MANZOOR AHMAD Versus STATE
RIAZ KAYANI, J.‑‑‑ Manzoor Ahmad son of Haji Ghulam Nabi through the instant appeal has laid challenge to the judgment, dated 17‑7‑1999 passed by the Sessions Judge, Rahim Yar Khan, whereby, the appellant was convicted under section 302, P.P.C. for the intentional murders of Falak Sher and Mst. Zahida and was sentenced on two counts to death. He was also directed to pay compensation in the sum of Rs. 10,000 each to the legal heirs of Falak Sher as well as that of Zahida. The amount was ordered to be recovered as arrears of land revenue in case he failed to pay the amount voluntarily. He was also to suffer imprisonment in default of payment of compensation for six months. Sentence of death awarded to Manzoor Ahmad was subject to confirmation of this Court through a reference under section 374, Cr.P.C.
2. Vide the same judgment Gharib Nawaz and Muhammad Siddique were acquitted by extending them the benefit of doubt.
3. Pathan Khan complainant has filed Criminal Appeal 131 of 1999/(BWP) against the acquitted accused praying for their conviction.
4. Since all the matters arise out of a common judgment we intend to dispose of these matters through this single judgment.
5. The occurrence which resulted in the murder of Falak Sher and Zahida took place on 30‑4‑1997 at 9 a.m. in the house of Rab Nawaz husband of Zahida deceased situated in Mauza Habib De Goth in the vicinity of village Mohar at a distance of 16‑K.Ms. from Police Station Kot Sabzal. The complaint was made by Pathan Khan son of Raees Gul on 30‑4‑1997 at 10‑50 a.m. which was recorded by Muhammad Younas, S. I. at the Police Station on the basis of which formal F.I.R. was drawn.
6. Version of the prosecution described in the first information report authored by Pathan Khan is that he is an agriculturist and on the fateful day at 8‑30 a.m Falak Sher son of Sikandar, Ahmad son of Sikandar, Sufi Raheem Bakhsh son of Faiz Ahmad and Riaz Ahmad son of Wali Muhammad came to his house on two motorcycles and stated that they have some personal work at Sanjarpur he should accompany them. Resultantly, the first informant and Falak Sher sat on one motorcycle whereas Mir Ahmad, Sufi Raheem Bakhsh and Riaz Ahmad sat on the other motorcycle and both proceeded towards Sanjarpur, however, in the way Falak Sher told them that he has some work with Gharib Nawaz son of Ghulam Nabi Treli at Habib De Goth Mauza Walhar to whom he has to make some payment. When they reached near Habib De Goth, Meer Ahmad, Sufi Rahim Bakhsh and Riaz Ahmad stopped to met a passerby known to them and started conversation and told them that they should come back after paying the amount to Gharib Nawaz. Falak Sher accompanied by the complainant reached the house/Dera of Gharib Nawaz where they met Manzoor Ahmad real brother of Gharib Nawaz who made them sit in an open area on a cot upon which Falak Sher laid prostrate whereas he sat. In the meanwhile, Ghrib Nawaz son of Ghulam Nabi accompanied by Muhammad Siddique son of Malawa caste Treli reached who started talking with them and offered tea and water. Manzoor Ahmad left for his house and after some time they saw Manzoor armed with a Kulhari and soon after he reached there, he gave Falak Sher a blow with his Kulhari which struck him on his neck. The first informant got up to catch hold of Manzoor Ahmad whereupon Gharib Nawaz, M. Siddique caught him and directed Manzoor Ahmad to give more blows with the Kulhari upon which another blow was given by Manzoor Ahmad to Falak Sher which also hit him on his neck as result of which his head was severed from his body and he died at the spot. In the meanwhile Meer Ahmad, Sufi Raheem Bakhsh and Riaz Ahmad reached there and also saw the occurrence with their own eyes. Manzoor Ahmad while running away declared his intention to murder Mst. Zahida his sister‑in‑law being wife of his brother Rab Nawaz as she had illicit relations with Falak Sher and entered his house where he gave repeated blows to Zahida who was sitting in the courtyard as a result of which she also died at the spot.
7. Motive for the occurrence is that Falak Sher deceased had friendly relations with the elder brother of Manzoor namely Rab Nawaz and used to visit Rab Nawaz frequently. Manzoor Ahmad entertained a suspicion that Falak Sher developed intimacy with wife of Rab Rawaz namely Mst. Zahida, however, it was just an imagination and there was no truth in this suspicion. Manzoor Ahmed alongwith Gharib Nawaz and M. Siddique in furtherance of their common intention murdered Falak Sher and Mst. Zahida.
