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Criminal Appeals Nos. 5‑J and 6 and Murder Reference No. 112 of 1984, decided on 27th October, 1986.

‑‑‑S. 302/34‑‑Eye‑witnesses next door neighbourers and most natural witnesses of occurrence having no motive to falsely implicate accused who were their own kith and kin in heinous crime involving capital punishment‑‑Evidence of such witnesses consistent on main features of case and finding material corroboration from medical evidence, motive and recoveries and reports of Chemical Examiner and Serologist‑ Evidence of prosecution witnesses and Investigating Officer that blood‑stained earth was secured from room of occurrence going unchallenged on record‑‑Eye‑witnesses intervening and apprehending accused at spot and snatched hatchet from him which was reported by Serologist to be stained with human blood‑‑Prosecution proving guilt of accused beyond shadow of doubt‑‑Conviction maintained.

‑‑‑S. 302/34‑‑Sentence‑‑Accused brutally attacked and killed deceased, his real maternal‑uncle who brought him up‑‑Accused, held, did not deserve any clemency in matter of sentence‑‑Death sentence confirmed. [Sentence].

‑‑‑S. 302/34‑‑Sentence‑‑Co‑accused mother of three children including a suckling baby did not cause any injury to deceased but facilitated commission of murder by catching hold of his legs‑‑Sentence of death altered to imprisonment for life.‑‑[Sentence].

Naseer Ahmad Butt for Appellants. Mrs. Yasmin Saigal for the State.

Date of hearing: 27th October, 1986.

Muhammad Iqbal (35) son of Khuda Bakhsh and Mst. Ruqayya Bibi (28/29) widow of Ahmad Khan Awan by caste, residents of village Khura, District Khushab, were tried by the learned Sessions Judge, Khushab, on the allegation that on 2nd July, 1983 at about 10 p.m. they committed the murder of Ahmad Khan deceased in his house situate in Dhoke Pakhra Dakhli Khura in furtherance of their common intention. By judgment, dated 24th April, 1984 both of them were convicted under section 302/34, P.P.C. and sentenced to death and a fine of Rs. 20,000 each or in default m the payment thereof to undergo further rigorous imprisonment for three years each. Half of fine was ordered to be paid to the heirs of the deceased as compensation. Muhammad lqbal has filed Criminal Appeal No. 5 of 1984 and Mst. Ruqayya Bibi has filed Criminal Appeal No. 6 of 1984 to challenge their conviction and sentence. The case is also before us on reference for confirmation of the death sentences awarded to them. The murder reference and the aforesaid criminal appeals shall be disposed of by this judgment.

2. Ahmad Khan, deceased was real brother of Muhammad Nawaz complainant and husband of Mst. Ruqayya Bibi accused. Muhammad lqbal accused is real sister's son of Muhammad Nawaz complainant and Ahmad Khan, deceased. Sher Muhammad P.W. is first cousin of the deceased.

3. The brief facts of the prosecution case are that on 2nd July, 1983 at about 10 or 10‑15 p.m. Muhammad Nawaz complainant, Ahmad Khan, deceased and Farooq Ahmad P.W. (not produced) returned from the' mosque after offering Traveeh prayers. Ahmad Khan deceased went to his house while Muhammad Nawaz alongwith Farooq Ahmad started smoking Huqqa in front of his house. A short while after they heard alarm from the house of Ahmad Khan, deceased, upon which they reached there. A lantern was burning in the house. They saw Mst. Ruqayya catching the deceased by his legs and Muhammad lqbal giving hatchet blows to him. In the meantime Sher Muhammad P.W. also reached the spot and saw the occurrence. The P.Ws. surrounded the accused and apprehended them at the spot. Sher Muhammad P.W. snatched the hatchet from Muhammad Iqbal. The deceased succumbed to his injuries at the spot.

The motive for the occurrence was that Muhammad Iqbal accused had developed illicit relations with Mst. Ruqayya Bibi accused. This illicit liaison was known to the deceased, who tried to persuade the accused to give up their evil ways. The deceased had informed Muhammad Nawaz complainant about the illicit relations of the accused persons who also asked Muhammad Iqbal to give up his sexual relations with Mst. Ruqayya Bibi who was the wife of his real maternal‑uncle, but he turned a deaf ear to his advice.

Leaving Muhammad lqbal and Mst. Ruqayya accused with Sher Muhammad and Farooq Ahmad P.Ws. Muhammad Nawaz complainant proceeded to Police Station Naushehra and reported the occurrence to Farooq Ahmad S.I./S.H.O. on the following morning at 7 a.m. He could not proceed to the police station soon after the occurrence as it was a stormy night and due to bad weather no conveyance was available during the night.

