NAZEER AHMA Versus THE STATE

G

KHALIL‑UR‑REHMAN RAMDAY, J.‑‑‑One Nazir Ahmad, his brother Iftikhar and their father Ghularn Rasool were tried by a learned A.S.J. of Faisalabad for the murder of one Muhammad Hussain. Through his judgment dated 20‑4‑1992, the said learned trial Judge acquitted Ghulain Rasool and Iftikhar of the above mentioned charge but finding the said Nazir Ahmad guilty of the same, convicted him under section 302, P.P.C. and punished him with death and a fine of Rs.20,000 or three years R.I. In default of payment of the said fine, he was also directed to pay Rs. 10,000, as compensation, under section 544‑A of the Cr.P.C'. to the heirs of Muhammad Hussain deceased or to undergo six months' R.I. in default of payment of the said compensation.

2. Murder Reference, No. 191/92 seeks confirmation of the said sentence of death while Nazir convict has approached this Court through Criminal Appeal No.361/92 to impugn the above‑noticed conviction and sentences recorded against him. Both these matters are being disposed of together through this single judgment.

3. The occurrence in question had taken place on 25‑4‑1990 at about 6‑30 p.m. in the Chowk of Chak No.644/G.B. About five miles from Police Station, Lundianwala of District Faisalabad and had been reported at the said police station by Gfiularn Muhammad complainant the next day i.e. on 26‑4‑1990 at about 10‑30 p.m.

4. Narrating the occurrence and the, background leading to the same, the said complainant had mentioned that on 25‑4‑1990 he was returning home after taking provisions for Aftari alongwith Muhammad Hussain deceased while Nazar Hussain (P.W.3) and Muhammad Yousaf (given up were also coming behind them. He had added that when they' reached the village Chowk, they saw Nazir accused armed with a Revolver, Iftikhar accused armed with a Carbine and their father Ghularn Rasool armed with a Dang coming from the opposite side alongwith Mst. Nasim Akhtar. The complainant had further claimed that hot words and abuses were then exchanged between Muhammad Hussain deceased and Nazir accused at which, Ghulam Rasool accused raised a Lalkara, that the said Muhammad Hussain be killed at which, Iftikhar accused fired a shot which missed which was followed by Nazir appellant whose shot hit the back of Muhammad Hussain deceased who consequently, fell down. He had further alleged that Nazar P.W. and Yousaf (given up) tried to apprehend the accused persons but they managed to run away.

5. Disclosing the motive for this occurrence, Ghularn Muhammad complainant had divulged that in the year 1986, Nazir appellant had abducted the above mentioned Mst. Nasim Akhtar, daughter of Nazar (P.W.3), in connection with which abduction, a case bearing F.I.R. No.211/86 was registered at Police Station, Lundianwala which was, however, cancelled. He had added that Nazir appellant left the village alongwith the said Mst. Nasim Akhtar and returned to the village after about four years when he confronted Muhammad Hussain deceased and it was in these circumstances that Nazir appellant and his above mentioned companions had launched an attack on Muhammad Hussain deceased and had injured him.

6. It may be mentioned here that the said deceased was carried to Jarranwala Hospital in an injured condition from where he was referred to Faisalabad Hospital and finally sent to the General Hospital at Lahore where he remained under treatment and finally died on 14‑7‑1990.

7. Spot inspection had yielded nothing except blood‑stained earth: During the course of further investigation, all the above mentioned accused persons were arrested on 15‑7‑1990 by Muhammad Ayyub S.I. (P.W.8) where after, Nazir appellant, Iftikhar and Ghularn Rasool accused had on 21‑7‑1990,, allegedly led to the recovery of a Revolver P‑3, a Carbine P‑4 and a Sota P‑5 respectively which had been taken into possession vide memos. Exh.PF, Exh.PG and Exh.PH, respectively.

