RAJA AFRAS1AB KHAN, J.-Muhammad Ramzan (20) son of Muhammad Bakhsh and Allah Ditta (22) son of Manzoor Hussain were convicted under sections 302/34 PPC for the murder of Muhammad Ibrahim and sentenced to death plus a fine of Rs. 5000/- or in default thereof to undergo R.I. For one year by the learned Additional Sessions Judge Khanewal on 23.4.1988. The convicts have challenged their conviction and sentence by filing Crl. Appeal No.121 of 1988 before this Court. A reference has also been sent by the learned trial Judge for confirmation of their death sentence.
We propose to decide these matters together by this judgment.
2. The facts, in brief, are that Khadim Hussain complainant used to deal in the sale and purchase of animals. On 7.6.1987, at about 06.00/7.00 a.m. Khadim Hussain and his father Muhammad Ibrahim were going towards Banglawala in order to obtain loan from Allah Ditta son of Muhammad Bakhsh.
Khadim Hussain was going behind his father. When they reached near a katcha road leading towards Village Khan Bahadur Garh, Muhammad Ramzan. Allah Ditta and Mulazam Hussain all armed with sotas suddenly emerged from behind a katcha wall and opened an attack upon them, They caught Ibrahim and started giving him fist blows. On the alarm, Mukhtar Hussain reached the spot. Muhammad Ramzan inflicted blows with his stick which hit Ibrahim on his left knee and buttock. Allah Ditta also injured Ibrahim on his left thigh and ankle. On receipt of the injuries, Muhammad Ibrahim became unconscious and fell down. On further alarm, Mulazam Hussain and Ashiq Hussain came there and witnessed the occurrence. The accused ran away from the spot with their weapons. The injuries Muhammad Ibrahim was immediately brought to the shop of Dr. Noor Zaman, where he died. Mukhtar Hussain Ashiq Hussain and Mulazam Hussain were left behind to guard the dead-body while Khadim Hussain went to give an information to the police. The motive is that the appellant Muhammad Ramzan had illicit liaison with Mst. Iqbal wife of Imam Bakhsh, a real brother of Khadim Hussain. He was asked to refrain from his nefarious activities.
However, he continued his illicit relationship with the woman. About 2/3 months ago, Allah Ditta, brother of the complainant disgraced the mother of Muhammad Ramzan appellant by removing her Chaddar from her legs. She thus became naked in the public. In order to take revenge, the accused committed the murder of Ibrahim.
3. D.S.P. Faruq Ahmad PW7 recorded the F.I.R. Ex.PJ on the statement of Khadim Hussain complainant. He went and investigated the case on the spot. He prepared the injury statement Ex.PB and inquest report Ex.PC. The dead body was despatched to the Civil Hospital Kabirwala through Abdul Hamid constable for conducting post-mortem examination on it. The witness recorded the evidence of the witnesses under section 161 Cr.P.C. On the same day, last worn clothes of the deceased shirt Ex.P-1, Chaddar Ex.P-2 and safa Ex.P-3 were produced before him by Abdul Hamid constable which were taken into possession vide memo Ex.PE. On 12.6.1987, the Investigating Officer arrested Muhammad Ramzan. Allah Ditta and Mulazim Hussain. Muhammad Ramzan led the police to the recovery of sota Ex.P-4 which was taken into possession vide memo Ex.PF.
Mulazam Hussain led to the Recovery of sota Ex.P-5 which was taken into possession vide memo Ex.PH. He prepared the plans of the places Ex.PF/1, PG/1 and PH/1 from where the above said recoveries were effected.
4. Dr. Muhammad Arshad, P.W1 conducted postmortem examination on the dead body of Muhammad Ibrahim (70/72) on 7.6.1987 and found the: following injuries:
1. Multiple contusion coal sac together making as one in an area of 40 cm x 2 cm on the both gluteal regions.
2. Multiple contusion on an area of 14 cm x 3 cm x back of left thigh.
3. Contusions in an area of I6 cm x 3 cm on right fore-arm.
4. An abrasion 6 xcm half cm on the left pop literal fossa.
5. A contusion mark 3 xcm x 1-1/2 cm on the front of left leg.
6. Deformity of right thigh on dis-section there was fracture of upper part of shaft of femur with effusion of about one pound of blood.
In the opinion of the Doctor, the death occurred on account of haemorrhage and shock as a result of multiple injuries. All the injuries were caused with blunt weapon and were ante-mortem. Injury No.2 was found grievous while the rest were simple in nature.
