IFTIKHAR HUSSAIN CHAUDHRY, J.-- Muhammad Naeem son of Muhammad Hanif was convicted for offence under Section 302 PPC and was awarded death sentence. He was also directed to pay a fine of Rs.50,000/- and in. Default to suffer rigorous imprisonment for three years'. In case the fine was recovered, the same was to be paid to the legal heirs of the deceased as compensation under Section 544-A Cr.P.C., by judgment dated 20.4.1994, passed by Additional Sessions Judge, Lahore.
2. Occurrence in this case took place at 7.30 a.m. On 3.12.1992 in the area of House No. 3 Street No. 67 Dhobi Ghat Mohallah Naseerabad, Shalimar Town, Lahore, Police Station Balghbanpura Lahore, and case FIR No. 478, dated 3.12.1992 Ex.PF/I was registered at Police Station Baghbanpura on the report of Muhammad Aslam PW-7.
3. The prosecution case as narrated" by Muhammad Aslam complainant PW-7 was, that his sister Mst. Nusrat Sultana was married to Muhammad Naeem accused 3-1/2 years' prior to this occurrence. The accused used to beat his sister. On account of that cruelty Mst. Nusrat Sultana had come to the house of her parents 5/6 months prior to the occurrence. Naeem accused had come 2/3- times to the house of the complainant and had asked Zakria, deceased father of complainant, for sending Mst. Nusrat Sultana with him. On refusal, he had also threatened the. Deceased with dire consequences. On 29.11.1992 Mst. Nusrat Sultana had given birth to a child. Mst. Mussarat Sultana sister of the complainant also came there. On the day of occurrence at about 7.30 a.m.
Mother of the complainant had gone to bring medicines because she was ill. At about 8.00 a.m.
Complainant Muhammad Aslam, Zakria deceased, Nusrat Sultana and Mst. Mussarat Sultana PWs were present in the Courtyard of their himself. Muhammad Naeem accused came there and brought out a Churri from the 'fold' of his Shalwar and raised a lalkara that he would not leave alive Zakria. On hue and cry raised by the complainant and his sisters, Muhammad Sharif and Muhammad Anwar PWs came there. Muhammad Naeem accused gave a Churri blow to Zakria which hit him on the left side of chest and near heart of the deceased. The third Churri blows hit on the rib of the deceased. Zakria fell down. Thereafter Naeem accused caused three Churri blow on the back- of the deceased. He also gave a Churri blow on the right arm of the deceased. The accused fled away from the spot after injuring the deceased. Zakria deceased succumbed to" the injuries at the spot. The occurrence was witnessed by the PWs.
4. In the subsequent investigation carried out Muhammad Naeem accused was found guilty and was sent up to face trial in the Court of Additional Sessions Judge, Lahore.
5. The prosecution in order to prove its case examined 11 witnesses at the trial.
6. Dr. Naseer Ahmad PW-6 conducted post-mortem examination on the dead-body of Muhammad Zakria on 4.12.1992, and noted following injuries on the dead-body:
(1) An incised penetrating wound, measuring 3 cm x 0.5. Cm on the left side of front of chest 10 cm from the midline and one cm at 3,0' clock position to left nipple. Corresponding cut was present on the over lying clothings.
(2) Obliquely placed incised wound 2.5 cm x 1 cm into muscle deep on the front of left chest 6 cm below the left nipple 6 cm from the midline 8 cm below the left costal margin corresponding cut was present on the over lying clothings.
(3) An incised wound 3.5 cm x 2 cm on the outer aspect of lower part of left chest 19 cm below the left axilla 1.8 cm above the left itliac crest corresponding hole was present on the over lying clothings.
(4) A stab wound measuring 2.5 cm x 1 cm into deep going on the back of left chest horizontally placed 6 cm from the posterior midline corresponding cut was present on the over lying clothings.
(5) An incised wound 3 cm x 1 cm into muscle deep on the back of lower part of left chest 1 cm from the posterior midline 5.5 cm below the injury No. 4. Corresponding cut was present on the over lying clothings.
