MOHAMMAD BAKHSH Versus THE STATE

KHALIL-UR-RAHMAN, J. --Appellant Muhammad Bakhsh son of Khuda Bakhsh aged 25 years, resident of village Mangrotha Sharqi, Police Station Taunsa Sharif, was tried by the Sessions Judge, Dera Ghazi Khan, for the murder of Nazir son of Haider resident of Bait Ladha Police Station, Raitra, on a. charge under section 302, P. P. C. ; vide judgment dated 7th April, 1979 he w4s, convicted for the offence charged and sentenced to death and-a fine of Rs. 2,000 or in default thereof one year's R. I. Half of the amount, if realised, was ordered to be paid to the heirs of the deceased as compensation.

2. He, has appealed. Matter has also been referred to us under section, 374, Cr. P. C. for the confirmation of the sentence of death. This judgment will dispose of both these matters.

3. Occurrence allegedly took place on -the night between 17th and 18th June, 1978 in village Mangrotha Sharqi three miles from Police Station Taunsa Sharif. Matter was reported to the Police by Qadir Bakksh (P. W. 7) at 4.00 a. m. on 18th June, 1978 vide F. I. R. Exh. P B recorded by S. I. Muhammad Akram (P. W. 10).

4. About 8/9 months before the occurrence, deceased had abdueted Mst. Khurshid, a sister of the appellant. A criminal case in this regard was registered against; amongst others the deceased, Qadir Bakhah (P. W. 7) complainant in the case, complainant's wife, Mst. Zohran (P. W: 9), wife of Fida Hussain P. W. The case was still pending trial and 20th June, 1978 was the date of hearing. According to the prosecution the abduction of Mst: Khurshid was the motive force for this crime.

The deceased with a view to attend the hearing of the abduction case on 20th June, 1978 came to the house of his sister Mst. Zohran P. W. in village Mangrotha on 17th June, 1978. After evening meals be slept in the haveli of his brother-in-law. Besides the complainant. Mst. Zohran P. W. Fida Hassain, her husband and Mst. Fatima Mai, were also sleeping in the same 1hata. At about mid-night they woke up on hearing the alarm. It was moon-lit night. They saw that the appellant was inflicting hatchet blows on the neck of the deceased. The witnesses raised alarm. Appellant gave two more blows to the deceased within their sight. They tried to apprehend him. The appellant in an attempt to escape tried to climb up the back wall of his house. In fact some unknown person who was standing on the roof of the back room of the house of the appellant, pulled him up. The complainant with the help of Fida Hussain P.W. Kaura son, of Ahmad, Muhammad Bakhsh son of Noor Muhammad, took the deceased on a cot to Civil Hospital Taunsa Sharif. However, he succumbed to the injuries on the way, therefore, the dead body was taken to the police station where, as already noticed, case was registered at the statement of Qadir Bakhsh P. W.

5. S. I. Muhammad Akram after recording the F. I. R. Exh. P. B., held inquest and drew up report Exh. P. H. ; prepared injury statement Exh. P J and despatched the dead body to the mortuary for post-mortem examination. He then inspected the spot. He took into possession blood-stained earth and made it into a sealed parcel vide memo/ Exh. P. D. Appellant was produced before him by his father Khuda Bakhsh alongwith blood-stained hatchet P.

3. He arrested the appellant and took into possession blood-stained hatchet P. 3 vide memo. Exh. P. F. He got prepared site plans Exh. P. K., P. K./1 and P. K./2 by Imam Bakhsh, a retired Patwari.

6. Dr. Gulzar Ahmad Pitafi on 18th June, 1978, at 11.00 a. m. performed autopsy on the dead body of the deceased. He found five incised injuries (fully described in the judgment of the Sessions Judge) mostly on the neck and vertebrae. In the opinion of the doctor death occurred due to shock and haemorrhage as a result' of injury No. 2 which was dangerous to life; compression of spinal cord, cutting of second cervical vertebrae, injury No. 2 was sufficient to cause death in the ordi nary course of nature. All-the injuries were caused with a sharp-edged weapon. Probable time that elapsed between injuries and death was about one hour and between death and post-mortem 8/10 hours.

