ATTA HUSSAIN AND 2 OTHERS Versus THE STATE

IJAZ NISAR, J .--Atta Hussain son of Ahmad Bakhsh (28), Hazoor Bakhsh son of Elahi Bakhsh (25) and Fida Hussain son of Ahmad Bakhsh (30) were tried for the murder of Bashir Ahmad deceased (30) by Additional Sessions Judge. I, Bahawalpur. Vide judgment, dated 4-5-1986 he convicted them under section 302/34, P.P.C. and sentenced Ata Hussain and Hazoor Bakhsh to death plus a fine of Rs.5,000 each or in default to undergo 2 years' R.I. Fida Hussain was sentenced to imprisonment for life plus a fine of Rs.5,000 or in default to undergo two years' R.I. All of them were further directed to pay a sum of Rs.5,000 each as compensation to the legal heirs of the deceased or in default to undergo 6 months' S.I.

2. This judgment will dispose of the appeal filed by the above mentioned appellants, the murder reference as also revision filed by Nazir Ahmad for enhancement of sentence of Fida Hussain.

3. The prosecution case in brief is that on 14-12-1984 at about 7/8 a.m. Khalid P.W.5 and Abdul --,., ,W,6 were present at the Tea Stall of Maqbool alias Kabul P.W.7. Bashir Ahmad deceased and Allah Diwaya complainant (since dead) were sitting in front of the shops belonging to Bashir Ahmad deceased which were under construction. The appellants came there in a tractor trolley. Fida Hussain appellant was armed with an iron pipe while Ata Hussain and Hazoor Bakhsh appellants carried Kassis. They got down from the tractor. Fida Hussain appellant raised a Lalkara challenging the deceased for teaching him a lesson for raising construction of shops and attacked the deceased with an iron pipe on his right arm and left hand while Hazoor Bakhsh appellant gave him a Kassi blow on the head followed by Ata Hussain appellant who also gave a Kassi blow on his head. Bashir Ahmad deceased fell down. Ata Hussain appellant gave him kick blows in the abdomen. The P.Ws. mentioned above ran towards the deceased whereupon 'the appellant fled away with their respective weapons. Bashir Ahmad deceased was removed to the hospital in an injured condition. Malik Allah Diwaya father of Khalid P.W.5 left for the police station. Muhammad Tufail S.H.O. P.S., Khairpur Tamiwali P.W.9 recorded the F.I.R. Exh.P.K. at 10 a.m. on 14-12-1984 on the statement of Malik Allah Diwaya (since dead). The distance between the spot and the police station was 3 k.m. After recording the F.I.R. the S.H.O. proceeded to Mst. Sharif Hospital and prepared the injury statement and inquest report Exh. P. J. of the deceased. He then left for the spot and took into possession blood-stained earth from there. On 15-12-1984 he arrested the appellant. Fida Hussain appellant while in custody led to the recovery of an iron pipe P.5 from his house through memo. Exh.P.D. Ata Hussain appellant while in police custody led to the recovery of blood-stained Kassi P.6 from his house through memo. Exh.P.E. Hazoor Bakhsh appellant got recovered blood-stained Kassi P.7 from his house through memo. Exh.P.F. attested by Abdul Qadir P.W.3 and Imam Bakhsh P.W.4. The Kassis of Ata Hussain and Hazoor Bakhsh were found to be stained with human blood by the Serologist vide his report Exh.P.M./1.

4. Dr. Abdul Hameed P.W.8 conducted the post-mortem examination on the dead body of Bashir Ahmad deceased on 14-12-1984 and found the following injuries thereon:-

(1) Incised wound 3" x " x bone deep on left side of the head running obliquely. The margins of wound were sharp.

(2) Lacerated wound 2" x " x bone deep on the front middle of the head running obliquely near the forehead.

(3) Contused huge swelling of the midline of the right upper arm with a wound of 1" x " x muscle deep on deeper dissection fracture of the shaft of right humerus was seen.

(4) Bruise 1" on the dorsum of left hand.

(5) Bruises 4" x 2" long, three in number, running on upper middle and lower 1/3 of the abdomen.

(6) Incised wound 1" x " skin deep on left thigh.

There was fracture of skull bone on the side of injury No.1 with haematoma formation. The brain was congested. Injuries Nos. 1 and 5 were grievous and dangerous to life. Injury No.2 was simple.

Probable time between injuries and death was about 6 hours and that between death and post-mortem examination about 20 minutes. The death was due to injuries Nos, 1, 2 and 5.

5. The prosecution examined 9 witnesses to prove its case. Khalid P.W.5, Abdul Karim P.W.6 and Maqbool P.W.7 deposed about the occurrence while Abdul Qadir P.W.3 and Imam Bakhsh P.W.4 proved the recoveries of instruments of aggression from the appellants. Muhammad Tufail Inspector/ S.H.0. P.W.9 carried out investigation of the case.

6. The appellant denied the prosecution allegations and pleaded not guilty to the charge. They attributed the case to enmity, party faction and litigation with the complainant party. According to them there was a land dispute between Allah Diwaya father of the deceased and Ghulam Qadir uncle of the appellants. A civil suit was pending between them in the Court of Civil Judge, Ahmadpur Sharqia in which a status quo order had been. passed against Allah Diwaya but despite service Bashir Ahmad deceased did not desist from raising construction of shops on the land in dispute. They examined Shabbir Ahmad Afagani D.W.1, Syed Allam Shah P.W.2 and Sh. Inam Elahi Bari D.W.3 in their defence. D.W.1 proved the affidavit Exh.DD of Malik Maqbool P . W . sworn on 24-2-1985. Syed Allam Shah D. W. 2 stated that at the time of making affidavits Exh.DD he had identified Qabool P.W. before the Oath Commissioner. Sh. Inam Bari Petition-Writer D.W.3 stated that he had written affidavit of Qabool P.W. and had obtained his thumb-impression on his register.