4. After recording the F.I.R. the S.H.O. reached the spot. He prepared the injury statement Exh. P.K. and inquest report Exh. P.L. of the dead body and despatched it to the mortuary for post‑mortem examination. Then he collected some blood‑stained earth from the spot and made it into a sealed parcel vide memo. Exh.P.J. Both the accused were present at the spot in the custody of the P.Ws. He arrested them and removed shirt (Exh.P. 6) and Shalwar (Exh.P.7), both blood‑stained from the person of Muhammad lqbal accused and made them into a sealed parcel vide memo. Exh. P.H. Sher Muhammad P.W. produced blood‑stained hatchet before him which was made into sealed parcel vide memo. EXh.P.E. A lantern was hanging on the wall of the room of the occurrence. The S.H.O. took it into his possession vide memo. Exh.P.F. He also took blood‑stained cot (Exh.P.5) from the spot vide memo. Exh.P.G. After the investigation both the accused were challaned.

5. On 3rd July, 1983 Dr. Sher Afzal Medical Officer, Civil Hospital, Naushehra conducted the autopsy on the dead body of Ahmad Khan deceased and found the following injuries on it:‑‑---

(1) An incised wound 10 c.m. x 6 c.m. on the occipital region on the left side of scalp. Occipital bone was fractured and brain matter was coming put.

(2) An incised wound 1‑1/2 c.m. x 1 c.m. x bone deep on the left side of forehead 3 c.m. above, the left eye‑brow . The frontal bone was fractured

(3) An incised wound 2 c.m. x 1 c.m. x bone deep just near the left eye 2 c.m. from the left eye‑brow. The temporal bone was fractured.

(4) A contustion 2 c.m. x 2 c.m. on the middle of left upper arm.

(5) A contused wound 4 c.m. x 1/2 c.m. x muscle deep on the back of left forearm 4 c.m. above the left wrist joint.

(6) An incised wound 2 c.m. x 1/2 c.m. on the front of left little finger on its distal phalanx.

The skull was fractured and brain matter and membranes were damaged. In the opinion of the doctor, death was due to shock and haemorrhage as a result of injuries Nos. 1, 2and 3 which were sufficient to cause death in the ordinary course of nature individually and collectively.

6. In support of its case the prosecution examined two eye‑witnesses namely, Muhammad Nawaz and Sher Muhammad. Farooq Ahmad was also named as an eye‑witness in the F.I.R. but he was given up by the prosecution as being unnecessary. The prosecution also relied on the evidence relating to motive and recoveries.

7. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. Muhammad Iqbal appellant stated that Mst. Maryam daughter of Muhammad Nawaz complainant was betrothed to him Farooq Ahmad, nephew of Muhammad Nawaz complainant was interested in her and he was falsely implicated at the instance of aforesaid Farooq Ahmad. Mst. Ruqayya Bibi stated that she was falsely implicated due to enmity. She made a detailed statement which reads as under:‑‑

" ....Deceased was first married to Mst. Siftan daughter of Mansab Khan and the said Mansab was the first cousin of Muhammad Nawaz complainant. Mansab aforesaid was sentenced to death in a murder case of Khura. When I was married to Ahmad Khan deceased Mst. Siftan, the wife of Ahmad Khan deceased had been deserted for about 5/6 years and I was married to Ahmad Khan deceased due to desertion of Mst. Siftan. Mst. Siftan never returned to the house of the deceased thereafter, I was married to the deceased 13/14 years back. Farooq P.W. and Aziz his brother forcibly took the land of the deceased. The deceased used to sleep in the night in the Kothri situated in the agricultural land. He was sleeping there in the night of occurrence. I was apprised of the occurrence at 7‑00 a.m. next day when his dead body was taken out of that room. Frooq and Aziz with their mother lived in their Dera in the agricultural land."

No evidence was led in defence.

8. After examining the evidence on the record, the learned trial Judge accepted the prosecution version and convicted and sentenced the appellants as mentioned above.

9. Learned counsel for the appellants half‑heartedly argued that the alleged eye‑witnesses were closely related to the deceased but they did not try to intervene and this unnatural conduct was indicative of the fact that they were not present at the spot. It was further submitted that the absence of blood on the clothes of Mst. Ruqayya Bibi and articles lying in the house indicated that the injuries were not caused by hatchet and the occurrence had not taken place in the said room because hatchet blows would have spread the blood in the entire room.

Learned State counsel, however, supported the impugned judgment. He submitted that both the eye‑witnesses were very closely related to the appellants and there was nothing on the record even to suggest that they had a motive for false implication, therefore, their evidence which is corroborated by motive, medical evidence and recoveries has been rightly relied upon.