7. Appellant at the trial denied the allegations-and pleaded innocence. He, however, admitted the, factum of the abduction of his sister by the deceased and his relatives. He stated :-

I have been falsely implicated in this case by the Police with the connivance of the complainant party on account of enmity because I and my family members have involved the P. Ws. in the abduction case of my sister and I was P. W. against them: I was in the employment of Manzur Ahmad son of Muhammad Khan Malkani at Raitra and used to live there. On the night of occurrence I was present in Raitra and not in Mangrotha Sharqi".

He examined Manzoor Ahmad (D. W. 1) in his defence. The witness stated that the appellant was his servant and was with him at the time of the occurrence. He further stated that the Police had come to his dera and took away the appellant.

8. Prosecution at the trial relied on the ocular evidence given by Qadir Bakhsh (P. W. 7), Fida Hussain (P. W. 8), Mst. Zohran (P. W. 9); the motive ; recovery of blood-stained hatchet P. 3 ; and finally the medical evidence.

9. Learned trial Judge accepted the prosecution case in its entirety. He rejected the defence version given by Manzoor Ahmad P. W.

1. He placed reliance on the ocular account of the occurrence and used the recovery of blood-stained hatchet P. 3 in corroboration of the same. He also accepted the motive set up.

10. We have heard the learned counsel for the appellant as well as the learned counsel for the State and have gone through the record of the case with their assistance. Learned counsel for the appellant has raised two main contentions in support of this appeal. In the first place he argue that it was an unwitnessed occurrence in which the appellant had been implicated on account of suspicion. Learned counsel wished us to believe that deceased was done to death by the brother of Mst. Zohran P. W. In the alternative, it was contended that, in the circumstances of the case, extreme penalty of death was not called for. It was a case of sustained provocation. The person who had abducted the sister of the appellant was again seen in the village. This provoked the brother who under the impulse of anger committed the murder.

11. Learned counsel for the State, on the other hand, argued that it is a clear case of murder. He adopted the reasoning of the learned trial Judge and highlighted them to some extent. According to him the incident of abduction having taken place about 8/9 months before the occurrence, there was no question of provocation. It was a premeditated murder. The appellant, in the submission of the learned counsel, does not deserve any leniency even in the matter of sentence.

12. The factum of abduction of Mst. Khurshid, sister, of the appel lant by the deceased is not denied. Therefore, we are entitled to' form the view that the appellant had a motive to commit this crime. We are not impressed by the submission of the learned counsel for the appellant that the brother of Mst. Zohran P. W. is responsible for this crime. Motive alone however, is not sine qua non to bring home guilt to the accused. Therefore, we proceed to examine other pieces of evidence.

13. As already noticed, prosecution has examined three wittiness i. e. Qadir Bakhsh (P. W. 7), Fida Hussain (P. W. 8) and Mst. Zohran (P. W. 9) to give ocular account of the occurrence. Mst. Zohran P. W: is sister of the deceased Fida Hussain P. W. is husoand of Ms't: Zohran P. W. Qadir Bakhsh, P. W. is brother of Fida Hussain P. W. Deceased longed to village gilt Ladha while the occurrence took place in village Mangrotha Sharqi. Besides the deceased, Mst. Zohran (P. W. 9) Mst. Fatima (not examined) and Qadir Bakhsh P. W. were accused in the abduction case of Mst. Khurshid. The appellant was P: W. in that cast. Fida Hussain, as already noticed, is brother of Qadir Bakhsh P. W. Therefore, the witnesses cannot be described as independent. Otherwise they have given consistent account of the occurrence and have stood the test of lengthy cross-examination. Qadir Bakhsh P. W. no doubt, improved upon his earlier version, in that, be stated at the trial that the appellant had threatened the witnesses, when they tried to apprehend him. But this alone is not enough to discredit this witness. The appellant and he witnesses are neighbours, inter se therefore, they could even otherwise identify the appellant. The factum that the appellant threatened the witnesses might have been introduced by the Public Prosecutor to obviate any argument that the witnesses were not in a position to identify the appellant. Thos can be another explanation for this. The witnesses might not have given all the details in the F. I. R Similarly some minor contradictions pointed out in the evidence of hide Hussain and Mst. Zohran P. Ws. have not impressed us. They are insignificant. The wit nesses have not tried to exaggerate the occurrence in any manner. No attempt bas been made to implicate other persons. In cases where single person is named, substitution is a phenomenon of rare occurrence. The only point therefore, to be seen, in this regard, is if on account of their interest in the prosecution should we disbelieve the witnesses who other wise appear to be quite natural and straightforward. In this regard we can do no better than to refer to some precedents. The Supreme Court, in Niaz v. State (P L D 1960 S C 387) held :-

"Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have Tome motive for false implication, with the commission of the offence the first ques tion to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence anal were in a posi tion to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for substitution is a thing of rare occurrence and cannot be assumed and he who sets up the plea of substitution has to lay the foundation for it.

Similary, in Shihab Din v. The State ( P L D 1964 S C 177 ) Cornelius, C. J. (as he then was), observed :-

"The mere relationship of witnesses does not necessarily render a witness's account of the occurrence doubtful provided his presence on the spot is proved beyond doubt. In so far as there were injuries on the bodies of two witnesses and the number of persons accused was not out of proportion to nature of their enterprise and the results they produced' the witnesses in the circumstances were entitled to be believed."

In a recent case Roshan v. State ( P L D 1977 S C 557 ) Muhammad Yaqub Ali, C. J. (as he then was), observed :-

"As regards the testimony of Mehdi and Raju, P. Ws. there is also no universal rule that the evidence of an interested witness must be invariably corroborated by independent evidence. If that were so then why should the Court at all take into account the testimony of the interested witness. Secondly, if the presence of a witness is proved beyond doubt and no other independent witness is available in the case, it would result in a grave miscarriage of justice to insist upon independent corroboration. If that was the rule then the accused have only to destroy the evidence which may be used as corroboration and get scot-free regardless of the quantum and quality of the oral evidence provided by the interested witness."

We are therefore, of the view that the learned trial Judge was justified in placing reliance on the ocular testimony.

14. This brings us to the recovery of weapon of offence i. e. hatchet P.

3. The injuries sustained by the deceased are all with sharp-edged weapon besides the Investigating Officer, Rabnawaz (P. W. 6) has wit nessed this recovery. He is an independent witness. No doubt, Qadir Bakhsh P. W. is tenant on his land but there is nothing to show that he had any motive to falsely depose against the present appellant. The recovery of weapon of offence, in our view, is fully established. The same can be used to corroborate the ocular testimony if any corrobora tion, at all, is required. For all this, we are of the opinion that prosecu tion has been able to bring home guilt to the appellant beyond doubt.

15. This brings us to the question of sentence. The deceased, admittedly had abducted the sister of the appellant 8/9 months before occurrence. In this regard deceased was facing trial in a criminal Court. He had chosen to come back to the village where the family of the abductee resided. 1n our society abduction of a female relation of a family brings disgrace to it the stigma goes with the life. The abduction of Mst. Khurshid was not a forgotten affair. The presence of the deceased therefore must have provoked the family of Mst. Khurshid. In the B circumstances as there is some element of preparation, we cannot give the appellant the benefit of Exception 1 to section 300, P. P. C. However as there is an element of family honour, it would be unfair to award the maximum penalty of death to the appellant. We therefore, while main taining the conviction under section 302, P. P. C. alter the sentence to imprisonment for life and a fine of Rs. 2,000 or in default thereof, further one year's R.

1. Half of the amount, if recovered, shall be paid to the heirs of the deceased as compensation.

16. The sentence of death is not confirmed.

Death sentence not confirmed.