GHULAM SHABBIR Versus THE STATE
Ghulam Ali (22), his brother Ghulam Shabbir (24) and their father Ahmad Ali (60), residents of Chah Gadgoran Dakhli Shah Bahlol, tehsil Hafizabad, district Gujranwala, were tried by learned Additional Sessions Judge, Gujranwala, for the murder of Mumtaz (deceased). Learned trial Court vide judgment dated 27‑10‑1985 giving benefit of doubt acquitted Ahmad Ali but convicted Ghulam Ali and Ghulam Shabbir (appellants) under section 302/34 PPC and sentenced them to imprisonment for life and a fine of Rs.1,000 each or in default thereof .o undergo 3 months' R.I., each. They were also ordered to pay Rs.1,000 each by way of compensation or in default to undergo 3 months' R.I., each. The convicts have filed the instance appeal Criminal Appeal No.682/1985 challenging their conviction and sentence while Allah Yar (complainant) has filed Criminal Revision No.238/1986 t for enhancing sentence of the appellants. Both these matters are being disposed of by this single judgment.
2. The occurrence took place at Digerwela on 13‑10‑1983 in a peddy field near Tibba bus‑stand in the area .of Thatha Peerka, Dera Shah Behlol, district Gujranwala. Allah Yar (PW7) lodged FIR Ex‑PG at police station Pindi Bhattian, Tehsil Hafizabad, about 6 miles away from the place of occurrence, the same day, at 6 p.m. recorded by SI Zulfiqar Ali (PW 9).
3. Briefly the prosecution case as disclosed at the trial was that on the fateful day at noon time Allah Yar (complainant) alongwith his brother Mumtaz (deceased) went to Pindi Bhattian for settling account of wheat sold by them to Mazhar, a commission agent, who had his shop in grain market Pindi Bhattian. As Mazhar's shop was closed on that day, they boarded a bus for return journey and alighted at bus‑stand Tibba and from there 'they started towards their village on foot. After covering 5/6 Acres distance Allah Yar sat for easing himself and the deceased continued walking. He had gone a little ahead when Ghulam Shabbir and Ghulam Ali (appellants) armed with hatchets and their father Ahmad Ali (since acquitted) armed with Sota emerged from a paddy field. Ahmad Ali raising Lalkara that the deceased should not be spared gave him Sota blow on his right arm. Then Ghulam Shabbir and Ghulam Ali gave him hatchet blows as a result of which the deceased fell down. The complainant did not intervene out of fear. Ahmad Yar PW (nor produced) and Lal Hussain (PW 8), relations of the deceased who happened to be returning from Pindi Bhattian, reached there and witnessed the occurrence. The accused/appellants then decamped from the spot. The deceased succumbed to the injuries then and there.
4. Motive for killing the deceased was stated to be that the accused/appellants suspected the deceased as maintaining illicit relations with Mst. Daulan wife of Ghulam Shabbir (appellant). Some 3/4 days before the occurrence the deceased had visited village Gadgoran for getting thumb impressions of certain women of that locality for pursuing an old case of allotment of land where an altercation took place between him and the appellants and on that account the accused/appellants had waylaid and killed the deceased on the fateful day.
5. S.I. Zulfiqar Ali (P.W.9) after recording F.I.R. Exh.P.G. reached the spot. He removed and secured blood‑stained earth from there, prepared inquest report Ex‑PJ and sent the dead body of the deceased for post‑mortem examination under police escort. On 20‑10‑1983 he arrested the appellants. On 25‑10‑1983 the appellants led to the recovery of blood‑stained hatchets P.5 and P.6 from their house which were sealed and secured vide memos Exs‑PE and PF, respectively, attested by Ali Hussain (PW6) and the investigating officers. Both these hatchets were found as stained with human blood as per reports of Chemical Examiner and Serologist Exs‑PL and PM. It may be mentioned that Ghulam Ali (appellant) was got medically examined as he was found slightly injured at the time of his arrest.
