ZULFIQAR Versus THE STATE Sardar M. Latif Khosa and Zafar Iqbal Chaudhry , Kh. Shaukat Ali for the State.,Tariq Javed
IJAZ NISAR, J. ‑‑ Zulfiqar (17), his brother Sabir Ali (15), their father Muhammad Sadiq and Muhammad Akram (28) were tried for the murder of Ghulam Hussain deceased (40). By his judgment dated 1‑10‑1985 the learned Addl. Sessions Judge, Gujranwala convicted Zulfiqar appellant under section 302, P.P.C. and sentenced him to death and to pay a fine of Rs. 12,000 or in default to undergo three years' R.I. He was further directed to pay Rs. 20,000 to the legal heirs of the deceased as compensation or in default to undergo six months' R.I. Sabir Ali, Muhammad Akram and Muhammad Sadiq were given the benefit of doubt and acquitted.
2. Challenging his conviction and sentence Zulfiqar has filed this appeal while a reference under section 374, Cr. P. C. for confirmation of the death sentence has also been made by the learned trial Court. Both the matters shall be disposed of by this judgment.
3. The occurrence in question had taken place on 22‑3‑1984 at evening time in Rasul Nagar in front of the shop of Muhammad Ramzan, Commission Agent, 9 kilometres from Police Station Alipur Chatha, District Gujranwala. Report Exh . P.H. was lodged by Muhammad Hussain P.W.8 at the police station on the same evening at 9.05 p.m and was recorded by Abdul Hamid S.I. (P.W. 10). "
4. The prosecution case is that it was peas season and both the parties had cultivated peas in the bela of river Chenab. Their fields adjoined each other and they had employed females for plucking peas. On the day of occurrence at Degarwela Ghulam Hussain deceased was getting peas plucked from females while Mst. Bashiran, mother of Zulfiqar appellant was also doing the same thing. It is alleged that she came to the field of the complainant party and started abusing the deceased for having employed those women who used to work for her. Ghulam Hussain deceased returned the abuses and denied the allegations whereupon Mst. Bashiran left that place issuing threats that she would avenge the insult meted out to her. After finishing the job the complainant and Ghulam Hussain deceased came to Sabzi Mandi Rasulnagar for the sale of their peas and when they were present in front of the shop of Muhammad Ramzan, Commission Agent, suddenly Zulfiqar appellant accompanied by Muhammad Akram, Muhammad Sadiq and Sabir Ali accused (since acquitted) came there. Muhammad Sadiq and Zulfiqar carried Chhuris, Sabir Ali was armed with a Sota while Muhammad Akram was empty‑handed. Muhammad Sadiq raised a Lalkara exhorting Zulfiqar appellant to teach a lesson to Ghulam Hussain for insulting his mother whereupon Muhammad Akram grappled with the deceased. Sabir Ali inflicted Sota blows on his head. Muhammad Sadiq inflicted Chhuri blow on his waist as a result of which he fell down. Muhammad Sadiq inflicted another Chhuri blow in his abdomen. Thereafter 7ulfiqar appellant caused two Chhuri blows on his left thigh. On hearing the alarm Muhammad Arshad P.W.7 and Muhammad Aslam P.W. (given up) reached there and rescued the deceased. The accused then fled away. The deceased was first taken to Rasulnagar Hospital and thereafter D.H.Q. Hospital, Gujranwala where he was pronounced dead. Muhammad Hussain P.W. 8 left for the police station and lodged the F.I.R. Exh.P.H.
5. After recording the F.I.R. Abdul Hamid S.I. (P.W. 10) reached the spot, prepared the injury statement EXh.P.J. and inquest report Exh.P.K. of the deceased and despatched the dead body for the post‑mortem examination. He also secured blood‑stained earth from the spot.
On 28‑3‑1984 he arrested Zulfiqar appellant. Sabir Ali and Muhammad Akram accused. Muhammad Sadiq though joined in the investigation was not arrested. On 8‑4‑1984 Zulfiqar appellant while in custody led to the recovery of blood‑stained Chhuri P.3 from under a pillow lying in his house which was made into a sealed parcel through memo Exh. PE. On the same day Sabir Ali got recovered Sota P.4 through memo Exh.P.F. No recovery was effected from the other accused. Muhammad Sadiq was found innocent during investigation and was placed in column No.2 of the challan while the others were challaned. Chhuri P.3 was sent for chemical examination and was found to be stained with human blood by the Serologist vide his report Exh. PH (Page 11 of the printed paper book).
6. Dr. Manzoor Hussain P.W. 4 conducted the autopsy on the dead body of Ghulam Hussain deceased (40) on 23‑3‑1984 at 12‑05 p.m. and found the following injuries thereon:
(1) Swelling 2 c.m. x 1 c.m. at the middle top of head.
(2) Incised wound 4 c.m. x 1.05 c.m. going deep at the back of left side of waist 6 c.m. from mid‑line and 4.05 c.m. from the upper end of left palves.
