MUHAMMAD MUNIR Versus State
1. BASHIR A. MUJAHID, J.- - Muhammad Munir son of Selehon, after having been tried by the learned Additional Sessions Judge, Jhang under section 302, P.P.C. in case F.I.R. No. 144 dated 8-3-1997 at P.S. Saddar, Jhang for murder of Haq Nawaz, was convicted under section 302(b), P.P.C. vide the impugned judgment dated 4-2-2000 and sentenced to death. He was also ordered to pay compensation of Rs. 25,000 under section 544-A, Cr.P.C. to the legal heirs of the deceased.
2. The brief facts of the case are that Muhammad Anwar, P.W.5 got F.I.R. Exh. P.G. registered at P.S. Saddar, Jhang at 8-10 a.m. on 8-3-1997 about the occurrence which took place at 9 p.m. previous night i.e. 7-3-1997 in village Thatha Mahla at a distance of 18 miles from the Police Station, alleging therein that the complainant has three brothers. He himself and Nasir Ali, brother were cultivators while two other brothers Haq Nawaz and Rab Nawaz were working in a Mill at Faisalabad. Haq Nawaz who was married had come to his house but his wife had gone to her parents. During the night 7/8-3-1997 at 9 p.m. the complainant along with Noor Muhammad, Zulfiqar, and Haq Nawaz were sitting in a room when they over-heard whisk on the roof. Haq Nawaz went to check about the movement. The complainant and the P.Ws also followed him. Haq Nawaz saw Muhammad Munir, appellant on the roof armed with a dagger. Haq Nawaz caught hold of the appellant when two other unknown persons also climbed the roof from the rear to rescue Muhammad Munir. Haq Nawaz was caught hold by them and Muhammad Munir caused successive dagger blows at him hitting on his left flank, left chest and left shoulder. Hue and cry of the complainant attracted the others to the roof and they tried to catch hold of the accused but all of them fled away. Haq Nawaz succumbed to the injuries at the spot. Noor Muhammad P.W.6 also witnessed the occurrence.
3. The motive for the occurrence was that Muhammad Munir, appellant had illicit relations with Mst. Nasim Bibi, wife of the complainant and on the fateful night he had come to meet Nasim Bibi but incidently he was confronted with Haq Nawaz and the instant incident took place.
4. Muhammad Mumtaz S.-I. P.W.9 after registration of the case arrived at the spot, took the dead body of Haq Nawaz into possession, prepared his injury statement through memo. Exh.PB and inquest report Exh.PC, and dispatched the dead body for post-mortem examination through Zafar Iqbal, FC. He collected the blood-stained earth through memo. Exh. PH and recorded the statement of the P.Ws under section 161 Cr.P.C. Zafar Iqbal FC, P.W.4 produced before him last worn clothes of the deceased which were taken into possession through memo. Exh.PM. On 4-4-1997 he arrested the accused who while in police custody led to the recovery of dagger P1 which was taken into possession through memo. Exh. P. E. and after completion of the investigation challan against the accused was submitted.
5. The trial Court framed the charge which was denied by the accused and he claimed trial.
6. The prosecution examined as many as 10 witnesses to prove the guilt of the accused.
7. The medical evidence was furnished by Dr. Zafar Iqbal, P.W. who on 8-3-1997 at 5 p.m. conducted the post-mortem examination on the dead body of Haq Nawaz and found the following injuries on his body.
(1) An abrasion 4 x 2 c.m. on the front of neck.
(2) An incised wound 3 x 1cm x muscle deep on the outer side of left arm upper part.
(3) An incised wound 3 x 1 c.m. x muscle deep on the front of left shoulder.
(4) An incised wound 2.5 x 9 c.m. x muscle deep on the outer side of left chest upper part.
(5) Two abrasions in an area of 3.5 x 1 c.m. on the upper part of left chest front side.
(6) An incised wound 2.5 x 1.2 c.m. x 17 c.m. on the left side of chest middle part. 5 c.m. below and middle to left nipple.
(7) An incised wound 3 x 1.5 c.m. x 13 c.m. on the left side of abdomen upper part.
(8) An incised wound 2 x 1.5 c.m. x 19 c.m. on the outer side of left chest middle part.
(9) An incised wound 2 x 1 c.m. x muscle deep on the outer side of left side of abdomen.
(10) An incised wound 4.5 x 2 c.m. x 18 c.m. on the inner side of left thigh, lower part.
(11) An incised wound 2 x 1 c.m. x through and through with injury No. 10 on the outer side of the left thigh lower part.
8. In the opinion of the doctor the cause of death was hemorrhage and shock resulting from injuries Nos.6 and 7 Injury No.6 alone was sufficient to cause death. The probable time between injury and death was immediate whereas between death and post-mortem was from 12 to 24 hour
9. The ocular account was furnished by Muhammad Anwar, P.W.5 who was brother of the deceased complainant of the case. He supported the prosecution story as narrated in the F.I.R. Noor Muhammad, P.W.6 was also eyewitness of the occurrence. His statement is in line with that of the complainant.
