IFTIKHAR HUSSAIN CHAUDHARY, J.- Shahid Mehmood alias Papoo son of Muhammad Hanif was convicted for offence under Section 302(a) PPC and was awarded death sentence. He was also directed to pay Rs.30,000/- as compensation to the legal heirs of the deceased. In the event of default, he was to undergo rigorous imprisonment for six months. He was also convicted under Section 459 PPC and sentenced to rigorous imprisonment for five years by judgment dated 20.2.1994 passed by Sessions Judge, Sialkot in case F.I.R. No. 204, dated 2.6.1992 under Section 302/459 PPC registered at Police Station Ugoki District Sialkot.
2. The occurrence in this case took place at about 11.30 p.m. On 2.6.1992 in the area of village Nangal, Police Station Ugoki, District Sialkot. The prosecution case as described by Muhammad Latif PW-8 was to the effect that on the fateful night, the complainant, his wife Noor Fatima and his son- in-law Uaqat Ali PW-9 were sleeping in the courtyard of the house whereas Naeem Ahmad deceased was sleeping on the roof of the house. At about 11.30 p.m. The complainant and the other PWs were attracted to the spot on the alarm raised by the deceased that Shahid Mehmood accused was causing injuries to him. The complainant and the other PWs went over the roof of the house and found the accused jumping towards the house of Mst. Khalida wife of Muhammad Hanif while carrying a 'Churri'. The deceased stated that the injuries were caused to him by Shahid alias Papoo accused. The PWs noticed about 12/13 injuries having been caused with Churri on the person of the deceased who succumbed to the injuries at the spot.
3. The motive behind the occurrence as stated by the complainant was that the accused suspected the deceased for having illicit relations with his sister Mst. Nighat and that the accused had threatened the deceased for months prior to the occurrence.
4. Muhammad Ismail SI PW-11 after recording the F.I.R., went to the place of occurrence. He prepared injury statement Ex.PH and inquest report Ex.PJ. He had sent the dead body under the escort of Qadeer Ahmad and Liaqat Ali, Constables PWs to the hospital for post mortem examination. He secured the blood stained earth from the place of occurrence vide Memo Ex.PA.
The Investigating Officer recorded the statements of PWs under Section 161 Cr.P.C. He got prepared site plan Ex.PC and Ex.PC/1 by Akhtar Naqash, Draftsman. The Investigating Officer arrested Shahid Mehmood accused on 7.7.1992 and recovered 'Churri' P-1 at his instance vide Memo Ex.PB. After completion of investigation, he challaned the accused to Court.
5. The appellant was charged under Section 459 read with Section 302 PPC to which he pleaded not guilty. Prosecution when called upon to lead evidence, produced 11 witnesses to prove its case.
6. Dr. Shakeel Ahmad Butt PW-6 conducted the post mortem examination on the dead body of Naeem Ahmad and noted the following injuries:
1. An incised wound 3 x 1 cm x DNP on front of left side of chest, 2 inches away from mid-sternum.
2. An incised wound 4 x 1.5 cm on the front of upper most part of left side of chest, near left clavial bone.
3. An incised wound cm x 1/2 cm x muscle deep on the anterior material side of left side of chest.
4. An incised wound 5 cm x 1.5 cm x DNP on the anterio material aspect of left side of chest in the middle part.
5. An incised wound 1.5 cm x 3/4 cm x muscle deep on the upper pan of left arm on its medial aspect.
6. An incised wound 4 x 1 cm x DNP on the left side of abdomen on its anteromedial aspect in the lumber region.
7. Incised wound 4 x 1.5 cm on dorsal aspect of left forearm in its middle part.
8. An incised wound 3 x 1 cm x muscle deep on the back of left side of chest in its upper most part near the neck.
9. An incised wound 4 x 1 cm on the. Back of left side of chest, in its upper part near midline.
10. An incised wound 5 x 2 cm x DNP on lower part of back of left side of chest near midline.
11. Incised wound 5 x 1.5 cm x DNP on back of left side of chest in its lower part.
12. Incised wound 4 x 1 cm x DNP on the lower part of left side of chest.
13. An incised wound 4 x 1 cm on the back of skull in its lower most part near neck.
The injuries were ante-mortem and caused by sharp-edged weapon. The Medical Officer tendered in evidence copy of the postmortem examination report tis Ex.PD.
