BASHIR AHMA Versus THE STATE

IJAZ NISAR, J .-Bashir Ahmad son 9f Rulia (46), (2) Muhammad Aslam son of Bashir ? hmad (25), (3) Muhammad Hussain son of Bashir Ahmad (23), (4) Muhammad Arshad son of Barkat Ali (25) and (5) Bashir Ahmad son of Fateh Muhammad (65) were tried for the murders of Muhammad Arif Baig, Tasneem Bari and Mst. Balqees deceased by the ? learned Additional Sessions Judge, Sahiwal who vide his order dated 12-8-1982 acquitted Bashir Ahmad son of Fateh Muhammad (65) but convicted the other accused under section 302, P. P. C. and sentenced theta to death and a fine of Rs. 2,000 each or in default to undergo one year's R. I. The fine, if realized, was ordered to be paid to the legal heirs of ? Tasneem Bari deceased.

The convicted accused have filed an appeal. The learned Additional Sessions Judge has also made a reference to this Court under section 374, Cr. P. C. for confirmation of the death sentence. Both the matters shall be disposed of by this order.

2. Muhammad Hussain and Muhammad Aslam appellants are sons of Bashir Ahmad (acquitted accused). A sister of Arshad appellant is married to Aslam appellant. Bashir Ahmad son of Rulia appellant is uncle of Arshad appellant. Mst. Balqecs deceased was the sister of Arshad appellant.

3. The prosecution story in brief is that about 7 months prior to the occurrence Muhammad Arif Baig deceased had abducted Mst. Balqees deceased. A few days before the occurrence, she was restored back by Muhammad Arif Baig but he was trying hard to get her back. A day preceding the occurrence Arshad appellant met Muhammad Arif Baig deceased and Abdul Haleem P. W. at Truck Adda of Abdul Rebman, situate in Grain Market, Pakpattan, and asked Muhammad Arif Baig deceased to come to the tube-well of Bashir Ahmad (acquitted accused) and take back Mst. Balqees deceased. Accordingly on the following day Muhammad Arif Baig deceased, Tasneem Bari deceased accompanied by Ameer Ahmad P. W. 1 and Abdul Haleem P. W. went to the tube-well of Bashir Ahmad (acquitted accused) on a tonga driven by Allah Ditta (given up) on 6-8-1977 at 3-00 p. m. Bashir Ahmad who was present at the tubewell made them sit at a cot under the shade of a tree and left towards his tubewell. After a lapse of 10/15 minutes the appellants and Bashir Ahmad (since acquitted) arrived there. Muhammad Hussain was armed with a Kassi, Muhammad Aslam had a hatchet, Arshad was armed with a Toka while Bashir Ahmad son of Rulia carried a stick. Bashir Ahmad son of Fateh Muhammad (since acquitted) was empty-handed. The latter raised a Lalkara that none should be spared, whereupon Muhammad Hussain appellant dealt a Kassi blow to Muhammad Arif Baig deceased. Arshad appellant gave a Toka blow to Muhammad Arif deceased. He fell injured. Muhammad Aslam appellant dealt a hatchet blow to him. Tasneem deceased tried to intervene but Muhammad Aslam gave a hatchet blow on his right foot. After receiving the injury Tasneem Bari ran towards the canal. The appellants chased him and dealt blows to him resulting in his death. Thereafter the appellants brought Mst. Balqees deceased to the spot and murdered her near the dead body of Arif Baig deceased. The accused then left the spot. Abdul Haleem P. W. 6 reported the matter to the police at P. S., Pakpattan Sharif on the same day at 5. p. m. by lodging the F. I. R. Exh. P. C.

After recording the F. I. R. Nazir Ahmad S. I., P. W. 1 I proceeded to the spot and prepared the injury statements Exhs. P. J., P. L. and P. N. and inquest reports Exhs. P. K., P. M. and P. O. of Arif Baig deceased, Mst. Balqees and Tasneem Bari deceased persons, respectively.

He arrested Bashir Ahmad, Muhammad Hussain and Muhammad Arshad appellants on 7-8-1977 while Muhammad Aslam appellant was arrested on 9-8-1977.