(6) An incised wound 2 cm 0.7 cm kissing the posterior midline and with above injury. It was 7 cm below the injury No. 4. Corresponding cut was present on the over lying clothings.
(7) An incised wound 4.5 cm x 1 cm and muscle deep on the antero medial aspect of middle of right forearm 10 cm below the right elbow and 12 cm above the right wrist. Wound was obliquely placed.
All the injuries were ante-mortem and were caused by sharp-edged weapon.
7. Younas Ali Shah Draftsman PW-1 prepared site plan Ex.PA and Ex.PA/1.
8. Muhammad Aslam complainant PW-7 reaffirmed the narrative contained in the FIR. Mst. Nusrat Sultana appeared as PW-8 and Muhammad Sharif appeared as PW-9. They are the eye-witnesses of the occurrence and they have supported the prosecution case.
9. Abdul Aziz, SI PW-10 recorded formal FIR Ex.PF/I. Irshad Ahmad, SI PW-11 proceeded to the place of occurrence, prepared injury statement Ex.PH and inquest report Ex.PJ and sent the dead-body for post-mortem examination to the mortuary. He had arrested the accused and recovered blood- stained "churri" from his possession. He also took into possession blood-stained clothes of the deceased vide memo. Ex.PC. He had recorded the statements of witnesses under Section 161 Cr.P.C.
After completion of investigation he had challaned the accused. Muhammad Younas PW-2, Sabir Hussain PW-3, Muhammad Hayat MHC PW-4, Muzaffar Hussain LHC PW-5 were formal witnesses.
10. In his statement recorded under Section 342 Cr.P.C, the accused denied all the incriminating circumstances against. Him and pleaded his innocence and false implication on account of enmity. The accused produced Muhammad Akbar as DW1 in his defence.
11. Learned trial Court believed the prosecution case against Muhammad Naeem and proceeded to convict him as noted above.
12. Muhammad Naeem submitted Criminal Appeal No. 193/1994, against conviction and sentence awarded to him. Learned Trial Court had also referred the matter u/S. 374 Cr.P.C, for confirmation or otherwise of sentence of death awarded to Muhammad Naeem.
13. Learned counsel for the appellant contended that the appellant was a disabled person and was not in a position to stand on his legs without help of a stick which he had to hold by two hands and it would have been impossible for him to have inflicted knife blows to the deceased. It was submitted that evidence on record showed that the complainant had left for his place of employment and excepting Nusrat Sultana non-else was present in the house and this lady had given birth to a child 4/5 days prior to the incident and according to her own showing was present in the second room of the house and thus could not have been in any position to have witnessed the occurrence. It was further submitted that occurrence took place in the month of December and it would not have been possible for Nusrat Sultana to sit outside. In the Courtyard at 7/30 a.m. In the morning and that this aspect further falsified her story. It was contended that the medical evidence contradicted the ocular account as according to Nusrat Sultana the deceased had not taken any food prior to the death but the medical evidence disclosed that the stomach contained semi digested food. It was submitted that case against the appellant was not free from doubt and he deserved acquittal from the case. Learned counsel for the State on the other hand submitted that occurrence took place right in side the house of the deceased and the complainant and PWs were naturally present in their house as it was quite early in the morning and it could not be said that no body was in a position to have witnessed the occurrence. It was further argued that not a single circumstance has been highlighted by the defence which showed that deceased was substituted for the real culprit.
14. Muhammad Naeem appellant is son-in-law of the deceased. Nusrat Sultana daughter of deceased, PW-8, was married to appellant and due to strained relations between the spouses, she had come to her parental house. According to prosecution Muhammad Naeem demanded that his wife be sent with him but the deceased did not oblige him. A child was born to Nusrat Sultana on 29.11.1992. On the day of occurrence, Muhammad Naeem-convict is alleged to have come to the house where deceased was standing in the Courtyard and Muhammad Naeem started giving blows to the deceased, who subsequently died. The case of prosecution is being assailed on the ground that Muhammad Aslam complainant PW-7 was not present in his house as he used to go to place of his employment prior to 7.30 a.m. And that none of the other witnesses were present and that Mst. Nusrat Sultana, who had given birth to a child just 4 days prior to the occurrence, would not have been present in the Courtyard and the appellant being a disabled person could not have attacked the deceased and could not have fled away from the spot. The place of occurrence is a Courtyard of a house having an area of 2-2 1/2 marlas and according to site plan Ex.PH consisted of two rooms, a kitchen, a bath room and a small Courtyard. Presence of Mst.
