SARDAR MUHAMMAD DOGAR, J.~ Noor Muhammad, aged 32 years, was tried by Addl. Sessions Judge, Khushab for having murdered Ata Ullah at 1-00 AM on 11.7.1988 after having trespassed in his house in Noorpur Town at a distance of 1-1/2 furlongs from Police Station Noorpur, District Khushab.
Learned trial Judge convicted him under sections 302 and 452 PPC vide judgment dated 20.9.1989 and awarded sentences as follows: Under section 302 PPC: Death, plus to pay a fine of Rs.
50,000/-, in default whereof to undergo R1 for one year. Whole of the fine, on recovery, was directed ^ to be paid as compensation to the heirs of the deceased.
Under section 452 PPC: R1 for 5 years, plus to pay a fine of Rs. 5000/-, in default whereof to undergo R1 for 3 months. {{TABLE MISSARRANGED}}
2. The convict has filed appeal through jail. Learned trial Judge has made reference for confirmation of death sentence. Both the matters are being disposed of together.
3. FIR Ex.PJ was recorded at the police station by Sardar Bakhsh (PW 11) at 2-00 AM on 11.7.1988 on the statement of Muhammad Arif (PW 10).
According to FIR, Ata Ullah (deceased) was living with his family in Noorpur Town in the house of Haji Muhammad Hayat Saggu. He was a goldsmith. The complainant alongwith his father Noor Ahmad had come to the house of the deceased on that evening and stayed with him for the night.
They were all sleeping in the courtyard. Mst Kausar Parveen wife of the deceased was also sleeping there. An electric blub was on. Noor Muhammad (appellant) entered the courtyard at 1-00 a.m during the night holding Churra after scaling over the wall. The PWs woke up. Noor Muhammad inflicted two Churra Wars on the right side of the neck of Ata Ullah. Ata Ullah got up from the cot and ran, but he fell down after taking a few steps. Noor Muhammad inflicted more injuries on the left side of his neck, left ear, left temple, left cheek, and .Left shoulder. He shouted if anybody dared intervene he will not be spared. The witnesses being empty handed did not dare intervene. Noor Muhammad ran away holding Churra.
Noor Muhammad was a vagabond type of person. He owed loans to so many persons. He had demanded Rs.5000/- from Ala Ullah and had also asked for the hand of Mst. Parveen Khatoon (sister of deceased). He had allegedly attacked Noor Muhammad after committing trespass on his demands having been refused.
The complainant went to the police station leaving Ata Ullah in his house in injured state. The case was initially registered under sections 307/452 PPC. Offence under section 302 PPC was added on the same day on the expiry of Noor Muhammad.
4. Sardar Bakhsh SI (PW 11) after recording FIR reached the spot. After preparing injury statement Ex.
PA/1, he sent the injured (Ata Ullah) to the hospital.
During investigation at the spot, he took into possession bloodstained cot P.3 and blood stained earth vide memos. Exhs. PF and PD respectively.
On the expiry of Ata Ulah on the same day in the hospital he sent his body for post-mortem examination after preparing inquest report Ex.PK.
Noor Muhammad (appellant) was arrested by him on 12.7.1988. His blood stained shirt P.1 and Shalwar P.2 were taken into possession vide mamo Ex.PE. On 14.7.1988 Noor Muhammad led to the recovery of blood stained Churra P.4 which was taken into possession vide memo Ex.PG, After completion of necessary investigation challan was submitted to Court.
5. Statements of 11 PWs were recorded at the trial.
Dr. Muhammad Akhtar who had medically examined Ata Ullah whilst alive on 11.7.1988 at 4-00 AM in the hospital appeared as PW.
2. He had noted following injuries on his person:
1. An incised wound 12 cm x 3 cm x 5 cm on upper side of right side of neck. All the muscles were cut and bones of all survival vertibra were also cut and exposed. Wound was bleeding profusely (transversely directed wound).
2. An incised wound 13 cm x 3 cm x 4 cm middle part of right side of neck muscles were cut and profusely bleeding. The direction of wound was almost tranverse.
