' ZAHID HUSSAIN BOKHARI, J.--- Murder Reference No,286 1992 and Criminal Appeal No,136 of 1992 arose out of the judgment and order, dated 13-5-1992 passed by learned Additional Sessions Judge, Multan by which Muhammad Riaz, Muhammad Nawaz and Muhammad Yar appellants were convicted under section 302/34, P.P.C. And. Were sentenced to death, life respectively. All the three were ordered to pay Rs,20,000 each as fine and in default thereof to undergo further R.I. For 2 years each. Half of the fine, if recovered, was ordered to be paid to the legal heirs of the deceased.
Fida Hussain co-accused was acquitted while extending benefit of doubt. Benefit of section 382-B, Cr.P.C. Was also extended to Muhammad Nawaz and Muhammad Yar appellants. We propose to decide both the matters through this single judgment.
2. On 22-2-1989 at 4 p.m. Muhammad Ramzan P.W.4 made statement Exh.P.F. Before Mahboob Ahmad, Inspector/S.H.O. P. W.10 when he was present near Railway Crossing Lar Road City Shuja Abad for an occurrence which took place on 22-2-1989 at 1 p.m. In the lands of Rana Bashir Ahmad situated in the area of Mauza Dakhli Sikandar Abad, at a distance of 8 miles from Police Station City Shujabad. The statement was embodied in the formal F.I.R. Exh.P.F./1, recorded by P.W.6 Bashir Ahmad Muharrar A.S.-I. At 4-20 p.m.
3. 9/10 years prior to the occurrence Mst. Kaniz Mai P.W.3, sister of Bashir Ahmad deceased and Muhammad Ramzan complainant was married with Muhammad Nawaz appellant resident of Chah Hasan Wala. Muhammad Nawaz appellant did not allow Mst. Kaniz Mai to visit the house of Muhammad Bashir deceased who used to reside at Chah Kazi Wala. On the fateful day in the absence of Muhammad Nawaz appellant, Muhammad Bashir deceased went to the house of Muhammad Nawaz appellant and took away Mst. Kaniz Mai and when they reached near the garden of Abdul Aziz Jhakkar, at about 1 p.m., they came across Muhammad Nawaz appellant armed with a hatchet, Riaz Hussain appellant armed with a hatchet, Muhammad Yar appellant armed with a Dang and Fida Hussain acquitted co-accused armed with a Chhuri. 'Op seeing the accused, Muhammad Bashir and Mst. Kaniz Mai diverted towards the lands of Rana Bashir Ahmad.
Allegedly, they intercepted by accused Muhammad Nawaz appellant asked Muhammad Bashir deceased as to why has he taken awarhis wife? He asked his wife to go home. Muhammad Bashir deceased did not allow her to return to the house of the appellant. On this, Muhammad Nawaz got Nrovoked and raised a Lalkara that he be caught and murdered. Muhammad Bashir deceased and Mst. Kaniz Mai P.W. Raised noise and in the meantime complainant and Fazal Karim P.W.5 reached at the spot. Within their view, Muhammad Nawaz appellant inflicted a blow on the abdomen of the deceased from the wrong side of the hatchet and Muhammad Bashir snatched Chhuri from Fida Hussain acquitted co-accused and gave Chhuri blow on the abdomen of Muhammad Nawaz appellant, in exercise of the right of self-defence. Muhammad Yar appellant inflicted a Dang blow near the left eye of Muhammad Bashir who fell on the ground and thereafter Riaz Hussain appellant inflicted hatchet blow on the backside of the head of Muhammad Bashir. The eyewitnesses tried to intervene but they were threatened by the accused, not to come near. The appellants ran away along with the weapons of offences. Muhammad Bashir succumbed to the injuries at the spot.
4. Th6 motive for the occurrence as stated was that Muhammad Nawaz appellant did not allow his wife Mst. Kaniz Mai to visit the house of her parents. Muhammad Nawaz appellant was asked many a times to allow Mst. Kaniz Mai to visit her parents house. Muhammad Bashir deceased brought his sister Kaniz Mai from the house of the accused on the day of occurrence. Being aggrieved, the accused nominated in the F.I.R. Committed the murder of Muhammad Bashir deceased.
5. Post-mortem was conducted on 23-2-1989 by Dr. Abdul Aziz Shah P.W.2 and he found the following injuries on the person of deceased:--
(1) Incised cut wound 8 c.m. x 2.5 c.m. Depth up to spinal card, cut between first and second cervical vertebras on back of neck just above hair line more on right side of back of neck, which was only 2 c.m. Away from right ear.
