I.
From the spot, appeared as P.W.5 and deposed that fact. According to him the screw-driver was lying inside the room while the dead body was lying outside the room. He admitted that he was in service and was posted at Machhiwala during the days of occurrence. He denied the suggestion that no recovery was effected in his presence and that he had made a false statement.
8. Falak Sher brother of the deceased who had lodged the F.I.R., while appearing as P.W.6 repeated the facts given by him in the F.I.R. However, while deposing about motive for the occurrence he specifically stated that the accused suspected illicit relations of the deceased with the daughter of Amir (Appellant). He admitted that Haq Nawaz P.W. Was -his maternal-cousin and also married to his sister. According to him Nur P.W. Was cousin of his father while Manak was his uncle. According to him Hazoor and Amir were real brothers, Ramzan was son of Amir while Waryam was married to the sister of Amir and Hazoor. He admitted that the accused were living in their neighbourhood for the last 5-7 years, and the intervening wall of his house and that of Hazoor was common. While admitting that Hazoor was married to Paras daughter of Pehlwan, he denied knowledge that her mother had died a day before the occurrence and that all the male members had gone to Chak No.443 to condole her death. He also expressed ignorance whether the accused originally belonged to that Chak. While denying that the room in which the deceased was caused injuries, had shutters, he stated that the planks of the door were lying alongwith the wall. According to him Malik Sher was caused the first injury when they were at a distance of 33 Karams. He stated that they did not dare intervene because of fear. He gave out that when the accused had thrown out the body of the deceased from the room, they were holding their Sotas-under their armpits. In answer to other questions he stated that they did not know about illicit relations of the, deceased before the occurrence and they had come to know of that from Ramzan after he had been arrested in this case. He denied the suggestion that on the day of occurrence all male members of the family of the accused excepting girls had gone to condole the death of Mst. Paras. He also denied the suggestion that Ramzan had returned suddenly and had seen the deceased in a compromising position with his cousin Mst. Shahnaz daughter of Amir appellant whereupon he had lost self-control and had caused injuries to the deceased under grave and sudden provocation, while Mst. Shahnaz had succeeded in running away.
9. Haq Nawaz while appearing as P.W.7 corroborated the statement made by P.W.6 in so far as it pertained to the actual occurrence. He also claimed to have identified the dead body at the time of post-mortem. During cross-examination he stated that he was cutting grass with sickle when they had heard the noise. According to him he was at a distance of 8 Karams when, Ramzan had given first blow. He gave out that he had recognized Malik Sher on hearing his cries. He denied the suggestion that he had not witnessed the occurrence and had made a false statement due to relationship with the deceased.
10. Muhammad Afzal, S.I. Who had recorded statement Exh.P.C. On the basis of which formal F.I.R.
Exh.P.C./1 was registered, had arrested the accused and taken into possession the weapons recovered at their pointing out and had got the challan submitted to Court after completion of investigation, appeared as P.W.8 and deposed those facts. During cross-examination he admitted that Shalwar and shirt worn by the deceased were torn. He denied the suggestion that the dead body was lying in the room without Shalwar and that he had got the Shalwar put on the body of the deceased after reaching there. He admitted that he had not noted the fact of screw-driver lying near the spot, in columns Nos.22 and 23 of the inquest report, but explained that the same was not lying near the dead body. While admitting that the plea of the accused before him was that the murder had taken place on account of illicit relations of the deceased, he denied the suggestion that Ramzan had claimed that he had committed the murder, under grave and sudden provocation on seeing the deceased in a compromising position with the daughter of his uncle. He gave out that none of the weapons was stained with blood.
11. All the appellants except Ramzan, while pleading innocence, denied to have participated in the occurrence. Ramzan while pleading innocence, claimed to have acted under grave and sudden provocation. He stated as follows in answer to the question, `why this case against you?;-- "On the eventful day I had gone for Qul ceremony of mother of Mst. Paris in Chak No.443. Alongwith my father Amir, uncle Hazoor and other family members. After the Qul, ladies, and my father remained in the Chak. As I was a private servant of Ismail Ghulama, I rushed back and when I reached his cattle Dhari, Mst. Shahnaz -my cousin and Malik Sher deceased were seen by me in compromising position. I lost my self-control grappled with the deceased, beat him with Takkars and fist and kicks. In the meanwhile Mst. Shahnaz made good her escape. I picked up a Sota as well and gave further blows to Malik Sher as I had lost my self-control due to family honour and Ghairat. None of the P.Ws. Was present there. I myself informed the police about the incident which later on fabricated the story and involved me and other family members also. They were not present at the spot. The deceased was naked as his Shalwar was put off. The police after its arrival at the spot dragged the deceased and placed him outside the room on a cot."
He also examined in defence Barkat Ali, resident of Chak No.443 as, D.W.1 and produced death certificate of Mst. Tharri widow of Pehlwan (father-in-law of Hazoor appellant).
