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‑‑‑S. 302/34‑‑Recovery evidence corroborated‑‑No ill‑will existing between parties prior to incident‑‑Eye‑witnesses natural and independent witnesses and their testimony finding corroboration from evidence of recovery motive and medical evidence which inspired confidence‑‑Argument advanced on behalf of defence that occurrence of murder was result of provocation because deceased publicly insulted accused‑‑Accused was found teasing ladies during Urs of grandfather of deceased who slapped accused in order to remonstrate him‑‑Held, there was no justification or occasion for accused for being provoked, he showed misbehaviour on sacred occasion of Urs and thus deserved no leniency or lesser penalty in circumstances‑‑Conviction and sentence of accused under 5.302/34, Penal Code, maintained.

Abdus Sattar alias Babu etc. v. State 1984 S C M R 832 ref.

(b) Penal Code (XLV of 1860)‑‑

‑‑‑S. 302/34‑‑Sentence‑‑Co‑accused twenty years of age at time of occurrence and younger by four years to main accused who was his real brother‑‑Co‑accused stated to have acted under influence of his elder brother‑‑Sentence of death awarded to co‑accused altered to imprisonment for life in circumstances.‑‑[Sentence].

Liaqat Shah etc. v. State 1985 S C M R 1415 rel.

(c) Criminal Procedure Code (V of 1898)‑‑

‑‑‑S. 544‑A‑‑Penal Code (XLV of 1860), S.302/34‑‑Compensation‑‑ Sentence of fine‑‑Deceased, a youngman‑‑Whole of fine, on recovery ordered to be paid as compensation to heirs of deceased in interest of justice.‑‑[Compensation].

M.B. Zaman for Appellant.

Kh. Muhammad Asghar for A.‑G. for the State.

Ijaz Hussain Batalvi and M.A. Zaffar for the Complainant. Date of hearing: 6th May, 1986.

SARDAR MUHAMMAD

DOGAR, J.‑‑F.I.R. (Exh.P.F) was registered at Police Station Bhera, on 4‑5‑1982, at 6‑30

p.m., on the statement of Ghulam Abbas P.W.3, brother of Zafar Abbas (deceased) under section 302/34, P.P.C. It was recorded by Ghulam Ali, S.L/ S.H.O. (P.W.7).. The occurrence had taken place on the same day at Degarwela, at the cattleshed of the complainant, in the area of village Hujka, at a distance of one mile from the police station.

2. According to the F.I.R., the complainant alongwith Muhammad Yar (P.W.4) and given up P.W. Khan son of Ramzan, at Degarwela time, were sitting on the Tharra platform of Fodder cutting machine in the cattleshed. Zafar Abbas was looking after the cattle at a distance of 15/20 Karams from them. In the meantime, Nisar Hussain and Ibrar Hussain, sons of Ashiq Hussain, came from the side of their house, armed with knives, and after raising Lalkara that they will teach a lesson to Zafar Abbas for abuses and slaps, attacked Zafar Abbas. Nisar Hussain gave a knife blow on the right armpit of Zafar Abbas. Ibrar Hussain gave a knife blow on the chest of Zafar Abbas. Nisar Hussain gave another blow on the chest of Zafar Abbas. Ibrar Hussain then gave second blow on the front side of shoulder. Nisar gave the third blow on the left armpit. Zafar Abbas fell down. The complainant accompanied by the other two witnesses ran towards them. The culprits while waiving knives and issuing threats ran away.

Motive stated for the occurrence was, that the accused, who were maternal‑cousins of the complainant, on 20th Chait (about a month before) had teased some women, on the Urs of grandfather of the complainant. Zafar Abbas had stopped them and there was exchange of abuses. Whereafter, Zafar Abbas had slapped Nisar Hussain. They were separated by the complainant and Allah Bakhsh Gondal. The accused had felt aggrieved and so murdered the deceased to avenge their insult.

3. The Sub‑Inspector, after recording the F.I.R., reached the spot. After preparing injury statement (Exh.P.G.) and inquest report (Exh.P.H.) of Zafar Abbas deceased, despatched the dead body for post‑mortem examination. Blood‑stained earth was also taken into possession from the spot, vide memo. Exh. P.A. Both the accused were arrested by him on 5‑5‑1982.

4. The autopsy on the dead body of Zafar Abbas was performed by Dr. Mumtaz Ahmad P.W.2 on 5‑5‑1982 at 7‑30 a.m. Following injuries were noted by him on the body of the deceased:‑

(1) One stab wound (penetrating) 2 c.m. x 1 c.m. x going into chest cavity on right lateral (outer) aspect of chest 11 c.m. below right armpit and 9 c.m. away from right nipple.

(2) One stab wound, 1 c.m. x 1 c.m. going into chest cavity on front and right side of chest, 8 c.m. above right nipple.

(3) One incised wound, 2 c.m. x 1 c.m. x 2 c.m. front and right side of chest 2 c.m. above injury No.2.

(4) One incised wound, c.m. x c.m. x 1 c.m. on front of right shoulder 6 c.m. below top of right shoulder.

