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Criminal Appeal No. 541 and Murder Reference No. 216 of 1979, decided on 20th February, 1982.
relations of deceased with sister of accused--Omission to cross-examine on such point, held, significant--Motive to murder Mood proved.=-[Cross-examination--Motive].
(b) Penal Code (XLV of 1860)--
---S. 302--Witnesses--Relationship with deceased--Witnesses not inimical towards accused--Mere relationship with deceased, held, not sufficient to discard their testimony.--[Witness].
(c) Penal Code (XLV of 1860)--
302--Sentence--Quantum of--Murder took place as result of suspicion of illicit relationship of deceased with sister of accused- Matter found to be of family honour--Death penalty reduced to life imprisonment in circumstances.--[Sentence].
Ch. Muhammad Nazir Janjua for Appellants.
Tasaddiq Hussain Gilani, A.-A.G. for State.
Date of hearing: 20th February, 1982.
MUHAMMAD MUNIR KHAN
, J.--This appeal and the connected murder reference arise from the judgment of the learned Additional Sessions Judge, Multan, whereby, he on 26-4-1979 convicted Abdul Rahim, aged 29 years, and Hussain Bakhsh, aged 75 years, under section, 302/34, P.P.C. for causing the death of Muhammad Usman ago 18/19 years. Abdul Rahim was sentenced to death and a fine of 5flti: in default thereof to one year's R.I. Hussain Bakhsh was sentenced to imprisonment for life and a fine of Rs.1,000 or in default, of to six months R.I. The fine, if realised, was directed to be i to the legal heirs of the deceased as compensation under section Cr.P.C.
2. The occurrence took place on 5-6-1978 at 5 p.m. in the house of the deceased situated at Chah Lasuriwala in village Wains of Police Station Shujabad. F.I.R. Exh.P.E. was lodged by Allah Diwaya (P.W.6), father of the deceased, on the same day i.e. 5-6-1978 at 6-30 p. m. at Police Station Shujabad, which was recorded by Ghulam Muhammad A.S.I. (P.W.10). The distance between the place of occurrence and the police station is three miles.
MOTIVE
3. The appellants suspected that Muhammad Usman deceased was having illicit relations with Mst. Kanizan, the sister of Abdul Rahim appellant. Hussain Bakhsh appellant is father-in-law of Abdul Rahim appellant.
OCCURRENCE
4. At the eventful time Allah Diwaya (P.W.6), Allah Bakhsh (P.W.7) and Ghulam Muhammad (P.W.8) were sitting under the shades of a mango tree at a distance of five Karams from the house of Allah Diwaya, father of the deceased, where the murder took place. They heard alarm of the deceased from the house. They rushed towards the house and saw the appellants inflicting Sota blows on the person of the deceased. After causing injuries they ran away taking Sotas with them. When the witnesses went near the deceased, they found him already expired due to the injuries.
INVESTIGATION
5. Ghulam Muhammad A.S.I. after recording the F.I.R. proceeded to the spot and reached there at 7-30 p.m. He prepared the inquest report and despatched tte dead body of Muhammad Usman to the mortuary through Gulnawaz F.C. (P.W.2). On 6-6-1978, he arrested Abdul Rahim and Hussain Bakhsh appellants from the Dera of Bakhsan Khan. Hussain Bakhsh appellant produced Dang P.5 not blood stained which was taken into possession vide memo. Exh.P.D. Abdul Rahim produced Dang P.4 not blood stained which was taken into possession vide memo Exh.P.C. After the completion of investigation, the appellants were challaned.
MEDICAL
6. Dr. Muhammad Moazam Khan (P.W.9), on 6-6-1978, at 7 a.m. conducted the post-mortem examination on the dead body of Muhammad Usman and found the following injuries: -
(1) Bruises numbering 12, 8" x 1" on the back of chest and both lumbar region, with linear rupture of lower lobe of left lung with bleeding in the chest cavity..
(2) Bruise 4" x 1" on the right arm.
(3) Bruise 3" x 1" on the right gluteal region.
On internal examination, he found that the left lung was ruptured. In his opinion death occurred due to shock and haemorrhage (internal) as a result of rupture of left lung produced by injury No.l. The injuries were ante-mortem and caused with blunt weapon. Time between the injuries and death was half an hour. In cross-examination he stated that rupture of lung can be possible if person takes some poisonous drug. He further stated that he had not sent the contents of the stomach to the Chemical Examiner, Lahore, because he had no suspicion that the death in this case was caused by some poisonous drug.