12. Learned counsel for the appellants after having taken us through the evidence, criticised the impugned judgment and contended that the F.I.R. In this cage does not appear to have been recorded in the manner, it was claimed; that no reliance can be placed on the testimony of both the eye-witnesses, being close relatives of the deceased and that the occurrence does not appear to have been witnessed by any one of them. Learned counsel contended that the version put forth by Ramzan appellant was more probable and nearer the truth than the prosecution version of the occurrence.
13. Learned counsel for the State defended the judgment of the trial Court.
14. Although Falak Sher complainant while lodging the F.I.R. Had stated therein, that the accused had committed the murder of the deceased as they suspected that he (the deceased) was having illicit relations with a girl of their family, and specifically stated at the trial that they suspected that the deceased was carrying on with the daughter of Amir appellant, nonetheless, he admitted during cross-examination that they did not know about illicit relations of the deceased with the girl, prior to the occurrence and had only come to know of that after the accused were arrested, on the statement made by Ramzan (appellant). That being so, the very fact that it is mentioned in the F.I.R.
That the murder had taken place due to illict relations, the F.I.R. Is proved to have been lodged after preliminary investigation because such a fact had come to his knowledge only after the accused had been taken into custody. This fact also lends support to the claim made by Ramzan appellant that after having committed the murder he himself had appeared before the police on the same day.
One of the eye-witnesses, is, real brother of the deceased while the other is his first cousin, as well as husband of his sister. Being close relations, they are naturally interested. Their claim of having witnessed the infliction of specific injuries by each of the appellants on specific parts of body of the deceased, inside the room, while being at some distance from the room, obviously is incorrect. The claim of P.W.6 that he had seen Ramzan appellant causing injury on the thigh of the deceased while being at a distance of 33 Karams, is obviously a hoax.
15. The statement of P.W.6 that he did not know that mother of the wife of Hazoor appellant had died a day before the occurrence in Chak No.443, and his refusal to admit that he knew that the accused prior to coming to their village, were permanent residents of Chak No.443 after having admitted that they were their immediate neighbourers, since 5-6 years, shows that he was trying to hide certain things, which he thought, may not suit him. The other witness i.e. P.W.7 did not state anything about the motive. The statements of these witnesses which do not find corroboration from any other evidence on B record (as the weapons recovered from each one of the accused were not found stained with blood nor bloodstains were recovered from the spot), do not inspire confidence.
As against that, the plea put forth by Ramzan appellant when examined in a juxtaposition, appears to possess substance being more probable C and nearer the truth. In that, it was admitted even by the complainant that he did not know about illicit intimacy of the deceased with the daughter of Amir before the occurrence and had come to know of that only after Ramzan appellant had made a statement in that regard, after being captured, after the occurrence. Such an admission lends support to the statement made by Ramzan that he had himself appeared before the police voluntarily on the same day after murdering the deceased under grave and sudden provocation, because if he had not appeared on the same day and not made statement soon thereafter, the fact of illicit intimacy of the deceased with a girl of the family of the accused, would not have found mention in the F.I.R., because the complainant did not know such a thing.
16. Yet the other thing which lends support to the version of Ramzan appellant is, that the clothes of the deceased were found torn. None of the two eye-witnesses stated that and of the accused had tried to tear the clothes of the deceased. The clothes of the deceased could have been torn if a single person had quarrelled and grappled with, and this is, what must have happened if the version put forth by Ramzan is believed.
17. The version put forth by Ramzan appellant, also finds support from the fact that wife of pehlwan father-in-law of Hazoor (mother of Mst. Paras wife of Hazoor) had died a day before the occurrence. It is common knowledge, that in our society close relatives like the daughters, sons-in- law and in-laws of the daughters do go to the bereaved family for condolence on the 1st, 2nd and 3rd day. The statement made by Ramzan appellant also finds corroboration from the statement of the Member, Union Council, Chak No.443, who appeared as D.W.1. The witness claimed that he had appeared before the Investigating Officer as well as the D.S.P. And deposed such facts before them also.
For all the reasons noted above, the prosecution, in our view, has t failed to prove the case as put forth by it. The conviction of all the appellants] under section' 302/34, P.P.C. Is, therefore, set aside.
Hazoor and Waryam appellants shall be released forthwith if not required in any other case. p However, Ramzan appellant is held guilty for having committed the offence under section 304, Part I, P.P.C., is convicted thereunder and sentenced to undergo R.I. For 7 (seven) years plus to pay a fine of Rs. One thousand in default whereof to undergo S.L for 3 months. He shall also be given benefit of the provisions of section 382-B; Cr.P.C.
18. We may note here that Ch. Arshad Mahmud, Advocate counsel for the appellants had stated that Amir appellant had died in jail some 2 months ago. Although his appeal for the purposes of sentence of death had abated and F. Could have been disposed of on that ground alone, yet, as he had been sentenced to pay a fine and compensation also to the heirs of the deceased, we considered his case also on merits and set aside his conviction.
Sentences of death not confirmed.