He took into possession blood-stained clothes of Arshad and Muhammad Hussain appellants through memo. Exhs. P.E. and P.F. respectively. On 8-8-1977 Arshad appellant led to the recovery of Toka P. 30 from a cattle-pen through memo. Exh. P. H. Muhammad Hussain led to the recovery of blood-stained Kassi P. 29 from a cattle-pen through memo. Exh. P. G. Muhammad Aslam appellant led to the recovery of bloodstained hatchet P. 23 and blood-stained Kurta P. 24 from underneath chaff lying at his house through memo. Exh. P.D. The recoveries were witnessed by Abdul Hamid P. W. 7 and Muhammad Ramzan P. W. 9.

The recovered articles were sent for chemical examination and according to the report Exh. P.Y. of the Serologist those were stained with human blood.

4. Dr. Muhammad Afzal Malik P. W. 12 conducted the post-mortem examination on the dead body of Tasneem (23) on 7-8-1977 and found the following injuries thereon:

(1) An incised wound 7" x 1" x brain deep across the left pinna, which was cut. Bone underneath was cut and gaped, in the entire length of the wound.

(2) Three incised wounds on the top and left side of head each measuring from within outwards, 5V 4j" and 4f. Skull bones and brain under it were cut badly and pieces of brain had fallen out of the wound.

(3) An incised wound 51/2 ? x l ? " on the back of left forearm up to wrist. Ulna under it was cut.

(4) An irregular cut 2' x ? " x bone deep on the plain of left hand.

(5) A cut ? ' x 1/8 ? ' x skin deep. On the proximate part of left ring. finger.

(6) An abrasion on the back of left ring-finger.

(7) Two cuts, one through the pulp of right middle finger where bone was cut, and the other cut was at the palp of right index finger.

(8) An incised wound 4" x 11/2 " x bone deep on the inner side of right ankle and bone under it was cut.

(9) An incised wound 21/2 ' x ? ' x bone deep on the outer aspect of right flank above ankle. Both bones under it were broken.

Skull bones, membranes and brain matter were cut on the left side under Injuries Nos. 1 and 2 which were sufficient to cause death. All the injuries were caused by sharp-edged weapons except injury No. 6 which was the result of a blunt weapon. Stomach contained four ounces of milky fluid. Intestines contained faeces. Bladder was empty.

On the same day he conducted the post-mortem examination on the dead body of Arif Baig (25) and found the following injuries on his person

"(1) A big cut on the back and sides of upper part of neck as a result of more than one blow. Transversely placed. Muscles vertebra, spinal cord and other soft tissues under it were badly cut and mutilated.

(2) An incised wound 4' x ? ? x bone deep on the back of left side of neck, below injury No. 1 and the wound was continuous with injury No. 1 in its left.

(3) An incised wound 1" x ? ' x skin deep on the back of left side of neck lower part.

(4) An incised wound 3/4" x ? ' X skin deep, just below injury No. 3.

(5) An abrasion 11/2 " x ? " on the lower part of left side of neck, above cal vical.

(6) An incised wound 51/2 ? * 1" x bone deep on the top of head, more on right side. Bone under it was cut and brain was injured.

(7) A semi-circular incised wound 2" diameter on the front of head over mid-line. Bone deep.

(8) A superficial linear cut 4" long, on the outer aspect of left shoulder. Shirt was cut.

(9) An incised wound ? " x ? " x skin deep on the outer aspect of the left thigh. Shalwar over it was cut. Both parietal bones membranes and brain were cut."

Cervical vertebra and spinal were fractured and cut under injuries Nos. 1 and 2. Stomach contained one once of dirty fluid. Bladder was empty. Intestines contained faeces. Death was due to fracture of skull injury to the brain and cutting of the spinal cord due to injuries Nos. 1; 2 and'6. All tree injuries except injury No. 5 were caused with sharp-edged weapon. Injury No. 5 was the result of blunt weapon.

