MUZAIFAR HUSSAIN Versus STATE

GHULAM MUJADDID MIRZA, J. -Sadiq Hussain, Khadim Hussain, Arif Hussain, Muzaffar Hussain and Muhammad Aslam were tried by the Addi tional Sessions Judge, Sheikhupura, for the murder of Mst. Barkat Bibi and causing injuries to Abdur Rehman and Muhammad Nishan. The trial Court, by judgment dated 12th April, 1979, convicted Muzaffar Hussain under section 302 and sentenced him to death and a fine of Rs. 10,000 or, in default, to suffer four years' R. I. He was also convicted under section 324, P. P. C. for causing injuries to Abdur Rehman and Nishan and was sentenced to one year's R. I. on each count. The remaining accused were acquitted.

2. The convict has appealed against the conviction and sentences. Reference under section 374, Cr. P. C., for the confirmation of death sentence, is also before us. Both the matters shall be decided by this judgment.

3. Abdur Rehman, the son of the deceased, on 18th July, 1976 at 10 p. m. lodged first information report (Exh. P. C.), at Police Station Saddar, Sheikhupura. It was recorded by Sub-Inspector Muhammad Khan.

4. The occurrence in which Mst. Barkat Bibi was murdered is alleged to have taken place at maghrab prayer time. According to the first informant, his father Chiragh Din was Imam of Changaranwali mosque, for the last 30 years. Four months prior to the occurrence, Chiragh Din was given shoe beating by Arif son of Siraj Din inside the mosque so that be may give up Imamat. Abdur Rehman, in order to avenge the insult to his father, alongwith Nishan and Muhammad Ramzan his brothers, belaboured Siraj Din with Dangs. A case under section 325, P. P. C. was registered against them. The police also initiated proceedings under section 107/151 against the parties. The parties were accordingly bound down.

On the day of occurrence, at maghrab prayer time, Abdur Rehman, his brother Nishan alongwith their mother Mst. Barkat Bibi were going back from the house of Muhammad Ramzan, where they had gone for visiting their sick brother. On the turning of the street, Sadiq, Khadim song of Siraj armed with Chhuris, Muzaffar armed with dagger, Arif with hatchet and Aslam with Sota .lay in ambush. All -of them shouted that they should be taught a lesson for beating Siraj Din their father. Mst. Barkat Bibi hurled filthy abuses and said "don't fight. Let us patch up". Nevertheless, Sadiq, Khadim and Muzaffar gave successive blows with their respective weapons. Arif also hit her with hatchet on the right knee. Mst. Barkat Bibi received injuries, by the Chhuris and daggers of Sadiq, Khadim and Muzaffar, on her left and right breast and between the mammary glands. She also received injuries in the abdomen above the navel, on both hands and on her back.

Abdur Rehman stepped forward to rescue his mother. He was attacked by Khadim with Chhuri and received injuries on left hand and or the left side of the chest. Muhammad Nishan was also attacked by Sadiq with Chhuri and received injury on left hand. Aslam hit Nishan with sots at his back. Abdur Rehman snatched the sota from Aslam when Muhammad Ramzan his brother, came to the spot. He saw the entire occurrence and raised hue and cry. The assailants ran away. Mst. Barkat Bibi fell down. After breathing for a while she died.

5. The prosecution, in support of its case, produced Abdur Rehman P. W. 10) and Muhammad Nishan (P. W. 11) as eye-witnesses. Reliance was also placed on the recovery of Chhuri P. 6 from Muzaffar Hussain appellant which was found to be stained with human blood vide report of the Serologist Exh. P. W. as well as the medical evidence, which consisted of the post-mortem report and the medico-legal reports of the injured witnesses.

6. The appellant denied the charge of murder as well as recovery and said that the weapon was planted upon him. However, he admitted his relations with the co-accused as well as the P. Ws. but, according to him, their relations were strained on account of the case under section 325, P. P. C. He was also questioned about the shoe beating given to Chiragh Din. His reply was as under: -

"The correct position is that Abdur Rehman, Nishan and Ramzan used to peep in the adjoining houses from their house and when they were reprimanded by my father, they took it ill and attacked him. Copy of F. I. R. is already on the record. The story of shoe beat ing is false."

7. Abdur Rehman the first informant, before the trial Court, stuck to the same story, which he gave in his report Exh. P. P. His evidence was that after raising Lalkara the accused party said that they would take revenge of their father's beating. Then his mother Barkat Bibi said "Kuri Yahawayla, do not fight and settle the matter amicably". On this, all the five accused with their respective weapons started indicting injuries to Mst. Barkat Bibi. The rest of his deposition is the same as his statement referred to above.

