Find a Lawyer

Criminal Appeal No.368 and Murder Reference No.112 of 1983, heard on 17th May, 1987.

--S.302/34--Ocular account against accused corroborated--Evidence led by defence to substantiate plea of alibi taken by accused worthless--Motive as alleged in first information report fully supported by witnesses and proved--Eye-witnesses consistent regarding details of occurrence and manner in which it took place--Occurrence taking place during broad daylight; first information report promptly lodged wherein names of accused had been specifically given and rule ascribed to each of them detailed--Charge against accused fully established- Accused giving fatal injury to deceased--Conviction of accused under S.302, Penal Code, and his sentence of death maintained in circumstances.

---S.302/34--Acquittal--Co-accused--Injury caused to deceased by co-accused merely an abrasion which could be caused. by fall on ground and Sota allegedly recovered at his instance not stained with blood--Acquittal of accused maintained.

--S.302/34--Accused though not causing any injury to deceased yet he was instrumental for crime and participated in occurrence armed with hatchet and as such was vicariously liable for murder of deceased--Conviction and sentence maintained.

Ehsan Qadir Shah for Appellants.

J.V. Gardner for the State.

Ashiq Hussain for the Complainant.

Date of hearing: 17th May, 1987.

--Salamat Masih (36), Niamat Masih (39) sons of Baili Masih and Sarwar Masih (18) son of Rehmat Masih, have been convicted vide judgment dated 6-6-1983, by a learned Additional Sessions Judge, Sargodha, under section 302/34 PPC for causing the murder of Nazir Masih son of Sardar Masih (35), their co-villager. They have been sentenced as under:-

(a) Niamat Masih to death and a fine of Rs.5,000 or in default five years' R.I.

(b) Salamat Masih and Sarwar Masih to imprisonment for life and a fine of Rs.5,000 each or in default five years' R.I.

It has been directed that fine, if realized, a sum of Rs.12,000 out of the same be paid to the legal heirs of the deceased as compensation. Vide the same judgment co-accused Anwar Masih has been acquitted.

2. The aforementioned convicts have challenged their conviction and sentences through Criminal Appeal No.368 of 1983 while the matter also stands referred to us under section 374 Cr.P.C. seeking confirmation of death sentence awarded to Niamat Masih.

Sardar Masih, complainant, the father of Nazir Masih deceased, has filed Criminal Revision No.623 of 1983, for the enhancement of sentence of Salamat Masih and Sarwar Masih and also for enhancement of fine imposed upon Niamat Masih. Order of acquittal of Anwar Masih has also been sought to be reversed.

This judgment shall dispose of all the aforementioned three matters.

3. The occurrence in this case took place in the village Abadi of Chak No.38/SB, at a distance of eight miles from Police Station Baghtanwala, District Sargodha at 3.00 p.m. on 7-8-1981.

4. The occurrence was reported to the police on the same day by Sardar Masih P.W.7, the father of the deceased, at 5.00 p.m. vide F.I.R. Ex. PH, which was lodged at the Police Station. This F.I.R. was recorded by Muhammad Nawaz SI PW.9.

5. Regarding motive it has been alleged that two days prior to the occurrence, Sarwar Masih appellant passed in front of the house of the deceased playing a tape-recorder. The deceased objected to it. At this, the deceased and Sarwar Masih appellant grappled with each other. Sardar Masih, the father of the deceased, intervened and separated them. Moreover, Nazir Masih deceased had to receive Rs.200 from Sarwar Masih, which he had advanced to him as loan. This amount was not being returned by Sarwar Masih to the deceased. On the day of occurrence at about Dopehrwela, Nazir Masih deceased again demanded the return of the loan, but Sarwar Masih refused, whereupon hot words were exchanged between the two and Sarwar Masih appellant held out a threat of dire consequences.