(5) One incised wound, c.m. x c.m. x going skin deep on left lateral (outer) aspect of left chest 11 c.m. away from left nipple.

On dissection, he had found the pleura and right lung punctured under injuries Nos.l and 2. Right lung, upper and lower lobes, were also found punctured. According to his opinion, death had occurred due to shock and haemorrhage, caused by injuries 1 and 2, which were sufficient to cause the death individually also, in the ordinary course of nature. The rest of the injuries were declared simple.

5. On 7‑5‑1982, Nisar Hussain led to the recovery of blood‑stained knife (P.1) from his residential house, which was taken into possession vide memo. Exh.P.B.

On the same day, Ibrar Hussain got recovered blood‑stained knife (P.2) after digging a pit in the courtyard of his house, which was taken into possession vide memo Exh.P.C. Both the memos. were attested by Malik Muhammad Yaqub P.W.1, given up P.W. Agha Jehangir, and S.I. Ghulam Ali P.W.7.

As both the accused failed to produce licence, the Sub‑Inspector challaned both of them separately under section 13 of the W.P. Arms Ordinance, 1965.

After completion of necessary investigation, challan was put to Court.

6. At the trial prosecution in all examined seven witnesses.

The ocular account was deposed to by Ghulam Abbas P.W.3, real brother of the deceased, and Muhammad Yar P.W.4.

Ghulam Abbas re‑narrated the facts given by him in the F.I.R. Exh.P.F. Muhammad Yar fully corroborated him.

In cross‑examination Ghulam Abbas stated that Ashiq Hussain, father of the accused, was married to his real maternal‑aunt and Fida Hussain was their son. He admitted that the mother of both the accused was from Muslim Sheikh family. He denied the suggestion that they had felt annoyed over the marriage of Ashiq Hussain with the mother of the accused. In answer to another question, he stated that his two brothers were married to the two daughters of Sultan Shah, a real brother of Ashiq Hussain, father of the accused. The witness admitted that the accused had not retaliated and had pocketed their insult at the time of incident, which took place on the Urs. He denied the suggestion that he was not present at the time of occurrence or that he had not witnessed the occurrence.

Similar suggestions put to Muhammad Yar were also denied by him. He denied the suggestion that he made a false statement, at the instance of Qalbe Abbas, another brother of the deceased.

Evidence of recovery of knives at the instance of both the A accused was deposed to by Malik Muhammad Yaqub and Ghulam Ali,l S.I. Both have corroborated each other.

Muhammad Yaqub denied the suggestion that he was a stock witness. He also denied the suggestion that no recovery was effected in his presence and he had come up as a false witness because of his relations with the deceased and at the instance of the police.

Positive report of the Chemical Examiner Exh.P.K.

and that of the Serologist Exh.P.L. about the blood‑stained on the earth and two knives, were also tendered in evidence.

7. The accused during their statements under section 342, Cr.P.C. denied the prosecution case. Both of them denied to have led to the recovery of knives. In answer to the question why this case against him, Nisar Hussain, aged 26 years, stated as under:‑

"The complainant party is influential. Since the marriage of my father was not in the Syed family. I and my brother co‑accused Ibrar is from the same wedlock. We are the victims of family jealousy and rivalry and the complainant party wants to grab over property and Gaddi and on account of these reasons I have been falsely implicated in the instant case."

Ibrar Hussain, aged 22 years, made similar statement, in answer to the same question.

8. Learned Additional Sessions Judge, Sargodha, who had tried the case, vide judgment dated 6‑3‑1984, convicted both the accused under section 302/34, P.P.C. and sentenced each of them to death, plus a fine of Rs.20,000 in default to undergo R.I. for two years. Out of the fine realised from each of the accused, a sum of Rs.15,000 has been directed to be paid as a compensation to the legal heirs of the deceased.

9. The convicts have filed Criminal Appeal No.267 of 1984. Learned Additional Sessions Judge has made reference for confirmation of death sentence. Ghulam Abbas has filed Criminal Revision No.296 of 1984, praying enhancement of sentence of fine. Since all the matters arise from the same judgment, they are being disposed of by one judgment.

10. Learned counsel for the appellants at the very outset stated that he would not press the appeal for acquittal of the appellant. He stated that he would press for alteration of sentence of death to imprisonment for life and would also pray for reduction of sentence of fine.

Learned counsel for the appellants contended that a case for awarding lesser sentence of imprisonment for life stands made out from the prosecution case itself, as according to the complainant the motive for the occurrence was incident which took place in the Urs and in that, the deceased had not only abused the appellants but had also slapped Nisar Hlissain. Learned counsel argued that the appellants naturally must have been surging under the impulse of having been insulted and degraded publicly and as such there was at element of provocation behind the occurrence of murder. In support of his contention learned counsel cited Abdus Sattar alias Babu etc. v. State 1984 S C M R 832.