8. When confronted with the prosecution case under section 342, Cr.P.C., Ghulam Rasool accused pleaded that his son Nazir appellant and Mst. Nasim Akhtar had contracted marriage in the year 1986 and had thereafter started living at Lahore; that Nazir appellant was employed as a Medical Assistant in the Government Mental Hospital at' Lahore; that on 25‑4‑1990 he went to Lahore when Nazir appellant told him that the said appellant could not come to the village for EID as he had been asked to remain in attendance in the hospital to arrange special food for the patients during the Eid holidays and that Ghulain Rasool accused however, brought Mst. Nasim Akhtar to the village reaching there at about 6‑00 p.m. on 25,‑4‑1990. He had added that the information of Mst. Nasim. Akhtar coming to the village reached the ‑complainant party and nine persons, including Muhammad Hussain deceased and Nazar P.W. attacked his house while armed with deadly weapons; that they broke open the outer door of the house and gave beating to him; that Mst. Nasim Akhtar hid herself in a room of that house; that the said assailants dragged Ghularn Rasool's wife, namely, Mst. Mukhtaran out of the house and took her to the village Chowk where they tore her Shalwar; made her naked and forced her to dance; that the assailants also fired at Mst. Mukhtaran when a stray bullet hit Muhammad Hussain deceased on his back and he consequently died at the hands of his own companions. Ghulam, Rasool had further pleaded that on a written application of Latif dated 23‑5‑1990, a case was registered against the present complainant party under sections 452, 354 and 149, P.P.C. which was pending trial in the Court of a Magistrate. He further claimed that his sons, namely, Nazir appellant and Iftikhar accused were not residing in the village as they were living in Lahore since 1986 and further that he was a Mueen of the village while the complainant party were agriculturists and that they had been falsely implicated.

9. Nazir appellant owned the above mentioned plea taken by his father and had added that vide Kitchen Report No.299 dated 25‑4‑1990, had been directed to remain on duty during the Eid holidays and that he left the hospital vide Fmtry No.344 of the register of exit on 25‑4‑1990 at 7‑10 p.m. and spent the night in the house of Mst. Sughran Bibi, wife of Muhammad Ranizan. The case o Iftikhar accused was that of a bare denial.

10. None of these accused persons, including the appellant, entered the witness‑box to make statements on Oath under section 340 of the Cr.P.C. Five D.Ws. were, however, produced in defence of the accused persons. Malik Abid Hussain, a Dietitian of the Mental Hospital, Lahore appeared as D.W.1 and stated about the deputation of Nazir appellant to work in the Mental Hospital during the Eid Holidays. Muhammad Latif appeared as D.W.2 and claimed that on 25‑4‑1990 10‑12 persons of the present complainant party had attacked the house of the accused party in the village at about 6‑30 p.m. and supported the above mentioned defence plea about Mst. Mukhtaran Bibi being dragged out of the house to the village Chowk and about her being stripped naked and then having been given beating and having been forced to dance there. He had, however, added that no one was injured during this entire incident. Mst. Nasim

Akhtar above mentioned appeared as D.W.3 giving her name as Mst. Parveen Akhtar while Mst. Mukhtaran above mentioned appeared as D.W.4 and supported the defence version. Qazi Muhammad SMrif, an Overseer of the

Government Mental Hospital, Lahore, entered the witness‑box as D.W.5 to verify as Nazir appellant's plea of alibi as above‑noticed.

11. Convassing acquittal for Nazir appellant, the learned counsel argued that the said appellant had been falsely involved on account of vengeance emanating from Mst. Nasim Akhtar's abduction although the said appellant was present on duty in Lahore at the time of occurrence. It was further argued that the alleged eye‑witnesses had not seen. the occurrence in question and had been falsely planted subsequently as such; that no corroboration was available in support of the ocular testimony and that in the circumstances, it could not be said that the prosecution had successfully proved its case against Nazir appellant beyond all doubts. In the alternative it had been argued that Nazir appellant did not deserve the penalty of death in the circumstances alleged by the prosecution.