3. An incised wound 14 cm x 2 cm x 2 cm on left temple region, extended to the lateral angle of eye and left cheek, skull bone was exposed. Direction of wound was obliquely downward.
4. An incised wound 4 cm x 1 cm x 4 cm on middle part of left cheek.
5. An incised wound 7 cm x 1 cm x 4 cm on left side of base of neck. Almost in transverse direction. ,
6. An incised wound 6 cm x 1 cm x pinna and lobe of left ear.
7. An incised wound on left shoulder 1.5 cm x 0.5 cm.
Patient was in shock. He was bleeding profusely. Pulse and blood-pressure was not recordable. He had been brought to the hospital by Ghulam Qadir, Constable No. 157. The medical examination had been done on written application Ex. PC by Sardar Bakhsh SI. The patient died within two hours after reaching the hospital.
6. Dr. Haji Ahmad Jasra who had performed autopsy on 11.7.1988 at 5- 00 PM appeared as PW 1. He had noted following injuries on the body of the deceased:
1. An incised wound 10 x 2 cm which extends from outer angle of left eye toward left half or skull.
2. An incised wound 7 x 1-1/2 cm at the left side of face, lower part of left ear, cartilage was also partially cut.
3. An incised wound 3x1 cm, 2-1/2 cm below injury No. 2.
4. An incised wound 4 x 1 cm, 2 cm later to outeral angle of left side of mouth.
5. An incised wound 6 x 1 cm at left half of neck it was skin deep.
6. An incised wound 10 x 2-1/2 cm, 3 cm below right ear on right side of neck. External carotid vessel was cut.
7. An incised wound 11 x 3 cm on the right side of neck 3 cm below injury No. 6. External and internal carotid vessels were cut and virtebra was also cut.
8. An incised wound 2-1/2 multiplied x 1/2 cm on the interior side of left upper arm.
9. A wound of vane cut 2-1/2 multiplied 2 cm on the centre medial side of left feet. Baranula was present which was removed at the time of postmortem.
Left parietal bone was fractured. 8th servical vartibra was cut. Membranes of brain was congested.
Death was opined to have occurred due to excessive bleeding and shock. Injury Nos. 1, 6 and 7 were opined to be sufficient to cause death in the ordinary course of nature. Time between injuries and death was opined to be almost immediate while lime between death and postmortem was opined to be 12 to 24 hours. During cross-examination, he stated that injuries might have been caused by a heavy weapon like Toka, hatchet etc.
7. Ocular account was deposed to by Muhammad Arif complainant (PW 10) and Mst. Kausar Parveen (PW 9).
Muhammad Arif while repeating the facts given by him in the F.I.R, admitted during cross- examination that Ghaus Muhammad brother of the appellant who was married to his sister Mst.
Waziran, had been murdered 2 years prior to the present occurrence. However, he denied the suggestion that the deceased intended to marry Mst. Nasreen daughter of Mst. Waziran to someone at mauza Dharaima but the appellant had opposed that, and as a result of that there was exchange of hot words and abuses between his father, P.Ws, and the appellant. He denied the suggestion that some dacoity had taken place in the shop of some goldsmith at Nurpur Thai and so his brother had strated sleeping at his shop instead of courtyard, and that he was murdered there by some persons who had come to commit dacoity. He denied the suggestion that he had not witnessed the occurrence and that he had lodged a false report and made incorrect statement.
8. Mst. Kausar Parveen corroborated the statement made by Muhammad Arif. While admitting that Ghaus Muhammad husband of Mst. Waziran and brother of the appellant was murdered before this occurrence, she denied the suggestion that the appellant wanted to marry Mst. Nasreen daughter of Ghaus Muhammad to a goldsmith of Dharaima and that the deceased and all members of the family of her in-laws had opposed that and were annoyed with Nur Muhammad appellant on that account. .She did not admit that Muhammad Arif and Nur Muhammad were living in mauza Jharkil. While admitting that Mst. Zohran wife of Saif Ullah brother of her husband had gone to the house of her parents due to annoyance with her husband, she denied the suggestion that she and her husband had insulted and beaten her---------- and that on that account her father was annoyed with them and had stated openly that he will take revenge from them. She denied the suggestion that the occurrence had taken place during darkness of night and that some dacoits had committed the murder of her husband, and that they had falsely implicated the appellant in this case due to enmity.
