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Criminal Appeal No.560 and Murder Reference No.207 of 1986, decided on 1st June, 1987.
---S.302/34--Case revealing two versions--According to prosecution it was a premeditated murder but defence taking plea that accused on seeing deceased in compromising position with his sister had killed both of them--Possibility existing that plea of grave and sudden provocation raised by defence might be true--Prosecution admitting that illicit relations existed between two deceased--Number and nature of injuries on person of two deceased and kind of weapons used showing that deceased were murdered by two accused while other two facilitated commission of crime--Fact that two of four accused who murdered deceased came empty handed showing that murder was not premeditated--Conviction and sentence of accused set aside and instead they were convicted under 5.304, Part I, Penal Code, and sentenced to seven years' R.I.--Rest of two accused who were alleged to have facilitated murder given benefit of doubt and acquitted.
M.B.Zaman and Syed Seerat Hussain Naqvi for Appellants.
Qamar-ud-Din Meo for the State.
S.M. Idrees and Rafique Ahmad Bajwa for the Complainant.
Date of hearing: 1st June, 1987.
-This Criminal Appeal No.560/86 and the connected Murder Reference No.207/86 arise from the judgment of learned Additional Sessions Judge, Kasur, whereby he on 24-9-1986 while acquitting. All Muhammad (60-62) convicted Muhammad Yar (30), Muhammad Amin (28), ' Muhammad Abbas (26) and Muhammad Iqbal (27) under section 302/34, P.P.C. for the double murder of Shaukat (20) and Mst. Raj Bibi (1a-17) and sentenced them as under:-
(1) Muhammad Yar and Muhammad Amin appellants to death and a fine of Re.10,000 or in default thereof two years' R.I. each, on two counts.
(2) Muhammad Abbas and Muhammad Iqbal appellants to imprisonment for life and a fine of Rs.10,000 or in default thereof two years' R.I each, on two counts.
It was directed that the fine if recovered half of it be paid to the legal heirs of the deceased.
2. The occurrence took place on 19-8-1983 at 9.00 a. m. inside as well as outside the Haveli of Ali Muhammad, acquitted accused in village Maralian, 8 miles away from P.S. Khudian, District Kasur. The FIR is statement Ex.PE of Haji Basharat Ali P.W.4, grandfather of Shaukat deceased which was recorded by Fazal Hussain S. I., P.W.10 on the same day at 12.00 noon by the side of the Road in village Khingranwala. Formal FIR Ex.PE/1 was drawn up on the same day at 2.00 p.m. by Zulfiqar Ali M.H.C., P.W.8.
3. The motive as alleged by the prosecution was suspicion of illicit relations between the two deceased by the appellants and the acquitted accused. Ali Muhammad acquitted accused had complained about this illicit relation to Asghar Ali P.W.3, father of Shaukat deceased and had extended threats, hence this occurrence.
4. As for the main occurrence, it has been stated that on the fateful day Haji Basharat Ali P.W. was going to his land which was near the Haveli of Ali Muhammad accused. When he reached near the Haveli, he saw Muhammad Amin appellant armed with hatchet, Muhammad Yar armed with sota, Muhammad Abbas and Muhammad Iqbal both empty handed taking Shaukat inside the Haveli of Ali Muhammad after having tied his mouth with cloth. Ali Muhammad acquitted accused was already present in the Haveli. He instigates: Muhammad Amin and others to teach Shaukat deceased a lesson for his misdeed whereupon Muhammad Iqbal and Muhammad Abbas threw Shaukat on the ground and held him from arms and legs. Thereafter, Muhammad Amin and Muhammad Yar gave him injuries with their weapons resulting in his instantaneous death. Akbar All P.W.5 and Nawab Din (not produced) had also reached the spot and seen the occurrence. The dead body of Shaukat was then removed and placed in a room of the Haveli. Ali Muhammad, acquitted accused bolted the door from outside. He then pointed towards Mst. Raj Bibi, his daughter, who was present in the Haveli and told the appellants to do away with her. On this she ran out of the Haveli followed by the four appellants. She was ultimately overpowered by Muhammad Abbas and Muhammad Iqbal appellants and was laid on the ground when Muhammad Yar and Muhammad Amin killed her by inflicting injuries on her person with their weapons. The appellants ran away. Muhammad Mumraiz P.W.6, s/o Haji Basharat Ali complainant had also seen the occurrence.