(3) Incised wound 2 c.m. x 1/2 c.m. x 1/4 c.m. going deep at the left side at the lower part of the abdomen 5 c.m. below and left to the umbilicus.
(4) Incised wound 5 c.m. x 2 c.m,, x going deep at the back of the left thigh in oblique direction.
(5) Incised wound 1.5 c.m. x 1 c.m. x going deep at the front of upper third of left thigh in oblique direction.
All the injuries were ante‑mortem. Injury No.1 was caused by blunt weapon and the rest with sharp‑edged weapons. Injury No.1 was simple in nature and was sufficient to cause death in the ordinary course of nature. Blood vessels of left femoral artery were found cut under injuries Nos. 4 and 5. Peritoneum was found cut under injuries Nos. 2 and 3. In the cross‑examination he stated that injuries Nos.2, 3, 4 and 5 were through and through and were entrance and exit wounds.
7. The accused denied the prosecution allegations. They denied the exchange of abuses between Mst. Bashiran, mother of Zulfiqar and Chulam Hussain deceased. Explaining the background of the case Zulfiqar appellant made the following statement:
"Ghulam Hussain deceased had outstanding enmity with different people. A theft was committed with regard to ornaments and other belongings from the house of Muhammad Hussain P.W. One Barkat, a Pallaydar of my father Muhammad Sadiq, was suspected for the theft and my father got him released. As a result of which Muhammad Hussain P.W was nourishing grudge against my father and my family. Moreover. Muhammad Hussain P.W. used to cultivate the lands of my father and he was evicted from the lands by my father and Muhammad Hussain was refused extension of lease by my father and as such Muhammad Hussain P.W. was left with no means of livelihood; similarly, Arshad P.W. was inimical towards us because we had opposed him during the elections of local body and the deceased and Muhammad Hussain had supported him. Arshad P.W. had obtained money from me and others on the pretext of sending us to Libya. He could not send us to Libya and we asked him to return my money. Because of the above enmity we have been falsely involved in this case by the complainant in collusion with the said Arshad P.W. lest we should press for the return of the money."
Sabir Ali and Muhammad Sadiq accused also adopted the above statement. Muhammad Akram accused made the following statement:
"I had been working as a private servant of Muhammad Sadiq accused at his shop. Apart from that myself and my co‑accused had opposed Arshad P.W. during the elections‑ to the Local Bodies whereas Muhammad Hussain P.W. had been openly supporting the said Arshad P.W. I have been involved falsely because of the abovesaid enmity."
Though the appellant and his co‑accused had made statements under section, 340, Cr.P.C. but none of them adduced any evidence in defence Zulfiqar appellant stated that he was 14 years old and a student of 10th class at the relevant time. Muhammad Arshad P. W. had contested election of the Local Bodies against his uncle Muhammad Ali and they had opposed Muhammad Arshad. Furthermore, his father had given a sum of Rs. 20,000 prior to the election to Muhammad Arshad P.W. for sending him to Kuwait. He failed to do so and also refused to return the money. He went on to say that about two `years back their Pallaydar Barkat was :suspected by Muhammad Hussain P.W. of the theft of ornaments and other articles from his house. His father Muhammad Sadiq got him released and that he had been involved as a result of collusion between Muhammad Hussain and Arshad P.W. The recovery of Chhuri P.3 was falsely attributed to him.
Muhammad Sadiq stated that his shop was at a distance of 150 yards from the place of occurrence and that he did not know if Muhammad Hussain P.W. and Ghulam Hussain deceased had brought peas to Sabzi Mandi on the day of occurrence and that he was declared innocent by the Investigating Officer because all the shopkeepers and other respectables had appeared before the Investigating Officer in support of his innocence.
8. The prosecution examined 10 witnesses to prove its case. Of them, Muhammad Arshad P.W. 7 and Muhammad Hussain P.W.8 furnished the ocular account. Sajjad Hussain P.W.6 and Abdul Hamid S.I. P.W.10 testified to the recoveries of blood‑stained Chhuri P.3 and Sota P.4 at the instance of Zulfiqar and Sabir Ali accused respectively. Dr. Manzoor Hussain P.W. 4 conducted the post‑mortem examination on the dead body of the deceased while S.I. Abdul Hamid P.W.10 carried out the investigation of the case.
9. Muhammad Aslam mentioned as eye‑witness in F.I.R was given up as unnecessary. Muhammad Iqbal the attesting recovery witness was also given up.
10. Relying on the ocular evidence, the motive and the recovery of blood‑stained Chhuri P.3 at the instance of Zulfiqar appellant, the trial Court convicted the latter while acquitted the others by giving them the benefit of doubt.