Musarrat Sultana in the house has been admitted by the defence as well. Even if it be assumed that she was present in a room, the size of the house made it absolutely possible for Nusrat Sultana to have come out of the room and to 'have seen the occurrence which lasted for few minutes as the deceased was given a number of blows at the time of incident. The contention being raised on behalf of the defence that it was an un-witnessed occurrence is not supported by even the attending circumstances of the case and contention raised in this behalf being untenable is rejected.
15. Muhammad Naeem is stated to be a disabled person on account of police and it is the case of the defence that he could stand on his legs, with the help of stick and thus could not have attacked or inflicted knife blows to deceased. The deceased was a useless old hulk and was hardly in a position to have offered any resistence even to a child. Attacking a person having such physique and of such age would not have been difficult for the appellant notwithstanding the fact that he suffered from some sort of disability from one leg. An infuriated man can exhibited greater strength momentarily in such situations and it would not have been absolutely impossible for the accused to have attacked or to have injured the old man. Unless the accused was shown to be suffering from disability of a nature which would have made it impossible for him to have moved around, it could not be urged with any success that appellant could not have committed the offence. The deceased was an old man and it has not been shown that he had enmity of a nature with any person who would have eliminated him.
16. The occurrence took place in the morning. The time of occurrence or the place of occurrence has not been controverted by the defence. Wife of the deceased staringly had gone out of the house at that time. Objection of defence qua Muhammad Aslam was that he stated that he used to start his work at 7.30 a.m. And thus would have gone to place of his employment by the time the occurrence had taken place. Even if it be assumed for arguments sake that Muhammad Aslam was not present. Mst. Nusrat Sultana admittedly was present in the house. She had given birth to a second child 4 days prior to the occurrence and was obviously not in a position to move around and to attend to daily chores. Objection in respect of Nusrat Sultana is that she used to sleep in a room which was located in the rear of the house and thus would not have been in a position to have seen the occurrence and that her claim that she was present in the Courtyard of the house on a cold December morning was preposterous. The occurrence in this case was not a hit-and- run affair. The accused entered the house of the deceased and was accosted by the deceased, shouting took place between the parties and then the accused gave a number of blows to the deceased and thus incident must have gone on for some moments. Even if Nusrat Sultana was present in a room of the house she could have come out of the room within moments and thus was in a position to have seen the occurrence. The size of the house made it possible for any person present in the house to know what was happening in the Courtyard or in any other part of the house. Nusrat Sultana, therefore, was able to have seen the occurrence and she did witness the occurrence. The claim of the prosecution that it was an unwitnessed occurrence, is hollow and does not appeal to reason.
17. The evidence on record connects the appellant with the commission of offence adequately and, therefore, we consider that he was convicted for offence under Section 302 PPC for murder of Muhammad Zakria rightly. Quantum of sentence, however, has agitated our minds. Muhammad Naeem was married to Nusrat Sultana who was in the family way when she had deserted her husband. Muhammad Naeem according to prosecution's own case had been demanding return of the wife to his house. She gave birth to a child 4 days prior to the occurrence and it is quite possible that Muhammad Naeem had gone to the house of the deceased to meet his wife and to se the new born child. He was not a welcome guest and might have been insulted and tried to be pushed out of the house by the old man. The accused-appellant thereafter was infuriated and had given knife blows to the deceased. In this view of the matter we are of the view that maximum of sentence of death would be unwarranted. Therefore, while maintaining the conviction of Muhammad Naeem for offence under Section 302 PPC we convert the sentence of death imposed on him to imprisonment for life. The convict shall be entitled to benefit of provisions of Section 382- B Cr.P.C.
18. With this modification in sentence, appeal find by Muhammad Naeem is dismissed.
19. Murder reference is answered in the negative.