DEFENCE CASE
7. The accused when examined under section 342, Cr.P.C. denied the incriminating circumstances against them. Hussain Bakhsh in answer to the question as to why this case against him, stated that he had supported the case of Abdul Rahim, who is his son-in-law and has been falsely involved. Moreover, Allah Diwaya complainant had divorced his daughter i.e. mother of Muhammad Usman deceased. Abdul Rahim in answer to the question' as to why the case against him, stated; "in fact Muhammad Usman deceased wanted to marry Mst. Anwar Bibi my real sister but his father Allah Diwaya was not willing at this proposal. Moreover, Allah Diwaya and his brothers, got possession of the land which was inherited by us and Allah Diwaya, etc. did not leave the possession and for that reason they have involved me and co-accused falsely in this case". The accused, however, did not lead any oral evidence in defence but Abdul Rahim tendered in evidence documents Exhs.D.A., D. C., D.0., and D. E., copies of the statements of Allah Yar, Allah Bakhsh, Allah Diwaya and Ghulam Muhammad recorded by Magistrate 1st Class.
8. In order to prove its case, the prosecution examined as many as 10 witnesses.
P. W.1 Muhammad Ramzan. He identified the dead body of Muhammad Usman at the stime of post-mortem.
P.W.2 Gulnawaz. He escorted the dead body to the mortuary for post-mortem examination.
P. W.3 Ghulam Hussain Girdawar. He prepared the site plan on the pointation of the witnesses.
P. W.4 Allah Yar. He stated that he joined the investigation. The appellants produced Sotas before the Police. The recovery memos were prepared and he attested the same.
P.W.5 Hassan Bakhsh. He is a recovery witness. He stated' that Hussain Bakhsh and Abdul Rahim appellants had produced Sotas P.4 and P.5 before the police at the Dera of Bakhshan Khan and he attested the memos.
P. W.6 Allah Diwaya. He is father of the deceased. He has supported the occurrence. He stated that at the eventful time he alongwith Allah Bakhsh and Ghulam Muhammad, the eye-witnesses, was sitting in the shades of mango tree at a distance of five Karams from his house (place of occurrence). They heard alarm of the deceased from that house. They rushed there and saw that the appellants were inflicting Sota blows on the deceased and after inflicting injuries they ran away with their weapons. He stated that the motive behind the occurrence was that A bdul Rahim accused suspected illicit relations of the deceased with Mst. Kanizan (sister of Abdul Rahim).
P.W.7 Allah Bakhsh. He supported Allah Diwaya on material counts. He stated that he saw the appellants inflicting Sota blows on the person of the deceased. He is paternal uncle of the deceased.
P.W.8. Ghulam Muhammad. He is not related to the deceased. He has stated that he saw the appellants inflicting injuries on the person of the deceased. In cross-examination he stated that he was permanent resident of Mauza Bait. Allah Bakhsh, Ramzan and Allah Yar P.Ws. are his neighbours. He resides at the well of Bakhshan Khan. Bakhshan Khan also resides at Mauza Bakhshan Khan. He admitted that he was Wasda of Allah Bakhsh and Ramzan P.Ws. and he usually obeyed the orders of Allah Bakhsh, etc., who are his landlords. He stated that it was dark when the occurrence took place and there was no light in the house. He stated that it took 20 minutes for the occurrence and nobody tried to apprehend the accused. He further stated that he was deposing at the instance of Ahmad Bakhsh and did not know the number and seat of the injuries sustained by the deceased. He stated that the D S. P. had come to the place of occurrence in connection with the investigation and that Allah Wasaya stated before the D. S. P. that he inflicted Soti blows on the person of Usman deceased.
P.W.9 Dr. Muhammad Moazam Khan. He conducted the post-mortem examination on the dead body of the deceased and stated that the death was due to injury No.l. P.W.10 Ghulam Muhammad A.S.I. He investigated the case; recorded the F.I.R; arrested the accused and effected recoveries of Sotas from them.
9. The learned counsel for the appellants has contended: (1) that the motive has not been proved by any independent witness. Allah Diwaya alone deposed about the motive and he has not been corroborated by any other witness; (2) that the eye-witnesses are related, inimical and have given contradictory statements and, as such, they are not reliable; and (3) that, in fact, the deceased was killed by his father Allah Diwaya and the appellants have been substituted.
10. Learned counsel for the State has, however, contended that the prosecution has succeeded in bringing home the guilt to the accused; the ocular evidence is worth reliance and the same stands sufficiently corroborated by the attending circumstances.
11. With this statement of facts it is very much clear that the fate of this case depends upon the credibility of the ocular testimony adduced by the prosecution.