(2) A blackened abrasion 2 c.m. x 5 c.m. On the outer and lateral border of the left eye.
(3) A blackened abrasion 3.5 c.m. x half c.m. On back and middle of left forearm.
(4) An incised abrasion "J" shape 4 c.m. x 1/4 c:m. x 1 c.m. x 1/4 c.m. On front and left side of abdomen 2 c.m. Below costal margin.
(5) An abrasion blackened in colour 3 c.m. Into half c.m. On back of left side of chest, just in the middle.
' On dissection of injury No,1 skin, muscles of back of neck and ligaments were cut. Right vessel and artery of back were cut. ' 'There was dislocation with slight cut between first cervical vertebrae and second cervical vertebrae. Spinal Card at this area was completely cut. The injuries Nos.2 to 5 were simple one.
' In the opinion of the doctor the cause of death was injury No,1, i,e," neck injury cutting the spinal card. The injury was sufficient in the ordinary course of nature to cause death resulting in cardio respiratory arrest. The injuries were ante-mortem. Injury No,1 was caused by sharp-edged weapon.
The other injuries were by semi-sharp and blunt weapon. Probable time that elapsed between injury and death was within one hour and between death and postmortem was within 18 to 20 hours. Exh.P.B. Is the correct carbon copy of the post-mortem report which was written and signed by him. Exh.P.B./1 is skiagram. Police also signed application for the post-mortem of deceased Exh.P.C. Which is signed by him. He had also signed the inquest report Exh .P. D.
' On 3-7-1989 vide application Exh.P.E. The police enquired about the injury No,4 on which his report was Exh.P.E./1. The doctor opined that injury No,4 could not be caused by reverse of the hatchet.
' In the cross-examination this P.W. Admitted that normally the shape of injury is similar to the shape of the weapon. Abrasion could be caused by some edge of hatchet. Abrasion can be caused by friction on earth as well as by edge or end of the blunt weapon.
6. On 22-2-1989 blood-stained earth was collected, sealed into a parcel and taken into possession vide memo. Exh.P.G. By Mahboob Ahmad, Inspector/S.H.O., P.W.10 and witnessed by Muhammad Abdullah P.W.B.
7. Inspector/S.H.O. P.W.10 arrested Riaz Hussain appellant and Fida Hussain acquitted accused on 4-3-1989. Muhammad Nawaz and Muhammad Yar appellants were arrested by him on 9-3-1989.
During the investigation Riaz Hussain appellant led to the recovery of blood-stained hatchet P.4 on 11-3-1989 from the room of his house. On the same day Muhammad Nawaz appellant got recovered blood-stained hatchet P.5 and on 13-3-1989 Muhammad Yar appellant got recovered blood-stained Dang P.6 which were taken into possession vide memos. Exhs.P.J., P.K. And P.L.
Respectively. The recoveries were witnessed by Muhammad Bakhsh P.W.9 and Abdul Karim given up P.W. Nothing was recovered at the instance of Fida Hussain acquitted co-accused. The prosecution also relied upon the reports of Chemical Examiner Exh.P.N. And that of the Serologist Exh.P.O. About the blood-stained earth and the Chemical Examiner report Exh.P.P. And that of the Serologist Exh.P.Q. In respect of weapons of offence. All these reports were positive and proved that the articles were stained with human blood.
8. Muhammad Nawaz appellant when asked, "why this case against you?" He replied that he had given an amount of Rs,20,000 to Bashir deceased who was his brother-in-law, as such he went to his house and demanded the money from him but he infuriated, went into the room and brought out a Chhuri and caused the injury in his abdomen. He fell down, pulled the Chhuri from the telomen and thereafter he picked up the hatchet, which was lying at a distance or two Karams and inflicted the hatchet blow on the neck of Muhammad Bashir deceased, in order to save his own life.
Further stated that the occurrence took place in the house of the deceased.
' Other appellants and acquitted co-accused denied their participation in the occurrence. The appellants, produced Dr. Muhammad Ashfaq Baig D.W.1 in the defence. He examined Muhammad Nawaz on 22-2-1989 at 2 p.m. And found the following injury on his person: "A stab wound measuring 3 c.m. x 1 c.m. x depth kept under observation, located over the left side of anterior abdominal wall -- 8 c.m. To the left side of the umbilicus."
' He issued medico-legal report Exh.D.C. The injury was caused by sharp-edged tapered, pointed weapon. Duration of injury was 2 hours. The doctor decided to probe the wound in the operation theatre but Muhammad Nawaz appellant ran away from the hospital.
7. The occurrence was allegedly seen. By Mst. Kaniz Mai P.W.3, Muhammad Ramzan P.W.4 and Fazal Karim P.W.5. During the trial, all these three prosecution witnesses supported the story as narrated in the first information report in all material details.
