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Criminal Appeals Nos. 336, 337, 338 and Murder Reference No. 89 of 1983, decided on 24th March, 1986.
‑‑‑Ss. 302/34 & 307/34‑‑Ocular evidence, appreciation of‑‑Injured witness, real brother of husband of girl whose character was suspected by them to annoyance of accused‑‑Held, it would be difficult to place implicit reliance on his evidence in circumstances though his presence could not be doubted.
‑‑‑Ss. 302/34, & 307/34‑‑Counter‑version, appreciation of ‑‑Accused 'G' alleging grave and sudden provocation‑‑Injured witness found unreliable‑‑Witness named in F.I.R. not produced to corroborate injured witness‑‑Third witness a chance witness living at distance of two miles from spot‑‑Prosecution implicating entire family of accused‑‑Accused 'N' found innocent during investigation‑‑Discharge report submitted in Court‑‑Both sides, held, had not come forward with true story and had tried to suppress material facts.
‑‑‑Ss. 302/34 & 307/34‑‑Two versions in juxta position‑‑Occurrence starting with imputation of adultary to sister of accused‑‑Deceased and witnesses subjecting her to beating‑‑Occurrence near house of accused‑ No other enmity between parties‑‑Accused, held, might have lost mental equilibrium on imputation of unchastity to their sister and on seeing her being beaten‑‑Attack on deceased and injured witness was, therefore, under grave and sudden provocation without‑ any premeditation Convictions altered from S.302/34 to S.304, Part‑I, P.P.C. and from S.307/34, P.P.C. to S.324, P.P.C. in circumstances.
M. Aslam Shahid for Appellants.
Malik Dost Muhammad Awan for the State.
Ghulam Muhammad, aged 25, armed with knife, Sher Muhammad, aged 35, armed with knife, and Noor Muhammad, aged 30, armed with knife, all sons of Khair Muhammad and brothers, have been convicted, vide judgment, dated 12‑4‑1983 of the Sessions Judge, Khushab as follows: All of them have been convicted under section 302/34, P.P.C. for the murder of Rabnawaz, aged 23, their distant relative as well as cousin of their Behnoee Ali Muhammad (P.W.6). Sher Muhammad and Noor Muhammad were sentenced to death plus fine of Rs.10,000 each or in default to undergo two. years' rigorous imprisonment each, whereas Ghulam Muhammad was sentenced to life imprisonment plus ,the same amount of fine alongwith benefit having been given to him under section 382‑B Cr.P.C. with the direction that if the fine was realized from them, out of it Rs.20, 000 should be paid as compensation to the heirs of the deceased. All of them were also convicted under section 307/34, P.P.C. for murderous assault on Saleh Muhammad P.W.8 cousin of the deceased as well as real brother of the Behnoee of the appellants, namely, Ali Muhammad P.W.6 and each of them was sentenced to seven years rigorous imprisonment plus fine of Rs.5,000 or in default to undergo one year's rigorous imprisonment each with the direction that if the fine was realized from them, out of it Rs.5,000 be paid as compensation to Saleh Muhammad P.W.8. All the three convicts have filed an appeal which alongwith the reference for the confirmation of death sentence awarded to Sher Muhammad and Noor Muhammad appellants is being disposed of by this judgment.
2. The occurrence took place on 26‑2‑1982 at 8‑30 p. m. in a street of village Bandial, at a distance of five miles from Police Station Gunjial, District Khushab, F.I.R. Exh.P.G. was lodged by Saleh Muhammad P.W.8, injured, at 9‑30 p.m. on the same day and it was recorded by Agha Zulfikar S.I. P.W.10.