7. Mehmood Ahmad PW-1, Muhammad Bashir PW-2, Akhtar Naqash, Draftsman PW-3. Liaqat Ali, Constable PW-4. Muhammad Hussain ASI PW-5, Shabhir Ahmad PW-7, Muhammad Latif PW-8.
Liaqat Ali PW-9. Qadeer Ahmad. Constable PW-10 and Muhammad Ismail SI appeared as PW-11.
8. The ocular account in this case was furnished by Muhammad Latif complainant PW-8 and Liaqat Ali. PW-9.
9. Muhammad Ismail SI PW-11 testified about the various steps taken by him during investigation as mentioned above.
10. The accused in his examination under Section 342 Cr.P.C, professed innocence and denied the prosecution case against him. He produced Muhammad Anwar DW-1, Sakhi Muhammad DW-2.
Muhammad Din DW-3, Rana Shaukat Hayat DW-4 and Ashiq Ali, Inspector as DW-5 in his defence.
11. Learned trial Court believed the prosecution case in totality and convicted the accused as noted above.
12. The convict submitted the titled appeal. Learned trial Court had also referred the matter under Section 374 Cr.P.C, vide Murder Reference No. 42/1994 for confirmation or otherwise of sentence of death awarded to Shahid Mehmood.
13. Learned counsel for the appellant submitted that it was an unwitnessed occurrence and appellant was involved in the case on account of suspicion alone. It was submitted that the deceased slept on roof top of ground floor of house while Muhammad Latif complainant was sleeping in the courtyard of the house and as revealed by the medical evidence, the deceased must have gone into immediate shock after the receipt of injuries and this would have obviated the possibility of any utterance by the deceased or of the same having/been heard by the complainant and the complainant thus could not have witnessed the incident as alleged by him. It was contended that assailant, who ever he was disappeared into darkness of the night by the time complainant had climbed to the roof top. It was contended that Liaqat Ali PW-9 was a chance witness and explanation for his presence in the house was not plausible. It was argued that complainant party and their relatives were involved in a large number of criminal cases and one of their enemies could have committed the offence which was further manifested by the fact that various members of the complainant party had gone to different houses to search for certain persons other than the appellant. It was submitted that Ghaffar alias Papoo son of maternal aunt of deceased had disappeared from the village a few days after the incident as all the fingers pointed towards him and there was evidence to the effect that he was seen in the village on the night of occurrence and had also quarreled with the deceased earlier, It was argued that motive for the incident was also not proved and there was, therefore, no basis for recording conviction of the accused- appellant. Learned counsel for the complainant submitted that occurrence took place in the house of complainant who was present in his house which fact was no where challenged by any body and the appellant was fully known to him and he was seen running away from the place of occurrence and thus he was fully connected with the commission of offence. It was submitted that defence had been groping in the dark for raising any plausible plea in defence of the accused but it miserably failed to do that. It was submitted that case against the appellant stood fully proved on the basis of ocular account which was fully supported by the medical evidence, evidence of recoveries and also motive and that he did not deserve any leniency in the matter of sentence either, as it was a preplanned murder.
14. The place of occurrence, time of occurrence and the manner in which the offence was committed (stabbing to death) have not been controverted to by the defence. The complainant as well as the appellant lived in the same village and only one house intervenes between the houses of the parties as is manifested by Ex.PC. The parties permanently reside in the same village and are fully known to one another. Occurrence took place in the house of Muhammad Latif PW-8. His son, Naeem Ahmad was present on the roof top of ground floor of the house. It is the prosecution case that at about 11.30 p.m. The complainant heard the outcries of Naeem Ahmad and then climbed to the roof top and saw appellant escaping from the scene to the house of their neighbour. The utterance of Naeem Ahmad that he was being done away with, was over heard by Latif and testimony of the complainant in this regard qua the utterance is admissible under the principle of "res gestae". Muhammad Latif admittedly was present in his house and after having heard his son that he was being killed, he would have climbed 15 steps on a straight flight of stairs within moments. The number of injuries on the body of the deceased was quite large (fourteen) and infliction of such a large number of injuries would have consumed some time. Injury No.1 had cut the left lung and heart of the victim while two injuries had injured spleen of Naeem Ahmad. It is not known as to which injury was first one in the sequence of infliction of injuries. The cumulative effect of injuries according to opinion of Medical Officer did result into severe shock to the victim. It cannot be said that after infliction of first injury he had collapsed and was unable to even cry out.
