SARDAR MUHAMMAD DOGAR, J.---Ghulam Farid (40) and his father Ghulam Muhammad (74) were tried by the Sessions Judge, Mianwali, for having murdered Hasnain Raza on 9-6-88 at 4-00 p.m. In the house of the latter in Jhaal Janubi Dhoopsari, at a distance of 2 k.m. From Police Station Learned trial Judge vide judgment dated 5-11-1989 convicted Ghulam Farid under section 302, P.P.C. And sentenced him to death plus to pay a fine of Rs.10,000 in default whereof to undergo R.I.
For 2 years. Half of the fine, on recovery, was directed to be paid as compensation to the heirs of the deceased. His father Ghulam Muhammad was acquitted vide same judgment.
2. The convict has filed appeal. Learned trial Judge has made reference for confirmation of death sentence while the complainant .Has preferred revision petition against the acquittal of Ghulam Muhammad. As all the matters have arisen out of the same judgment, they are being disposed of together.
3. F.I.R. Exh.P.E. Was recorded at the police station by Ghulam Qasim, S.I. P.W.10 at 4-30 p.m. On 9-6- 88 on thestatement of Muhammad Nawaz P.W.8 According to F.I.R. Mst. Zarina daughter of the complainant was married to Muhammad Latif (brother of the appellant and son of the acquitted accused). Latif was serving in the Army and was posted in Azad Kashmir. Mst. Zarina was residing with her in-laws. Three days prior to the occurrence, she returned to the house of her father on account of maltreatment by her in-laws. On the morning of the day of occurrence the appellant came to the house of the complainant to take back Mst. Zarina. The deceased declined to send Mst. Zarina with him, whereupon both, i.e. The appellant and the deceased exchanged hot words. The appellant went away threatening the deceased that he will see him. The appellant armed with a chhuri accompanied by his father Ghulam Muhammad (empty handed) came to the house of the complainant on the same day at 4-00 p.m. The complainant was sitting in the western room of his house along with P.W. 9 Muhammad and given-up P.W. Muhammad Khawar, while the deceased was sitting in front of the eastern room of his house. After raising a lalkara, Ghulam Farid inflicted 3 blows with a chhura on the chest and abdomen of the deceased. He fell down and died. The appellant and his father ran away.
4. Motive for the occurrence was that the deceased had declined to let the appellant take away his brother's wife Mst. Zarina to his house.
5. Ghulam Qasim, S.I. After recording statement Exh. P.E reached the spot and despatched the dead body for post-mortem examination after preparing injury statement Exh.PG and inquest report Exh.PH.
Both the accused were arrested by him on 21-6-88. Dagger P.1 got recovered by Ghulam Farid on 24-6-88 was taken into possession by him vide memo Exh.PB. After completion of necessary investigation challan was submitted to Court.
6. Statements of ten P.Ws. Were recorded at the trial.
Dr. Mehr Khan who had performed autopsy on 10-6-1988 at 7-30 a.m. Appeared as P.W.5. He had noted following injuries on the body of the deceased:-
(1) An incised wound 2.5 c.m. x 0.5 c.m. On the front of left chest, 5 c.m. From the left nipple and 4 c.m. From the lower end of sternum and 1 c.m. From the mid-line.
(2) An incised wound 3 c.m. x 0.5 c.m. On the front of right abdomen, 6 c.m. From the mid-line, 13 c.m. Below the right nipple and 8 c.m. From the umbilicus.
(3)An incised wound 1 c.m. x 0.25 c.m. On outer side of left lower chest, 10 c.m. Above the anterior superior iliac spine and 14 c.m. From the vertebral column and 22 c.m. From the umbilicus.
Death was opined to have occurred due to shock and haemorrhage, resulting from all the 3 injuries. During cross-examination he expressed inability to give the dimension of the blade of dagger used for infliction of injuries.