On the same day he conducted autopsy on the dead body of Mst. Balqees (20) and found the following injuries thereon :

"(1) An incised wound 21/2 ? x 1" on the back of upper part of neck, where vertebra and spinal cord were cut.

(2) An incised wound I3/4 " x ? ? on the back of neck below injury No. 1.

(3) An incised wound l ? " x 1/3 " x skin deep on .the back of left upper chest, close to neck. Shirt was cut.

(4) An interrupted linear abrasion 6" long on the back of left chest, inner to scapula.

(5) An incised wound I1/4 " x ? " x skin deep on the back of right shoulder, shirt was cut.

(6) An incised wound 1" x ? ? skin deep just below and outer to injury No. 5. Shirt was cut.

(7) A linear abrasion 4' long, on the back of right side of chest, below scapula.

(8) A linear abrasion 6" long, on the back of right side of chest, lower part.

(9) An interrupted linear abrasion f" long on the back of right flank.

(10) An incised wound 11/2 " x ? " x skin deep on the back of left forearm, near elbow.

(11) An incised wound 2? x ? ? on the back of right forearm near wrist. Ulna under it was fractured.

(12) An old wound ? on the right upper abdomen near costal margin."

Cervical vertebra, disc and. spinal cord were cut under injury No. 1. Peritoneum was punctured under injury No. 12. Bladder 'contained three ounces of urine. Uterus was empty. Death was due to shock and haemorrhage as a result of injury No. 1 which was sufficient to cause death. All the injuries except injuries Nos. 4, 7 and 9 were caused with sharp-edged weapons. Injuries Nos. 4, 7 and 9 were caused with blunt weapons.

5. The prosecution examined 11 P. Ws. to prove its case. Ameer Ahmad P. W. 1 and Abdul Haleem P. W. 6 testified to the occurrence. Allah Ditta tonga driver was given up as having been won over. Abdul Hamid P. W. 7 and Muhammad Ramzan P. W. 9 testified to the recoveries from the appellants. S. I. Nazir Ahmad P. W. 11 recorded the F. I. R., carried out the investigation, arrested the appellants and effected the recoveries from them. Dr. Muhammad Afzal Malik P. W. 12 conducted the post-mortem examination on the dead bodies of the deceased. The other witnesses are of formal nature.

6. The appellants pleaded not guilty to the charge and denied the prosecution allegations. They did not call any evidence in defence.

7. Relying upon the ocular evidence, medical evidence, the motive and the recoveries, the trial Court convicted and sentence the appellants as stated above.

8. Criticising the judgment, learned counsel for the appellants states that the conclusion arrived at by the trial Court is against the weight of evidence on record, the evidence is interested and self-contradictory. It is further stated that the prosecution story is highly improbable. Arshad appellant would not have asked Muhammad Arif Baig deceased to come the tubewell of Bashir Ahmad (acquitted accused) for taking his sister Mst. Balqees deceased who was not married to him. Further that Ameer Ahmad P. W. 1 is not a natural witness and according to his own showing lived at a distance of about 5 miles from the spot. He admitted that he had visited the tube-well of Bashir Ahmad son of Fateh Muhammad accused on the fateful day for the first time. He also admitted his friendship with Tasneem Bari deceased. Learned counsel for the appellants has also referred to the affidavit Exh. D. A. sworn by Ameer Ahmad P. W. before Mian Abdul Sattar, Magistrate Section 30 Pakpattan Sharif. According to it Ameer Ahmad P. W. denied having witnessed the occurrence and that Muhammad Arif Daig deceased and Tasneem Bari deceased had gone to the tube-well of Bashir Ahmad fox abducting Mst. Ba!qees deceased. The visit of Abdul Haleem P. W. to the tube-well of Bashir is also challenged on the ground that being an invalid person he would not have accompanied Arif ` Baig deceased. He walked with the help of crutches as his right leg had been cut off.

