MUHAMMAD SHAFI Versus STATE Abdul Asim Jaffari , Ch. Qamar-ud-Din Meo

IJAZ NISAR, J .‑‑Muhammad Shafi, son of Nawab Din (40), was tried for the murder of Khalid deceased (18). Learned Additional Sessions Judge, Sialkot, vide judgment, dated 2‑6‑1983, convicted him under section 302, P.P.C. and sentenced him to death and a fine of Rs.10,000 or in default to undergo rigorous imprisonment for a period of two years. Half of the fine was ordered to be paid to the legal heirs of the deceased as compensation under section 544 of the Code of Criminal Procedure.

2. We have before us reference for the confirmation of the death sentence as also the appeal filed by Muhammad Shafi. Both the matters are being disposed of by this judgment.

3. The prosecution case is that about two years before the occurrence, Muhammad Shafi appellant demanded the hand of Mst. Azra, sister of Khalid deceased, but the latter refused. The appellant felt so insulted and disappointed that he left the village and returned about six months prior to the occurrence. About 2/3 days before the occurrence, Khalid deceased had gone to the fodder‑cutting machine of Ghulam Muhammad, real brother of the appellant, for cutting fodder. The appellant objected to ii saying that the deceased had no justification for coming to his brother's house after refusing the hand of his sister to him. The deceased replied that he had done so because he considered that the appellant was not a suitable person to be married to his sister. This led to an exchange of abuses between them, whereafter the deceased returned to his house.

4. On the night between 14/ 15‑8‑1982, Khalid deceased was asleep on a cot in front of his house, while Mst. Bushra (P.W.8) alongwith her husband Ghulam Rasool was sitting on the roof of her house. A lantern was burning in the courtyard. At about mid‑night, the appellant armed with a Chhuri came there and attacked the deceased. He inflicted Chhuri blows on him in the chest, right arm and other parts of the body as a result of which he fell injured. Mst. Bushra P.W. and her husband raised an alarm attracting Mst. Hamidan Bibi (P.W.9) and her husband Muhammad Iqbal (not examined). They tried to apprehend the appellant but he fled away with Chhuri, Khalid succumbed to the injuries at the spot.

On receiving intimation about the occurrence, A.S.I. Muhammad Bashir (P.W.10) reached the spot and recorded the statement (Exh.P.B.) of Mst. Bushra P.W. at 12‑30 noon on 15‑8‑1982. The formal F.I.R. (Exh.P.B./ 1) was recorded on its basis at 1‑35 p.m. by Riaz Ahmad Muharrir Head Constable (P.W.2). He prepared the injury statement (Exh.P.L.) and inquest report (Exh.P.E.) of the deceased. He took into possession blood‑stained earth and Charpoy from the spot. He arrested the appellant on 25‑8‑1982 and recovered blood‑stained Chhuri (Exh.P.1) at his instance through memo. Exh.P.C. from a heap of straw. After completing the investigation, lie challaned the appellant.

Chhuri (Exh.P.1) was sent for chemical examination and according to the report Exh.P.Q. of the Serologist, it was found to be stained with human blood.

5. Dr. Javed lqbal (P.W.1) conducted the post‑mortem examination on the dead body of the deceased on 16‑8‑1982 and found the following injuries on his person:‑---

(1) A stab wound, 4 c.m. x 1‑1/2 c.m. deep into abdominal cavity on epigastric region lying vertically in midline.

(2) A stab wound, 2‑1/2 c.m. x 1/2 c.m. deep into chest cavity, vertical between 6 and 7 ribs on front of right lower chest.

(3) A stab wound 3 c.m. x 1 c.m. deep into chest cavity on back of right chest in middle.

(4) An incised wound, 3 c.m. x 1 c.m. into muscle deep on front and outer aspect of right upper arm in its upper part.

(5) An incised wound, 6 c.m. x 2 c.m. into muscle deep on outer aspect right forearm in its lower part.

Injuries Nos. 1, 2 and 3 had injured the right lung and liver which were fatal. The death was caused due to shock and haemorrhage. All the injuries were caused by a sharp‑edged weapon and were ante‑mortem and homicidal. The time between injuries and death was about 10 to 20 minutes, while that between death and post‑mortem examination was about 30 to 40 hours.

