SARFRAZ Versus STATE

Pehlwan his son Sarfraz and Saleem were tried for the murder of Altaf by the Sessions Judge, Multan. The trial Judge, by judgment dated 11-12-1982, acquitted Pehlwan. The rest were found guilty under section 302 read with 34, P.P.C. They were sentenced to death and a fine of Rs.2,000 each: or, in default two years' R.I. each.

2. The convicts have appealed to this Court. Reference for confirmation of death sentence is also before us. Both matters are being decided by this judgment.

The occurrence in which the appellants were involved was alleged have taken place on 3-2-1981 at 11-15 p.m. in Chowk Humayun Road, at a distance of three furlongs from Police Station, Old Kotwali Multan.

Report (Exh.P.C.) was lodged by Muhammad Bakhsh, father of the deceased. It was recorded by Muhammad ,Rafique, Sub-Inspector, Police Station, Old Kotwali.

According to the report at about 11-15 p.m. Altaf Hussain came out of his house in rickshaw. After a while some noise was heard, Muhammad Bakhsh, Pir Bakhsh, Malik Muhammad Ramzan and Malik Muhammad Nawaz Khund came out of the house. They saw Sarfraz and Saleem armed with knives and Pehlwan with Sota. The three stopped Altaf Hussain. Pehlwan caught hold-of him by his collar and dragged him out of the rickshaw. Pehlwan attacked Altaf Hussain with Lathi. Altaf Hussain warded off .the .blow on his hand. Then Pehlwan shouted and said, "Finish him". Within the sight of Muhammad Bakhsh, Pir Bakhsh, Muhammad Ramzan and Muhammad Nawaz, Sarfraz inflicted a knife blow on the left side of chest of Altaf. Second blow was given by Saleem. Altaf was hit in the left flank. Sarfraz again inflicted an injury with knife. Altaf was hit in the backside of left shoulder. Saleem also inflicted second blow on the left calf of Altaf. Pehlwan went on shouting that if anybody came close, he would be dealt with in the same way. The noise attracted other persons. The accused ran away. Altaf succumbed to the injuries at the spot.

The motive for this incident was, that Pehlwan, cousin of the complainant, demanded the hand of the daughter of Muhammad Bakhsh for his son, Muhammad Bakhsh refused. lie got his daughter married to somebody else in Tata Pur. This led to the attack on his son.

3. Prosecution examined two eye-witnesses Muhammad Bakhsh and Muhammad Ramzan. In addition to this, reliance was placed on the recovery of blood-stained knives and the post-mortem report of the deceased.

4. ???????? The appellants denied the allegations, pleaded not guilty and said that they had been falsely involved due to enmity.

Sarfraz appellant produced Bashir Hussain Shah, Clerk of the office Excise and Taxation, Multan in defence. The witness brought the register containing entries regarding registration of rickshaw No.3048/MNE. The witness said that the rickshaw was registered in the name of Malik Imam Bakhsh son of Malik Budha of Suraj Miani Road, Multan.

5. Muhammad Bakhsh, father of the deceased, was resident of Basil Qasaban, Bakkar Mandi, Multan. Time was 11 p.m. He alongwith Nawaz and Pir Bakhsh were present in his Baithak. His son Altaf Hussain took out rickshaw from his house. He was to proceed to Octroi Post No.9 where he had to leave the rickshaw. A shortwhile after Altaf went out of the house, Muhammad Bakhsh and others heard alarm. It was coming from the roadside. Muhammad Bakhsh and his companions reached there. They saw Sarfraz and Saleem armed Saleem armed with knives. Pehlwan had a Sota. All three stopped the rickshaw. Pe:.iwan caught hold of Altaf Hussain; pulled him out of the rickshaw and gave a Sota blow. Altaf carried the blow on his hand. Then Sarfraz attacked With knife. He was followed by Saleem. Both gave two blows each. Altar was injured in the chest, flank, back and in the calf. He died instantaneously.

Muhammad Bakhsh also deposed about the motive, which has been referred to above.

6. The other eye-witness is Muhammad Ramzan. He is brother of Muhammad Bakhsh's son-in-law. He fully corroborated the statement of Muhammad Bakhsh. Therefore, it is not necessary to reproduce his testimony. He too accused the appellants for attacking the deceased with knives, which resulted in his death.

7. ???????? Sarfraz and Saleem were arrested on 4-2-1981. On 8-2-1981, they got recovered blood-stained knives P.1 and P.2 from their houses, which were taken into possession vide memos. P.A. and P,B., attested by Ahmad Nawaz. According to the report of the Serologist (Exh.P.N.), both the articles were found to be stained with human blood.

8. On 4-2-1981, Dr. Imtiaz Ali Piracha, who conducted the post-mortem examination of Altar Hussain noticed six injuries. Five were incised wounds and one a Wear cut. The following two injuries, recording to the opinion of the doctor, were dangerous to life and ,,,ere sufficient to cause death individually as well as collectively, in the ordinary course of nature. The other injuries were found simple.