5. Eye witness account was furnished by Khadim Hussain P.W5 and Mukhtar Hussain P.W6.
6. The appellant Muhammad Ramzan in his statement under section 342 Cr.P.C, denied the allegations levelled against him. His plea was that he had been falsely implicated because he was suspected to have illicit relationship with Mst. Iqbal Mai, daughter-in-law of the deceased. He disclosed that his co-accused Mulazim had divorced the daughter of the deceased and as such he had a dispute with the complainant party. He stated that he had been supporting his co- accused over the dispute. Mulazim Hussain and Allah Ditta appellants also denied the allegations.
The appellants stated that they had been involved in the case falsely.
7. The learned Judge believed the prosecution version and particularly noted the number of injuries on the person of the deceased and came to the conclusion that this was a case of intentional murder.
8. The learned counsel for the appellants submits that from the FIR as well as from the prosecution evidence it is established that this is not a case of murder. He argues that the evidence shows that the injuries were not inflicted by the appellants on the vital part and as such they had no intention to murder. According to him the offence falls under section 304 Part-II PPC. He, therefore, maintains that awarding of capital punishment in the given circumstances would be wholly un-justified. He supports his plea by relying upon Munawar Hussain vs. The State (1983 SCM R 1165) Shafey Ali vs. Asrar Beg etc. (NLR 1992 S.C. Judgments 416) and Shamboo alias Shahmir vs. The State (1991 P.Cr.LJ.
228).
9. Learned Law Officer has defended the conviction and sentence of the appellants while adopting the reasons given by the learned trial Judge in his judgment. According to him the case law produced by the learned counsel does not lend any support to his plea. He argues that each case has to be decided keeping in view its own salient features.
10. We have heard the learned counsel for the parties at considerable length and have gone through the record with care. The learned counsel does not plead that the appellants are innocent and that they have committed no offence.
His case is that the offence having been committed by the appellants falls under Part II of section 304 PPC even on the basis of prosecution evidence. There is no force in the contention of the learned counsel in view of the ocular account having been, given by Khadim Hussain and Mukhtar Hussain P.Ws which stood corroborated by the evidence of Dr. Muhammad Arshad. The medical evidence demonstrates that Muhammad Ibrahim was done to death on account of merciless beating by blunt weapons. Injury No.2 was declared grievous. It is undoubtedly a multiple injury. It is spread over an area of 14 cm x 3 cm on the back of left thigh. Similarly injury No.1 was found on an area of 40 cm x 22 cm on the gluteal region of the deceased. This region of the body consists of three important muscles of buttock and hip. The back of left thigh was damaged grievously. This region is connected with other vital parts of the body. In view if it is damaged seriously, the other vital parts cannot remain safe and healthy. Apart from the infliction of injuries, the other attending circumstances do indicate that the appellants intended to murder in order to take revenge of their insult. The appellants were sitting in an ambush and suddenly opened an attack upon the victim when he was going towards Banglawala along with his son. Khadim Hussain deposed that the appellants gave sticks blows to his father, Ibrahim. Allah Ditta inflicted a blow which landed on his left thigh and ankle. Muhammad Ramzan inflicted blows which hit Ibrahim on his left knee and buttock. Allah Ditta gave another sota blow on the right arm of his father. Khadim Hussain P.W was substantially corroborated by Mukhtar Hussain P.W. Dr. Muhammad Arshad fully corroborated the ocular account of said P.Ws as already detailed above. According to the medical evidence, the victim died on account of collective effect of his injuries. Thus both the appellants are responsible for his death. It is a case of brutal beating having been given by the appellants with their deadly weapons to the victim, an old man of 70/72 years. The Doctor says that the victim was an old and physically weakman. The injuries were such harmful in nature which finished Ibrahim. The assailants had intended to kill him by giving such bodily harm which, was sufficient to cause death in the ordinary course of nature. As a matter of fact they wanted to kill Ibrahim slowly because his son had insulted a lady of their family just to teach them a lesson. In our view the appellants are guilty of a Qatal- e-Amad. This being so there is no evidence to show that the case falls under section 304 Part-II PPC. We, therefore, maintain the conviction recorded against the appellants under sections 302 PPC. However, on question of sentence, we hold that Allah Ditta, a brother of the complainant removed chadder of mother of Muhammad Ramzan appellant and as such the appellants were gravely hurt by this act of the accused party. They were thus disgraced in the public. This incident itself would be a mitigating circumstance to award lesser sentence to the appellants. We, therefore, refrain from confirming the death sentence of the appellants.
Respectfully following the rule laid down in Muhammad Aslam vs. The State (1975 P.Cr.L.J. 1083), we alter the sentence of the appellants from death to life imprisonment. With this modification in the sentence, the appeal of the appellants is dismissed. The death sentence of the appellants is NOT confirmed.