MUHAMMAD ZAMAN ALIAS MANA Versus THE STATE Mian Saeed ur Rehman Farrukh , S.D. Qureshi
Appellant Muhammad Zaman aged 25 years has been convicted by the Additional Sessions Judge, Mianwali vide order, 22‑1‑1981 for the murder of Sher Muhammad at 2 a.m. during the night between 8/9‑9‑1977, in his house in village Nahuawal, Police Station Dariya Khan, District Mianwali, and sentenced to imprionsoment for life. He has also been sentenced to pay a fine of Rs.5,000 in default whereof to suffer 5 years' R.I. Whole of the fine in case of recovery, has been directed to be paid as compensation to the heirs of the deceased.
2. F. I. R. Exh. P. D./1 was registered at the Police Station on 9‑9‑1977 at 10‑05 a.m. by Muqarrab Khan, Moharrir Head Constable P.W.2 on receipt of statement Exh.P.D. recorded by Riaz Ahmad, Sub‑Inspector P.W.10, on the dictation of Jawaya (P.W.8) complainant at Chowk Juma Hotel, Dariya Khan at 10 a.m. on the same day, which is at a distance of 26‑27 miles from the place of occurrence. Riaz Ahmad S.I., P.W.10, after recording statement, reached the spot. After completing inquest report Exh.P.C. of dead body of Sher Muhammad deceased, despatched the same for post‑mortem examination. Apart from blood‑stained earth and cot etc. the Investigating Officer also took into possession from the spot, Lantern P.8 which was hanging on a wall stated to be near the cot of the deceased, vide memo. Exh.P.M. The memo was attested by Qadir Bakhsh P.W.9, P.W. Ghulam Rasul (not produced) and Riaz Ahmad S.I., P.W.10.
The appellant was arrested on the same day. At the time of arrest he was wearing blood‑stained shirt P.4, which the Investigating Officer took into possession vide memo. Exh.P.G. On the same day the appellant led to the recovery of blood‑stained Vahaula (P.1) from his residential room, which was taken into possession vide memo. Exh.P.H. Both the memos. Exh.P.G and P.H. were attested by Jawaya P.W.8.
Allah Wasaya P.W.7 and Riaz Ahmad S.I. P.W.10. After completion of necessary investigation the challan was put to Court.
3. According to statement Exh.P.D., on the basis of which the F.I.R. was registered, the prosecution case briefly, is that during the night between the 8th and 9th of September, 1977, Jawaya complainant alongwith Qadir Bakhsh was sleeping near his cattle. Sher Muhammad deceased, nephew of the complainant was sleeping nearby, in front of the door of his residential room. A burning hurricane was hanging on the wall near his cot. At about 2 a.m. when the complainant was in semi‑sleeping condition, as he was proposing to get up for keeping fast, he heard the shrieks of Sher Muhammad (deceased). He alongwith Qadir Bakhsh P.W. went near the cot of Sher Muhammad and saw the appellant giving blows with a Vahaula to the deceased on his face. When the complainant and Qadir Bakhsh P.W.9 tried to intervene and catch the appellant, he threatened them with dire consequences and ran away alongwith the weapon of offence. Sher Muhammad died on the spot. On the noise raised by the prosecution witnesses, many other persons of the village arrived at the scene.
4. The appellant suspected that Sher Muhammad (deceased) had cultivated illicit relations with Mst. Zari, his sister and was feeling insulted. This suspicion had motivated the occurrence.
5. At the trial, the prosecution in all produced ten witnesses. Jawaya complainant (P.W.8) who is uncle of the deceased and Qadir Bakhsh P.W.9 who is brother of the deceased, have furnished the eye‑witness account. Jawaya complainant has narrated the same story which he had deposed at the time of registration of case. Qadir Bakhsh P.W.9 has corroborated him on all counts. Both of them have denied the suggestion that they had not seen the occurrence and that they have deposed in favour of the prosecution being ‑ relatives of the deceased. Jawaya P.W.8 has denied the suggestion that the occurrence in fact had taken place at 11 p.m. on 8‑9‑1977. It has also been stated in cross‑examination by P.W.8 that the deceased had fasted on the previous day and had taken his meals at Maghrib‑wela. Qadir Bakhsh P.W.9 has, in cross‑examination, explained the statement, he made in Exh.D.A. under section 161 of the Code of Criminal Procedure about his being asleep at the time of occurrence. He has stated that what he meant was that he was lying on the cot, although he was awake. It has also come in cross‑examination of Qadir Bakhsh P.W.9 that 2‑3 days prior to the occurrence the deceased had killed a snake during night, therefore, he used to keep the lantern burning throughout night. Jawaya P.W.8 in cross‑examination has denied the suggestion that there was any quarrel between Chiragh, uncle of the appellant, and Ghulam Hussain uncle of the deceased. He has stated that there was some altercation between them on the payment of price of a cow, which Ghulam Hussain P.W. had sold to Chiragh, but the matter was, however, patched up. The same suggestion was also put to Ghulam Hussain P.W.6 and he had stated that Chiragh had not paid the price of his cow and he had submitted an application to the Union Council for payment. He has stated that in this regard he had made some application to, the C.I.A. Staff also. Except the above‑noted incident nothing else has been suggested to any of the P.Ws. including the eye‑witnesses, on behalf of .the appellant that there was any ill‑will or dispute between the two families or between the deceased and the appellant.