12. Keeping in mind the guiding principles laid down by the superior Courts for the appreciation of evidence, that an accused person is presumed to be innocent till proved guilty and that it is for the prosecution to prove its case on the strength of its own evidence 'and if there is a slightest doubt in the case, the accused must get its benefit as a matter of right, we have appreciated the prosecution case and we are inclined to believe the same for the following reasons:
(i) F.I.R. The occurrence took place at 5 p.m. on 5-6-1978 and the F. I. R . was lodged at 6-30 p. m. on the same day. The names of the accused persons (appellants), weapons of offence and the names of the eye-witnesses have been given in it. The defence has not been able to shake this document. There is nothing on the record to show that the F.I.R. is not a genuine document and was not written at the time and place as it purports. It is remarkable that it was not even suggested to the first informant and the Investigating Officer that the F.I.R. was prepared after preliminary investigation. To us, it is a case of prompt F.I.R. and the same may be used to corroborate its maker i.e. Allah Diwaya P.W.
(ii) Motive. Allah Diwaya (P. W.6) has stated that Abdul Rahim accused suspected illicit relation of Usman deceased with Mst. Kanizan, sister of Abdul Rahim appellant. We find that he has not been cross-examined on this point. The omission to cross-examine is significant, therefore, the contention of the A learned counsel that no one else has corroborated Allah Diwaya on the point of motive is without substance. Under section 134 of the Evidence Act, it is quality and not quantity which matters. To our mind, the prosecution has proved the alleged motive and this circumstance may be used to corroborate the ocular evidence.
(iii) Ocular evidence. Admittedly, the parties are inter-related. Abdul Rahim appellant is son-in-law of Hussain Bakhsh appellant. Hussain Bakhsh is real paternal uncle and father-in-law of Allah Diwaya (first informant and deceased's father) as such, he is real maternal grandfather of the deceased. Abdul Rahim appellant's one sister Mst. Kanizan is married to Muhammad Ramzan, real brother of Allah Diwaya. The other sister of Abdul Rahim, namely Mst. Anwar Bibi, was engaged with Usman deceased. Allah Bakhsh (P.W.7) is paternal uncle of the deceased. In the circumstances of the case, the mere relationship of Allah Diwaya (P.W.6) and Allah Bakhsh (P.W.7) with the deceased is not sufficient to. discard their testimony. We do not find any enmity of these' P.Ws. B with the appellants. The admission of Allah Diwaya that property inherited by Abdul Rahim and others is partly in occupation of his brothers does not prove or indicate the animus of thei witnesses with tfa appellants, who have stood the -test of cross-examination. Allah Diwaya is a natural witness. The occurrence has taken place in his house and, as such, his statement that he was sitting under the shades of a mango tree at a distance of five Karams from his house alongwith Ghulam Muhammad and Allah Bakhsh P.Ws. is entitled to be believed. Learned counsel for the appellants has failed to point out material discrepancies, improvements or contradictions in the statements of tkese two eye-witnesses. The evidence is in consonance with probabilities, materially fits in with the circumstance ard, as such inspires confidence.
As regards Ghulam Muhammad (P.W. 8), he has supported the prosecution case in his examination-in-chief. He stated that he saw the appellants inflicting Sota blows on the person of the deceased. it appears that in the cross-examination he has attempted to oblige the defence when he stated: 'Allah Diwaya stated before the D.S.P. that he inflicted soti blows on the person of Usman deceased'. In the circumstances of the case,, it cannot be believed that Allah Diwaya, who is father of deceased, would have killed his son, as such, it is crystal clear that this witness has attempted to oblige the defence. In cross-examination he also stated that he was deposing at the instance of Ahmad Bakhsh. It is remarkable that on his point he was not further cross-examined and it was not asked whether he was deposing falsely or rightly. Rather, he stated that it was incorrect that he was deposing falsely at the instance of complainant party.
For these reasons, we are inclined to ignore the concessions given by this witness to the defence. He has clearly stated in the examination-in-chief that he saw the appellants inflicting injuries 'on the person of the deceased. For all these reasons, we are, of the considered opinion that the prosecution has brought home the guilt to the accused beyond shades of doubt and the appellants, who have taken the plea of substitution, have failed to lay down foundation for the' same.
13. We have considered the question of sentence of- Abdul Rahim appellant with care. We have accepted the motive that Abdul Rahim was suspecting that the deceased had illicit relations with his sister C Mst. Kanizan. It is, therefore, a matter of family honour. In our view, it is sufficient, in the circumstances of the case, for avoiding the penalty of death and replacing it by the lesson -sentence of imprisonment for life.
14. We accordingly allow this appeal to the extent that we set aside the sentence of death, awarded to Abdul Rahim appellant and in its place impose the sentence of imprisonment for life. The sentence of fine imposed on Abdul Rahim is, however, maintained. The appeal to the extent of Hussain Bakhsh is dismissed in toto.
Hussain Bakhsh is on bail. Warrants for his arrest be issued and he be sent to prison to serve out his remaining sentence.
Both the appellants shall get the benefit of the provisions of section 382-B, Cr.P.C.
M. Y. H. Death sentence not confirmed.
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