6. Dr. Sultan Ali (PW1) who post‑mortemed the dead body of Mumtaz (deceased) on 14‑10‑1983 at 9‑30 a.m., found 17 injuries on it, that is, 8 incised wounds of different dimensions ranging between 3 cm x cm to 9 cm x 3 cm which were mostly on head besides 6 contusions and 2 abrasions. Injury No.13 is described as 'multiple punctured wound measuring 6 cm x 2 cm on outer surface of lower part of right upper‑arm. On opening the body the doctor found small chip fracture of elbow and numerous fractures of the scalp bone. The brain was also injured. Stomach contained semi‑digested liquid material. All the injuries were ante‑mortem and 6 out of 17 injuries were found as dangerous to life. Injuries on the head resulted in instantaneous death of the deceased. Duration between death and post‑mortem examination was 18 hours.
7. At the trial, prosecution examined nine witnesses in all. Of them Allah Yar (PW 7) and Lai Hussain (PW 8) gave ocular account of the occurrence. Allah Yar, brother of the deceased, narrated the story as given in paragraphs 3 and 4 above. He admitted that Arshad PW is his brother and Lai Hussain PW is related to deceased's widow Mst. Zohra Bibi. He asserted to have stated in FIR Ex‑PG that 3/4 days before the occurrence the deceased had visited Dera Gadgoran (the place where appellants lived) for obtaining thumb impressions of women‑folk for pursuing an old case of allotment of land, but on confrontation it was found as not recorded therein. He denied to have stated in the FIR that the appellants objected to the visits of the deceased to their Dera saying that they after selling out their land and house in Thatha Peerka had shifted to Dera Godgoran and that he should stop pursuing Mst. Daulan there but the deceased insisted that he would not sever his relations with her, but on confrontation it was found so recorded in FIR Ex‑PG. He stated that conductor of the bus by which they had travelled (on the day of occurrence) did not issue tickets to them. The Dera of Ladhu in whose land the occurrence took place is 7/8 Acres away from there. The dead body was first brought to police station and then taken to Hafizabad hospital. He denied the suggestion that the deceased and Mst. Daulan were seen by Ghulam Shabbir (appellant) in objectionable position who alone under grave and sudden provocation attacked and killed the deceased while Mst. Daulan had run away. He also denied that he and Lai Hussain PW were not present at the time of occurrence and that having come to know about murder of the deceased subsequently he concocted the instant case after deliberations.
8. Lal Hussain (PWB), the other eye‑witness, stated that he alongwith Ahmad Yar PW (not produced) had gone to Pindi Bhattian in connection with a meeting held for the election of Chairman of his union council in which Rafiq Gujjar was elected as chairman by toss. They returned by bus and alighted from it at Tibba bus‑stand. They were going to their village on foot and about 5/6 Acres away from Tibba they saw the appellants with their father emerging from a peddy field had attacked and killed the deceased. He could not tell about the motive for the attack. He stated that the meeting held for electing the Chairman of his union council was not presided over by any official as it was a private meeting and that the official meeting for electing the Chairman was held a month later. Nobody else had alighted at Tibba bus‑stand besides them from the bus by which they had travelled. They saw the deceased and the complainant (PW8) going ahead of them at a distance of 25/30 Karams. They did not chase the accused after the occurrence. Nobody came there on the hue and cry raised by them. He admitted that Ali Hussain (PW 6), witness of recovery of weapons of offence from the appellants, is his real nephew. He denied that he had not seen the occurrence.
9. Munshi Noor Muhammad Patwari (PW5) who prepared the site plan stated that the place of occurrence was a peddy field. At the time of his inspection of the spot the peddy crop was 4/5 feet high.
10. At the conclusion of prosecution evidence the appellants when examined under section 342, Cr.P.C., refuted the allegations levelled against them. Ghulam Ali and Ahmad Ali denied their participation in the occurrence while Ghulam Shabbir raised plea of grave and sudden provocation in the following words:‑
"On the day of occurrence, I was going to Tibba Adda to purchase Barseem seed. I had a small hatchet with me which is kept for agricultural purposes as a routine. When I reached near the field of occurrence I heard, some whispering. I walked towards that place and to my surprise Mumtaz deceased and my wife Daulan were seen by me in an objectionable condition. I lost my self control and due to sudden and grave provocation caused injuries to the deceased with my hatchet from its sharp and blunt side. In the meantime, Mst. Daulan run away. No eye‑witness was present there at that time. I appeared before the police myself and informed about the occurrence where I was arrested and later on, in consultation and deliberation with the complainant party a false version was cooked against me, my brother Ghulam Ali and father Ahmad Ali and they were not present at the spot."
The appellants appearing in their own defence reiterated their stand on oath.