3. The motive for crime as stated in the F.I.R. is that sister of the appellant, namely, Mst Waziran was married to Ali Muhammad P.W.6 brother of Saleh Muhammad P.W.8 about 5/6 months before the present occurrence. It is stated that Ali Muhammad P.W.8 suspected that she was of bad character. On the day of occurrence at about 8.00 p.m. when she returned to her house Ali Muhammad P.W. had a quarrel with her on this issue and he started beating her. On this she left him and went to her parents house as the parties lived in the same village. Shortly thereafter, Saleh Muhammad P.W. as well as the deceased, his cousin, proceeded to the parents' house of Mst. Waziran in order to reconcile the matter and to bring her back. However, on the way they were intercepted by the appellants who were armed with knives and stating that they would teach them a lesson for levelling false allegations of immorality on their sister and for beating her and that they would not spare them. It was in this background that the occurrence took place.
4. In the F.I.R. the occurrence is reported to have taken place in the following manner: Noor Muhammad appellant gave a knife blow which fell on the left arm of Saleh Muhammad P.W. Then Sher Muhammad appellant gave 2/3 knife blows to the deceased which fell on his right ribs and belly and as a result he fell down on the ground. Thereafter, Sher Muhammad appellant gave 2/3 knife blows which fell on the left armpit and left belly of Saleh Muhammad P.W. Then Noor Muhammad appellant gave 2/3 knife blows again to the deceased while he was in the fallen condition and which fell on his left armpit, ribs and belly as well as thigh and right buttock. Eventually Ghulam Muhammad appellant gave a knife blow to the deceased which fell on the middle of his belly and as a result his intestines came out and he died on the spot. The occurrence was witnessed by Haq Nawaz (not produced), Muhammad Khan P.W. 9 besides Saleh Muhammad P.W.8. Leaving behind them to guard the dead‑body of the deceased Saleh Muhammad P.W. proceeded to lodge the report.
5. Ghulam Muhammad and Sher Muhammad appellants were arrested on 28‑2‑1982 by Agha Zulfikar S.I. P.W.10 whereas Noor Muhammad appellant was arrested by the same police officer on 2‑3‑1982. At the instance of Ghulam Muhammad appellant was recovered knife Exh.P.8, blood‑stained and taken into possession, vide memo. Exh.P.I dated 3‑3‑1982. At the instance of Sher Muhammad appellant was recovered knife Exh.P.7, blood‑stained, and taken into possession, vide memo. Exh .P.H. dated 3‑3‑1982. At the instance of Noor Muhammad appellant was recovered knife Exh.P.9, not blood‑stained, and taken into possession, vide memo. Exh.P.J. dated 12‑3‑1982, the attesting witnesses in all the three cases are Muhammad Khan P.W.9, Haq Nawaz (not produced) and Agha Zulfikar S.I. P.W.10. According to the reports of the Serologist Exh. P.R. and P.S. at pages 12/14 of the printed paper‑book knife Exh.P.7 and knife Exh.P.8 were found to be stained with human blood whereas knife Exh.P.9 was not sent for chemical examination.
6. Ghulam Muhammad appellant in his statement before the trial Court gave his own version of occurrence which was as follows:‑
"My father is old. My mother is blind, I lived with my parents, My co‑accused live separately. On the night of occurrence at about 8‑00 p. m. I was sitting in my house and making shoes as I am cobbler. I was using a Rambi for cutting leather. I heard hue and cry which was being made by my sister Mst. Waziran in the street. I suddenly stood up while holding Rambi in my hand and came in the street, I saw that Rab Nawaz deceased and Saleh Muhammad P.W. were dragging my sister Mat. Waziran and they were also beating her and insulting her. They also insulted me and said, take care of this prostitute, she is not worth us. They also said to me that I should return all the ornaments which Mst. Waziran had left at our house. My sister Mst. Waziran started weeping and she said to me that she is innocent and she has falsely been accused of adultery. I implored the deceased and the complainant not to level such false allegations against my sister. Rab Nawaz deceased said you also share the income of your sister on account of prostitution. On this I could not control my patience. On grave and sudden provocation I grappled with Rab Nawaz deceased. During the course of this grappling the deceased suffered injuries with Rambi which was in my hand. The neighbours also collected. Fateh Muhammad Mochi son of Ramzan was earlier married to the sister of Sale Muhammad P.W. but Saleh secured divorce from him on payment of Rs.10,000 and because of that Fateh Muhammad Machi and Saleh P.W. were each other's enemy. During the struggle at the spot Saleh P.W. also suffered injuries with Rambi. The night was dark. It was a bit raining."