(1) ??????? An incised wound on the left side of front chest 2 c.m. x ? c.m. x chest cavity deep 7 c.m. below left nipple 8 ? c.m. from mid line.

(2) ??????? An incised wound on left side of front of chest 2 c.m. x ? ? c.m. x chest cavity deep 9 c.m. below injury No. 1.

9. ???????? Learned counsel appearing from the appellants contended that it was a blind murder. Nobody saw who the murderers were there was no light at the time of occurrence. Appellants have been falsely implicated due to enmity.

His second line of argument was that the motive was false. There is no evidence on record to show as to what transpired at the time of occurrence. It is, therefore, not known who started the trouble. The falsity of motive and the lack of evidence as to how the incident started entitled the appellants to concession of sentence in case the prosecution evidence is to be relied upon.

Dealing with the first part of his contentions, learned counsel drew our attention to the fact that there was no mention in the F.I.R. that there was any light/bulb near-about the place of occurrence. Learned counsel submitted that there was no mention. Of any light either in the inquest report or in the rough site plan prepared by the police.

The other point urged was that both the complainant and the other eye-witness were close relatives of the deceased. They were interested. It is also established from the evidence on record that the parties were inimical towards each other. Learned counsel submitted that the father of the deceased submitted that the two appellants injured Altar Hussain deceased four five years ago. He further submitted that the evidence of the two eye-witnesses required corroboration. No corroborative evidence was available.

Learned counsel submitted that although the weapons of offence were recovered, but it is proved from the evidence of Ghulam Muhammad and Pehlwan Khan Constables that after the knives had been taken into possession, the parcels remained in the Mal Khans for about one month unnecessarily. It was submitted that the delay in despatching the parcels to the concerned quarters destroyed the evidentiary value of the so called recovery. In this connection, he relied on Gharls Muhammad v. The State 1971 P Cr. L J 1089 and Gulzar and 4 others v. The State 1976 P Cr. L J 419.

Thereafter, learned counsel submitted for reduction of sentence, on the grounds which has been referred to above.

10. We have also heard learned counsel for the State as well as the complainant. Both supported the impugned judgment and argued that the appellants have been rightly sentenced to death.

11. After considering all the relevant facts we are of the view that this cannot be taken to be a blind murder. Although there is no mention of any bulb in the F.I.R. nor the police officer made any reference of the same either in the inquest report or in tile rough site plan, but the Draftman in his cross-examination categorically said that there was light. He gave full description and particulars where the bulb was affixed. Even, otherwise, we don't think that this point is of so much importance, because tire parties are related inter se and therefore there could be no difficulty in recognizing the real culprits. The defence has not been able to bring anything on record that the eye-witnesses were at such a long distance from where it was not possible for them to recognize the killers of Altaf Hussain.

Similarly, we are not inclined to disbelieve the two eye-witnesses, though they are relatives of the deceased. This is no ground to discard their evidence. They have given a satisfactory explanation of their presence at the spot. Even, otherwise, none except these two persons could be present at such ail odd hour of tile night. It was tile month of February. The time was quarter past eleven in the night. The roads are usually deserted at that time. Hence, it is not expected that there would be any passer-by or other person at that time.

The defence has not brought anything on record so as to suggest some serious type of enmity. Therefore, we are not going to disbelieve the ocular evidence.

Now we come to deal with the question of quantum of sentence. Here we find that there is some force iii tire submission of the learned counsel that the capital sentence is riot called for in this case. Tire reason being that tile motive does riot appear to be genuine. At tire time of occurrence Altaf Hussain was 21. Mst. Mansab, daughter of tile complainant, was married 12 years before the occurrence, but her, demand for marriage was made 5 years before her marriage. It means that tile deceased would be hardly four five years of age at the time. It i5 not expected from a tender age that he would take such a keen interest in the domestic affairs especially concerning the marriage of his sister. We are not going to believe that this was the motive for the attack oil the life of Allay Hussain. This ground alone is sufficient to commute the sentence of death. Reference in this connection is made to Muhammad Sharif v. The State P L D 1971 Lah. 701 and Abdul Ghani v. The State 1977 P Cr. L J 377.

Accordingly, the sentence of the appellants is altered to imprisonment for life. The period spent by them in jail as under trial prisoners shall be deducted from the terms of their sentence.

The fine awarded by the trial Court was not reasonable. We, therefore, gave notice to the appellants' counsel to show cause why the amount be not enhanced. He accepted the notice. The amount is enhanced from Rs.2,000 to Rs.10,000 each. The whole amount shall be paid as compensation to the legal heirs of the deceased.

The Collector concerned shall take immediate steps for realization of the amount and its early payment.

M. Y. H. ?????????

Sentence altered.