6. As regards the main occurrence, it has been stated that Sardar Mashi P.W.7 (complainant) used to tether his cattle near the shade of trees along the metalled road in the vicinity of the village Abadi. On the day of occurrence, the complainant accompanied by the deceased proceeded towards the trees under which their cattle were tethered. On their way when they reached near the Baithak of Islamuddin Barber and were going in the Bazar, Nasir Masih deceased was four Karams ahead of the complainant. At that time, the three appellants and the acquitted accused Anwar Masih appeared at the scene. Niamat Masih and Salamat Masih were armed with spears. Sarwar Masih was armed with hatchet and Anwar Masih, the acquitted accused, was carrying a Lathi. Sarwar Masih threw a challenge that Nazir Masih be taught a lesson for insulting him, whereupon Niamat Masih caused a spear blow to the deceased hitting him on the right flank near the ribs. Salamat Masih gave a spear blow to the deceased hitting him on the front on his neck. Niamat Masih again caused another spear blow hitting the deceased on the right flank. Salamat Masih caused a second blow causing injury to the deceased with spear below the nose. Anwar Masih, the acquitted accused, allegedly caused Sota blow on the right knee of the deceased. Sardar Masih complainant tried to go near the deceased to save him, but Sarwar Masih raised the hatchet towards him and told him that he would be killed if he came near. Sardar Masih, therefore, did not come near the deceased. In the meantime Anwar Masih P.W.8 and Nazir Masih given up P.W. who were witnessing the occurrence at some distance came near the spot. They beseeched the assailants who ran away from the spot along with their respective weapons of offence.

Muhammad Nawaz SI P.W.9 after recording the F.I.R. Ex. P.H. proceeded to the spot. He prepared the injury statement and the inquest report in respect of the dead body of the deceased and despatched the dead body to the mortuary under the escort of Muhammad Usman Constable P.W.2.

7. Autopsy on the dead body of Nazir Masih was performed by P.W.5 Dr. Muhammad Iltaf Hussain, on 8-8-1981 at 9.00 a.m. He found the following injuries or, the dead body of the deceased:-

(1) An incised wound, 2 c.m. x c.m. muscle deep, on the right side of upper lip, near nasal orific.

(2) An incised wound, 4 c.m. x 2 c.m. muscle deep, 3 c.m. on the right side of root of neck.

(3) A stab wound, 5 x 2 c.m. cavity deep, on the outer side of right lower chest.

(4) An incised wound, 1 c.m. x 1 c.m. muscle deep, on the outer side of right buttock.

(5) An abrasion, 1 c.m. x 3/4 c.m. on the right knee.

Under injury No.3 he noticed a cut 3 c.m. x 1 c.m. on the outer and back part of liver. There was also a cut on the mesentery. He opined that death in this case occurred due to haemorrhage and shock resulting from injury No.3, which was sufficient to cause death in the ordinary course of nature. According to him all the injuries, except injury No.5, were caused by sharp-edged weapon while injury No. 5 was the result of blunt weapon. All the injuries were ante-mortem. Ex. PF is the correct carbon copy of the post-mortem report while Ex.PF/1 is the pictorial presentation of the same.

8. Salamat Masih, Sarwar Masih appellants and Anwar Masih acquitted accused, were arrested by P.W.9 Muhammad Nawaz S.I. on 12-8-1981. On the same day, Salamat Masih led to the recovery of blood-stained spear P.2 from his residential Kotha which was secured vide memo Ex. PB, attested by. Younus Masih P.W.4, Muhammad Nawaz SI P.W.9 and Roshan Masih (not examined).

On the same day Sarwar Masih got recovered hatchet P.3 from his house which was taken into possession vide memo Ex. PC , which has been attested by the same witnesses.

Similarly the acquitted accused Anwar Masih led to the recovery of Sota P.4 from his house which was seized vide memo Ex. PD in the presence of the same witnesses.

9. Two days later i.e. on 14-8-1981, Niamat Masih was arrested by Muhammad Nawaz SI P.W.9 and on the same. day he led to the recovery of blood-stained spear P.5 from his house vide memo Ex. PE in the presence of Younus Masih P.W.4, and Roshan Masih (not produced). Muhammad Nawaz SI, of course, attested this memo. Also

10. As per contents of reports Ex. PM and Ex. PN of the Chemical Examiner and the Serologist, respectively, it has been opined that the spearts allegedly recovered at the instance of Salamat Masih and Niamat Masih were stained with human blood.

11. Sardar Masih P.W.7, the father of the deceased and Anwar Masih P.W.8, who is not related to the deceased or the complainant, have testified at the trial as eye-witnesses. Both these witnesses have fully supported the ocular account of the prosecution case, as detailed in the F.I. R.

12. The appellants totally denied their involvement in the offence. One witness, namely, DW1 Mukhtar has been produced to testify in support of plea of alibi of Niamat Masih appellant. It has also been contended on behalf of the appellants that in fact at the eventful time, Salamat Masih was lying under the shade of a tree in front of his house, where he was attacked by Nazir Masih deceased, his father-in-law and one Inayat. They belaboured Salamat Masih and on that occasion Inayat, brother of Salamat Masih, who had come out of his house caused injuries to the deceased. It is noteworthy that this defence has been suggested to P.W.7 Sardar Masih complainant in his cross-examination. He, of course, denied the suggestion: This plea, however, has not been raised by Salamt Masih in his statement recorded under section 342 Cr.P.C. nor there is any medical evidence to suggest that Salamat Masih received any injury at the time of the occurrence.