8. It was argued on behalf of the appellants that the prosecution has not been able to prove its case beyond reasonable doubt, that the F.I.R. Was recorded after deliberation and preliminary investigation; that the appellant have no motive whatsoever to launch attack upon the deceased but in fact the deceased had a motive to commit aggression; that Muhammad Ramzan and Fazal Karim P. Ws. Were not present at the spot and they have not seen the occurrence; that the eye- witnesses being related to the deceased, made dishonest improvements, hence were not reliable witnesses and that offence if any, committed by the appellants will fall under section 304, Part I, P.P.C. And not under section 302, P.P.C.
9. Learned State Counsel argued that the matter was promptly reported to the police and it cannot be said that F.I.R. Was lodged after deliberation and consultations, that the prosecution has proved its case by reliable evidence, that the appellants had very serious motive to attack the deCeased and that the appellants committed intentional murder of Muhammad Bashir deceased.
10. We have heard the learned counsel for the parties and have examined the record carefully.
11. Admittedly the F.I.R. Was recorded near Railway Crossing and not at the police station. This fact alone would not be sufficient to discard the evidence of the prosecution but this would put the Court at caution. It would require more strict scrutiny of the evidence.
12. Muhammad Nawaz, Riaz Hussain, appellants are brothers an Muhammad Yar is the cousin and Fida Hussain acquitted co-accused is their nephew. Fida Hussain co-accused was acquitted by the trial Court for sound reasons and the complainant or the State has not filed any appeal/revision against his acquittal. Relationship between Mst. Kaniz Mai and Muhammad Nawaz appellant was admitted. She resided in the house of the appellant Muhammad Nawaz as his wife under one roof till the day of occurrence. There is nothing on record which would show that the husband and the wife had any dispute whatsoever. She did not leave the house of her husband on her own accord. The complainant and the appellants are the residents of same Chah. The complainant has not stated that Kaniz Mai ever complained about the ill-treatment of Muhammad Nawaz with her. Prior to the occurrence no untoward incident was reported anywhere. The complainant has not stated in his statement that Muhammad Nawaz appellant did not allow Mst.
Kaniz Mai to visit his house or Muhammad Nawaz ever prohibited the complainant from visiting his house. It is not clear from the evidence that why Muhammad Nawaz appellant did not allow Kaniz Mai to visit the house of Muhammad Bashir deceased. It was the duty of the prosecution to explain the circumstances which forced the appellant Muhammad Nawaz to ban the visit of his wife to the house of his brother-in-law Muhammad Bashir deceased. P.W.4 Muhammad Ramzan complainant admitted during the cross-examination that no enmity existed between Bashir and Nawaz prior to the occurrence. All these factors when considered collectively lead us to the irresistible conclusion that relations between the parties cannot be termed as inimical.
13. Blood-stained earth was collected from the place of occurrence as stated by Muhammad Abdullah P.W.8. He was cross-examined at length but no question was put to him which would show that blood-stained earth was not taken from the place of occurrence, so the place of occurrence was not seriously challenged by the appellants. We hold that the occurrence took place in the lands of Rana Bashir Ahmad situated in the area of Mauza Dakhli Sikandar Abad.
14. The occurrence took place in the area of Mauza Dakhli Sikandar Abad. Chah Hassan Wala, Chah Kazi Wala and Chah Chanar Wala are different Abadis of village Dakhli Sikandar Abad. The presence of Muhammad Ramzan complainant and Fazal Karim P.W.5 cannot be held unusual. We hold that all the eye-witnesses were present at the spot. They had seen the occurrence. The presence of Mst. Kaniz Mai at the time of occurrence cannot be disputed because had she not taken away by deceased, the occurrence could not have taken place. The prosecution has proved the motive beyond reasonable doubt.
15. We are not prepared to believe the statement of Muhammad Nawaz appellant that he went to the house of Muhammad Bashir deceased and demanded Rs,20,000 which he owed from the deceased and the occurrence took place in the house of Bashir Ahmad deceased. He did not give any reason whatsoever for the payment of Rs,20,000 to Bashir deceased.