9. From the evidence brought on record it stands established that Mst. Balqees deceased, sister of Arsbad appellant had eloped with Muhammad Arif Baig deceased and was restored back through the intervention of the elders of Arif Baig deceased. There is nothing to prove that) she had been married to Arif Baig deceased. The prosecution stand that al day before the occurrence Arif Baig deceased had asked Arshad appellant to visit the tube-well of Bashir Ahmad for taking Mst. Balqees deceased with him does not stand proved. Nobody from the bus stand of Abdul Rehman has been examined by the prosecution to prove the above circumstance. Even otherwise it does not appeal to reason that Arshad appellant would ask Arif Baig deceaEed to come to take his unmarried sister without any valid marriage with him nor does it look probable that Arif Baig deceased would so easily fall in the trap of Arshad appellant that he would go to his village for taking Mst. Balqees deceased.

The mere fact that Ameer Ahmad P. W. was on friendly terms with Tasneem Bari deceased will not make him an interested witness. He bad no enmity with the appellants and could not be expected to falsely involve them. Likewise Abdul Haleem P. W. cannot be discredited simply for the reason that he was having an artificial leg. They stand corroborated by the medical evidence as also recoveries of blood-stained kassis at the instance of Muhammad Aslam and Muhammad Hussain and blood-stained toka P. 30 at ,the instance of Arshad appellant. Abdul Hamid P. W. 7 and Muhammad Ramzan P. W. 9 who testined to the recoveries appear to be quite disinterested persons and nothing is brought on record to show that they had any reason to depose falsely. They have given a consistent and coherent version about the manner and places of recoveries. Although the presence of Ameer Abmad and Abdul Haleem P. Ws. at the spot cannot be disputed but nevertheless it is difficult to infer that whatever they had stated is nothing but the whole truth. Their testimony has to be scrutinized by taking into consideration all the attending circumstances. The version put forth by Abdul Haleem P. W. 6 that a day before the occurrence Arif Baig deceased met Arshad appellant at the Truck Adda of Abdul Rehman in the Grain Market, Pakpattan Sharif and asked him to take back his wife Mst. Balqees deceased on the following day is not believable for several reasons. The marriage between Mst. Balqees deceased and Arif Baig deceased does not stand proved. No Nikahnama has been brought on the record showing that they were married to each other. No participant of the said marriage has been examined nor was this fact mentioned in the F. I. R. Had they been really married, the appellants would not have taken such a serious view of Arif Baig deceased coming to their village for taking back Mst. Balqees deceased, nor would have been there any justification for killing Mst. Balqees by her real brother Arsbad appellant and her other close relations. The motive as spelt out from the cross-examination of the P. Ws. is that Arif Baig deceased had abducted Mst. Balqees deceased which caused a great annoyance to her brother and relatives. They got her restored but it appears that she too was in love intrigue with Arif Baig deceased and wanted to join him despite the opposition of her family. Arif Baig deceased also wanted to have her at all cost. Both sides have not come out with the true story and have suppressed L material facts. Our conclusion is that in all probability Mst. Balqees deceased wanted to accompany Arif Baig deceased and had secretly conveyed a message to him to come to her village and take her along. On the day of occurrence Arif Baig deceased accompanied by his friend Tasneem deceased had gone to the village of Mst. Balqees for taking her and when they met Mst. Balqees at the fixed place and time, somehow or the other the appellants came to know of it and under the impulse of grave and) sudden provocation killed Arif Baig deceased, Tasneem Bari deceased andl Mst. Balqees. Although the appellants have not specifically taken the above plea but nevertheless the benefit of it can be extended to them because it is inferable from the circumstances brought on the record. The homicides thus committed by them in violent passions, which had been suddenly provoked could not be -visited with the highest penalties of the law. In this view of the matter their conviction under section 302, P. P. C. and the award of extreme penalty to them was not justified. The offence committed by them is covered by Exception 1 to section 300, P. P. C. Accordingly, F we alter their conviction from section 302, P. P. C. to section 304, Part 1, P. P. C. and sentence them to seven years' R. I. and a fine of Rs. 2,000 each or in default to undergo one year's R. I. The benefit of section 382-B, Cr. P. C. shall also be extended to them. The sentence of death is not confirmed. The appeal is accepted to the above extent.

M. z. nt. Appeal accepted.