9. Muhammad Ramzan PW-7 brother of the deceased claimed to have witnessed the collection of blood-stained earth and blood-stained cot P.3 from the spot vide memos. Ex. PD and PF respectively. He also claimed to have witnessed the taking into possession of shirt P.1 and Shalwar P.2 (both bloodstained), belonging to the accused, by the Investigating Officer at the time of his (appellant's) arrest on 12-7-88. He further claimed to have witnessed the recovery of blood-stained Chhura P.4 at the instance of the appellant, on 14-7-88. During cross-examination he admitted that there were 3 members and one lumberdar in their village. He denied the suggestion that he had not witnessed any of the recoveries and that he had made a false statement.
10. Sardar Bakhsh, S.I. Who had registered the case and submitted the challan to Court after necessary investigation, appeared as PW-11 and gave the details of the investigation conducted by him. He specifically stated of having taken into possession Chhura P.4 at the instance of the appellant on 14-7-88. He denied the suggestion that the deceased had been taken to the hospital whilst alive by Muhammad Ramzan PW before his (S.I's) arrival at the spot. The suggestion that he had fabricated the evidence of recoveries of blood-stained clothes of the appellant and Chhura at his instance, was denied by him. He also denied the suggestion that he had conducted the investigation in a partial manner.
11. Positive reports (Ex. PN and PM) from the offices of the Chemical Examiner and the Serologist were also tendered in evidence.
The statements of the remaining P.Ws, are more or less, of a formal nature.
12. The appellant during his statement under Section 342 Cr.P.C. denied the prosecution case as a whole and pleaded innocence. He stated as follows in answer to the question, 'why this case against you and why the P.Ws, have deposed against you?':- "Actually one of my brother was married with Mst. Parveen, out of which Mst. Nasreen was a young lady. The complainant party was intending to give the hand of Mst. Nasreen in Dhraima with a man of bad character and I had been opposing the same. Due to this reason my relations with the P.Ws, and the complainant have gone strained. Actually I am innocent in this case. During the days of occurrence there were dacoities in the shops of Goldsmiths and similarly decoits come to the shop of Ata Ullah deceased and he was murdered by unknown assailants at night time. The occurrence was not seen by any of the P.Ws, and that as the complainant was already inimical towards me, so the complainant party falsely implicated me in this case."
He declined to make statement on oath and opted not to adduce evidence in defence.
13. 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 both the parlies.
14. The argument of learned counsel for the appellant that the occurrence had not taken place in the house of the deceased and that the same in fact had taken place in front of his shop as suggested to the P.Ws, during cross- examination, has not impressed us, as there is nothing on record to consider that the occurrence had taken place at a place different than the courtyard of the house of the deceased. On the other hand there is evidence that the occurrence had taken place in the courtyard. Not only in this connection reference can be made to the site plan regarding place of occurrence, but there is also evidence that the blood-stained earth had been collected from the courtyard of house of the deceased. If the occurrence had not taken place in the courtyard, there would have been no stains of blood on the earth in the courtyard. There is nothing on record to believe that the S.I. Would have fabricated evidence in that regard.
15. The contention that the eye-witnesses do not appear to have witnessed the occurrence, also in our view does not possess weight.
The occurrence had taken place during night. The presence of Mst. Kausar Parveen wife of the deceased in the house during night cannot be denied. The claim of Muhammad Arif that he had come to see his brother, alongwith his father on the previous evening, also cannot be thrown away lightly. Although the contention of learned that presence of only two cots shown in the site plan gives an indication that none else was sleeping in the courtyard, appears to be attractive, yet we are not convinced to hold that the complainant may not have been there because if he had not been at the spot, the F.I.R, could not have been lodged at 2-00 a.m. during night, for his presence could not have been procured by the wife of the deceased from a distance of 7 miles, particularly so when her husband had been mortally wounded.