8. Muhammad Younas, S. I. after recording the complaint of Pathan Khan proceeded to the place of occurrence where he prepared the injury statements and Inquest Reports of the dead bodies of Falak Sher and Zahida and sent them through constables to the mortuary at Tehsil Head Quarters Hospital, Saidiqabad for post‑mortem examination. He also took in possession blood‑stained earth from the places where the dead bodies of Falak Sher and Zahida were lying. He prepared rough site‑plan Exh. P.U. and his notes in red ink.
9. Later on investigation of the case changed hands and came to Ghulam Dastgir Khan, S.H.O. Police Station Sabzal and on 19‑5‑1997 he arrested Manzoor Ahmad who on 28‑5‑1997 while in police custody led to the recovery of blood‑stained hatchet P‑11 from residential Kotha lying under the cot which was secured through recovery memo. Exh. P.N.
10. Lady Doctor Faryal Najmi, Women Medical Officer, THQ Hospital, Sadiqabad on 30‑4‑1997 performed the post‑mortem examination on the dead body of Mst. Zahida aged 30/35 years and noted the following injuries on her person:‑‑‑
(1) An incised wound of 2" x " on left side of head.
(2) An incised wound of 4" x 1" bone was cut of head.
(3) An incised wound of 4" x 1" of head. Bone was cut.
(4) An incised wound of 4" x 1" upper part of neck. 'The front of trachea oesophagus was cut.
(5) An incised wound of 4" x 1" middle of neck separating the neck from the body.
(6) An incised wound of 4" x 1" lower part of neck.
(7) An incised wound of 2" x " left forearm, bones were cut.
(8) An incised wound " x " on upper forearm muscle deep.
(9) An incised wound of 2" x 1" on left shoulder.
11. In the opinion of the doctor death was result of shock and haemorrhage due to injuries 1 to 9 caused with a sharp‑edged weapon. Injuries, 4, 5 and 6 were sufficient to cause death in the ordinary course of nature, individually whereas injuries 1 to 3, 7, 8 and 9 collectively. All the injuries were ante‑mortem. Probable time that elapsed between injuries and death was immediate and between death and the post‑mortem examination was within six hours. Two vaginal swabs were taken, sealed and sent to the Chemical Examiner. Report of the Chemical Examiner Exh. P.D. indicated that swabs were found to be stained with semen.
12. On 30‑4‑1997 Dr. Farrukh Ishrat Mehr, Medical Officer, THQ Hospital, Sadiqabad performed the autopsy on the dead body of Falak Sher aged 32 years and following injuries were found on his person:‑‑‑
Neck was separated sharply from dead body. A sharp wound of 5 inch in length to through thyroid. Cartilidges up to vertebrae, and second sharp wound was present on same survical vertebrae. So, neck was cut, from the body. Margins of cut, skin were regular in front but at both sides was slightly irregular due to loose skin and margins of skin were regular at that neck sharply cut by sharp weapon.
(2) A sharply cut was present at latterly 1/3 of left clavicle (near to left shoulder) of 1‑1/2" in length and 1 /2" in width up to muscle deep.
In the opinion of the doctor, death was due to haemorrhage and shock caused by injury No. 1, which was sufficient in the ordinary course of nature to cause death. All the injuries were ante‑mortem and caused by a sharp‑edged weapon. Probable time that elapsed between injuries and death was immediate and between death and post- mortem examination was 5 to 7 hours.
13. Appellant was indicted, he denied the charge, pleaded not guilty and claimed a trial. Prosecution examined 11 witnesses. Pathan Khan, complainant examined as P.W.5 and Sufi Raheem Bakhsh examined as P.W.6 furnished the ocular testimony account.
14. Chemical Examiner vide his report Exh. P.W. stated that the Kulhari recovered from the appellant was stained with blood and the report of the Serologist Exh. PV confirmed that blood was of human origin.