5. On 20-8-1983 Dr. Saeed Ahmad, P.W.12 conducted post-mortem examination on the dead body of Shaukat All and found following injuries:-
(1) "Lacerated wound 5 x 1 c.m. x scalp deep, top of head left side.
(2) Lacerated wound 4 x 1 c.m. x scalp deep top of head left side connecting to injury No.1, thus forming the shape of the word 'V'.
(3) Lacerated wound 4 x 1 c.m. x scalp deep back of head left side.
(4) Lacerated wound 4 x c.m. x scalp deep left occipital bone area of the head.
(5) Lacerated wound 3 x 1 c.m. x scalp deep left prietal area of the skull.
(6) Contusion 6 x 1 c.m. right arm middle and outer side.
(7) Swelling whole of the back of the right hand.
(8) Contusion right leg outerside 5 x 1 c.m. in the middle.
(9) Contused swelling at the base of index and middle fingers left hand."
On internal examination left prietal bone was found fractured into pieces. Left temporal bone was fractured left occipital bone was also fractured into pieces. Posterior cranial fossa membranes were ruptured at places. Tire brain matter was coming out. The stomach was found empty.
In his opinion the death was due to injuries to the brain as a result of injuries No.1 to 5, which were sufficient to death in the ordinary course of nature, individually as well as respectively. The injuries were caused by blunt weapon.
On the same day he conducted post-mortem examination on the dead body of Mst. Raj Bibi and found following injuries:-
(1) "Lacerated wound right fronto temporal bone area of the skull 5 x 2 c.m.x bone deep.
(2) Lacerated wound left parietal bone area of the skull size 3 x 1 c.m. x skull deep.
(3) Cut wound right parietal bone area of the skull 4 x 1 c. m. x bone deep.
(4) Lacerated wound back of head in the middle 3 x 1 c.m. bone deep.
(5) Abrased contusion, left arm upper part outer side 7 x 1 c. m."
On internal examination cut was present on right parietal bone area due to injury No.3. Brain was lacerated on left side. The stomach contained about 4 ounces of water. There was watery discharge from the vaginal orifice. Hymen was ruptured. Vigina admitted two finger easily. Two vaginal swabs were taken and sent to Chemical Examiner for detection of semen. The Chemical Examiner's report Ex.PV/2 show that the swabs were not stained with semen.
6. The appellants were arrested on 22-R-1qR3 by Muhammad Akram SHO, P.W.11. On 1-9-1983. Muhammad Amin appellant led to the recovery of blood-stained hatchet Ex.P8 from heap of wheat lying in a room of haveli of Ali Muhammad which was taken into possession vide memo Exs.PC attested by Noor Muhammad P.W.2 and Ghulam Qadir (not produced). On the same day Muhammad Yar appellant led to the recovery of blood-stained Sota Ex.P9 from 'Bharola' lying outside the room in haveli of Ali Muhammad which was taken into possession vide memo Ex.PD attested by the same witnesses. The recoveries were effected by Muhammad Akram S.H.O., P.W.11. The Serologist Report Ex.PX shows that the hatchet and Sota were stained with human blood. On 19-8-1983 Fazal Hussain ASI, P.W.10 inspected the spot. He took into possession blood-stained wheat grain vide memo Ex.PF. He took into possession blood-stained earth from the place of murder of Shaukat and also from the place of murder of Mst. Raj Bibi vide memo Ex. PG and PH attested by Muhammad Mumraiz P.W.6 and Qamarud-Din (not produced). He took into possession a pair of Chappal Ex.P 10/1-2 from the place wherefrom Shaukat Ali was lifted vide memo Ex.PJ. The aforesaid memoranda were attested by Muhammad Mumraiz P.W.6 and Qamar-ud-Din (not produced).
