ALI NAWAZ CHOWHAN, J.----This judgment shall dispose of Criminal Appeal No. III of 1997, Criminal Appeal No. 120 of 1997 as well as Murder Reference No. 137 of 1997.
2. The matter pertains to case F.I.R No.21, dated 16-2-1995 registered at Police Station Chauntra, District Rawalpindi, under section 302/34, P.P.C.
3. The Murder Reference and the appeals arise because of the judgment of Mr. Muhammad Akhtar Khan, learned Additional Sessions Judge, Rawalpindi, who vide his judgment, dated 9-7-1997 convicted the appellants Shaukat and Safdar under section 302 read with section 34 of the Pakistan Penal Code but gave different sentence to both of them. Shaukat appellant was sentenced to death, while Safdar appellant was shown leniency and was sentenced to life imprisonment. He, was given the benefit under section 382-B of the Cr.P.C.
4. Taj Muhammad, the complainant in this case, is the father of the deceased as well as of Jehanzeb Anjum (P.W.7), an eye--witness of the occurrence. It may be mentioned that all witnesses are relations interse or are from the Brothery of the complainant side, whereas it was said that Safdar appellant also belongs to the Brothery of the complainant side.
5. The occurrence took place on 16-2-1995. The complainant was going in a bus to his village from his place of work. He had reached a place called as Dhok Rajgan, when Jehanzeb Anjum, P.W. Who was accompanying thA deceased Nadeem Anjum and who was then in an injured state having in a Suzuki, stopped the bus of the complainant and informed him about the occurrence. The complainant then accompanied the injured to the hospital. There it was found.That Nadeem Anjum had already expired. The dead body was taken to the Police Station Chauntra, where the complainant lodged the F.I.R. (Exh.PG).
6. Stating about the motive behind the occurrence, Taj Muhammad (complainant) stated:-- "The motive was that Shaukat accused had a suspicion that Nadeem Anjum deceased had illicit relations with his sister and due to this grievance, the accused murdered him. "
7. The facts about the occurrence have come on record through the statement of Jehanzeb Anjum (P.W.7), who said: "On 16-2-1995 at 1-30 p.m. I and Nadeem Anjum deceased were present in our home. Safdar accused present in Court came to our home and called Nadeem Anjum and took him alongwith him to his home. After some time, I proceeded to inquire about my brother and was going towards the house of Safdar accused while Riaz P.W. Met me on the way. I told him that Safdar has taken Nadeem Anjum alongwith him and I am going to his home. Whereupon, Riaz also accompanied me. When I and Riaz reached in the street, where the house of Safdar is located, we heard noise. I and Riaz rushed and entered the house of Safdar where we saw that Safdar accused was holding Nadeem Anjum and Shaukat accused present in Court inflicted two Chhuri blows on the person of Nadeem Anjum which hit him on the left side of the chest and on the left arm. It was at about 2-03 p.m. After inflicting the said injuries both the accused fled away and Nadeem Anjum fell on the ground. "
8. Relevant excerpts from his statement during cross-examination are reproduced below:-- "When Safdar came to our house to call Nadeem Anjum, he knocked the door and I went to see, who was there. The door was knocked at about 1-30 p.m. I told Nadeem that Safdar was calling him. Thereafter, Safdar took Nadeem to his home. The house of Safdar is at a distance of 1 furlong from our house and it in between this way, other houses are situated. One shop also falls in between. "
"I had not doubted the fact of calling of Nadeem Anjum by Safdar. I, however, was to go to fetch the wood for which I wanted that Nadeem Anjum to accompany me and for that reason, I went to the Rouse of Safdar for calling him. "
"Safdar is not my relative. However, he is from our Brothery. We visit each other house on the occasions joy and sorrow. "
"When we reached near Veranda, we saw that Nadeem Anjum was in the clutches of Safdar and Shaukat inflicted Chhuri blow on his person. There are 3/4 rooms in the Veranda of Safdar's house.
We tried to rescue Nadeem Anjum but the said two blows had already been inflicted by Shaukat.
We only saw Nadeem, Safdar and Shaukat in the house. The Chhuri blows were given to my brother by Shaukat when we were at a distance of 18/19 feet and we could not get the chance to hold Shaukat and prevent from his act. "
"My father was employed in Agricultural Department of Rawalpindi. It is correct that I had stated before the police that I and Nadeem Anjum were present in our home when Safdar came there at 1-30 p. m. To call him."
"The occurrence took place at 2-00 p.m. And we had dropped the injured in Suzuki at 2-15 p.m. It takes 2 to 2-1/2 hours for reaching from our village to the hospital because the condition of the road is bad. "
"About 3/4 days before the occurrence, Shaukat had told my father that Nadeem Anjum had a bad eye on his sister. "
"My statement and the statement were recorded by the police at the spot. "
"When I saw, Safdar had caught hold of the deceased and Shaukat inflicted Chhuri blows on his person Safdar had held the deceased from backside while twisting his right hand towards back and he was also holding him from hair. "
"Except the witnesses who are either related of one Brothery, no other person of some other Brothery and not related to us is a witness of this case. I do not remember the number of Suzuki on which we had brought the deceased to the hospital. "
9. Muhammad Riaz (P. W.8) who is the maternal uncle of Jehanzeb Anjum and the deceased and happened to be there as he was proceeding to the house of his sister and was taken away by Jehanzeb Anjum who was following the deceased and the appellant/convicts while going towards the house of Safdar appellant, supported the prosecution version fully. He also supported the motive part of the story. A relevant excerpt from his statement is reproduced below:-- "I did not see any lady in the house of Safdar. The door of the room where the occurrence took place was open. Before our entering the room. Shaukat inflicted blows on the person of deceased.
