Find a Lawyer

‑‑ S. 302/34‑Motive‑Deceased, about 617 years before occurrence, was challaned and convicted for murder of a person who was son of one accused and brother of other accused and he had been released from jail 3 months before occurrence‑Accused had filed revision against deceased for enhancement of sentence.‑Accused, held, must be nourishing a strong grudge against deceased in circumstances- Motive version believed in circumstances.‑[ Motive].

---S. 302/34‑Appreciation of ocular evidence‑Two eye‑witnesses furnishing ocular account‑One eye‑witness father of deceased and other brother of deceased‑Such eye‑witnesses were allegedly working with deceased at bailna at time of incident‑Presence of eye‑witnesses, held, was quite natural and their evidence could not be discarded simply for reason of their close relationship with deceased in absence of any inherent infirmity or impropriety in their statements. .

---S. 302/34‑Medical evidence‑According to prosecution one of accused had fired pistol shots at deceased while other accused inflicted knife blows on him‑Two types of injuries, one of fire‑arm and other of sharp‑edged weapon were found on body of deceased -Ocular version, held, stood corroborated by medical evidence in circumstances.

‑‑ S. 302/34‑Recovery‑Blood‑stained knife recovered at instance of accused‑Blood found to be of human being‑Recovery witness from public was a disinterested witness having no enmity or grievance against accused‑Such recovery witness was corroborated by investi gating officer‑Recovery believed in circumstances.‑[Recovery].

‑‑ S. 302/34‑Medical evidence‑Small intestines of deceased were found empty while his large intestines were loaded‑Contention that as deceased had not eased himself, lended support to argument that incident took place in night time and was not witnessed by anybody, repelled‑No adverse inference, held, could be drawn against prosecution on that score as one may feel like easing but may not do so for one or two hours.

‑‑ S. 302/34‑Accused having strong motive against deceased‑Eye witnesses found to be natural witnesses ‑Ocular evidence corrobora ted by medical evidence and recovery of blood‑stained knife‑Prosecu tion fully succeeding in bringing home guilt to accused persons‑Con viction maintained in circumstances.

---S. 302,/34‑Sentence‑Accused was obsessed with thought to do away with murderer of his son‑Accused though, held, was not entitled to have benefit of provocation still such circumstance could be taken into account for not imposing extreme penalty‑Death sentence reduced to life imprisonment in circumstances.‑[Sentence].

Dr. Khalid Ranjha for Appellants.

Kh. Shaukat Ali for A.‑G. (Punjab) for the State.

Date of hearing : 18th February, 1986.

‑Fazal Muhammad, son of Nizam Din, aged 70, armed with pistol, and his son Muhammad Arshad, aged 14/15, armed with knife, stand convicted and sentenced as follows by the Sessions Judge, Multan vide his judgment dated 12‑2‑1983. Both of them were convicted under section 302/34, P. P. C. for the murder of Abdul Qayyum, aged 27, and Fazal Muhammad was sentenced to death plus fine of Rs. 2,000 pr in default to undergo two years' rigorous imprisonment, whereas Muhammad Arshad was sentenced to life imprisonment plus fine of Rs. 2,000 or in default to undergo two years rigorous imprisonment with the direction that if the fine was realized from them, it should be paid as compensation to the heirs of the deceased. The appeal of the convicts as well as reference for confirmation of death sentence awarded to Fazal Muhammad are being heard together and disposed of by this judgment.

2. The occurrence took place on 30‑3‑1982 at 6‑00 a.m. in a field of Killa No. 11 of square No 45 within the area of Chah Bhirkiwala Mauza 5‑Kassi Javind Singh Wala five miles away from Police Station Kabirwala, District Multan. F. I. R. Exh. P. E. was lodged by Sher Muhammad (P. W. 6) father of the deceased, at 10‑10 a.m. on the same day and it was recorded by Falak Sher S. 1. (P. W. 10).

3. The motive for crime as stated in the F. I. R. is that six years before the present occurrence the deceased had murdered the son of Fazal Muhammad appellant and brother of Muhammad Arshad appellant called Nazir Ahmad and in that murder case the deceased was convicted and sentenced to ten years rigorous imprisonment. Three months before the present occurrence he had come out from jail after serving out the sentence. It is in this background that the occurrence took place.