10. Zulfiqar Khan Patwari, P.W.2 prepared the site plan of the place of occurrence Exh.PD. Muhammad Akram HC, P.W.3 attested recovery memo. Exh. PE whereby Muhammad Munir, appellant got recovered dagger P1. Zafar Iqbal FC, P.W.4 escorted the dead-body of Haq Nawaz for post-mortem examination and produced the last worn clothes of the deceased before the Investigating Officer which were taken into possession through memo. Exh.PF. Israr Hussain FC, P.W.7 kept the sealed parcels of blood-stained earth and dagger in safe custody in Police Malkhana. Muhammad Sarfraz A.S.-I. P. W.8 partially investigated the case. Muhammad Bakhsh FC, P.W.10 delivered the sealed parcels of articles at the office of Chemical Examiner.
11. The prosecution evidence was closed by tendering in evidence reports of Chemical Examiner Exh. PK, Exh.PL and that of Serologist Exh.PK/1 and Exh.PL/1.
12. The statement of the accused/ appellant was recorded under section 342, Cr.P.C. He denied the allegations and claimed his innocence and false involvement. In reply to question No. 12 as to why the case against him and the P.Ws. deposed against him he stated as under:
13. "The P.Ws are closely related inter se as well as with the deceased. Father of the complainant had pushed son of Sheroo Kumhar into a well. I had witnessed this occurrence and had informed about this crime to Shero Kumhar. Moreover, there was an ill-will and enmity between Khan uncle of the complainant and one Sarwar for landed property which was to be inherited by Mst. Niamat Bibi and Mst. Inayatan who was a divorcee of one Sarwar. It was an exchange marriage. My father and myself sided with the family of Sarwar as against the uncle of the complainant. For this reason I was falsely implicated in this case. As a matter of fact, the complainant had illicit intimacy with the wife of the deceased and when he was surprised by Haq Nawaz deceased as he has seen his wife and the complainant committing Zina with each other on the roof and killed him. After his murder Muhammad Anwar complainant wanted to marry Mst. Naziran widow of the deceased but his relatives Noor, Abdul Rehman and Arif were opposed to it and had entered the house of Mst. Naziran Bibi and had injured her and threatened her that in case she married Muhammad Anwar, it 'would not be good for her, accordingly Mst. Naziran filed complaint against her relatives mentioned above in the Court of Magistrate Jhang, on 12-8-1997 and she made a statement on oath to the effect before Judicial Magistrate Jhang on 12-8-1997. The F.I.R. was made after deliberated delay and cooked up story was narrated against me. I am innocent and I have been made just a scape goat in this case."
14. The trial culminated into conviction and sentence of the appellant as mentioned above. Hence this appeal. The trial Court has sent up Murder Reference No.104 of 2000 for conformation of death sentence of the appellant under section 374, Cr.P.C. Both the matters are outcome of the same judgment, therefore, are being decided by this single judgment.
15. Learned counsel for the appellant has argued that it was a night un-witnessed occurrence and the F.I.R. was registered with an unexplained inordinate delay of 12 hours which creates serious doubt in the prosecution story; that two unknown persons mentioned in the F.I.R. were never traced out which also makes the case of prosecution doubtful; that the complainant married wife of Haq Nawaz after his murder which shows that the complainant is himself responsible for causing death of Haq Nawaz and the appellant has been falsely implicated.
16. The appeal has been opposed by learned counsel for the State who has supported the impugned judgment.
17. We have heard the learned counsel for the parties and examined the record.
18. The appellant is nominated accused in the F.I.R. and the complainant has no enmity for false implication or substitution by letting off the real culprit. He was found guilty during the investigation. The ocular account furnished by the complainant, P.W.5 and Noor Muhammad, P.W.6 has been fully corroborated by medical evidence. The appellant and the eyewitnesses are residents of the same locality, therefore, there is no question of mistaken identity, so we find that the prosecution case has been established against that appellant beyond shadow of doubt and find no reason warranting interference in the conviction recorded against him.
19. As far as sentence is concerned admittedly the occurrence took place at 9-00 p.m. and there was no source of light mentioned by the P.Ws or shown by the Draftsman in the site plan. The occurrence took place at 9-00 p.m. and the matter was reported to the police at 8-10 a.m. next day and the complainant has not furnished any explanation for lodging the F.I.R. with delay. The post-mortem examination was conducted at 5 p.m. on the next day of occurrence i.e. 8-3-1997 which shows that something has been concealed by the prosecution. The age of the appellant as per his statement under section 342, Cr.P.C. was 21 years and the occurrence took place on 7-3-1997 which means that at the time of occurrence he was about 18 years of age. This fact has also been noticed by the trial Court in para-19 of the impugned judgment and according to learned counsel for the appellant, the appellant is still confined in Juvenile Prison/Jail which shows that definitely he was minor at the time when the alleged occurrence took place. According to the prosecution story itself it was not premeditated murder. Admittedly, the accused came up the roof in order to see wife of the complainant and not to commit murder but he caused injuries when he was apprehended by the deceased, therefore, keeping in view the age of the appellant and in safer administration of justice, we alter the sentence from death to imprisonment for life which will meet the ends of justice. Benefit of section 382-B, Cr.P.C. shall also be available to the appellant. The order of compensation or sentence in lieu thereof is, however, maintained. The appeal stands dismissed with the above modi fication.
20. Murder Reference No. 104/2000 is answered in the Negative.
21. H.B.T./M-294/L Order accordingly.