MANZOOR AHMAD Versus THE STATE

SHAD SAOOD JAN, J. -The appellants, Manzoor (aged : 30 years) and his brother Malla (aged : 35 years) were convicted by an Additional Sessions Judge at Faisalabad of an offence under section 302, read with section 34 of the Pakistan Penal Code for causing the death of Elahi Bakhsh deceased and were sentenced to death. They were also directed to pay fines in the sum of Rs. 5,000 each or, in default thereof to suffer rigorous imprisonment for a period of two years. They have filed a joint appeal against their conviction and sentences and the learned Additional Sessions Judge has also made a reference to this Court for the confirmation of sentences of death awarded to them. This judgment will dispose of both these matters.

2. The appellants and the deceased resided in the same village, that is Chak No. 150/R. B. and were closely related to each others. Thus, the deceased was the real brother of the maternal grandfather of the appellants. According to the prosecution about six months prior to the occurrence the appellants obtained a loan of Rs. 800 from the deceased. On several occasions prior to the occurrence the deceased asked the appellants that they should clear off the loan but the appellants avoided doing so. Two days before the occurrence the appellants abused and threatened him when he again asked for the return of his money.

3. It was further alleged by the prosecution that on 8th November, 1976 at about 6-30 a. m. the deceased was standing in front of the house of one Shera. The appellants came there. At that time Manzoor was armed with a rifle while Malla was carrying a hatchet. They shouted at the deceased that they were going to teach him a lesson for making persistent demands for the repayment of the money. Immediately there after Manzoor fired at the deceased who was hit on the right side of his chest. The deceased fell down. As he lay on the ground Malla struck him a number of times with his hatchet. The deceased died at the spot. Shameer (P. W.-7,)-and Ahmad (P. W. 10) were passing by the scene of occurrence at that time. On their entreaties the appellants went away with their weapons.

4. Shortly after the occurrence Shameer (P. W. 7) went to Police Station Khurrianwala which was seven miles away from his village. He. reached there at 7-30 a. m. and lodged the F.I.R. Exh. P. F.

5. The case was investigated by S. I. Mushtaq Ahmad who was then posted as S. H. O. at the said police station. He died before the trial could begin. On 20th November, 1976 Malla led a police party to his dhari and from there produced a blood-stained hatchet. This was taken into possession by S. I. Mushtaq Ahmad. The memorandum prepared to witness this recovery was attested by Daulat Ali (P W. 8) and one Rehmah who was not produced at the trial. The hatchet was later sent to the Chemical Examiner and the Serologist. According to their reports the blood on the hatchet was of human origin. Similarly after his arrest Manzoor had led to the recovery of a rifle but as no empty cartridge was found at the scene of occurrence this recovery is not of much use to the prosecution.

6. The post-mortem examination of the deceased was performed by Dr. Mohammad Asghar (P. W. 1) who was posted as Medical Officer in the Civil Dispensary at Khurrianwala. The deceased had eight injuries on his person. One of these was a lacerated wound caused by the dis charge of a fire-arm. 1t had scorching around its edges. It was simple in nature. In addition he had seven incised wounds located in the region of face, head and ears. Five of these were grievous in nature. According to the doctor the death had resulted immediately after the receipt of the injuries.

7. The appellants pleaded not guilty to the charge against them. They denied that they were responsible for causing the death of the deceased and alleged that they had been falsely implicated on account of enmity. Manzoor further stated that he was working in his office at the relevant Mime. He examined one witness to substantiate his plea of alibi. hlalla on the other hand did not lead any evidence in his defence.

8. To give an ocular account of the occurrence the prosecution examined Shameer (P. W. 7) and Ahmad (P. W . 10). One Mubarak who was also cited in the F.I.R. as eye-witness was given up. Bot Shameer (P. W. 7) and Ahmad (P. W. 10) claimed that they were present at the scene of occurrence at the relevant time and bad seen Manzoor firing at the deceased and Malla giving hatchet blows to him when he fell on the ground after being hit by a bullet.