4. The prosecution has produced two eye‑witnesses of the occurrence namely, Sher Muhammad (P. W. 6) father of the deceased, Iftikhar Ahmad kP. W. 7) brother of the deceased and Muhammad Ayub another brother of the deceased who was also cited as an eye‑witness of the occurrence was given up as unnecessary,

5. In the F. I. R. the occurrence is reported to have taken place in the following manner : On the fateful day and at the fateful time Sher Muhammad (P. W. 6) and his three sons Iftikhar Ahmad (P. W. 7), the deceased as well as Muhammad Ayub had been working on a bailna when suddenly the appellants, armed as described above, emerged out of the sugarcane field raising a lalkara. On seeing them the deceased attempted to run away but Fazal Muhammad appellant fired two shots at him which hit on his back and as a result he fell down on the ground, In the meantime while he was in the fallen condition, Muhammad Arshad appellant gave him three knife blows out of which two fell on his abdomen and one on his chin. Thereafter Fazal Muhammad appellant fired again two shots which hit on the abdomen of the deceased. None of the eye witnesses who were standing there namely, Sher Muhammad, Iftikhar Ahmad as well as Muhammad Ayub dared to go near. Both the appellants left the scene of crime firing and the deceased died on the spot. Leaving behind others to guard the dead body of the deceased Sher Muhammad P. W. proceeded to lodge the report.

6. The appellants were arrested on 3‑4‑1982 I.e. three days after the occurrence, by Falak Sher S. I. (P. W. 10). No crime empty was picked up from the spot but at the instance of Fazal Muhammad appellant was recovered pistol (Exh. P. 4) and taken into possession vide Memo. Exh. P. C. Again at the instance of Muhammad Arshad appellant was recovered blood‑stained knife (Exh. P. 6) and taken into possession vide Memo. Exh. P. D. Both these recoveries were effected on 8‑4‑1982 and the attesting witnesses ar6 Muhammad Yusuf (P. W. 5), Abdul Majid (not produced) and Falak Sher S. I. (P. W. 10). According to the report of the Serologist (Exh P. K.) at page 10 of the printed paper‑book knife (Exh. P. 6) was found to be stained with human blood.

7. The appellants in their statements before the trial Court admitted the motive but denied having, participated in the occurrence. They disowned the recoveries and stated that they had been falsely implicated due to enmity and suspicion. School leaving certificate of Muhammad Arshad appellant was produced as Exh. D. F. to show that his date of birth was 1‑4‑1967 and that at the time of the occurrence he was about 15 years old. They did not produce any other defence. The case of the prosecution on the whole is that the occurrence took place much earlier in the morning than described in the F. I. R. and that it was an unwitnessed occurrence.

8. Dr. Muhammad Rafi (P. W. 9) conducted the post‑mortem examination on the dead body of the deceased on 31‑3‑1982 at 8‑00 a.m. and found on his person the following injuries :‑

"(1) A stab wound 1 x 1' x peritonial cavity deep on the front of abdomen 2" above the umbilicus. The intestines were cut, omentum was lying outside and the wound was horizontal in direction.

(2) A stab wound 2" x 1" x peritonial cavity deep on the front of abdomen one inch above Injury No. 1. The intestines were lying outside.

(3) A circular contused wound x mid lumber region, the direction was forward with an exit wound x near the umbilicus, the abdomen was full of blood.

(4) A circular contused wound x on the back of left chest below the scapula, the 6th rib was fractured, the lungs and heart auricle were punctured, the diaphragm was perforated with an exit wound 1" x on the right side of abdomen 1' above the umbilicus, the chest was full of blood.

(5) A contused wound 1' x x skin deep on the centre of chin horizontal in direction.

(6) Two abrasions x on the lower lip."

In his opinion the death had occurred due to shock and haemorrhage as a result of damage to the chest and abdominal visceras. Injuries No. 1, 2, 3 and 4 were individually fatal in the normal course of life, whereas injuries No. 5 and 6 were simple. Injuries No. 1 and 2 were caused by sharp‑edged weapon and Injuries No. 3 and 4 were caused by firearm. Injuries No. 5 and 6 were caused by blunt object. All the injuries were ante‑mortem in nature. He also stated that stomach and small intestines of the deceased were empty, whereas large were loaded. The bladder was empty. According to the Medical Officer the death was immediate and the time between death and post‑mortem examination was about 20 to 30 hours. He stated in the cross‑examination that a lead bullet was taken out from the dead body of the deceased and that the deceased would have taken his last meals 6/7 hours before his death.