11. Muhammad Akram accused was acquitted or the ground that he was not closely related to the other accused and if he had any intention to murder the deceased he would have also equipped himself with some weapon and that there was no community of interest between, him and others. He was attributed the role of Japha only in which case it would not have been possible to inflict injuries on the back and abdomen of the deceased. Muhammad Sadiq accused was acquitted on the ground that he had been found innocent by the Police and no recovery had been effected from him. He was not even arrested by the Police, it was added. As regards Sabir Ali accused, the trial Court held that the injury attributed to him was not characteristic of Sota. If, as alleged by the prosecution; he had used Sota with any amount of force the affect would not have been a mere swelling of 2 c. m. x 1 c. m.
12. It is argued by the learned counsel for Zulfiqar appellant that the eye‑witnesses examined by tie prosecution could not have been believed against the appellant when their evidence was not accepted in respect of three other accused persons. Muhammad Hussain P.W. 8 being a real brother of the deceased is said to be an interested witness while Muhammad Arshad P.W.7 is alleged to be a chance witness. Non‑production of Muhammad Aslam in the witness‑boat is also seriously challenged. The recovery of Chhuri P.3 at the pointation of Zulfiqar appellant is assailed on the ground that it was a delayed recovery having taken place 16 days after the incident and further that the house from where it was recovered was in the joint occupation of Zulfiqar appellant and his family.
13. Muhammad Hussain P.W.8 though related to the deceased cannot, be termed as an interested witness because he had no motive to falsely implicate the appellant. There was no previous background of enmity between the parties. Muhammad Arshad P.W. 7 is also a disinterested P.W. having no connection with the complainant party or animus against the appellant. He was a cloth merchant and had gone to Sabzi Mandi for the realization of the outstanding amount. According to him he had gone to Sabzi Mandi one hour prior to the: occurrence. The reason advanced by him for his presence at the spot is convincing and leaves no room for doubt. Both Muhammadi Hussain and Muhammad Arshad P.Ws stand corroborated by the medical evidence. Since the appellant was known to them previously they would not have felt any difficulty in identifying him There was no significant delay in reporting the matter to the Police and the F.I.R., was lodged in the same evening. The deceased was firstly carried to Civil Hospital Rasulnagar and then to District Headquarter, Gujranwalal and after he was declared dead Muhammad Hussain P.W. reported the matter to the police. It was quite natural for him to have first attended to the deceased and then to proceed to the police station. The recovery of Chhuri P.3 at the pointation of Zulfiqar appellant which was found to be stained with human blood lends corroboration to the ocular testimony. Sajjad Hussain P.W. 6 who testified to the recoveries is quite an independent witness. He was cross‑examined at length but his evidence could not be shattered. Since Chhuri P.3 lay concealed under a pillow, Zulfiqar appellant could be presumed to have himself kept the same there. The delay in the recovery of Chhuri P.3 does not help the defence in any manner. It is quite possible that he might not have made disclosure about the weapon of offence soon after his arrest and might have been avoiding its recovery. The Chhuri was recovered at his pointation and the mere fact that other members of his family also lived in the same house will not have any adverse effect on this piece of evidence. The accused cannot be given any premium for the delayed disclosure about the weapon of offence nor can he take any benefit of keeping it in his house which was jointly occupied by him with his other family members.
The motive also stands established through the evidence off Muhammad Hussain P.W.8. Since he was also working in the field at the relevant time with the deceased he must have been aware of the quarrel preceding the actual occurrence. No evidence had been led by the appellant to rebut the prosecution allegation that their fields did not adjoin each other or that they did not indulge in the cultivation of peas. There was no other background of enmity between the parties except the quarrel taking place over the employment of females fort plucking the peas. The motive thus also stands established.
14. The acquittal of the other accused will not help the appellant because as pointed out above there were such circumstances as made their presence and participation in the crime doubtful. Muhammad Sadiq father of the appellant to whom Chhuri blows were also attributed had been found innocent during investigation. Muhammad Akram accused was empty‑handed and only the role of grappling ha' been assigned to him. The Sota blow attributed to Sadiq was not of any serious nature and could have been suffered by the deceased by a fall or in the struggle to ward off the attack on him by Zulfiqar appellant. Furthermore, no blood‑‑stained weapon of offence had been recovered from any one of them. In these circumstances, the learned trial Court had rightly applied the principle of sifting grain from the chaff and distinguished the case of the appellant from them.
15. Having considered all the pros and cons of the case we are of the view that the prosecution case stands established against Zulfiqar appellant and he was, therefore, rightly convicted. As regards sentence, we consider him entitled to leniency because it is the prosecution's own case that Ghulam Hussain deceased had exchanged abuses with the mother of appellant shortly before the occurrence and considering it to be a case of family honour we think that the ends of justice will be met if the appellant is awarded lesser sentence provided for the offence of murder. We order accordingly and while dismissing the appeal of Zulfiqar appellant alter his sentence from death to imprisonment for life plus a fine of Rs.5,000 or in default to undergo six months` R.I. with a further direction to pay Rs.5,000 as compensation to the heirs of the deceased or in default to undergo six months' imprisonment.
The death sentence is NOT confirmed.
H.B.T./Z‑69/L Appeal dismissed /Sentence reduced.