We are still outside the room in the Veranda, when he inflicted the blow. The occurrence took place towards the right side of the room. When the accused fled away, we entered the room. "
10. Dr. Arshad Ali Khan (P.W.9) had conducted the autopsy on the dead body of Nadeem Anjum on 17-2-1995 and found the following injuries on his person:-- (1)There was a stab wound on left side on the front of the chest which was situated 2 c.m. Inner and below the left nipple between 5th and 6th rib.
(2)There was an incised wound measuring 9 c.m. x 4 c.m. On back of left forearm which was muscle deep and situated 7 c.m. Below .The elbow joint."
(3)An incised wound 1 c.m. x 1/2 c.m. Was present at mid of right eye--brow. It was also bone deep."
His opinion was as follows:-- "all the injuries were ante-mortem and death was caused due to injury No. l which ruptured the pleurae and heart and lead to the cardio respiratory arrest and hence sudden death of the victim."
Exh. PE is the post-mortem report, while Exh.PF is the pictorial diagram.
11. Exh. PK is the report of the Chemical Examiner and Exh. PL is the report of the Serologist, both with respect to the blood-stained earth and the recovered Chhuri, and are in the positive.
12. Amongst the formal witnesses are Ghulam Hussain who took the parcel of the case property i.e. Blood-stained earth and the Chhuri to the office of the Chemical Examiner on 26-2-1995 and where he delivered these on the next day. Kazim Hussain is the Muharrer who had kept the aforementioned case property in safe custody before handing the articles over to Ghulam Hussain (P. W.1). Muhammad Akram had identified the dead body. Muhammad Afzal, Constable (P.W.4) had taken the dead body for post-mortem examination. He received the last-worn clothes of the deceased after the post-mortem examination and handed these over to the Investigating Officer who took the same into possession vide memo. Exh.PA. Muhammad Akram, Draftsman prepared the site plans (Exh.PB and Exh.PB/1) on the asking of the police while scribing his own notes in black.
13. Mushtaq Hussain is the witness of the recovery of the blood-stained earth which was taken into possession from the house of Safdar appellant vide memo. Exh.PC. This happened on 16-2-1995. On 22-2-1995 he witnessed the recovery of Chhuri which was got recovered by Shaukat appellant.
14. The case was investigated by Muhammad Bashir, S.-I. (P. W. 11). When the complainant Taj Muhammad appeared before him at the Police Station Chauntra, he registered the F.I.R. (Exh.PG) on his statement. He then prepared the injury statement (Exh.Pl) and inquest report (Exh.PH) and sent the dead body, to the mortuary for post-mortem examination. Initially, he prepared the rough site plan of the place of occurrence (Exh.PJ). He collected the last-worn clothes of the deceased from the spot and recorded the statements of the witnesses. He received the last-worn clothes of the deceased from Constable Muhammad Afzal. On 20th of November, 1995, the D.S.P. And the Station House Officer carne to the spot and verified his investigation and it is then when the accused surrendered themselves and were arrested. On 22-2-1995 he effected the recovery of the Chhuri from Shaukat.
15. In their statements under section 342, Cr.P.C. The appellants professed their innocence and stated that they had been involved in this case out of enmity.
16. This occurrence took place in a broad daylight in the thick of locality and in the house of Safdar appellant which is an admitted position. According to the learned counsel, in the site plan, the name of the owner of the house is shown as Ameer Afzal. But it has been argued before us that he was father of Safdar appellant and there was no rebuttal to this explanation. There is no long-- standing enmity inter se the parties. The motive part has been given by the complainant which of course was denied by the appellant Shaukat. But the fact of the matter is that this grudge was being nourished by the appellants' side against the deceased and this suspicion had moved Shaukat to cause the death of the deceased.
17. The deceased was a young man and it is quite possible that he took the help of Safdar. We find that no serious enmity has been established against Safdar appellant. Who is attributed the role of sharing the intention and of facilitating the murder by calling the deceased to his house where the occurrence took place. And it is alleged against him that he twisted the arm of the deceased before he was inflicted blows with Chhuri.
18. The Chhuri is also recovered from Shaukat appellant at his instance.
19. The appraisal of the evidence reflects that the prosecution has been able to establish its case against the appellants without any reasonable doubt by the witnesses who had no enmity with the accused side nor any I intention of involving them falsely. We, therefore, are of the view that the prosecution has succeeded in establishing its case.
20. However, we find that it is prosecution's story that a question of tan, honour was involved.
Normally our villager do not set up such motives because after all people are circumspect in such matters of family honour and do not attribute such things to others without there being any reason.
And as the family honour is the prosecution's own story and although we do not encourage killing on basis of family honour, but this aspect becomes essential when we weigh what punishment be- given to the assailants. Because after all family honour is a matter dear to our populace and can cause people to remain emotional about it and to undo the shame which the culture compels them to undo.
21. Consequently, we are of the view that this was a case where the conviction; ought to have been under section 302(c) of the P.P.C. And the appropriate sentence to both the appellants ought to have been life imprisonment. The conviction and sentence are so altered. The Murder Reference in respect of Shaukat appellant is answered it the negative and the appeals are decided accordingly.