16. The argument that the F.I.R, might have been lodged early in the morning and the timing of the same as 2-00 a.m. Might have been shown wrongly, is contradicted by the timing of medical examination of the deceased whilst alive, in the hospital. According to the medicolegal certificate (Ex. PB) the deceased had been examined whilst alive at 4-00 a.m. In the hospital by Dr. Muhammad Akhtar PW-2. He was not only accompanied at that time by his brother Muhammad Ramzan but was also accompanied by Ghulam Qadir, Constable No. 157. If fact the medicolegal certificate had been received by Ghulam Qadir, Constable. If the FIR had not been recorded prior to 4-00 a.m. The Police Constable could not have accompanied the deceased. Moreover, the medical examination was done by the doctor in pursuance to the written application (Ex. PC) submitted by Sardar Bakhsh, S.I. (PW-11). He would, naturally not have submitted such an application before recording the FIR.
17. Leaving apart the testimony of Muhammad Arif the statement of Mst. Kausar Parveen cannot be thrown away in any case, because her presence cannot be doubted by any stretch of imagination.
She had no enmity with the appellant. She would not have become a party to have the appellant prosecuted for the murder of her husband if he was not the real culprit. The appellant was related to her, being cousin of her husband and brother of the husband of her husband's sister. She would, therefore, not have made a mistake in identifying. In fact Muhammad Arif also had no enmity worth the name against the appellant and so he would not have lodged a false complainant against his own cousin and brother of his deceased Behnoi.
18. The suggestions put to both the eye-witneses regarding differences and dispute about the marriage of Mst. Nasreen daughter of Mst. Waziran to some person at Dhraima, apart from having been denied by both of them, were even otherwise discrepant, in that, to one witness It was proposed that the deceased wanted to marry her and the appellant opposed that marriage while to the other witness it was suggested that the appellant wanted to marry her with a person of his choice and the deceased opposed that.
19. The ocular account find support from the evidence of recovery pf blood-stained clothes worn by the appellant at the time of arrest as well as from the evidence of recovery of Chhura P.4 at his instance. The mere fact that a brother of deceased had deposed about that, is not enough, in our view, to throw that away, particularly so when the S.I. Also stated the same.
20. The half-hearted contention of learned counsel for the appellant that the deceased in fact appeared to have died at the spot, based on the opinion expressed by Dr. Haji Ahmad Jasra PW-1, that the deceased would have died within 15 minutes of his injuries, has not impressed us at all because if he had died within 15 minutes of the occurrence, how could he have been examined whilst alive in the hospital, at 4-00 a.m. By Dr. Muhammad Akhtar PW2.
21. For all the reasons noted above, we are convicted that the prosecution has been able to prove that it was the appellant who had done the deceased to death.
22. We are, however, not impressed by the evidence regarding motive, for the reason that if the appellant was to ask for the hand of Mst. Parveen sister of the deceased, he would have definitely gone to the father of Parveen who was alive. The deceased was not the only brother of Mst.
Parveen. In fact she had five brothers. How could, the deceased alone have refused her hand to the appellant if he had at all, been asked. Even otherwise the story that the appellant wanted the deceased to pay him a sum of Rs. 5,000/- as well as to give him the hand of his sister, neither rings true nor appears to be reasonable.
In the circumstances, while maintaining the conviction of the appellant under Sec. 302 PPC we are not inclined to punish him with the capital sentence. The sentence of death awarded to the appellant is, therefore, altered to imprisonment for life. The appellant obviously was not a well to do person. It is borne out from the fact, that he filed appeal through jail and counsel was appointed to argue his appeal at State expense. The amount of fine, therefore, is not proportionate. The same is reduced to Rs. 10,000/- (Rs. Ten thousand). The sentence of R.I. For one year in default thereof is maintained.
23. The conviction and sentence of R.I. For 5 years under Section 452 PPC is maintained. However, the fine of Rs. 5,000/- is reduced to Rs. 1,000/- (Rs. One thousand), for the reasons noted above, in default of payment of which he will undergo R.I *for three months. The sentences on both the counts shall run concurrently. He shall also be given benefit of the provisions of Section 382-B Cr.P.C.
24. Whole amount of fine under section 302 PPC, on recovery, shall be paid as compensation to heirs of the deceased.
Sentence of death is not confirmed.