15. Appellant when examined under section 342, Cr.P.C. admitted the occurrence by stating that he had killed both Manzoor and Zahida when he saw them in a compromising position in the house of his brother Rab Nawaz. In reply to the question as to why the prosecution has brought the case against him, he stated as under:‑‑‑
"I live in Basti Habib‑De‑Goth with my brother Rab Nawaz together. Rab Nawaz was a Chowkidar in Sui Pipelines Installation at FFC and used to stay there day and night. I was the custodian of his prestige and property as entrusted by him to me. On the day of occurrence I was harvesting wheat crop near my house. In the meanwhile I went to my house for taking food and water; while passing through the land I heard whispering of male and female coming out from my house. I rushed inside my house and saw Mst. Zahida the wife of my brother Rab Nawaz in compromising position with Falak Sher. I lost my control and out of sudden and grave provocation picked‑up hatchet from inside my house. Before that they tried to escape I killed both of them in my house under grave and sudden provocation. None else was with me at that time. "
16. Learned counsel for the appellant vehemently contended that the prosecution witnesses did not witness the occurrence as it is obvious from their statements where they have given no reason to be present at the spot situated in another village far away. It is stated that the appellant seeing Zahida wife of his brother Rab Nawaz in pariodelicto with Falak Sher lost his power of self‑control and took hold of a hatchet lying in the house and killed both of them. It was, therefore, urged that conviction under section 302, P.P.C. was bad in law and should be converted to section 302(c), P.P.C. by inflicting minimum punishment. Conversely, learned counsel for the State assisted by the counsel for the complainant supported the conviction and sentence recorded by the trial Judge. In addition to it, learned counsel for the complainant asked for conviction of the acquitted accused.
17. We have heard the arguments of the respective counsel and have also gone through the record minutely.
18. Before commenting upon the veracity of the eye‑witnesses it would be worthwhile to point out their relationship with the deceased. Pathan Khan P.W.5. admits that‑Falak Sher deceased was the son of his maternal uncle as well as his friend. Meer Ahmad P. W. is the brother of Falak Sher. Sufi Raheem Bakhsh P. W.6. is also their relative. So much so that Falak Sher deceased and Sufi Raheem Bakhsh are related inter se. Riaz P.W. is also their relative and son of the maternal uncle of P. W.5. All the witnesses reside in Basti Adhoja and have no relationship with the accused.
19. Pathan Khan admitted that he did not mention nature of his work in the statement which he gave to the Police which ultimately was read as F.I.R. Falak Sher, he admitted cultivated his land as well as had a business of cattle. He did not mention to the Police whether he had any work at Habib‑De‑Goth. Similarly, he did not inform the Police that amongst them who had personal work, with whom at Sanjarpur, however, Falak Sher. deceased told him that he had personal work. He did not mention whether Rab Nawaz and Riaz had any personal work at Mauza Sanjarpur or not. From Basti Adhoja, where all the witnesses resided Mauza Sanjarpur is about 8/9 K.Ms. Habib‑De‑Goth falls in the way to Sanjarpur while going through Basti Adhoja. P. W.6 Sufi Raheem Bakhsh admitted that they usually go to Sanjarpur to purchase articles for household purpose but none amongst them had a shop to sell such articles at their place of residence. They asked Pathan Khan P. W. to accompany them, however, he had no personal work of his own. Falak Sher wanted to purchase some articles from Sanjarpur, as he dealt in the business of cattle but on that day he had no business of cattle in Sanjarpur. Falak Sher deceased told the witnesses that he had to pay some amount to Gharib Nawaz (an acquitted accused) brother of the appellant. It is in evidence that when they were on their way to Sanjarpur Falak Sher asked others to divert to Habib‑De‑Goth as he has to pay some amount to Gharib Nawaz, brother of the appellant, however, they met Gharib Nawaz and M. Siddique who offered them tea and water and made them sit on a cot and it was after some times that Manzoor went to his house, brought out a hatchet and started an attack on Falak Sher deceased. No amount was given by the deceased to Gharib Nawaz, the purpose for which they deviated from their original place to go to Sanjarpur and went to Habib -De‑Goth.
20. Ghulam Dastgir Khan S. I./ Investigating Officer appeared as P.W. 12 and stated during the investigation it came to light that Falak Sher deceased, Pathan Khan P.W.5, Sufi Raheem Bakhsh, P.W.6 accompanied by Riaz Ahmed and Meer Ahmad P.Ws. had gone to Habib‑De‑Goth to collect money from somebody whose name is not known to him. These inconsistent statements and inability of the witnesses to correctly explain their nature of business at Habib‑De‑Goth coupled with discord between the ocular testimony and the medical evidence as regards the locale of the injuries makes it abundantly clear that none of the witnesses were present at the spot and only after the deceased was done to death, his near relatives were called from Basti Adhoja to lodge the F.I.R. which is delayed by two hours. Both P.W.5 and P.W.6 have stated that in their presence Manzoor appellant gave two blows with his hatchet on the neck of the deceased, whereas, Dr. Farrukh Ishrat Malhi P.W.7 in his cross‑examination explained that injury on the neck could be by two blows whereas, the third injury described as injury No. 2 was on the left clavicle near to left shoulder. All the three injuries were caused with a hatchet whereas, injury which severed the neck was more prominent and the witnesses described the same after arrival at the spot by observing the injuries on the dead body to have been caused by two blows given by the appellant. Another factor which confirms the doubt about the absence of the witnesses to have seen the occurrence is that Manzoor Ahmad at the most was wielding a hatchet. Four able bodied persons namely Pathan Khan P.W.5, aged 27 years, Sufi Raheem Bakhsh aged 50 years, Riaz and Meer Ahmad could have easily over powered the appellant if they were present at the spot. Gharib Nawaz and Siddique having been acquitted for not being present when the occurrence took place and admittedly were empty‑handed could not become an obstacle in the way of the witnesses, if they were present, to come to the rescue of the deceased. We, therefore, are convinced in our mind that none of the witnesses were present at the spot when the occurrence took place.
