JAKKA Versus THE STATE
RIAZ AHMAD, J. --The appellant Jakka son of Molu aged 25 years alongwith his brother Fateh Muhammad, Khizar Hayat son of Ata Muhammad, Muhammad Hayat son of Shah Muhammad and Baksha son of Methella were tried by an Additional Sessions Judge at Sargodha on a charge under section 302 read with sections 109 and 34 of the Pakistan Penal Code for having caused the murder of Muhammad Ali. The learned Additional Sessions Judge vide his judgment, dated 18 th of May, 1985 acquitted Fateh Muhammad, Khizar Hayat, Muhammad Hayat and Bakhsha of the said charge who found Jakka appellant guilty on the said charge and sentenced him to death and to pay a fine of Rs.10,000 or in default to suffer R.I. for a term of six months. It was further directed that in the event of the recovery of fine, the same shall be paid to the legal heirs of the deceased under section 544-A, Cr.P.C.
Aggrieved by his conviction, the appellant assails the same through this appeal, while, the case has also been referred to us under section 374, Cr.P.C. The complainant Nazar Muhammad has also preferred Criminal Revision No. 464 of 1985 assailing the acquittal of Bakhsha, Fateh Muhammad, Khizar Hayat and Muhammad Hayat and has also prayed for the enhancement of fine imposed on Jakka appellant. This judgment shall dispose of both the appeals as well as the reference and the revision.
2. The unfortunate occurrence resulting into the death of Muhammad Ali took place on 18th of August, 1985 at Peshiwela in the shop of Gullu, a blacksmith, situated in a street of village Naseerpur Kalan situated at a distance of five miles from the Police Station Midh Ranjha. The occurrence was reported at the Police Station Midh Ranjha by Nazar Muhammad P.W.10, a brother of the deceased, vide F.I.R. Exh.P.E./2, it was recorded at 4-30 p.m. by Muhammad Iqbal A.S.I. P.W.13.
In brief, the prosecution case as disclosed by the first informant in the F.I.R. was that he and his deceased brother Muhammad Ali were cultivators in village Naseerpur Kalan. On the fateful day, they both had gone to the shop of Gullu, blacksmith, for mending a Phalla (blade of the plough). According to the complainant, since the blacksmith was not present at his shop, therefore, he waited for the blacksmith while the deceased Muhammad Ali went to ease himself. At about Peshiwela, the appellant Jakka armed with a hatchet alongwith the acquitted co-accused appeared at the shop of the blacksmith. Fateh Muhammad the acquitted appellant caught hold of Muhammad Ali deceased and Jakka inflicted a hatchet blow on the right temporal bone to the deceased. On the hue and cry raised by the complainant and the deceased, Natu son of Dari and Saru son of Salehun rushed to the scene of occurrence while Jakka and Fateh Muhammad escaped. from the scene of occurrence. The deceased was brought to the hospital Midh Ranjha where he succumbed to his injuries.
The motive for the commission of the crime as narrated was that 18/19 years before the occurrence, deceased Muhammad Ali had abducted the sister of Jakka appellant and, thus, on account of the said grudge, the appellant killed the deceased. It was further stated in the F.I.R. that the appellant Jakka and the acquitted accused Fateh Muhammad had committed the murder, after having conspired with Bakhsha, Muhammad Hayat and Khizar Hayat, the acquitted co-accused. it was further stated that the aforesaid three acquitted co-accused had instigaged the appellant to kill the deceased.
3. In course of investigation, the dead body of Muhammad Ali bras sent to the mortuary and on 18th of August, 1984 at 5-10 p.m. the post-mortem on the dead body of the deceased was conducted by Dr. Syed Muhammad Fidaus, Medical Officer, Incharge Civil Hospital, Midh Ranjha who appeared as P.W.7. In course of post-mortem examination, the following injury was noticed:-
"An incised wound 11 c.m. x c.m. x brain deep with underneath bone cut, with brain matter coming out on right side of the skull extending on to the forehead, above the right eye 7 c.m. from the right ear."
The right parietal, temporal and frontal bones of the skull were fractured. In the opinion of the doctor, the death occurred due to the haemorrhage both interpal and external and also due to shock on account of the injury received by the deceased. The injury was sufficient in the ordinary course of nature to cause death.
4. On 20th of August, 1984, the appellant was arrested by Azmat Ullah Khan, Sub-Inspector P.W.14 and on the same day, the appellant led the police and got recovered hatchet P.1 from sugar-cane field and the same was taken into possession vide memo. Exh.P.B. attested by Dost Muhammad P.W.3 and Umer Hayat (not produced) besides Asmat Ullah Khan, Sub-Inspector, P.W.14.
5. At the trial, the prosecution to prove its case, placed reliance upon the ocular testimony of Nazar Muhammad P.W.10, a brother of the deceased and Saru P.W.11 and Natu another eye-witness named in the F.I.R. was given up. The prosecution also placed reliance upon the medical evidence as well as the evidence as to the motive.
6. When examined under section 342, Cr.P.C. to explain the evidence adduced against him, the appellant denied the charge and stated that he had been implicated falsely due to enmity.
7. With the assistance of the learned counsel for the appellant and the State, we have carefully perused the record and we have also heard the learned counsel at length.