In the case of Ibrar Hussain, learned counsel took up an additional ground, in that, learned counsel argued that being younger brother of Nisar Hussain, he had acted under his influence. Learned counsel by referring to the evidence contended that it was Nisar Hussain who was slapped and not Ibrar Hussain and so if there was any question of avenging the insult to honour, it pertained to the honour of Nisar Hussain more than Ibrar Hussain. In support of his contention, learned counsel cited Liaqat Shah etc. v. State 1985 SCMR 415.

11. Learned counsel for the State/ complainant contended that no case for awarding lesser penalty of imprisonment for life was made out as there were no mitigating factors. Learned counsel argued that the appellants, had, on a sacred occasion of Urs of grandfather of the deceased teased the

ladies and it was quite natural for him, to have stopped them, behaving in such an ill‑manner. Learned counsel argued that one month's time taken by the appellants was obviously spent by the appellants in waiting for an opportunity to avenge their insult by taking away the life of a young man, whose only fault was, that he could not approve the misconduct of the appellants on a sacred occasion.

Learned counsel for the complainant while arguing the revision petition stated that he will be satisfied if the whole of the fine on recovery is directed to be paid as compensation to the heirs of the deceased and will not press the revision petition for enhancement of sentence of fine.

12. Notwithstanding the fact, that counsel for the appellants did not urge and argue for acquittal of the appellants, we have examined the evidence and have considered the plea taken by them, that the complainant party had falsely involved them in this case in order to grab their property and to deprive them of the Gaddi.

Admittedly there was no ill‑will between the parties prior to the present incident which took place at the Urs of the grandfather of the complainant, a month before the murder. Had there been any such thing, it would have been brought on record.

The plea that the complainant party wanted to grab their property and to deprive them of the Gaddi, is without any foundation. The appellants have another brother Fida Hussain, who though is not from the womb of their mother, but is from their father so even if the appellants are no more or had not been there at all, the property of their father would devolve on Fida Hussain and not on the complainant or his heirs. . Similar is the case with regard to Gaddi.

13. The ocular account in this case which finds corroboration from the evidence of recovery, motive and medical evidence, inspires confidence. Since the occurrence had taken place in the cattleshed of the complainant, he was a natural witness. The other witness is an independent one. For these reasons, we do not find anything on record calling for interference in the judgment of conviction of the appellants under section 302/34, P.P.C.

14. The argument of the learned counsel for the appellants that the occurrence of murder was the result of provocation as a result of deceased having publicly insulted the appellants, has not impressed us.

The incident of teasing the ladies had taken place during the Urs of grandfather of deceased. It was, quite a sacred occasion. Anyone spoting ladies being teased on such an occasion would feel hurt and concern. The deceased being grandson of the saint, whose l) Urs was being celebrated, must have felt most. It was, but natural for him to have stopped the appellants from behaving in that manner and if on his having intervened abuses were exchanged, there was nothing unwholesome in his having slapped Nisar Hussain. His purpose was not to insult them. All he meant was to remonstrate the miscreants. All the same we are not impressed by the proposition that if person, for good social order, stops someone from teasing the ladies in public places, he deserves to be murdered for that. Whatever the appellants might have felt, it was on account of their own doings and for their own fault and misbehaviour, they cannot claim leniency or mitigation. There was no justification or occasion for being provoked, they should rather have felt' ashamed.

The facts of the authority cited by the learned counsel in support of this proposition are entirely different. In that case, the deceased had slapped the accused in a Punchayat which had gathered to settle the dispute between them. This is not the position in the case in hand. We, therefore, find it hard to accept the contention of the learned counsel for the appellants that on this account they appellants deserve to be given the lesser penalty.

However, in the case of Ibrar Hussain appellant, the contention raised. by the learned counsel finds sufficient support from the judgment cited by him. In that case three appellants, whose sentences of death were altered to imprisonment for life, had been convicted under section 302/149, P.P.C. alongwith their, two other brothers for having murdered four persons and had also been convicted under section 307/34, P.P.C. for having launched murderous assault on two persons. The ages of the appellants whose sentences were reduced were 26 years, 25 years and 20 years respectively.

In the case in hand, Ibrar Hussain was 22 years at the time of trial. That means that he would be 20 years at the time of occurrence. Trial held in February, 1984 and occurrence had taken, place in May, 1982. He was four years younger to his brother Nisar Hussain, co‑appellant. Following the authority cited by the learned counsel for the appellants, the sentence of Ibrar Hussain is altered from death to imprisonment for life. The sentence of fine is, however, maintained. He shall be given the benefit of the provisions of section 382‑B Cr.P.C. as well.

15. Keeping in view the fact that the deceased was a young man ,t we think it would be in the interest of justice to direct that whole oj the fine, on recovery from both the appellants, be paid as compensation to the heirs of the deceased. Order accordingly.

The net result is that the conviction of both the appellants under section 302/34, P.P.C. is maintained. The sentence of Ibrar/1 Hussain appellant is altered from death to imprisonment for life. The sentence of death of Nisar Hussain appellant is confirmed.

The appeal stands dismissed.

16. Since the amount of compensation has been enhanced, as prayed by the learned counsel for the complainant, the revision petition stands disposed of.

M.Y.H./N‑64/L Appeal dismissed.

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