10. According to the F.I.R., the occurrence took place on 2nd July, 1983 at 10/11 p.m. and it was reported to police on the following morning at 7 a.m. The police station is situate at a distance of nine miles from the spot. It is thus evident that there is a delay of 8 or 9 hours in lodging the F.I.R. but it has been satisfactorily explained by the prosecution. In the F.I.R. the complainant stated that the preceding night was stormy and no conveyance could be found for reaching the police station. At the trial he reiterated that the night was stormy and it was raining and due to bad weather no conveyance was available. In cross‑examination he gave out that Police Station Naushera is at a distance of ten miles from Khura and conveyance is not available after 8 p.m. on Khura‑Naushera Road. Farooq Ahmad, S.H.O. also made a similar statement. In cross‑examination he stated that on the night of occurrence there was heavy rain and severe wind‑storm and that buses ply on Naushera‑Khura Road only up to 8 p.m. In cross-examination Sher Muhammad P.W. also affirmed that the night of occurrence was a stormy night and it had been raining since Zohar prayer time. There is, thus, reliable evidence on the record to show that the complainant could not proceed to police station soon after the occurrence due to circumstances beyond his control. The delay in lodging the F.I.R. has, therefore, been satisfactorily explained.

11. At the trial Muhammad Nawaz and Sher Muhammad P.Ws. supported the prosecution version as detailed in the earlier portion of this judgment. They are very closely related to the deceased. Muhammad Nawaz complainant is his real brother and Sher Muhammad is his first- cousin. They are also very closely related to the appellants. Muhammad Nawaz complainant is real maternal‑uncle of Muhammad lqbal appellant and real brother of the husband of Mst. Ruqqaya. They being next door neighbourers of the deceased, are the most natural witnesses of the occurrence. There is nothing on the record to suggest that they had any motive to falsely implicate their own kith and kin in a heinous crime involving capital punishment. They were cross‑examined at length, but nothing useful to the defence could be elicited from their statements. We have noted a few discrepancies/contradictions in their statements but the same are very minor. Their evidence is consistent on the main features of the case and finds material corroboration from the medical evidence, motive and recoveries. The defence version suggested to the eye‑witnesses that the deceased was killed in a room situate at his land has no substance at all. The evidence of Sher Muhammad P.W. and Farooq Ahmad S.H.O. that blood‑stained earth was secured from the room of occurrence, goes unchallenged on the record.

Mst. Ruqqaya was summoned in Court on her request. She submitted that she was innocent. The version suggested by the defence to the eye‑witnesses was that the deceased was killed by some unknown assailants in a room at his land. Had it been so, there was absolutely no reason for the eye‑witnesses to falsely implicate their own close relatives.

12. The contention that the eye‑witnesses did not intervene and their conduct was unnatural is also devoid of force. They did intervene, apprehended both the appellants at the spot and snatched the hatchet from Muhammad Iqbal appellant. The mere fact that the clothes of Mst. Ruqayya Bibi and the articles lying in the room were not stained with blood, is no ground for holding that the injuries were not caused by hatchet or that the occurrence had not taken place in the said room.

13. The evidence of the eye‑witnesses finds substantial corroboration from the medical evidence, motive, recovery of blood‑stained hatchet and clothes from the person of Muhammad Iqbal appellant and reports of the Chemical Examiner and Serologist. As already stated above Muhammad Nawaz complainant is the real maternal‑uncle of Muhammad Iqbal appellant. In cross‑examination he stated:‑‑

"About one month prior to the instant occurrence I advised Muhammad Iqbal accused to give up his evil ways and he promised not to have any illicit connection with Mst. Ruqayya accused. I had also seen the illicit connection of the undertrial accused persons myself and the deceased had also informed me about their immoral relation much before my witnessing their illicit relations:"

The recoveries of blood‑stained hatchet and clothes are supported by Sher Muhammad P.W. and Farooq Ahmad S.H.O. Muhammad Nawaz complainant also supported the recovery of hatchet. According to the report of the Serologist, the hatchet and clothes were stained with human blood. The prosecution evidence is cogent and convincing and it has proved the guilts of both the accused beyond all shadow of doubt. They were, therefore, rightly convicted under section 302/34, P.P.C. and we maintain their conviction.

14. Now we proceed to consider the question of sentence. So far as Muhammad lqbal appellant is concerned there is no extenuating circumstance on the file to withhold the normal penalty of death provided for the offence of murder. He brutally attacked and killed his real maternal‑uncle who had brought him up. He, therefore, does not deserve any clemency in the matter of sentence. We, therefore, dismiss his appeal and confirm his death sentence. His sentence of fine is also maintained.

According to the complainant, Mst. Ruqayya Bibi is mother of three children, including a suckling baby. She did not cause any injury to the deceased but facilitated the commission of murder by catching hold of his legs. In view of these mitigating circumstances, we alter her death sentence to imprisonment for life. Her sentence of fine is maintained. With the above modification in the sentence, her appeal is also dismissed. Her death sentence is not confirmed.

M.Y.H./M‑80/L Appeal partly accepted.

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