8. The learned counsel for the appellant contended that the occurrence as narrated was improbable, inasmuch as, it was not possible to believe that Gullu, the blacksmith was absent from his shop. The occurrence had taken place in his shop, therefore, according to the learned counsel for the appellant, he was the best witness to state truth and, therefore, failure on the part of the prosecution to cite him as a witness was fatal to the prosecution case. It was further argued that the motive as narrated by the prosecution is not worthy of belief because the alleged abduction of the sister of the appellant by the deceased had taken place 18/19 years before the occurrence, and after the lapse of such a long period, it does not stand to reason as to why the appellant should kill the deceased.
9. We have carefully considered this contention but unfortunately, we do not find any substance in this contention. It is not unnatural for the shopkeeper like a blacksmith in a village to be absent from his shop. Furthermore, even if he was present at his shop, he would be the last person to come forward in the witness-box to depose against any person on a capital charge. The blacksmith was running the shop in the village and, therefore, he would be extremely reluctant take side and thus to earn enmity for all times to come. We, therefore, do not find any merit in this contention.
10. As far as motive is concerned, though, the factum of abduction has been denied by the appellant in his statement under section 342, Cr.P.C. we are of the view that the motive is true, inasmuch, as it was the case of prosecution that the deceased had abducted the appellant's sister. We, therefore, have no reason to disbelieve it.
11. Adverting to the ocular testimony of Nazar Muhammad P.W. 10 and Saru P.W.11, we find that their statements are consistent and though they were cross-examined at length but the defence failed to shake their credibility. It was further argued that since the trial Judge found Fateh Muhammad, bakhsha, Khizar Hayat and Muhammad Hayat not guilty on the said charge. therefore, the same testimony qua the appellant should not be believed. We have examined this contention but since in our jurisprudence, the principle of falsus in uno falsus in omnibus does not hold good; therefore, theory of indivisibility of the ocular testimony is not attracted after sifting the chaff from the grain. We are of the view that the prosecution has fully proved its case and there is no reason to disbelieve the eye-witnesses.
12. Lastly, it was contended by the learned counsel for the appellant that it was not a case of extreme penalty of death, inasmuch as, the appellant was motivated to kill the deceased on account of family honour because his sister had been abducted by the deceased. It was also contended that the length of the period between the abduction and the commission of crime in this case was hardly relevant and we agree with the contention raised by the learned counsel for the appellant because the abduction of a female in our society is not forgotten because it is constant stigma and no length of time can erase it. On the question of family honour as a mitigating circumstance, we can conveniently quote the observations made by the Supreme Court of Pakistan in the judgment reported as Ghulam Rasul v. Ali Akbar and others PLD 1965 SC 363. The Supreme Court declined to enhance the sentence to death because the Supreme Court observed that the punishment for transportation of life was rightly awarded b the High Court, inasmuch as, the crime had been committed out o the sense of honour which is jealously nursed among the rural classes. In the reported judgment, the period of abduction and the commission of crime was eight years. Precisely the following observations may be quoted:-
"A great many cases come before the Courts in which an insult to honour is avenged after a considerable lapse of time, because it is felt too deeply to be ever forgotten, and it is a matter of tradition that in some form it should be avenged if the person insulted is not to be deemed to be devoid of self-respect. Here, the case seems to be that the boy Ali Akbar felt the disgrace to his family caused by the abduction of his sister from the very start and nursed his grievance as is customary in the class to which he belongs, waiting for an opportunity when he would have the strength and resource to avenge it. This is not to say that the law condones such offences, but at the same time in awarding sentences, for actions of excess performed by members of a community, it would be harsh indeed to brush aside all considerations of the strength of the sentiment prevailing in that community to which such excess is to be ascribed. We note also that the sentence of death in this case was awarded on the 28th of July, 1962 and it was replaced by a sentence of transportation for life on the 15th of July, 1963 that is more than year and a half ago, and in these circumstances we find it difficult to hold that there has been any miscarriage of justice viewing its dispensation in the present case in the wider prospective by the imposition of the lesser sentence to each of the accused persons for the crime found against them in appeal by the High Court."
In two more judgments reported as Muhammad Ramzan v. The State PLD 1966 SC 129 and Umar Hayat v. The state PLD 1966 SC 602, the same view was taken by the Supreme Court of Pakistan. In the former case, the Supreme Court of Pakistan, reproduced their own observations made in the case reported as Fazal Khan v. The State PLD 1964 SC 54. The said observations are quoted as follows:-
"It must be remembered that questions of family honour touching the females of a family, are of almost overpowering importance to the tribes of the Western regions. To vindicate that honour, they feel bound in duty to go to very great lengths."
In the latter case, the judgment reported as Ghulam Rasul v. Ali Akbar PLD 1965 SC 63 and Fazal Khan v. The State PLD 1964 SC 54 referred to above was again relied upon and approved by the Supreme Court of Pakistan. Consequently, for the reasons stated above, we are of the view, that it is not a case in which the extreme penalty of death should be imposed. Accordingly, finding the conviction justified on the record of the case, we would dismiss the appeal preferred by the appellant but we alter the sentence of death to life imprisonment. The sentence of fine is also maintained. With these observations, the reference is answered accordingly.
13. Adverting to the revision petition preferred by the complainant Nazar Muhammad assailing the acquittal of four co-accused and seeking enhancement of fine imposed on Jakka appellant, we do not find any merit in the aforesaid revision petition. The evidence as to the conspiracy is too feeble to be believed. It is needless to say that unless the acquittal is perverse or causes miscarriage of justice, this Court would not interfere with it. Furthermore, only because another view of the evidence can be taken is also no ground to disturb the acquittal. In this view of the matter, the revision petition is hereby dismissed.
S.A./J-27/L Order accordingly.