Mukhtar D.W.1 deposed that on the day of occurrence at about 12.30 p. m., Karamat Masih, brother of Niamat Masih, who lived in the village of the witness was present in the land 'of Mukhtar, where Niamat Masih also came while returning from Sialkot. He remained there till 4.00 p. m. ' On that occasion one Rafique came from Chak No.38 Janubi and informed' that a fight had taken place in Chak No.38, as a result of 'which Nazir had died. This witness admitted that he did not appear before any investigating officer to support the plea of alibi of Niamat Masih. He disclosed that for the first time he appeared it the trial to make such statement. This witness has rightly been disbelieved by "the learned trial Court. The evidence led in defence to substantiate- the plea of alibi of Niamat Masih appellant is certainly worthless.

13. It has been contended on behalf of the appellants that the motive, as alleged by the prosecution, is false. The place of occurrence is at a distance of 2/3 paces from the outer door of the house of the accused and keeping in view this, place of occurrence, the defence version that Salamat Masih was attacked by the deceased and his companions appears to be more probable. It has also been urged that the prosecution has not stated the incident in the manner in which it took place and that the eye-witnesses were not believable. They were not the residents of the locality where the occurrence took place.

14. The motive as alleged ire the F. I. R. has been fully supported by Sardar Masih P.W.7 and Anwar Masih P.W.8 and, therefore, there is no substance in the plea that the motive, as alleged, has not been proved or that the same was false.

Both the eye-witnesses are consistent regarding the details of the occurrence and the manner in which it took place. The appellants have raised contradictory pleas in their defence. It has been suggested to P.W.7 Sardar Masih, the complainant, that in fact Salamat Masih was attacked while lying on a cot under the shade of a tree in front of his house by the deceased and his companions, but this plea has not been raised by Salamat Masih or any other appellant in their statements recorded under section 342 Cr. P. C. The appellants in their statements raised the plea of denial simpliciter and their false involvement. Regarding Niamat Masih it has been suggested that his wife Rashida Bibi submitted several applications to superior police officers claiming that her husband was innocent. The investigating officer, namely, Muhammad Nawaz SI P.W.9, however, stated that he was not aware of the contents of any such application, although one D.S.P. enquired into the allegations levelled by Mst. Rashida Bibi but the same were found to be baseless. He also expressly disclosed that no evidence in defence of the appellants, particularly regarding the plea of alibi of Niamat Masih was produced before him during the course of investigation. Mukhtar D.W.1 has admitted that he did not appear before the police officer during the course of investigation to testify about the alibi of Niamat Masih. The occurrence took place near the house of Islamuddin Barber at a distance of few karams from his Baithak in the Bazar. It is incorrect that the occurrence took place at a distance of few paces from the main door of the house of the appellants. As a matter of fact, their house is at a distance of 72 feet from the place of occurrence. The occurrence took place during the broad daylight. The F.I. R. was promptly lodged at the police station i.e. only two hours after the occurrence at a distance of eight miles from the police station. In such a promptly lodged F.I. R. the names of the accused have specifically been described. The role ascribed to each of the appellants is detailed therein. There was no previous enmity between the parties. Anwar Masih P.W.8 is a disinterested witness and there is no reason to disbelieve him. Anwar Masih, a co-accused, has been acquitted because it has been stated by P.W.5 Dr. Muhammad Iltaf Hussain that injury on the right knee of the deceased which was merely an abrasion, c.m. x 3/4 c.m., could be caused by fall on the ground. Sota allegedly recovered at his instance was not bloodstained. His acquittal, therefore, does not call for any interference.

15. In the light of above discussion we find that charge against the appellants has been fully established. The fatal injury to the deceased has been caused by Niamat Masih. He has, therefore, been rightly awarded the normal penalty of death under section 302 PPC. Sarwar Masih appellant, although did not cause any injury to the deceased, but he was instrumental for this crime. He participated in the occurrence armed with hatchet and thus is vicariously liable for the murder of the deceased. In view of these conclusions we dismiss the appeal, uphold the conviction and sentences of the appellants and confirm the death sentence awarded to Niamat Masih. The revision filed by the complainant is dismissed in limine.

M.Y.H./ N-43/L 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.