6. Jawaya complainant has also deposed that blood‑stained shirt P.4 worn by the appellant at the time of his arrest was taken into possession by the investigating Officer in his presence and he had attested the memo. Exh.P.G. He has also stated that the appellant had led to the recovery of blood‑stained Vahaula P.1 from his residential Kotha, in his presence and he had attested the recovery memo. Exh.P.H. He has denied the suggestion that no such recoveries were effected. On these two counts, his statement is corroborated by Allah Wasaya P.W.7 and Riaz Ahmad, Sub‑Inspector P.W.10, Allah Wasaya P.W.7 has denied any relationship with the complainant party.
7. Qadir Bakhsh P.W.9 has also stated that lantern P.8 was taken into possession by the Investigating Officer during spot inspection in his presence and that he attested the recovery memo. Exh.P.D. He has denied that the lantern was not burning at the time of occurrence.
8. Riaz Ahmad S.1. P.W.10 has deposed regarding the registration of case, recoveries effected from the spot, recovery of weapon of offence effected at the instance of the appellant and his blood‑stained shirt having been taken into possession by him. He has stated that he had sent for Mst. Zari to record her statement, regarding whom the complainant had stated that the appellant suspected of having illicit relations with his sister but she did not appear. He has denied the suggestion that the girl had appeared before 'him and when he found her to be 12‑13 years old, he did not record her statement. In this regard a suggestion was put to Jawaya complainant that Mst. Zari was a minor at the time of, occurrence but he has denied the same, he has rather stated that Mst. Zari has now married and has a child also (the statement of the witness was recorded on 17‑12‑1980). He has stated that according to his opinion Mst. Zari was 15‑16 years old at the time of occurrence. The suggestion on behalf of the appellant put to P.W.9 that the deceased had strained relations with his wife, has also been denied by him.
9. Dr. Muhammad Hussain Naqvi (P.W.1) who had performed the post‑mortem examination on the dead body of the deceased, had noted four incised wounds, which were on the left side of neck, on right jaw, on right cheek and on right chin. Treachea was cut, right jaw was cut, the injury on cheek was bone deep and so was injury on chin. The fifth injury was an abrasion on the left lumber region.
According to the opinion of the doctor. Probable time between injuries and death was immediate and between death and post‑mortem examination was 24‑28 hours. He had also found 2 ounces of food in the stomach of the deceased. According to him, the deceased would have taken the food 4‑6 hours prior to his death.
10. In answer to Court‑question, whether the injuries found on the dead body, could be caused with a Vahaula, the witness after having seen the Vahaula (P.1), stated that injuries could be caused with Vahaula P.1, shown to him.
11. The evidence of the remaining witnesses is of a formal nature. At the time of close of the prosecution case, report of the Chemical Examiner Exh.P.N. find that of the Serologist Exh.P.O. were produced in evidence. According to these reports, Vahaula P.1 and shirt. P.4 were found to be stained with human blood.
12. The appellant in his statement under section 342 of the Code of Criminal Procedure has denied to have murdered Sher Muhammad (deceased). He has also denied the motive and has stated that Mst. Zari was only 12 years of age at the time of occurrence, that the deceased was murdered at 11‑00, p.m., and that the deceased had strained relations with his wife. At the time of recording his statement he had opted to produce defence, but on the next date of hearing he stated that he does not want to produce defence.
13. Learned counsel for the appellant has contended that the prosecution witnesses in this case are deeply related and so interested. He has feebly argued that relations between Ghulam Hussain uncle of the deceased with Chiragh, uncle of the appellant were stained, because of non‑payment of price of a cow by Chiragh to Ghulam Hussain. It is contended that lantern P.4 had in fact been introduced only to advance the case of the prosecution and that normally it is not expected that the deceased would have been keeping a lantern hanging near his cot. He has laid stress on the fact that there was no occasion for the appellant to have kept on wearing blood‑stained shirt, as he was not caught on the spot and as such the blood‑stained shirt seems to have been planted. It has been argued that even the witnesses of recoveries are related and so cannot be relied upon.