The accused also tendered certified copy of the complaint titled Ghulam Kadir etc. v. Bashir Ahmad etc. Exh.D.E. and certified copy of the interim order Exh.D.F. passed by the Civil Court in the said suit.

7. Relying on the ocular testimony, the recoveries of Kassis from Ata Hussain and Hazoor Bakhsh appellants and the motive the trial Court convicted and sentenced the appellants as stated above.

8. Assailing the judgment, it is argued by the learned counsel for the appellants that the ocular testimony is not worthy of credence because Khalid P.W.5 and Abdul Karim P.W.6 are close relations of the deceased while Maqbool alias Kabol had sworn an affidavit of not having seen anybody inflicting injuries on the deceased. According to the learned counsel for the appellants the ocular testimony is in conflict with the medical evidence inasmuch as according to the eye-witnesses two of the appellants, namely, Ata Hussain and Hazoor Bakhsh had caused Kassi injuries on the head of the deceased but in the medical evidence only one sharp-edged weapon injury was found on the head of the deceased. No explanation has been given by the eye-witnesses of the incised wound found on the left thigh of the deceased. It is next contended that the high-handedness of the complainant party is apparent from the fact that they were constructing shops at the disputed site despite the issuance of a stay order from the Civil Court.

9. Khalid P.W.5 is a uterine brother of the deceased. The latter's mother had married Allah Diwaya father of Khalid Mahmood after the death of her first husband. Abdul Karim P.W.6 was also closely related to the deceased being his brother-in-law. However, Kabool P.W.7 was not related or connected with the deceased in any manner. Khalid P.W.5 was also related to the appellants. As according to him they were first cousins. Khalid and Abdul Karim P.Ws. were present at the Tea Stall of Kabool P.W.8/10 Karams away from the spot when the occurrence in question took place. According to them they were taking tea when the occurrence had taken place. The reason advanced by them for their presence at the spot is plausible and though searching questions were put to them in cross-examination no doubt could be created about their presence at the spot. Despite being related to the deceased they cannot be termed as interested witnesses because they had no direct enmity against the appellants to falsely implicate them in a case involving capital punishment. Khalid P.W.5 is also related to the appellants being their cousin. Being a daylight, occurrence the eye-witnesses would not have faced difficulty in identi fying the assailants. The omission on their part to account for each injury found at the person of the deceased would not materially detract from their evidence because in a state of shock and confusion it is not possible to give a photographic account of the occurrence specifying the seat of each blow. The eye-wtinesses stand corroborated by the recoveries of instruments of aggression from Ata Hussain and Hazoor Bakhsh appellants through the evidence of Abdul Kadir P.W.3 and Imam Bakhsh P.W.4. The Kassis recovered at their instance on the following day of the occurrence were found to be stained with human blood. Learned counsel for the appellants has tried to capitilize the affidavit Exh . D . D . allegedly sworn by Malik Maqbool P . W . 7 in which he had denied his presence at the spot as also knowledge about the occurrence. The learned trial Court did not attach any importance to the said affidavit on the ground that original affidavit had not been produced and further that it was not proved that Mqbool P.W.7 had actually sworn it. Though Maqbool P.W.7 had denied having sworn any such affidavit and supported the prosecution story but even if his evidence is discarded on this score there still remains in the field the unimpeachable evidence of Khalid P.W.5 and Abdul K a rim .P . W . 6 .

The motive set up by the prosecution stands established. According to the prosecution there was a land dispute between the parties over the construction of shops by the deceased on the said land. The appellants have not denied it and on the other hand stated that the deceased had constructed shops on the disputed land in violation of the stay order issued by the Civil Court. Admittedly the deceased was not party to the civil suit instituted by Ghulam Kadir uncle of the appellants and nor was any injunction issued against him restraining him from raising construction on the disputed site. Nothing has been brought on record to show that the deceased had constructed shops in violation of the injunction order. Assuming for the sake of arguments that the deceased had violated the stay order he could not have been done to death for that and the proper course for the aggrieved party would have been to move the Court in this behalf.

In the circumstances discussed above, the trial Court had rightly, convicted the appellants under section 302/34, P.P .C. As regards the sentence we find scope for its modification because according to the prosecution Ata Hussain and Hazoor Bakhsh had both given Kassi injuries on the head of the deceased resulting in his death but in the post-mortem examination report only one incised wound was found on the head of the deceased which was dangerous in nature. In this view of the matter, it is not possible to say with certainty as to which of the two appellants had caused the fatal injury. We, therefore, think that the ends of justice will be met if the sentence is altered from death to imprisonment for life. We order accordingly and sentence Ata Hussain and Hazoor Bakhsh appellants to imprisonment for life. However, the fine imposed on them by the trial Court is maintained. The conviction and sentence of Fida Hussian appellant is maintained. Since he- is not attributed the fatal injury the sentence awarded to him does not call for any interference.

In the result the revision filed for the enhancement of sentence of Fida Hussain appellant is dismissed.

With the above modification in the sentences of Ata Hussain and Hazoor Bakhsh appellants the appeal is otherwise dismissed.

The death sentence of Ata Hussain and Hazoor Bakhsh is Not confirmed.

M.Y.H./A-302/L Appeal parity allowed.