Noor Muhammad appellant stated that he resided at a distance of three miles from the Abadi of the village and many persons appeared before A.S.P. in his defence and they swore on Quranic oath as to his innocence. After the investigation the A.S.P. directed his subordinates not to challan him but to get him discharged and that on this very basis he was released on bail by the High Court. But since the local police was under the influence of Maliks of the Illaqa, they did not record evidence in his defence. Sher Muhammad appellant stated that he had been falsely implicated in this case due to the influence of the Maliks of the Illaqa. No defence evidence was produced by any of the appellants in this case.
7. Dr. Pirzada Muhammad Alam Shah P.W.7 medically examined Saleh Muhammad P.W. on 27‑2‑1982 at 12‑10 a.m. and found the following injuries on his person:‑
(1) An incised stab wound 3" x 1/4" x 1" deep on the outer lateral side of left elbow‑joint.
(2) An incised stab wound crescent shape 3" x 1" x 1/2" deep on the left lateral side of chest 2" below the left axillary fold.
(3) An incised stab wound 1" x " x " deep on the left lateral side of the abdomen 4" below injury No.2.
All the three injuries were caused by sharp‑edged weapon and were subsequently found simple in nature.
On 27‑2‑1982 at 9‑30 a.m. he conducted the post‑‑mortem, examination on the dead‑body of the deceased and found the following injuries on his person:‑
(1) An incised stab wound 3 " x 1 " deep into the abdomen front just below the ziphisterm extending towards right side.
(2) An incised stab wound " x " deep into left lateral side of the abdomen.
(3) An incised stab wound 1" x " x (chest deep on the right lateral side 4" below the axillary fold.
(4) An incised stab wound " x " x deep into the abdomen the right side.
(5) An incised stab wound x x deep into right side front abdomen at the level of iliac crest.
(6) An incised stab wound " x " deep into the abdomen 1 " below medial to injury No.4.
(7) An incised stab wound x x deep on the right lateral side at the level of iliac crest.
In his opinion death was due to shock and haemorrhage as a result of injuries Nos. 1, 2, 3, 4, 5 and 6 causing damage to the right lung, small intestine, large intestine, stomach, spleen and liver. Injuries Nos.1 to 6 were grievous and dangerous individually and collectively. Injury No. 7 was simple. These injuries were sufficient to cause death in the ordinary course of nature. All the injuries had been caused by sharp‑edged weapon.
8. Relying on the ocular account, the motive and the recoveries the trial Court convicted and sentenced the appellants as described above.
9. Learned counsel for the appellant contends that the eye‑witnesses examined by the prosecution were chance witnesses, had changed the place of occurrence and made material improvements in the case. It is further stated that the plea raised by Ghulam Muhammad appellant was not properly considered by the trial Court and the effect of false imputation of immorality to his sister and that of the other appellants was not considered in true perspective. It is next argued that Noor Muhammad appellant who was found innocent during investigation and was recommended for discharge by the police has also been awarded death sentence without any corroboration.