12. The defence plea, as is apparent from the above narration, is two‑fold. Firstly that Nazir appellant was not present in the village at ‑ the time of occurrence and was in fact on duty in Lahore and secondly that Muhammad

Hussain deceased had died at the hands of his own companions when they had attacked the house of the accused party and had thereafter, assaulted Mst. Mukhtaran, the mother of Nazir appellant.

13. Qazi Muhammad Sharif (D.W.5) and Abid Hussain (D.W.1) had appeared to prove the appellant's plea of alibi. The occurrence had taken place in the area of P.S. Lundianwala in District Faisalabad at 6.30 p.m. and it had been claimed by D.W.5 that as per entry No.344 dated 25‑4‑1990 Nazir appellant had left the Hospital at Lahore at 7. 10 p.m. The deposition of Abid Hussain D. W. I was that he was the one who had directed Nazir appellant to stay in the hospital for Eid holidays which fell a day after the day of occurrence. Malik Abid Hussain D.W. had only claimed that according to a meeting held by him on 25 4‑1990 he had, inter alia, vide Report No.299 dated 25‑4‑1990 of the Kitchen

Book directed Nazir appellant to remain on duty during the ensuing Eid holidays which Eid according to him, had fallen either the next day i.e. on 26‑4 1990 or the day falling thereafter i.e. on 27‑4‑1990. This D.W. never claimed that the meeting that he had held on 25‑4‑1990 had been held in the evening; that Nazir appellant was on duty on 25‑4‑1990 at 6.30 p.m. or that he had seen the said appellant in the hospital at the alleged time of occurrence. He had admitted that it was Gate Register which was the basic and the important register of the hospital which incorporated the time of arrival and departure of every employee of the hospital. He had further admitted that although he had been asked to bring the Gate Register but he had not brought the same because it was not under his control. On yet another question he had stated that the Medical Superintendent was the incharge of the hospital and he had not asked the Medical Superintendent for his permission to bring the Gate Register to the Court. He had further added that he could not tell at what time, Nazir appellant had left the hospital because the Gate Register was not with him and it was impossible for him to tell the correct position in the absence of this register. Qazi Sharif D.W. who was an Overseer of the Mental Hospital had brought to the Court the register mentioning the visitors of the employees in the hospital which register also contained column of the persons going out of the hospital. According to him, as per entry No.344 dated 25‑4‑1990 which was the date of occurrence, one Nazir Muhafiz had gone out of the hospital at 7‑10 p.m. and this Nazir was the same who was present in the Court, as an accused person. This witness had admitted that the register which he had brought to the Court did not bear any certificate of any Authorised Officer; the same carried loose papers . and was not bound; that the entries in the said register started from 25‑4‑1990; that the entry and exit of 25‑4‑1990 did not agree with each other; that the pages of the said register had not been numbered; that there was nothing mentioned in the register that the earlier register had finished where after the new register had been started; that there was no stamp whatsoever on the entire register to show that the same belonged to Mental Hospital Gate; that the entries in the register. had been made by the Gate Keeper and none of the entries were in the hand of this witness and that the said register was maintained and was in the possession of the Gate Keeper. This witness had further admitted that the space between entries at Serial Nos.343 to 345 was not the same as in the other entries and that against Serial No. 243, the name of Nazir Muhafiz was with different ink than that of the other entries. He also admitted that none of the entries in the register in question was in his hand and further that there were two

Nazirs working in the Kitchen of the Mental Hospital.

14. The above survey of the depositions of these two witnesses who had appeared to support the appellant's claim that he was available in the hospital Lahore at the time of occurrence, would demonstrate that no reliance could bc placed on their testimony which could entitled us to hold that Nazir appellant was available in the Mental Hospital at Lahore at the time of occurrence and thus could not be present at the place of occurrence at the said time which was about 100 miles away from Lahore, It has also been brought on record that Nazir appellant had left the hospital on 254‑1990 at 7‑10 p.m. and according to him, he had stayed the night in the house of Mst. Sughran Bibi who was the wife of Muhammad Ramzan. A bare glance at the testimony of D.W.5 and the register in question will show that the entry in the same relating to the exit of Nazir appellant from the hospital on 25‑4‑1990 at 7‑10 p.m. was a doubtful 'affair.

