MUHAMMAD NAWAZ Versus STATE

Muhammad Nawaz appellant aged 45 years alongwith his brother Muhammad Riaz was prosecuted for the murder of Ahmad Sher, their step-brother, by the learned Additional Sessions Judge, Sargodha, vide judgment dated 13th January, 1980. Muhammad Riaz was acquitted but Muhammad Nawaz appellant was found guilty under section 302, P. P. C. and sentenced to imprisonment for life and a fine of Rs. 20,000 (twenty thousand) or in default to three years' R. I. It was ordered that if the fine is realised, the same be paid to the mother of the deceased. He has come up in appeal.

2. Before the commencement of hearing of the appeal, I found that the provisions of section 544-A, Cr. P. C. have not been complied with. A notice of show-cause was issued to the appellant as to why, in case his appeal is dismissed, he should not be burdened with compensation under section 544-A, Cr. P. C. The learned counsel appearing on behalf of the appellant has accepted this notice.

3. The facts of the case are that Hadayat father of Muhammad Nawaz appellant and Ahmad Sher deceased had three wives. Ahmad Sher and Muhammad Nawaz were from different mothers. Ahmad Sher deceased had passed his F. A. examination and was working as Operator in the Tube-well Department. It was for the reason that lot of money had been spent on the education of Ahmad Sher and because he was also an earning hand, his step-brothers did not desire to give him any share in the land. There was a dispute on this account about two years before the present occurrence. However, on the intervention of the respectables, Ahmad Sher deceased bad been given one tree by the accused in lieu of the wood that had been used by them for the construction of Dera. Besides this, Ahmad Sher had married about 5/6 days before the present occurrence against the wishes of Muhammad Nawaz and his brother Muhammad Riaz. It is alleged that on 1st October, 1978, at about 3-00 p. m. Ahmad Sher was cutting branches of the said keekar tree. The two accused Muhammad Nawaz appellant armed with hatchet and his brother Riaz came there. They challenged Ahmad Sher deceased. Riaz pulled down Ahmad Sher deceased from the tree and caught hold of his legs. Thereafter, Muhammad Nawaz gave him hatchet blows which fell on his neck, cheeks and other parts of the body. Ahmad Sher deceased was then dragged to a nearby cotton field. The alarm attracted Ghulam Jafar P. W. 2, Muhammad Ramzan P. W. 3, Ghulam Farid P. W. 5 and Muhammad P. W.

4. The accused then left the spot while Ahmad Sher, as a result of the injuries, died there. After registration of the case, the police undertook investigation. Both the accused were arrested on 3rd October, 1978. Muhammad Nawaz appellant at the time of his arrest, was wearing turban P. 2, and chaddar P.

3. These two clothes were found to be blood-stained and taken in possession by Tajammal Hussain S. H. O. P. W. 17 vide memo. Exh. P. E. in the presence of Abdullah P. W. 11 and Nawaz P. W.

12. On that very day he also led the police and got reco vered blood-stained hatchet P. 1 which was taken in possession by S. I. Tajammal Hussain P. W. 17 vide memo. Exh. P. D. in presence of the same witnesses. This hatchet was found to be stained with human blood vide report of Chemical Examiner Exh. P. K. and that of Serologist Exh. P. L. It appears that turban P. 2 and chaddar P. 3 were not sent for examination.

4. In support of the case, the prosecution examined 17 witnesses in all. P. W. 2 Ghulam Jafar who had lodged the F. I. R. and was a step- nephew of the deceased did not support the prosecution. Similarly, P. W. 3 Muhammad Ramzan father-in-law of the deceased and P. W. 4 Muhammad (not related) also did not support the prosecution case. The case, there fore, rests on the statement of Ghulam Farid P. W. 5 (maternal-cousin of the deceased), recoveries of hatchet P. 1, turban P. 2, chaddar P. 3, motive and the medical evidence. Ghulam Farid P. W. has supported the prosecu tion case in toto.

5. When examined under section 342, Cr. P. C., the accused denied the charge and stated that he has been falsely implicated by Ghulam Farid and his local opponents. He, however, did not lead any evidence in defence.

6. I have heard the learned counsel for the appellant and the State. It has been submitted by the learned counsel for the appellant that Ghulam Jafar P. W. 2 has resiled from his statement on the basis of which the F. I. R. was recorded; that the three alleged eye-witnesses have not supported the case; that the medical evidence does not support the ocular evidence; and finally that the recoveries from the accused cannot be relied upon because Abdullah P. W. 11 has not supported the prosecution case regarding the recoveries while P. W. 12 Nawaz has also made admissions in favour of the accused.