7. To prove its case, prosecution produced 11 witnesses. Haji Basharat Ali P.W.4, Akbar Ali P.W.5 and Muhammad Mumraiz P.W.6 have given the ocular account of the occurrence. They aim to have seen the appellants taking Shaukat deceased inside the Haveli of Ali Muhammad after having lifted him with his mouth tied with cloth. They also saw Muhammad Iqbal and Muhammad Abbas and Muhammad Yar inflicting injuries with hatchet and Sota on the person of Shaukat resulting in his death. The eye-witnesses had also heard the lalkara raised by Ali Muhammad for doing away with the two deceased. They have further stated that they had seen Muhammad Iqbal and Muhammad Abbas laying Mst. Raj Bibi on the ground after having overpowered her and the two appellants namely Muhammad Amin and Muhammad Yar inflicted injuries with hatchet and Sota respectively on her person resulting in her instantaneous death. Noor Muhammad P.W.2, Muhammad Mumraiz P.W.6, Fazal Hussain ASI, P.W.10 and Muhammad Akram SHO, P.W.11 have deposed about the recoveries of blood-stained earth, blood-stained wheat grains from the place of occurrence and Chappal from the field of the deceased at a distance of 21 acres from the Haveli of All Muhammad, acquitted accused. Dr. Saeed Ahmad has proved the post-mortem examination report of the two deceased. Asghar Ali P.W.3 and Haji Basharat Ali P.W.4 and Akbar Ali P.W.5 have deposed about the motive of the appellants to kill the deceased. The rest of the evidenced is of formal nature.
8. When examined under section 342 Cr.P.C., the appellants other than Muhammad Amin denied all the incriminating circumstances. They do not admit their participation in the occurrence. Muhammad Amin appellant, however, pleaded grave and sudden provocation. In reply to question No.3, he stated:
"It is incorrect. The fact of the matter is that on the day of occurrence when I came to my Haveli Shaukat Ali and Mat. Raj Bibi deceased alone were present in a room of our Haveli in an objectionable position, whereupon seeing both of them I could not control my senses and while in such position I took out a hatchet from the side of the room and with sudden and grave provocation I caused first injury with hatchet to Raj Bibi deceased on her head whereupon the blade of the hatchet slipped from its handle and thereafter I gave repeated injury to both the deceased who died then and there. None else participated in this occurrence."
In defence no witness was produced.
9. The learned trial Court acquitted All Muhammad co-accused by giving him benefit of doubt and while believing the motive, ocular evidence and the recovery of blood-stained hatchet and Sota from Muhammad Amin and Muhammad Yar appellants and disbelieving the plea of grave and sudden provocation raised by Muhammad Amin appellant has convicted and sentenced them as stated above.
10. Learned counsel for the appellants argued that since the stomach of the deceased were found empty, therefore, it is legitimate to infer that the occurrence had in fact taken place much before the sun-rise; that in view of the statement made by the father of- Shaukat deceased namely Asghar Ali P.W.3 that the deceased had taken breakfast at dawn time; had the occurrence taken place at 9.00 a.m., the stomach must have contained semi-digested food; that the dead body of Shaukat was found to have been eaten by ants which shows that it remained lying in the room for a considerable time; that, in the circumstances of the case, there is a reasonable possibility Chat Muhammad Amin and Muhammad Yar appellants might have killed the two deceased under grave and sudden provocation on seeing them in objectionable position in the Haveli of Ali Muhammad, acquitted accused; that the story of the prosecution with regard to the lifting of Shaukat from his field by the appellants is highly improbable and that the participation of Muhammad. Iqbal and Muhammad Abbas appellants in the occurrence is doubtful. The learned counsel for the State has attempted to support the judgment of the trial Court.