Nevertheless, there is no explanation as to why Nazir appellant should have left Mental Hospital at 7‑10 p.m. On 25‑4‑1990 when he was expected to remain on duty in the hospital on the next day and as to why he should have spent the night with one Mst. Sughran, wife of Muhammad Ranizan. In view of what has been noticed above, we have not been able to persuade ourselves to accept the testimony of D.W.1 and D.W.5 and consequently, to accept the plea of Nazir appellant that he was available at his place of work in Lahoie at the time of occurrence.

15. There is yet another aspect of this case which casts doubts about this plea of Nazir appellant. It had come on record that after contracting marriage with Mst. Nasim Akhtar against the wishes of her parents and her family in the year 1986, Nazir appellant had left the village alongwith the said Mst. Nasirn Akhtar and neither he nor Mst. Nasim Akhtar had ever gone to the village for almost four years i.e. till the day of occurrence for the fear of the family of Mst.

Nasirn Akhtar. The defence had claimed that Ghulain Rasool accused had come to Lahore on 25‑4‑1990 when he was told by his son Nazir appellant that he could not go to the village for the Eid as a result of which, the appellant stayed back in Lahore and sent his wife Mst. Nasim Akhtar to the village with his father. This plea is unreasonable. If Nazir appellant was so apprehensive of retaliation by the family of Mst. Nasim Akhtar that neither he nor Mst. Nasirn

Akhtar had gone away to the village in four years, then it is difficult to believe that he would let Mst. Nasim Akhtar go to the village, especially when the appellant was not to accompany her. In these circumstances, it is also not reasonably believable that when he could not go to his village to celebrate Eid, then why would he send his wife Mst. Nasim Akhtar to the village and why would the two decide to celebrate the Eid separately. We are, therefore, led to A hold that this part of the defence plea was unreasonable and we consequently, reject the same.

16. This brings us to the second aspect of the defence plea regarding the alleged assault mounted by the complainant party on the house of the accused party and the consequent death of Muhammad Hussain deceased at the hands of the members of the complainant party.

17. o It has come on record that Mst. Nasim Akhtar had been enticed away about four years prior to the present occurrence. It is also available on record that the accused party are the Mueens of the village and consequently less resourceful and much less in status than the present complainant party who are agriculturists of the village. It had also been pleaded by the appellant party that the entire brotherhood of the complainant party felt insulted and offended with

Nazir appellant's abduction of Mst.Nasim Akhtar. We have it on record that at least the parents of the appellant were in a house in the village where‑ they had lived for all these four years A.e. from the time of Mst. Nasim Akhtar's abduction till the present occurrence. It is strikingly noticeable that despite the grievance which the present complainant party had against Nazir appellant and his family, no member of the complainant party had ever taken any steps either to weak their vengeance against the parents of Nazir appellant who lived in the same village or even to come to Lahore after Nazir appellant either to take revenge from him or to retrieve their daughter. It, therefore, stands established that the alleged attack which the complainant party had launched on 25‑4‑1990 on the house of the appellant party was not either to wreak their vengeance against the members of the appellant party or even to humiliate or take revenge to satisfy their insult. This alleged attack on the house of the appellant party could, therefore, only be to retrieve Mst. Nasim Akhtar. In the first place, we have found it more than doubtful that Nazir appellant would himself stay back in Lahore and permit his wife to celebrate Eid with his parents in the village despite all the apprehensions that he entertained with respect to any retaliation from the members of the complainant party. Secondly, the defence had claimed that when the complainant party attacked the house of the appellant party after breaking open the outer door and after having armed themselves with deadly weapons, they remained contented only with dragging a seventy years old mother of Nazir appellant out of the house and on to the village Chowk where they allegedly stripped her naked and made her dance in that condition and made no effort whatsoever either to retrieve Mst. Nasirn Akhtar who according to the defence had hid herself in one of the rooms of the house to the knowledge of the complainant party nor did they take any steps to wreak their vengeance against the said Mst. Nasim Akhtar who was the cause of the extreme insult and humiliation which had been caused to the entire brotherhood of the complainant party. A lot remains unexplained about this defence claim which is as under:‑‑