21. A cursory glance at the site plan Exh. PS would make it abundantly clear that both Zahdia and Falak Sher were killed in the courtyard outside the room of Rab Nawaz while making love. An attempt by the prosecution to place the dead body at point No. 1 at some distance from where the deceased was killed with a mosque intervening was an abortive endeavour to involve the appellant for premeditated murder. Sufi Raheem Bakhsh, P.W.6 stated that both the dead bodies were lying in the courtyard in the house of Rab Nawaz and at a distance of 2 to 3 feet from each other and that no inmates of the house was attracted at the spot at the time when the occurrence was taking place. Similarly, M. Younas, S. I. who initially investigated the case when appeared as P. W.11, in his cross-examination admitted that both the dead bodies were lying in the courtyard at a distance of 5 feet from each other in the house of Rab Nawaz. Rab Nawaz was the brother of Manzoor appellant and Gharib Nawaz acquitted accused. It was also admitted by this witness that the dead body of Falak Sher was not taken from point‑1 to point‑2 within his sight. It was also admitted that the witnesses did not state before him that the dead body of Falak Sher was removed from point‑1 which is on the eastern side of the mosque to point‑2 i.e. the courtyard of the house of Rab Nawaz. Ghulam Dastgir Khan, S. I. who investigated the case after P.W.11 withdrew from investigation admitted that version of Manzoor appellant at the time of his arrest was that he killed Zahida and Falak Sher due to family honour and it came in the evidence that Zahida deceased was the wife of Rab Nawaz brother of the accused and the appellant resided in the house of his brother Rab Nawaz whereas the other two brothers of Manzoor Ahmad and Rab Nawaz namely Gharib Nawaz and their relation Siddique resided elsewhere.
22. Appellant examined Rab Nawaz, husband of the deceased Zahida as D.W.1. He stated that during the days of occurrence he worked at Sui‑Gas Pipelines F.F.C. Goth Machi and was residing there. Appellant Manzoor and Gharib Nawaz were his younger brothers and Siddique was his nephew. Manzoor was residing at his house in Habib -De‑Goth and was the custodian of his family honour. Appellant came to him and confessed that he had seen Falak Sher and Zahida in a compromising position which deprived him of his power of self‑control and killed both of them with a hatchet. He came to his house and confirmed the version given to him by Manzoor which according to the witness was right thing to do to vindicate the family honour.
23. Having discussed at length that the eye‑witnesses did not witness the occurrence as they were not present at the spot, we reject the prosecution case. The other alternative available to us as per the law is to accept the defence case in its totality. Needless to repeat that the appellant has stated in his statement that having lost his power of self‑control after seeing his sister‑in‑law Zahida in a compromising position with Falak Sher deceased he picked up a hatchet and killed both of them. The injuries on both the deceased show that it was the working of the mind of a person in extreme agitation having been provoked by family honour. Resultantly, conviction of the appellant under section 302, P.P.C. and sentence of death by way of Qisas which otherwise is not maintainable, is converted to section 302(c), P.P.C. The provocation being of an extreme nature, sentence is reduced to 15 years' R.I. with benefit of section 382‑B, Cr.P.C. Sentence of compensation is also set aside.
Death sentence imposed on Manzoor Ahmed is not confirmed. Murder Reference is answered in the negative. With this observation appeal is disposed of.
24. Criminal Appeal No. 131 of 1999/ (BWP) .‑‑‑For reasons rendered in this judgment Criminal Appeal No. 131 of 1999/BWP is without merit and is dismissed.
N.H.Q./M‑836/L Order accordingly.