9. Relying upon the ocular account, the motive and the recoveries of pistol and knife, the trial Court convicted and sentenced the appellants as described above.

10. Criticising the judgment, it is stated that it was an unwitnessed occurrence having taken place before sunrise when the deceased was working alone at the bailna ; that only closely related and interested witnesses have been produced to prove the ocular account whose evidence is in conflict with the medical evidence. The recoveries also do not stand proved for want of the production of any independent witness, it is stated.

The motive as set up by the prosecution is not disputed by the appellants. It is an admitted fact that about 617 years before the occurrence Abdul Qayyum deceased was challaned and convicted and sentenced to 10 years' R. I. for the murder of Nazir son of Fazal Muhammad appellant and brother of Muhammad Arshad appellant. It is also established that the deceased had been released from jail three months before the present occurrence. The place of occurrence is also not disputed by the appellants.

11. In the face of the arguments of the learned counsel for the appellants the material question that falls, fur consideration is as to whether Sher Muhammad P. W. 6 and Iftikhar Ahmad P. W. 7 who furnished the ocular account are the truthful witnesses and whether they witnessed the occurrence. Sher Muhammad P. W. 6 is father of the deceased while Iftikhar Ahmad P. W. 7 is a brother of the deceased. According to them they were working with the deceased at the bailna at the relevant time; their presence was thus quite natural and their evidence cannot be discarded simply for the reason that they were closely related to the deceased in the absence of any inherent infirmity or impropriety in their statements. The version given by them stands corroborated by the medical evidence. According to them Fazal Muhammad appellant had fired pistol shots at the deceased while Muhammad Arshad appellant inflicted knife blows on him. In the post‑mortem examination two types of injuries, one of fire‑arm and the other of sharp‑edged weapon which were individually fatal were found on the body of the deceased. There is yet another circumstance to corroborate the ocular testimony i. e. the recovery of blood‑stained knife P. 6 at the instance of Muhammad Arshad appellant. Human blood was found on it. Muhammad Yousaf P. W. 5 who deposed about the recoveries is a disinterested person having no enmity or grievance against the appellants. The only criticism made against brim is that he had obtained on lease the mango Garden of one Ilam Din, a relation of the complainant party. We do not think if this circumstance provides sufficient ground for doubting or discarding his testimony. He stands corroborated by Falak Sher S. I., P. W. 10 on the manner and mode of recoveries. There is nothing on record to indicate that the deceased had other enemies also who could be interested in his murder. The deceased was tried for the murder of Nazir son of Fazal Muhammad appellant and brother of Muhammad Arshad appellant and had come out from jail only three months prior to the occurrence after serving out the sentence. It is in evidence that Fazal Muhammad appellant bad also filed a revision against the deceased for the enhancement of his sentence. For these reasons the appellants must nourishing a strong grudge against the deceased and in the background of that situation there could be none else than the present appellants who could be interested in his murder. According to Dr. Muhammad Rafi who conducted autopsy on the deceased his stomach and small intestines were empty while the large intestines were loaded. Learned counsel for the appellants argued that since large intestines were found loaded it appears that the deceased had not evacuated himself and this fact lends support to his argument that the occurrence had taken place in the dark hours of the night and was not witnessed by anybody. This argument is devoid of force. The condition of food in the stomach may help to some extent in ascertaining the time of death of the deceased but not the evacuation. One may feel like evacuating but may not do so for one or two hours. Thus no adverse inference can be drawn against the prosecution on that score.

12. Having considered all the pros, and cons of the case we are of the view that the prosecution has fully succeeded in bringing home the guilt to the appellant. They were, therefore, rightly convicted. As regards sentence we consider Fazal Muhammad appellant entitled to some leniency because he Was obsessed with thought to do away with the murderer of his son. Though he may not be entitled to have the benefit of provocation still the said circumstance can be taken into account for not imposing the extreme penalty and accordingly, we reduce his sentence of death to one of imprisonment for life and a fine of Rs. 2000 (Two thousand) or in default to undergo two years' R. I. further and subject to this modification we dismiss his appeal as well as the appeal filed by his son Muhammad Arshad appellant. The fine, if recovered from the appellants, shall be paid to the legal heirs of the deceased as compensation.

13. The death sentence of Fazal Muhammad appellant is not confirmed.

H. A. K. Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.