Saleh Muhammad P.W.8 is an injured eye‑witness and is related to both the parties while Muhammad Khan P.W.9 is an unconnected witness. The latter has also testified to the recoveries of blood‑stained knife at the instance of Sher Muhammad and Ghulam Muhammad appellants. The marriage of Mst. Waziran, sister of the appellants with Ali Muhammad P.W.6 brother of Saleh Muhammad P.W.8 is not disputed. The marriage took place just 5/6 months before the occurrence. She was suspected of immorality by Ali Muhammad P.W. Shortly before the occurrence Ali Muhammad P.W. had quarrelled with her on that score and had beaten her whereupon she proceeded to her parents house. The prosecution case is that soon thereafter Saleh Muhammad P. W. as well as the deceased, his cousin had gone to the parental house of Mst. Waziran in order to reconcile the matter and to bring her back but on the way they were intercepted by the appellants who were armed with knives and stating that they would teach them a lesson for levelling false allegations of immorality on their sister and for beating her they attacked them. As against this, there is another version advanced by Ghulam Muhammad appellant. According to him he was a cobbler by profession and was cutting leather with a Rambi when he heard hue and cries of his sister in the street. He suddenly stood up while holding Rambi and came in the street and saw the deceased and Saleh Muhammad P. W. dragging and beating his sister Mst. Waziran. They insulted her and said "take care of this prostitute, she is not worth us". On this, Mst. Waziran started weeping and professed innocence. Ghulam Muhammad further stated that he implored the deceased and the complainant not to level false allegations against his sister on which the deceased said "you also share the income of your sister on account of prostitution". Whereupon he could not control his passions and under grave and sudden provocation grappled with the deceased' and during the course of grappling the deceased suffered injuries with Rambi held by him. During struggle Saleh Muhammad also suffered injuries, he stated. Being an injured P.W. the presence of Saleh Muhammad P.W. cannot be doubted but at the same time it is difficult to hold that whatever he states is nothing but the truth. He is real brother of Ali Muhammad P.W. husband of Mst. Waziran whose character was suspected by Ali Muhammad P.W. to the annoyance of the appellants. In these circumstances it is difficult to place implicit reliance on his testimony. Haq Nawaz, another eye‑witness named in the F.I.R. who could corroborate him was not examined by the prosecution. Muhammad Khan P.W. 9 is a chance witness and lived at a distance of about two miles from the spot. Keeping this aspect of the case in view we think that both sides have not come forward with the true story and have tried to suppress material facts. The prosecution has tried to implicate almost the entire family of the appellants. Noor Muhammad appellant, real brother of Ghulam Muhammad and Sher Muhammad appellants was found innocent during the investigation and a discharge report Exh.P.B., was prepared in respect of him and submitted to the Court. The knife allegedly recovered at his instance was found rusted and was not blood‑stained. There is absolutely no independent corroboration regarding his participation in the crime. Accordingly, he is acquitted of charges.
Placing the versions put forth by the prosecution and the one advanced by Ghulam Muhammad appellant we think that in all probability the occurrence took place at the spur of moment and without an v premeditation. The occurrence started with the imputation of charge of adultery to Mat. Waziran, sister of the appellants and subjecting her to beating. Ghulam Muhammad and Sher Muhammad appellants must have been highly provoked on seeing their sister being publicly insulted and assaulted. The occurrence took place near the house of Ghulam Muhammad appellant. Ali Muhammad P.W.3 admitted that they had no enmity with the appellants except the incident of beating and blaming Mst. Waziran on the day of occurrence of the charge of immorality. He further admitted that because of blaming Mst. Waziran sister of the appellants for immorality they had committed the murder under provocation there was no other background of enmity between the parties. In the circumstances Ghulam Muhammad and Sher Muhammad must have lost mental equilibrium when their sister was imputed unchastely and beaten up. Thus, the attack on the deceased and Saleh Muhammad P.W. was under grave and sudden provocation and in consequence their case would fall under Exception I to section 300, P.P.C. Accordingly we alter their conviction from section 302/34, P.P.C. to section 304, Part‑1 read with section 34, P.P.C. They are sentenced to ten years' R.I. plus fine of Rs.1,000 (One thousand) each or in default to undergo further R.I. for six months. The fine, if realised, shall be paid to the legal heirs of Rab Nawaz deceased as compensation. They are also convicted under section 324/34, P.P.C. and sentenced to one year's R.I. and a fine of Rs.500 (Five hundred) or in default to undergo three months' R.I. for causing hurt to Saleh Muhammad P.W. The fine, if recovered, shall be paid to Saleh Muhammad P.W. as compensation.
Both the sentences shall run concurrently. The appellants are also given the benefit of section 382‑B, Cr. P.C. The conviction under section 307/34, P.P.C is set aside.
The appeal is disposed of in the above terms
The death sentence of Noor Muhammad and Sher Muhammad appellants is not confirmed.
S.A Order accordingly.
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