16. We shall now examine whether the eye-witnesses are fully reliable, partly reliable or not reliable.
It is the duty of the Court to separate the chaff from the grain. Muhammad Yar appellant has been attributed one Dang injury which he allegedly inflicted near left eye of Muhammad Bashir deceased. The post-mortem examination reveals that injury attributed to Muhammad Yar was a blackened abrasion 2 c.m. x 5 c.m. On the outer and lateral border of the left eye. Similar injury with blackened abrasion 3.5 c.m. x 1/2 c.m. On back of middle of left fore-arm was also observed by the doctor. Moreover, an abrasion blackened colour was also found on the back of left side of the chest. These injuries were not attributed to anyone. All these injuries were declared simple in nature. It is mentioned in the F.I.R. That deceased fell facing towards the ground. It cannot be ruled out that injury attributed to Muhammad Yar may be the result of friction by fall on the ground. In cross-examination the doctor admitted that abrasion can be caused by friction on earth as well as by Dang edge or end of blunt weapon, but it was not stated that Muhammad Yar appellant used edge or end of the Dang. The role attributed to Muhammad Yar is not fully corroborated by the medical evidence which creates doubt about his participation in the occurrence. Consequently Muhammad Yar appellant is acquitted by giving him the benefit of doubt. He shall be released forthwith if not required in any other case. We also do not rely upon the eye-witnesses qua Fida Hussain acquitted co-accused.
17. On its own showing, the prosecution claimed that appellants came across the deceased and the prosecution witnesses all of a sudden. Appellants had no knowledge that the deceased would be taking his sister Mst. Kaniz Mai on the fateful day and at the relevant time. Muhammad Bashir deceased had not given prior intimation about his design to take his sister Mst. Kaniz Mai from the house of Muhammad Nawaz appellant. He went to the house of Muhammad Nawaz appellant in his absence and Kaniz Mai left her house without permission of her husband. She did not wait for her husband to seek permission to accompany her brother. The appellant did not attack the deceased soon after his arrival at the place of occurrence. But he first enquired from Bashir deceased as to why had he brought his wife? He also asked his wife to go home, but Muhammad Bashir deceased did not allow his sister/wife of the appellant Muhammad Nawaz to go home. The eye-witnesses in their statements before the learned trial Judge attempted to give a twist to the facts by saying that they reached at the spot on hearing the hue and cry and saw that appellants were giving injuries. They were duly confronted with their statements recorded under sections 154 and 161, Cr.P.C. The narration given in the F.I,R. By the complainant, about the initiation of occurrence rings true. The injuries were caused after the exchange of hot words.
18. Muhammad Nawaz appellant received sharp-edged injury in his abdomen and prosecution has explained this injury by saying that Muhammad Bashir deceased snatched the Chhuri from Fida Hussain acquitted co-accused and in order to save himself caused injury to Muhammad Nawaz appellant in the ir abdomen. The trial Judge has found the participation of Fida Hussain in the occurrence as doubtful. It is in the evidence that Muhammad Bashir was once involved in a murder case prior to the occurrence and his conduct of taking Kaniz Mai to his house without permission of Muhammad Nawaz appellant shows that he was a strong headed person and possibility cannot be ruled out that he might have brought the Chhuri with him in order to avoid expected resistance.
19. The eye-witnesses, though related but not inimical, were found to be present at the place of occurrence at the relevant time and occurrence had taken place in the broad daylight in an open place eliminating the possibility of occurrence having gone unwitnessed or the assailants having escaped unidentified. Relationship per se is not sufficient to discard their testimony. The prosecution witnesses are held reliable against Muhammad Nawaz and Riaz Hussain appellants.
20. The hatchets are normally carried by the villager in the rural areas of Punjab and carrying hatchet by the appellants in the fields in the peculiar circumstances of this case cannot be termed as premeditation. The deceased died in a sudden fight as a result of fatal injury caused to him by Riaz Hussain appellant. Both the appellant have not repeated the injury to the deceased.
Muhammad Nawaz caused a simple injury to the deceased. The occurrence took place in the heat of passion and without premeditation.
21. The testimony of the eye-witnesses against Riaz Hussain and Muhammad Nawaz appellants is corroborated by medical evidence, recovery of blood-stained earth from the spot and the recoveries of blood-stained hatchets P.4 and P.5 and reports of Chemical Examiner and that of the Serologist. They have not committed the offence of intentional murder punishable under section 302, P.P.C. But the offence would fall under section 304-I, P1P.C. Conviction and sentences of the appellants under section 302, P.P.C. Are consequently set aside and instead they are convicted under section 304-I, P.P.C. Injury inflicted by Muhammad Nawaz is simple in nature. He is sentenced to undergo R.I. For 10 years. Riaz Hussain appellant whose injury proved fatal is sentenced to undergo life imprisonment. Benefit of section 382-B, Cr.P.C. Is given to the appellants. The amount of fine is maintained and, if recovered, half of it shall be paid to the heirs of the deceased. The appeal is partly accepted. The death sentence is not confirmed.