(a) If the complainant party had attacked the house of the appellant party only after they had received information that Mst. Nasim Akfitar had returned there then why didn't they do anything, as has been mentioned above, either to retrieve Mst. Nasim Akhtar or to take their revenge on her?

(b) If they could break open the outer door of the house of the complainant having armed themselves with deadly weapons without any opposition from the appellant party then why couldn't they break open a room of that house to reach Mst. Nasim Akhtar?

(c) Why did the complainant party have to focus all their attention on Mst.Mukhtaran Bibi, the seventy years old mother of Nazir appellant and why didn't they think of taking revenge on the father of the appellant, namely, Ghularn Rasool who was also present in the same house?

(d) The defence had claimed that the complainant party had beaten up Mst. Mukhtaran and had dragged her out of the house on to the village Chowk. Despite the, appellant party having lodged an F.I.R., why wasn't this Mst. Mukhtaran Bibi ever subjected to any medical examination to prove any injury or any marks of violence on her body?

(e) This alleged attack had been made on 25‑4‑1990 but Latif D.W. had lodged the F.I.R. about the same only on 23‑5‑1990 i.e. about a month after the occurrence. No explanation exists on record about this long delay in reporting this occurrence to the police. It is not the defence case that the local police had refused to register the case and that they had thereafter managed the same either under the orders of some superior officer or under the orders from some Court?

(f) The investigation about the murder of Muhammad Hussain deceased ~ 11 1~, had commenced on 25‑4‑1990 and this defence plea had been taken before the 1.0. only a month thereafter i.e. on 23‑5‑1990. Why didn't the appellant party take the 1.0. into confidence e about their explanation of the occurrence immediately. after ‑the commencement of the investigation of the murder of Muhammad Hussain deceased?

(g) Neither the 1.0. nor the draftsman were ever shown the damage allegedly caused to the outer door or to the house of the appellant party caused by the alleged attack on it by the complainant party?

(h) It is also not believable that having armed themselves with deadly weapons, the complainant party would mount an assault *on the appellant party and not a scratch would be caused on any member of the appellant party and instead the complainant party would return after shooting dead one of their own members.

While Ghulam Rasool accused explains the injury and the subsequent death of Muhammad Hussain during the alleged assault of the complainant party on the appellant party Latif D.W. who lodged the F.I.R. containing the defence version, denies any injury having been caused to any person in the said incident?

18. In view of what has been noticed above we find that even this part of the defence plea is not plausible and we, accordingly, dismiss the same.

19. This brings us to the examination of the prosecution evidence to find whether the same was sufficient to maintain Nazir appellant's impugned conviction.

20. The prosecution case was that the occurrence in question had taken place on 25‑4‑1990 at 6‑30 p.m. in the village Chowk. The defence does not deny either the place of occurrence or the time of occurrence as alleged by the prosecution. Muhammad Hussain deceased had met his death admittedly at the said Chowk at the said time and with a fire‑arm injury. It is believable that the complainant party would entertain some grudge against the appellant party on account of the abduction of Mst. Nasim Akhtar but it is also available on record that the complainant party had done nothing for four long years either to wreak their vengeance against any member of the appellant party or even to implicate them in any false case for the purpose. The occurrence in question had taken place well before sunset in the village Chowk. There is thus no possibility of the said occurrence having gone unwitnessed oi: the assailant having escaped unidentified. Having closely scrutinized the ocular testimony and its intrinsic worth, we find that the same inspires confidence. If these eye‑witnesses, one of whom is the father of Mst. Nasim Akhtar, had done nothing for four years to cause any loss or damage to the appellant party, then it is difficult to believe that after four years, they would falsely implicate Nazir appellant in the occurrence in question. As has been mentioned above, there are facts and circumstances appearing in the defence evidence which also support the prosecution claim including the admitted presence of Mst. Nasim Akhtar, in the village on the day of occurrence.