The argument raised on behalf of defence is specious and is really without any foundation. It is at least not supported by any material on record. Muhammad Latif after climbing to the roof top had seen Shahid appellant running towards house of Khalida, their next door neighbour while carrying Churri. He was fully known to the complainant being a next door neighbour and question of mistaken identity in the case did not arise at all. Liaqat Ali was married to daughter of the complainant few days before and it is customary for bride groom to visit the house of his in-laws after the marriage when his wife has gone back to see the parents in order to bring her back. There was nothing unusual about presence of Liaqat Ali in the house of Latif. In the absence of any material to the contrary, the presence of Liaqat in the house of Latif could not be doubted. He had fully supported the prosecution case. There was absolutely no enmity between the parties, nothing was suggested, it was not shown with reference to any circumstance as to why real assailant was let of and instead the appellant was made a scape-goat in a serious case.
15. Certain members of the family of the deceased were involved in minor criminal cases. A maternal aunt of the deceased or her family have been shown to be involved in certain cases relating to liquor but by no stretch of imagination it could be said that those cases could have provided as a jumping ground for launching assault on Naeem Ahmad a young man about 20 years by imaginary enemies.
16. The tenore of cross-examination to which Muhammad Latif PW-8 and Liaqat Ali PW-9 was subjected shows that defence was not sure as to take which particular plea in the case. Certain oblique references were made by the defence to certain other persons such as Ghaffar alias Papoo, Amjad, Arif son of Sarwar. Certain witnesses in defence were also examined. Testimony of Muhammad Anwar DW-1 referred to dispute between Ghaffar and Naeem Ahmad. Sakhi Muhammad DW-2 testified that Mehmood brother of the deceased Kabeer, Zaheer and Bashir came to his house to enquire about Arif and then they suspected Muhammad Nawaz as having committed offence and then they suspected Sattar and Zulfiqar as the real assailants. Testimony of DW-3 was in terms that he had seen Ghaffar alias Papoo alongwith three other persons near the village on the night of 2.6.1992 and he was found to be in a state of confusion and that they had left towards city in a Suzuki car. Shoukat Hayat DSP DW-4 had declared the accused innocent but in cross- examination he stated that none had appeared on behalf of the accused to depose that he had witnessed the occurrence. Testimony of Ashiq Ali DW-2, Inspector CIA Police DW-5 was to the same effect. The evidence led in defence was direction-less and does not cause even a slight dent in the prosecution case. The accused by producing defence had taken a specific plea of his false involvement in the case but had tailed to substantiate the same. This in itself is a corroboration, though of a minor degree, of the prosecution case.
17. Motive for the incident was stated to be that accused appellant suspected that Naeem Ahmad had illicit liaison with Nighat sister of appellant. In the course of investigation a chit/communication w as handed over to Investigating Officer who had associated Nighat and wife of appellant with investigation but had not taken any steps to determine as to who the author of said letter was. The letter was not brought on record even. This aspect of the matter is indicative of the tact that there was some sort of liaison between a female member of the house ot appellant with the deceased who was a young man aged about 20 years. Since there was no other reason for which the offence was committed, the case of the prosecution qua motive can be said to be having a ring of truth about it.
18. After having gone through the record with care in the light of submissions made at the bar. we are of the view that appellant was duly connected with the commission of offence and prosecution succeeded to prove its case against him beyond any reasonable doubt. Conviction of the appellant for offence for Qatl- e-Amd of Naeem Ahmad is consequently maintained but as is evident from the record the occurrence was result of vindication of family honour and extreme penalty of death in such cases is considered to be unwarranted. The sentence of death imposed on appellant is consequently converted into imprisonment for life. Me shall pu\ compensation to legal heirs of the deceased as directed by the learned trial Court. Conviction of appellant for offence under Section 459 PPC is also maintained. Both the sentences, one under Section 302 PPC and the other under Section 459 PPC shall run concurrently. The convict shall be given benefit of time served-as envisaged by Section 382-B Cr.P.C.
19. The appeal with the above modification in sentence is dismissed.
20. Murder reference is answered in the negative.