9. The most important witness in this case is Shameer (P. W. 7). He is the real maternal grandfather of the appellants. He was also a brother of the deceased. His house was in the centre of the village and not too far from the place of occurrence. Consequently, his presence at the spot can hardly be described as unusual. He had no enmity at all with the appellants and it is most unlikely that he would falsely implicate his own grandsons in the murder of his brother. He had lodged the F.I.R. within an hour of the occurrence. In the F. I. R., too, he had named the two appellants as the persons responsible for causing the death of his brother. We see no reason at all to suspect his testimony.

10. The other eye-witness, namely, Ahmad (P. W. 10) is also closely related to the parties. Prior to the occurrence he, too, had no enmity with the appellants. It is true that he had been appearing as witness in other criminal cases also but considering that he was closely related to the appellants it is unlikely that he would perjure himself in this case. Manzoor, appellant, did allege that his relations with Ahmad (P. W. 10) were strained and he cited certain, instances but we are unable to take his assertions with any measure of seriousness. It is to be noticed that when Ahmad (P. W. 10) appeared in the witness-box the defence did not care to cross-examine him in respect of the said assertions. The defence also did not produce any documentary evidence to substantiate them.

11. So far Malla is concerned the case of the prosecution stands further strengthened by the recovery of a blood-stained hatchet at his instance from his dhari. On this point we have the statement of Daulat Ali (P. W. 8) who too had no reason to become party to fabrication of false evidence against the appellants. As already stated the hatchet recovered from the possession of Malla was found to be bearing blood of human origin.

12. As regards the plea of alibi taken by Manzoor there is no merit in it. At the relevant time Manzoor was working as a stenographer with Shamshad Akhtar Khan (D. W. 1) in the Punjab Agricultural Institute at Faisalabad. Shamshad Akhtar Khan (D. W. 1) stated that on the day of occurrence he left for Chiniot at 7-00 a. m. and that Manzoor reported at his house a few minutes before that hour. So far as the time of his departure for Chiniot is concerned he gave a slightly different version in his T. A. bill wherein be stated that he had left for Chiniot at 7-30 a. m. Now, according to the account of the eye-witnesses the occurrence took place at 6-30 a. m. Their estimate could be wide by half --- an hour on either side. Thus there was an interval of about one hour between the occurrence and Manzoor's visit to the house of Shamshad Akhtar Khan (D. W. 1). Khurrianwala is situated on the Lahore High way and is at a distance of 13 to 14 miles from Faisalabad. The place of occurrence was about seven miles from Khurrianwala. It is to be noticed that it was a case of preconcerted attack. The possibility therefore of Manzoor's having made arrangements for going to Faisalabad immediately after the occurrence cannot be precluded. Thus it was not impossible for Manzoor appellant to be present at the house of Shamshad Akhtar Khan (D. W. 1) after having participated in the occurrence.

13. For the reasons stated above we are satisfied that both appellants were responsible for causing the death of deceased. Thus they were rightly convicted by an Additional Sessions Judge of an offence under section 302, read with section 34 of the Pakistan Penal Code.

14. As regards the sentence we have before us an application sub mitted by Shameer (P. W. 7) in which he has stated that there has been a compromise between the parties in pursuance of which the complainant party has pardoned both the appellants. He was also present before us during the hearing of the appeal and he supported the said application. In the circumstances we do not think that it will be a fit case where the extreme penalty provided by the law for the offence under section 302 of the Pakistan Penal Code be imposed upon them. Accordingly, we set aside the sentences of death passed by the learned Additional Sessions Judge and instead direct that the appellants shall suffer imprisonment for life. We also set aside the sentences of fines. In computing their sentences the appellants should be given credit for the period they spent under custody before their conviction, as provided by section 382-B of the Code of Criminal Procedure.

15. The appeal and the reference are disposed of accordingly.

Order accordingly.