11. We have given our anxious thought to the arguments of the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, statements of the appellants recorded under section 342 Cr.P.C. and the circumstances appearing in the case very carefully. We find that it is a case of two versions. According to the prosecution it was a case of pre-meditated murders in that Shaukat deceased was lifted by the appellant from his field at a distance of 21' acres from the Haveli of Ali Muhammad co-accused. His mouth was tied with cloth so that he may not raise alarm. He was then brought in the Haveli of Ali Muhammad and thrown on the ground by Muhammad Abbas and Muhammad Iqbal appellants and thereafter killed by Muhammad Amin and Muhammad Yar appellants. According to the prosecution Mst. Raj Bibi was present in the Haveli at the time of murder of Shaukat and when Ali Muhammad acquitted accused instigated the appellants to murder her, she ran out of the Haveli to sage her life. She was followed and overpowered by Muhammad Abbas and Muhammad Iqbal appellants at some distance and killed by Muhammad Amin and Muhammad Yar appellants. On the other hand, the defence version is that Muhammad Amin alone had killed the two deceased on seeing them in objectionable position in the Haveli of Ali Muhammad, acquitted accused. In his statement recorded under section 342 Cr.P.C. Muhammad Amin has stated that he gave hatchet blow on the head of Mst. Raj Bibi deceased first whereupon the blade of the hatchet separated from its handle and thereafter he caused injuries to both the deceased with handle. Since it is a case of two versions, we propose to discuss the prosecution case first in order to come to an independent conclusion with regard to the truth or falsity of the prosecution case and the credibility of the prosecution witnesses more particularly of the eye-witnesses. In 'case we disbelieve the ocular account of the occurrence given by the 3 eye-witnesses then we may accept the statement of Muhammad Amin appellant as a whole and in case the statements of the eye-witnesses are not discarded in toto, we will then review the entire evidence and circumstances at the close before arriving at a conclusion regarding the truth or falsity of the defence plea. We will place all the factors favouring belief in the accusation in juxtaposition of the corresponding factors favouring the plea in defence and the total effect will be estimated in relation to two questions, viz.
(i) Is the plea raised by Amanat Ali appellant satisfactorily been established by the evidence and circumstances appearing in the case
If the answer to question No.1 be in the negative;
(ii) Is there yet a reasonable possibility that the plea raised by him might be true so as to cast a reasonable doubt upon the prosecution case
12. Starting with the foundation of the prosecution case, i.e. the FIR, we find that it is a case of promptly lodged KR, which contains the names of the appellants, the weapon used by Muhammad Amin and Muhammad Yar, the part played by them and the names of the eye-witnesses. The occurrence took place at 9.00 a.m. and the report was lodged at 12.00 noon on the same day. There is nothing in evidence to show that the statement Ex.PE of Basharat Ali complainant was not recorded at the time and place as it purports.
13. Taking up the ocular evidence we find that Basharat Ali P.W.4 being grandfather of the deceased and Muhammad Mumraiz P.W.6 being paternal-uncle of the deceased are closely related interse as well as to the deceased. Their statements, however, cannot be rejected on account of mere relationship. Akbar Ali P.W.5 is not a related witness. The aforesaid 3 eye-witnesses had no motive to involve the appellants falsely in the case. The time of occurrence as alleged by the prosecution i.e. 9.00 a.m., was neither questioned in cross-examination nor denied by Muhammad Amin appellant in his statement recorded under section 342 Cr.P.C. There, is no reason to doubt the time of occurrence as stated by the prosecution. Since the contents leave stomach within 4 to 5 hours of the taking of meals, therefore, the condition of the stomach was quite consistent with the time of occurrence. The eye-witnesses have stood the test of cross- examination. We do not see any legal infirmity which may warrant total rejection of their statements. The statements made by them find support from the recovery of blood-stained hatchet and blood-stained Sota from Muhammad Amin and Muhammad Yar appellants, respectively. Noor Muhammad P.W.2 is quite independent witness. He had no animus against Muhammad Amin and Muhammad Yar. He has faced the cross-examination successfully. The Investigating Officer has also supported the recovery of blood-stained hatchet and Sota from Muhammad Amin and Muhammad Yar appellant. His evidence cannot be rejected because of the office he holds.