7. Ocular account was deposed to by Muhammad Nawaz P.W. 8 and Muhammad P.W. 9.
Muhammad Nawaz while repeating the facts given by him in the F.I.R, also added that the deceased had been taken into clasp by Ghulam Muhammad (acquitted accused) before he was inflicted injuries by the appellant. However, on confrontation, he was not found to have stated so in the F.I.R. He admitted that his licensed gun as well as the licensed gun of the deceased were lying in the house at the time of occurrence. He admitted that P.W. Muhammad Khalid Raza was his son- in-law and son of his real brother. Although he admitted that he had been working as Head Mudarras in different religious schools, yet declined to admit that he had been working as Imam Masjid. He denied the suggestion that he had been changing the madrassas, on account of his repeated dismissals.
He gave out that Ghulam Muhammad (acquitted accused) was his first cousin and they had a joint haveli. He admitted that in the have he alongwith his brothers and the accused were living with families. He denied the suggestion that on the day of occurrence the deceased had challenged the appellant that if he had guts he should take along with him his nephew, i.e. One war old son of Mst Zarina and Latif, whereupon the appellant had entered his accuse on which he was firstly fired at by the deceased with a pistol and was later fired at by him (the complainant) with a gun, whereafter he picked up a chhuri from their kitchen and caused injuries to Hasnain Raza in self-defence. The suggestion that he had got the case registered by giving wrong version, was denied by him.
8. Muhammad P.W.9 while corroborating the statement made by P.W.8 in so far as it pertained to the actual occurrence, also claimed to have witnessed the collection of blood-stained earth from the spot. During cross--examination he denied relationship with the complainant. He explained that he had gone to the house of the deceased in order to borrow bicycle from Khalid Raza P.W. Like P.W.8 he denied the suggestion that the appellant had been fired at by the deceased and the complainant and that the appellant had picked up a chhuri from their kitchen and caused injuries to the deceased in self-defence.
The suggestion that he had given his age wrongly as 40 years, was denied by him. He also denied the suggestion that he had made a false statement because of connections with the complainant.
9. Abdul Karim who had witnessed the recovery of dagger P.1 on the pointing out of the appellant appeared as P.W.4 and deposed that fact. During cross-examination he admitted that he was nephew and son-in-law of the deceased. He admitted that there was a lumberdar and a Member, Union Council; residing in Jhaal Janubi. He denied the suggestion that no recovery was effected at the instance of the appellant and he had made a false statement.
10. Ghulam Qasim, S.I. Who had registered the case, had taken into possession dagger P.1 got recovered by the -appellant after arrest and had submitted the challan to Court after completion of necessary investigation, appeared as P.W.10 and gave those facts. During cross-examination he denied the suggestion that the appellant had, in his statement before him put up first version that he had been fired at by the deceased and the complainant and that he had inflicted injuries to the deceased acting in self-defence. The suggestion that Ghulam Muhammad accused had picaded alibi, was also denied by him. He did not accept the suggestion that he had investigated the case partially.
11. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. He denied to have led to the recovery of dagger P.1. He stated as follows in answer to the question, ---why this case against you?':-- In fact the incident took place differently in a sudden manner. Zarina Bibi got annoyed with my mother and went to her father Muhammad Nawaz complainant, who happened to be a first cousin of my father Ghulam Muhammad accused. I and my father event to the complainant's house a day prior to the occurrence to bring her around. Muhammad Nawaz complainant 'and his son Muhammad Hasnain Raza deceased, however, refused Mst. Zarina to accompany us and also treated us harshly on which we returned to our house. On the following morning Ghulam Muhammad accused, my father, went to Mauza Sagguan at a distance of about 12 miles to attend some personal errand. On the same day when I was returning home on a bicycle from the brick- kiln of Yasin Qasab where I worked as labourer I for taking 'meals shortly before 3 p.m. Muhammad Hasnain Raza deceased riding motorcycle confronted me and came after me to my house and started abusing me. He also started challenging me that if I had the courage I should along my nephew, i.e. The son of Mst. Zarina. I innocently went: to the house of Muhammad Nawaz complainant, which is in the same Haveli. Muhammad Hasnain Raza who had an automatic pistol with him, fired two shots at me which went astray. Muhammad Nawaz complainant who was also present in the house and had a .12 bore gun with him, aimed at me, but before he could fire, I entered his nearby kitchen, picked up an ordinary knife lying there and injured Muhammad Hasnain Raza deceased with the same exercising my right of private defence. Muhammad Hasnain Raza fell to the ground and I went away. Khalid Raza (given up) and Muhammad P.W.