14. Learned counsel for the State has defended the judgment of learned trial Court.
15. The occurrence had taken place during night in the premises of the house of the deceased. It was mid‑night. At such an hour of the night only the inmates of the house could have been the natural witnesses. It cannot be expected that at such an hour of night, occurrence could have been witnessed by any independent witness, and as such there is nothing wrong if the prosecution has produced witnesses who are related to the deceased. They are the natural witnesses. No previous animosity between the families has been brought on record. The dispute of non‑payment of price of the cow resting in altercation has been denied by Jawaya complainant, uncle of the deceased. He has stated that the parties had patched up this matter. Although Ghulam Hussain has stated that he had filed an application against Chiragh, in the Union Council, and in this regard had also submitted an application to C.I.A. Police, but even if this is to be accepted, then the aggrieved party would be Chiragh, uncle of the appellant or the appellant himself, because Chiragh was proceeded against before the Union, Council and before the police, by uncle of the deceased. As such for this incident it cannot be expected that the complainant would have involved the appellant falsely.
The contention of the learned counsel for the appellant that the presence of burning hurricane has been introduced only to advance the case of the prosecution, for the purpose of identification as the occurrence, admittedly having taken place during night, the witnesses otherwise would not have been believed to have identified the appellant, is not weighty for the reason that nothing has been brought on record that the F.I.R. was got recorded after deliberations and considerations. The occurrence had taken place at 2 a.m. during night. It was reported to the police by 10 a.m. at a distance of 26‑27 miles, the complainant had to go on foot for more than 8‑9 miles and as such it cannot be contended that the F.I.R. was lodged with any delay. The complainant has mentioned the presence of the burning lantern in the F.I.R., the S.I. had found the lantern hanging on the wall, and the explanation for the lantern having kept on burning, has also come forth during cross‑examination that 2‑3 days prior to the occurrence a snake was found moving in the courtyard and was killed. Even otherwise the appellant and witnesses belonged to the same village. He was thoroughly known to them. The identification of a village by co‑villager, and of persons residing and living together can be no difficulty even in darkness and I do not find any substance in the argument of learned counsel that the lantern was introduced only to make the identification possible and reasonable. Even if it had not been mentioned that there was a lantern burning and the P.Ws. had stated that they had identified the appellant being their co‑villager, their statements could not have been thrown away particularly in the circumstances of this case where the statements find corroboration from the evidence of recoveries, motive, and medical evidence.
Although the appellant has denied the motive and it has been suggested to the prosecution witnesses on his behalf that Mst. Zari was a minor at the time of occurrence, i.e. 12 years old, but the fact has come on record in cross‑examination that at the time of trial of this case, which took place in December, 1980 Mst. Zari had already married and had given birth to a child also. Even if it is granted that she was married only a year before in 1980, she could not have been less that 16 years at that time, because otherwise the marriage could not have taken place. However, if Mst. Zari was a minor, there would have been no difficulty for defence to produce her birth certificate. The only ground taken to falsify the allegation of motive was that Mst. Zari was a minor. There seems to be no reason to believe that the complainant would have set up this false motive. No one can level this allegation so lightly. Evidence of the prosecution witnesses in this context inspires confidence and I do not see any reason to discard the same.
16. The evidence of recovery of blood‑stained shirt P.4 and blood‑stained Vahaula P.1 also does not smack any padding. Allah Wasaya P.W. is an independent witness. He has denied all the suggestions of relationship put to him. The contention of the learned counsel for the appellant that why should appellant have kept on wearing the blood stained shirt, also does not carry weight in the situation that the appellant since belonged to the same village, had run out of village and had not gone to his house. He was arrested on the same day at p.m. and naturally during this time he might not have got opportunity to change. He might rather have been hiding himself from the villagers so that nobody suspects him, after seeing him wearing blood‑stained shirt. The medical evidence also corroborate the eye‑witness account and the doctor has stated that the injuries 'could have been caused by Vahaula P.1.
17. The suggestion of the defence that the occurrence had taken place at 11‑00 p.m., does not advance the case of the prosecution in any manner for the reason that if the occurrence had taken place at 11‑00 p.m. it would have suited the prosecution more, to say so, because in the month of Ramzan by 11‑00 p.m. some people going for Traveehs etc. would not have gone to sleep. Moreover, assailant would not have thought of committing the murder, at such an early hour of the night, as in the month of Rammzan one would find some of the persons at least having not gone to sleep by that hour.
As a result of the above resume, no doubt is left in my mind that the prosecution has been able to prove the case against the appellant beyond any reasonable shadow of doubt. There is no merit in this appeal. The same is dismissed. However, the sentence of 5 years' R.I. in default of payment of fine of Rs.5,000 does not seem to be proportionate. The same is reduced to one year's R.I.
The appellant shall be given the benefit of the provisions of section 382‑B of the Code of Criminal Procedure.
M. Y. H.
Appeal dismissed.