14. Since we have not excluded the entire evidence of the 3 eye witnesses from consideration, therefore, we proceed to resolve the two questions formulated by us in pare-11 of the judgment. As for the first question, we find that there is no evidence on record to establish the version of the occurrence given by Muhammad 'Amin appellant. Neither the prosecution witnesses have admitted the suggestion with regard to the plea of grave and sudden provocation raised by Muhammad Amin nor Muhammad Amin has led any evidence to prove the same, so, our answer to this question is in negative. Averting to question at No. (ii), it would be pertinent to mention that for entitlement to the benefit of exception, the test is not whether the accused has proved beyond reasonable doubt that he comes within any exception to Section, 300 PPC but whether in setting up defence has created reasonable doubt in case of prosecution, and upon consideration of evidence and circumstances, as a whole he has been able to create a reasonable doubt in the mind of the Court whether he is or is not entitled to the benefit of the exception. On the consideration of evidence and circumstances appearing in the case as a whole, we feel persuaded to hold that there is at least a reasonable possibility that the plea raised by the learned counsel for the appellants that the two deceased were killed under grave and sudden provocation by Muhammad Amin and Muhammad Yar might be true. Reasons for the same, are as follows: -
(i) Prosecution admitted that there were illicit relations between the two deceased. Asghar Ali P.iV.3 stated that Ali Muhammad father of Mst. Raj Bibi deceased had told him 15 days before the occurrence that Shaukat had developed illicit relations with his daughter Mst. Raj Bibi and he should be stopped from indulging into such activities;
(ii) Had the two deceased been not seen in objectionable position in the Haveli, Muhammad Amin would have neither killed Mst. Raj Bibi, his real sister (16/17) nor would have he allowed Muhammad Yar co-accused to murder her;
(iii) Admittedly the cloth with which the mouth of Shaukat deceased was tied before his murder was not recovered from the Haveli of Ali Muhammad as well as from the room where the dead body of Shaukat was kept till the arrival of the police. This circumstance negates the version of the prosecution that Shaukat was lifted from his field and brought to the Haveli of Nazir Ahmad with his mouth tied with cloth;
(iv) There was neither any mark of struggle on the person of Shaukat nor his clothes were found torn. Had he been lifted from his field at a distance of 21 acres from the Haveli of Ali Muhammad, he would have certainly struggled for his life and in that process he would have received scratches, bruises; etc. and his clothes would also have been torn;
(v) Number and nature of the injuries of the two deceased and the kind of weapons used for causing those injuries show that there were at least two assailants. This falsifies the claim of Muhammad Amin that he alone had done the two deceased to death;
(vi) Recovery of blood-stained hatchet from Muhammad Amin and blood-stained Sots. from Muhammad Yar appellant which has been believed by us connects them with the injuries found on the person of the two deceased;
(vii) If it were pre-meditated murders then Muhammad Iqbal and Muhammad Abbas would not have come empty handed;
(viii) Muhammad Amin and Muhammad Yar in the circumstances of the case could murder the deceased without being facilitated by Muhammad Iqbal and Muhammad Abbas;
(ix) The dead body of Shaukat was recovered from a room of Haveli of Muhammad Amin appellant.
The upshot of the above discussion is that while giving benefit of doubt to Muhammad Abbas and Muhammad Iqbal, they are acquitted of the charges. The convictions and sentences of Muhammad Amin and Muhammad Yar appellants under section 302/34 P.P.C. for the murder of Shaukat and Mst. Raj Bibi are set aside, instead, they are convicted under section 304-I P. P. C . and sentenced to 7 years' R.I. on each count and a fine of Rs.10,000 each on each count, in default thereof 2 years' R.I. each on each count with the direction that the fine if realized be paid to the legal heirs of the two deceased equally. The sentences shall run concurrently.
The sentence of death is 'not confirmed.
M. Y.H./M-394/L Appeal partly accepted.
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