The witness admitted that before the occurrence the accused and his mother used to quarrel with each other and the accused had been beating his mother prior to the occurrence.

Muhammad Nishan the next eye-witness supported his brother, Although this witness did not use the exact words of the abuse, neverthe less he admitted that his mother abused the accused and said that the parties were brothers and should settle the matter.

8. Learned counsel for the appellant argued that both the eye witnesses were the sons of the deceased; hence they were interested. It was further submitted that there is sufficient evidence on record to show that the relations of the parties were strained due to criminal litigation so far as that they were bound down to maintain peace.

Learned counsel further submitted that the trial Court did not believe the prosecution evidence qua the acquitted accused, hence it would not be safe to rely on the ocular evidence to uphold the convictions.

According to the learned counsel the fact that both the eye witnesses were injured 'did not guarantee that they were truthful witnesses.

Recovery of Chhuri P. 6 was challenged on the ground that it was highly doubtful. The witness who attested the recovery memo. was not a trustworthy person.

9. We have also heard learned counsel for the State who supported the impugned judgment.

10. After considering the submissions of the learned counsel we are of the view that it is not possible to discard the evidence of the two eye-witnesses on the ground of relationship. They were injured. Their presence at the spot as such cannot be doubted, in any circumstance.

The doctor who examined Nishan P. W. found two injuries on his person; one incised wound and the other an abrasion caused by sharp -edged and blunt weapons. Both the injuries were simple.

Abdur Rehman was also examined by the doctor. He had three simple injuries; two caused by sharp-edged weapon and the third with blunt weapon.

Dr. Akhtar Hussain Chatha (P. W. 2) performed the autopsy. He observed the following injuries: --

(1) A stab wound 2' x f cavity deep on the medial side of left mammary gland.

(2) A stab wound 2" x 1" cavity deep on the right mammary gland on the medial side 3 " from the nipple.

(3) A stab wound 2" x 1" cavity deep just below the lateral end of right clavical.

(4) An incised wound 1 'x 1/l0" skin deep on the left mammary gland 1" x medial to injury No. 1.

(5) An incised wound "x 1/16" skin deep just above injury No. 4.

(6) An incised wound "x " skin deep on the abdomen 51" above umbilicus.

(7) An incised wound ' x ' skin deep 1" above injury No. 6.

(8) An incised wound 2" x 1" bone deep in between the left index finger and thumb.

(9) An incised wound 2 " x 1 " muscle and tendent deep in between right index finger and thumb.

(10) An incised wound 3"x 1" muscle, vessels and tendent deep on flexor surface of right wrist joint.

(11) An incised wound 1" x " muscle deep on the front of right knee joint.

(12) Two abrasions " x " and ' x ' on the front of the left knee joint.

(13) An incised wound 4''x1/8' skin deep on the back of chest in between scapulae.

(14) An incised wound 1'x 1/10" on the back of right abdomen.

First three injuries were grievous; the rest were simple. Injury No. 12 was caused with blunt weapon while the remaining with sharp-edged weapon. Injury No. 1, according to the doctor, alone was sufficient to cause death in the ordinary course of nature.

So far as the recovery is concerned, we are inclined to agree with the learned counsel for the appellant that the evidence pertaining to the recoveries is not worth relying. Nevertheless the testimony of the two eye-witnesses, their medical examination and the post-mortem report of the deceased leave no room for doubt that it was the appellant who murdered Barkat Bibi. We are therefore, of the view that he has rightly been convicted for her murder.

11. This leaves us with the question of sentence. We are not prepared to confirm the death sentence. The reason is that there is an extenuating circumstance. According to son of the deceased namely, Abdur Rehman, it was Barkat Bibi who first abused the accused. It was one of the filthiest abuses hurled by her. Muzaffar Hussain is a young lad of 22. It was quite natural for a hot-blooded young man to lose control on hearing an abuse coming from a woman in the presence of other male persons.

In this view of the matter, we commute the death sentence to life imprisonment. The sentence of fine is maintained. So is the conviction under section 324, P. P. C. Both the sentences shall run concurrently.

12. The total amount of fine shall be paid as compensation to the legal heirs of the deceased. The Collector concerned shall take immediate steps for its realization.

The appeal and the murder reference are disposed of accordingly.

M. Y. H. Death sentence not cot firmed.