7. I have considered the arguments. So far as the first point is concerned, Ghulam Jaffer P. W. 2 when examined in Court resiled from his statement in the F. I. R. It was stated by him that the F. I. R. was lodged by him and that the F. I. R. bears his thumb impression but added that he did not make the statement which forms part of the F. I. R. He was declared hostile by the Public Prosecutor and duly confronted with the F. I. R. Exh. P. B. It was stated by S. I. Tajammal Hussain P. W. 17 that he had correctly recorded the F. I. R. on the statement of Ghulam Jafar P. W.,2. It appears that Ghulam Jafar has been won over by Muhammad-Nawaz accused. He has resiled from his statement made in the F. I. R. for that reason. The contents of F. I. R. were duly put to him and he was confronted with the said statement. I am not prepared to believe that the Sub-Inspector Tajammal Hussain recorded different facts than those alleged to have been stated by Ghulam Jafar P. W. 1, therefore, hold that the F. I. R. was lodged by Ghulam Jafar P. W. 2 and that it wax correctly recorded by S. I. Tajammal Hussain.

It is correct that three of the witnesses did not support the prosecution case. It appears that Hadayat father of the deceased bad three wives. The whole family is divided in various groups. At one stage the witnesses supported the prosecution but now they are siding with Muhammad Nawaz. They were declared hostile. Ghulam Farid P. W. 5 who is a maternal-cousin of Ahmad Sher deceased has fully supported the prosecu tion case. He is no doubt related from the maternal side with Ahmad Sher deceased but mere relationship is not enough to discard his testimony. He has got no enmity with the accused. A suggestion was put to him during cross-examination that he was a party-man of Qureshis who were inimical towards Syed Inayat Ali Shah of Jehanian Shah. He further admitted that the accused are his opponents in the party faction o: village. It will be noticed that no details of this alleged party faction were put to this witness. The party-faction between Nawaz Lehri and Qureshis is far fetched. There is nothing to indicate that this witness was influenced by this party faction to falsely implicate Muhammad Nawaz appellant. I find that he is reliable witness.

8. The medical evidence discloses the following injuries on the person of the deceased:-

(1) An incised wound 3" x 1" x bone underneath cut on front of neck cutting all tissues upto bone.

(2) An incised wound 2 " x 1" x bone underneath cut on right cheek " above the angle of mandible.

(3) An incised wound 3" x " x an left side of neck 1" below the ear directed from behind forwards.

(4) An incised wound 1" x " x clavicle bone underneath cut on left side of front of chest upper part.

(5) An incised wound " x " x " on left supraclavicular region in line with No. 4.

(6) Multiple abrasions on back of right buttock over an area 6" x 3".

It was further stated by Dr. Muhammad Azim that skull was partially cut under injury No. 1. Right clavicle was cut and ribs were healthy. Larynx and tracheas were cut under injury No. 1. All blood vessels were cut under injury No. 1. Oesophagus was cut under injury No. 1.

The above description of injuries fully supports the version of the F. I. R. which in the circumstances of the present case has become a substantial evidence as well as P. W. 5 Ghulam Farid. According to the F. I. R. as well as P. W. 5 Ghulam Farid, the deceased was dragged from the place of occurrence to a nearby cotton field. There were multiple abrasions on the back of right buttock. The multiple abrasions fully support the version of dragging the deceased. Then there is the evidence of recoveries. Abdullah P: W. 1 I did not support the prosecution but Muhammad Nawaz P. W. 12 fully supported the factum of recovery at the instance of Muhammad Nawaz appellant. He is an independent witness and there is no reason to disbelieve this witness. In cross-examination, he stated that his cousin Gul Muhammad won the recent local council election and the accused party favoured them. In the latter part of the cross-examination he made some concessional admissions in favour of the accused pertaining to the lodging and recording of the F. I. R. I am not prepared to believe this part of his evidence. This part of his evidence does not pertain to the recoveries from the accused. These are mere concessions made by a formal witness and are of no help to indicate innocence of the accused. I rely on the evidence of Nawaz and S. I . Tajammal Hussain P. W. 17 regarding recoveries of hatchet P. 1, turban P. 2 and chaddar P. 3.

7. Then there is the evidence of motive against the appellant Muhammad Nawaz. The appellant had a motive to murder Ahmad Sher who was demanding his share in the property and who had married against E the wishes of the appellant.

8. In my opinion the prosecution case is fully proved against the appellant Muhammad Nawaz by the evidence of P. W. 5 Ghulam Farid, recoveries from the accused motive and the medical evidence. The appeal is, therefore, dismissed.

9. As stated earlier I bad issued a notice to show cause to Muhammad Nawaz appellant as to why in case his appeal is dismissed he should not be burdened with compensation under section 544-A, Cr. P. C. This notice was accepted by the learned counsel for the appellant.