Were not present at the. Spot and they did not see the occurrence. I took up the same stand before the Police at the time of arrest but they distorted the same and did not investigate it on those lines.
Complainant and the deceased were closely related to us and we had no grudge or grievance against them.
He declined to make statement on oath under section 340(2), Cr.P.C. And did not adduce any evidence in defence.
The acquitted accused had also denied the prosecution case while making statement under section 342, Cr.P.C. And pleaded innocence. He also, neither made statement on oath nor adduced any evidence in defence.
12. We have gone through the evidence with the assistance of learned counsel for the appellant and have considered the contentions raised by learned counsel for the parties.
The parties in this case are admittedly related, in that, not only a sister of the deceased was married to the brother of the appellant but his father was also first cousin of the acquitted accused Ghulam Muhammad, i.e. Father of the appellant. They were residing in the same Haveli, separately in their own houses. There is also no dispute about the fact that Mst. Zarina had returned to the house of her father because of unhappiness with her in-laws. In the circumstances, it is not difficult to assume that the appellant might have gone to bring back his brother's wife, who even otherwise was related to him. In our view, the prosecution version that the appellant had gone alone in the morning to bring back his brother's wife and had quarrelled there and had again gone to the house of the deceased in the later part of the day, i.e. At 4-00 p.m. After having made preparation to commit the murder, is not the correct position. What can easily be assumed is that unfortunate murder of the deceased and the demand made by the appellant for return of his Bhabi had taken place at one and the same time. Our reason for assuming that, is that if the appellant had quarrelled in the morning, he would not have gone to the house of the deceased in the evening armed only with a dagger and accompanied by his old father, aged about 74 years, empty- handed knowing full well that the deceased and his father both were keeping unlicensed guns. He could have easily understood the implications of such an adventure.
13. So far as the presence and participation of the appellant in the occurrence is concerned, that is not denied by the appellant himself even. However, his stance before the trial Court was that he had inflicted injuries to the deceased by picking up a chhuri from their kitchen when he had been fired at by the deceased and the complainant both. This story does not find corroboration from any material on record. Not only the appellant was not found to have suffered injuries but no empty or pellets were even found lying at the spot. No marks of fire-shots were also found on the walls of the house.
In the circumstances, we find no difficulty in holding that the version put forth by the appellant was incorrect and only a device to have the offence minimised by creating a mitigating factor. As against that, the statements of the two witnesses, inspire confidence, because one of them, i.e. P.W.9 was neither inimical to the appellant nor related to the deceased while the other, i.e. P.W.8 although was related to the deceased but had no reason to be inimical to the appellant as he was son of his first cousin and brother of his son-in-law. There is no evidence that it was the appellant who had misbehaved with Mst. Zarina. As such, we find no fault in the judgment of the trial Court for convicting the appellant under section 302, P.P.C. His conviction is, therefore, maintained.
However, we are not inclined to confirm the sentence of death awarded to him, for the reason that the occurrence obviously had happened when the appellant had gone to bring back his brother's wife who was even otherwise related to him being the daughter of his father's first cousin. He had certainly, every right to ask for the return of the girl as she was married to his brother and had left behind her son, who was only one year old. Such facts in our view, are adequate mitigating circumstances, warranting lesser sentence of imprisonment for life. The sentence of death imposed on the appellant is, therefore, altered to imprisonment for life. The sentence of fine is, however, maintained. Whole of the fine, on recovery, shall be paid as compensation to the legal heirs of the deceased. The appellant shall be given benefit of the provisions of section 382-B, Cr.P.C.
As well.
The appeal is dismissed with above alteration in the sentence.
14. Ghulam Muhammad (acquitted accused) was an old man being seventy---s. Even according to the prosecution, he was empty-handed. The role of having caught the deceased into claps was not alleged by the complainant while lodging the F.I.R. Even otherwise the part does not appear to be commensurate with the manner in which the deceased was inflicted injuries by the appellant.
His acquittal, in our view, is based on a well-reasoned judgement, which does not call for any interference. The revision petition is, therefore, dismissed being without merits.