6. Muhammad Shafi appellant denied the prosecution allegations and attributed the case to enmity and supicion and did not lead any evidence in defence.

7. The prosecution examined eleven witnesses to prove its case. Of them, Mst. Bushra (P.W.8) and Mst. Hamidan Bibi (P.W.9) furnished the ocular account. Khalid Naveed (P.W.5) and A.S.I. Muhammad Bashir (P.W.10) proved the recovery of blood‑stained Chhuri (Exh.P.1) at the instance of the appellant. Inayat (P.W.4), father of the deceased, furnished the motive. Ghulam Rasool and Muhammad Iqbal named as eye‑witnesses in the F.I.R, were not examined.

8. Relying on the motive and ocular testimony supported by the recovery of Chhuri (Exh.P.l), the trial Court convicted and sentenced the appellant as described above.

9. The appellant has appealed through jail. The learned counsel appointed at State expense has argued that both the eye‑witnesses are closely related to the deceased, being his real sisters, and that none from the vicinity of the occurrence has been produced to corroborate them. Further that the F.I.R. was lodged after a considerable delay and the fact that it was recorded at the spot shows that it was recorded after mutual consultations. It is next argued that the motive is obscure and improbable. The appellant could not have any grudge against the deceased over the refusal of the hand of Mst. Azra because she had been married about 1‑1/2 or 2 years prior to the occurrence.

10. So far as the question of eye‑witnesses being related to the deceased is concerned, we do not think if their evidence can be brushed aside merely on that account. Mst. Bushra P.W. is a natural witness because the occurrence had taken place in her house. Mst. Hamidan Bibi P.W. also lived in the close proximity and thus could be expected to be present at the spot. The eye‑witnesses had no motive to falsely implicate the appellant who was their first‑cousin. Besides this, he is real brother of Muhammad Iqbal, husband of Mst. Hamidan Bibi P.W. In view of such close relationship, there appears to be no reason for his false implication. Even otherwise, being a case of single accused, the question of substitution does not arise. The P.Ws. would not have let off the real assailant and instead implicated the appellant in his place. The recovery of blood‑stained Chhuri and the medical evidence corroborate the ocular account. Since the appellant was known to the P.Ws. through relationship, they would not have felt any difficulty in identifying him despite darkness. As the occurrence had taken place at night time, Mst. Bushra P.W. being a woman, could not be expected to have gone to the police station immediately, leaving the dead body of her brother unattended. In view of the unimpeachable evidence of the eye‑witnesses, supported by the medical evidence and the recovery of blood‑stained Chhuri at the instance, of the appellant, the mere delay in lodging the F.I.R. would not have any material bearing on the case.

As regards motive, it has come in evidence that Mst. Azra was married 1‑1/2 to 2 years prior to the occurrence. In this view of the matter, the appellant's nourishing a grudge against the deceased looks somewhat improbable. If the appellant had felt offended on that score, he would have done some mischief before or at the time of the marriage of Mst.Azra, but his remaining inactive at the relevant time and thereafter shows that he had probably acquiesced in it. These circumstances show that in all probability there was some other cause of annoyance to the appellant which had led to the occurrence. It could be the deceased's behaviour towards the appellant when he had objected to his visit to the house of his brother for fodder cutting or the remarks passed by him or abuses hurled at the appellant, which might have aggravated the situation. Thus, the immediate cause of the occurrence is shrouded in mystery.

11. Having considered all the pros and cons of the case, we are of the view that the prosecution case stands fully established against the appellant. He was, therefore, rightly convicted under section 302, P.P.C. However: the immediate cause of the murder being not known, we consider it as a mitigating circumstance and think that the lesser sentence provided for the offence of murder would meet the ends of justice. We, order accordingly and while maintaining his conviction under section 302. P.P.C., we alter the sentence of death to that of imprisonment for life. The sentence of fine is, however, maintained. With the above modification in the sentence, the appeal is otherwise dismissed.

The death sentence awarded to Muhammad Shafi appellant is NOT confirmed.

S.A./M‑91/L Sentence altered.