10. I have seen during the last few days many appeals in which the trial Courts imposed sentence of imprisonment and fine on the accused after their conviction. The orders usually recorded in such like cases are that if fine is recovered, the same shall be paid to the heirs of the deceased. No separate order under section 544-A, Cr. P. C. is passed by the trial Courts. 1 am of the opinion that this omission is illegal and separate order under the mandatory provisions for payment of compensation must be passed. A perusal of section 386, Cr. P. C. would indicate that if the Court directs that in default of the payment of fine the offender shall be imprisoned and if such offender has undergone the whole of such imprisonment in default, no Court shall issue warrant. This means that if in a particular case, the convict decides not to pay the fine and undergoes imprisonment in default thereof, the fine could not be recovered. It would result that the heirs of the deceased would not be able to get anything out of the fine imposed upon the convict. It was for this reason that the Courts are duty bound to follow the mandatory provisions of law contained in section 544-A, Cr. P. C. If the trial Court in any particular case is of the view that no compensation should be imposed upon the convict for payment to the heirs of the deceased then the trial Court must give its reasons for not doing so. There is clear difference of purpose and objects of two sections i.e. section 386 and section 544-A, Cr. P. C. These sections are reproduced below:-

"386. Warrant for levy of fine.-(1) Wherever an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may :-

(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;

(b) issue a warrant to the Collector of the District authorising him to realize the amount by execution according to civil process against the movable or immovable property, or both, of the defaulter

Provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant:-

(2) The Provincial Government may make rules regulating the manner in which warrants under subsection (1), clause (a) are to be executed, and for the summary determination of any claim made by any person other than the offender in respect of any property attached in execution of such warrant.

(3) Where the Courts issue a warrant to the Collector under sub section (1), clause (b), such warrant shall be deemed to be a decree, and the Collector to be the decree-holder, within the meaning of the Code of Civil Procedure, 1908, and the nearest Civil Court by which any decree for a like amount could be executed shall, for the purposes of the said Code, be deemed to be the Court which passed the decree, and all the provisions of that Code as to execution of decrees shall, apply accordingly

Provided that no such warrant shall be executed by the arrest of detention in prison of the offender."

"544-A. Compensation to the heirs of the person killed etc.-(1) Whenever a person is convicted of an offence in the commission whereof the death of or hurt, injury, or mental anguish or psychological damage to, any person is caused, or damage to or loss or destruction of any property is caused, the Court shall when convicting such person, unless for reasons to be recorded in writing if otherwise directs, order the person convicted to pay to the heirs of the person whose death has been caused, or to the person hurt or injured, or to the person to whom mental anguish or psychologi cal damage has been caused, or to the owner of the property damaged, lost or destroyed, as the case may be, such compensation as the Court may determine having regard to the circumstances of the case; and

(2) The compensation payable under subsection (1) shall be recoverable as an arrear of land revenue and the Court may further order that, in default of payment or of recovery as aforesaid the person ordered to pay such compensation shall suffer imprisonment for a period not exceeding six months, or if it be a Court of the Magistrate of the third class, for a period not exceeding thirty days.

(3) The compensation payable under subsection (1) shall be in addition to any sentence which the Court may impose for the offence of which the person directed to pay compensation has been convicted.

(4) The provisions of subsections (2-B), (2-C), (3) and (4) of section 250, shall, as far as may be, apply to payment of compensation under this section.

(5) An order under this section may also be made by an appellate Court or by a Court when exercising its powers of revision."

A study of these sections brings out the difference between the two. Under section 386, Cr. P. C., if an accused on conviction is, sentenced t pay fine and if the sentence directs that in default of the payment of fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant. This means that the option is given to the convict to pay or in default of the said payment of fine to undergo imprisonment. If he opts t undergo imprisonment in default of payment of fine, then the same could not be recovered by issue of warrant by attachment or issue of warrant t g the Collector of the District. I find section 544-A, Cr. P. C. use the words "compensation to the heirs of the person killed etc." It ha been held in a large number of cases by the Supreme Court of Pakistan that the provisions of section 544-A, Cr. P. C. are mandatory. Under this section even if the convict undergoes imprisonment in default of payment of compensation, then also the said amount could be recovered arrears of land revenue.

11. In view of the above discussion, the conviction of the appellant Muhammad Nawaz is maintained under section 302, P. P. C. He is sentenced to imprisonment for life and a fine of fine of Rs. 5,000 (five thousand) or in default to undergo three years' R. I. He is directed to pay compensa tion of Rs. 15,000 (fifteen thousand) under section 544-A, Cr. P. C. to the mother of the deceased and in default to undergo six months' R. I. Muhammad Nawaz appellant shall be given benefit of section 382-B, Cr. P. C. for computing his sentence in prison.

M. A. K. Appeal dismissed.