11. Learned trial Court on consideration of the material on record in paragraph 11 of the judgment found that participation of Ahmad Ali, father of the appellants, was doubtful. Regarding the appellants it observed in paragraph 16 of the judgment that the deceased was a man of immoral character and the ‑appellants had murdered him "in the passion of provocation and to vindicate their family honour" and, therefore, awarded them lesser penalty.
12. I have heard learned counsel for the parties and also perused the record.
13. Death of the deceased by violence is admitted. The place as well as time of occurrence, as alleged by prosecution, is also not disputed. Ghulam Shabbir (appellant) as indicated above, has raised plea of grave and sudden provocation whereas Ghulam Ali (appellant) has asserted that he has been falsely implicated. The prosecution case hinges mainly on ocular testimony. The witnesses are closely related to the deceased. Their explanation for being present at the spot at the relevant time is not convincing. Allah Yar (complainant) stated that he and the deceased had gone to Mazhar, a commission agent of Pindi Bhattian, for settling account of sale proceeds of wheat with him and while they were returning home the appellants had waylaid and killed the deceased. Mazhar, afore‑mentioned, has not appeared to support the stand of the complainant. Again, the complainant tried to conceal bad character and unruly conduct of the deceased so much so that he unscrupulously denied to have mentioned in the FIR that the deceased had illicit relations with Mst. Daulan wife of Ghulam Shabbir (appellant) and that the appellants feeling sick of the deceased shifted to Gadgoran by selling out their house and land in village Peerka but the deceased did not stop visiting Mst. Daulan there and insisted to pursue his relations with her. Lal Hussain PW's stand is that he was returning from Pindi Bhattian in the company of Ahmad Yar PW (not produced) after participating in a meeting held for the election of Chairman of his union council but, in the same breath he said that it was a private meeting and that' official meeting for the, purpose was held a month later. There is neither any legal provision nor practice to hold unofficial meetings for electing Chairman of a union council. Again, Ahmad Yar PW in whose company the witness was returning at the time of occurrence had been given up which means that he was not prepared to support prosecution. Both the eye‑witnesses stated that the attack was opened by Ahmad Ali (since acquitted) who is admittedly, an old man of 60 years age. The solitary injury attributed to him appears to be due to fall. Learned trial Court rightly acquitted him holding that his participation was not free from doubt. It is not at all believable that when two young men armed with hatchets go for waylaying their enemy they would take their old father with them as he instead of rendering any help in the attack would rather hamper execution of their plan due to his slow movements. By naming Ahmad Ali (since; acquitted) as assailant the witnesses have implicated an innocent old person thereby shaking confidence of the Court in their testimony qua other appellants also particularly when no corroborative evidence is forthcoming from independent source establishing their participation in the crime. Again, presence of numerous injuries on the person of the deceased suggests that nobody was around the place of occurrence at the relevant time and the assailants had free hand to deal with him to their satisfaction. I have therefore, grave doubt about the presence of the eye‑witnesses at the time of occurrence. On the other hand the place of occurrence is paddy crop, 4/5 feet high, situated away from Abadi. Deceased's high handedness and the helplessness of the appellants is too obvious as the latter in order to avoid the deceased shifted their residence from Thatha Peerka but, the former did not allow them to live honourably even at that place and insisted to maintain his illicit connections with Mst. Daulan. All these facts when put together lend support to the defence theory. Having held that aforesaid eye‑witnesses were not present at the relevant time, there remains in‑ the field Ghulam Shabbir's statement pleading grave and sudden provocation which has to be accepted in the circumstances discussed above. Consequently, I hold that Ghulam Ali (appellant) had not participated in the occurrence. His conviction and sentence is set aside and he is acquitted. He be released forthwith if not required in any other case. Ghulam Shabbir. appellant on basis of his own statement is held guilty under section 304 Part‑I, P.P.C. His conviction is accordingly altered and he is sentenced to seven years R .I. and a fine of Rs.1,000 or in default to undergo three months R.I. He shall also pay a sutra of Rs.5,000 as compensation to legal heirs of Mumtaz deceased failing which he shall undergo further R.I. for six months. Benefit of provision of section 382‑B Cr.P.C. shall be allowed to him. For similar reasons the revision petition is dismissed.
M.Y.H./G‑132/L Appeal partly allowed.