2 1. Having thus considered both the versions, we find that no exception c be taken to, the finding of guilt as recorded by the learned trial Court a Nazir appellant. Consequently, this conviction under section 302, P. is maintained.

22. It had been argued by the'ic' ed counsel, in the alternative that even a ccording to the prosecution itself, the occurrence in question was the result of a sudden flare up when Muhammad Hussain deceased and Nazir appellant had confronted each other where after thuy had exchanged hot words and abuses and thus, the case in hand was not one where extreme penalty of death should be imposed on Nazir appellant.

23. it is true that ordinarily a murder committed as result of a sudden fight is met with lesser penalty but then each case has to proceed on its own peculiar facts and circumstances. The facts and circumstances of the present case, which we have found proved on record, are that Nazir appellant had enticed away a daughter of the complainant party about four years prior to the present occurrence; that the complainant party lodged a criminal case against Nazir appellant etc. in respect of the abduction of this girl which case was, however, cancelled on account of the support of the alleged abducte to ‑the present appellant; that despite 91 this insult and humiliation, the complainant party had never taken any step tv take the law into their own hands or to resort violence either to retrieve their daughter or to wreak their vengeanue on the said account; at the time of occurrence, Nizir appellant was returning to the village after four years alongwith the above mentioned daughter of the complainant party after arming himself with a pistol which was unlicensed; that Nazir appellant and the said Mst. Nasim Akhtar came across the deceased in the village Chowk were hot words and abuses were exchanged between the deceased and the appellant; that Muhammad Hussain deceased did not attempt any assault on the appellant nor did he try to forcibly take away the said Mst. Nasim Akhtar and finally that the fire‑arm injury received by the deceased had been caused on the back of his chest.

24. In view of the facts and circumstances above‑noticed, it cannot be said that the murder in question was not the result of any premeditation on the part of Nazir appellant because while coming to the village he was carrying a loaded' pistol with him which was unlicensed and this conduct of the appellant speaks volumes of his preparation and premeditation of the act that he finally did. Lesser penalty could also not be canvassed for the appellant on the ground that the abuses offered by the deceased could have caused provocation to the appellant because he was the one who had induced the same by enticing away a female of the complainant party. No premium can, therefore, be allowed to the appellant for his own admittedly immoral act even if it be conceded that the said immoral act had subsequently been legalised through the appellant's marriage with the said Mst. Nasim Akhtar. No leniency could be shown to the appellant because the act committed by him did not even have a semblance of having been committed in self‑defence. Firstly, because the injury caused on the person of the deceased had been caused on the back side of the deceased and secondly because not even a scratch existed either on the person of the appellant or even on the person of Mst. Nasim Akhtar who had entered the witness‑box at the trial as a defence witness. Needless to mention here that the concession of lesser penalty is granted to a killer only if he succeeds in invoking some sympathy for himself emanating from the circumstances which had led him to commit the murder. In the present case, it was the appellant's own conduct which can be approved neither on the basis of moral nor on the strength of social norms of our society which had finally led to the murder of Muhammad Hussain deceased. Neither the past conduct of the appellant nor his conduct at the time of occurrence are such, which could entitle him to any allowance in equity. Consequently, we find no reason to convert the punishment of death awarded to the appellant to a sentence of imprisonment for life. The death sentence awarded to the appellant is therefore confirmed.

25. Criminal Appeal No.361 of 1992 filed by Nazir Ahmad appellant is, therefore, dismissed and Murder Reference No. 191 of 1992 is answered by confirming the sentence of death awarded to him.

N.H.Q/N‑362/L

Appeal dismissed.