MULIK SHAH ALIAS SHAIDAY SHAH Versus THE STATE Rana Muhammad Sardar and Syed Shahbaz Raze Rizvi , Ch. Muhammad Yamin for the State.,Ch. Muhammad Hussain Chachar

FAZAL KARIM, J. ‑‑The appellants, Mulik Shah and Ahmed Ali, have appealed against, their conviction and sentence recorded under Section 302 read with Section 34 of the P.P.C. by a judgment of the learned Additional Sessions Judge, Okara, dated 27‑5‑1985. Each of the appellants was sentenced to death and a fine of Rs.5,000 and in default of payment of fine, R.I. for two years. The amount of fine, if realized, was directed to be paid to the heirs of Mushtaq Hussain deceased.

2. This will also dispose of the reference under Section 374 of the Code of Criminal Procedure.

3. According to the prosecution the incident occurred at about sunset time (Mughrab Waila) on 17‑6‑1962 in Baseerpur Town, 21 kilometres from the Police Station Baseerpur and was reported to Ghazanfar Hussain Shah S.I. by Ashiq Hussain (P.W. 6) vide his statement Exh.P.C. at 3‑00 a.m. on 18‑6‑1982. On the basis of statement Exh.P.C., form FIR Exh.P.C./1 was recorded by Ahmed Hussain Shah Moharrir Head Constable.

4. The prosecution case as laid in Ashiq Hussain Shah P.W;s statement before the police Exh.P.C. and as deposed to at the trial by Ashiq Hussain Shah (P.W. 6), Muhammad Hassan Machhi (P.W. 5) and Ghulam Haider Ashfaq (P.W. 7) was to the following effect. Ashiq Hussain Shah P.W. and Mushtaq Hussain Shah deceased were real brothers; they were sons of Muhammad Hussain Shah; Mulik Shah, appellant, is son of Riaz Hussain Shah. Muhammad Hussain Shah and Riaz Hussain Shah were grandsons of Ahmed Shah. Ashiq Hussain Shah P.W. and Mushtaq Hussain Shah deceased had joint cultivation; they cultivated their own land as also land of the uncle and aunts of their father. Mulik Shah, appellant, wanted them to give him his share out of the land of his uncle and aunts. Ashiq Hussain Shah P.W. and Mushtaq Hussain Shah deceased told him that the owners were alive and he should approach them. Then Mulik Shah, appellant, had developed illicit relations with a girl Mst. Batool Kumhari and would often take her to his house. Mushtaq Hussain Shah deceased and Ghulam Haider Ashfaq P.W. had taken exception to this act of his. Thus, Mulik Shah, appellant, had a grudge against him. Ahmed Ali, appellant, was a friend of Mulik Shah, appellant, and both ran a donkey cart together.

5. On 17‑6‑1982, Mushtaq Hussain Shah deceased and Ashiq Hussain Shah P.W. were returning from their well after milking their buffaloes. By the time, they reached near the office of the Agricultural Department of the village, the sun had set. Mulik Shah appellant, armed with a dagger and Ahmed Ali, appellant, with a Chhuri emerged from in front of them. Mushtaq Hussain Shah deceased was going ahead of Ashiq Hussain Shah. Mulik Shah, appellant, give him a dagger blow in the abdomen and Ahmed Ali, appellant, gave him a Chhuri blow on the left arm. Mushtaq Hussain Shah fell down and then both the appellants gave him more Chhuri and dagger blows Ghulam Haider, Ashfaq and Muhammad Hussain Machhi happened to be near the place and they also witnessed the incident taking place.

6. They carried the deceased to Buttak Hospital where Dr. Anwar Ali (P.W. 2) examined him at 9‑45 p.m. on 17‑6‑1982. He was in "deep unconsciousness". Blood pressure and pulse were not recordable; responded to deep stimuli only. Pupils were dilated with sluggish reaction to light. He was in profound shock. He was found to have the following injuries:‑

(1.) An incised wound 4 c.m. x 1 c.m. x depth cannot be ascertained on left hypochondrium near left costal margin. Mesentery coming out of the wound.

(2) An incised wound 3 c.m. x 1 c.m. x muscle deep on the back and middle of left fore‑arm.

(3) An incised wound 2 c.m. x 1 c.m. x muscle deep on front and upper part of left forearm near cabital fossa.

(4) An incised wound 1.5 c.m. x 1 c.m. x depth uncertain on inner and lower part of left upper arm. Arterial bleeding of bronchial artery present.

(5) An incised wound 1.5 c.m. x 1. c.m. x muscle deep on inner and lower part of left upper arm 4 c.m. inner injury No.5.

Injuries Nos.l and 4 were kept under observation. Injuries Nos.2, 3 and 5 were declared simple. All the injuries were found "freshly inflicted" by which expression the Doctor meant to convey "that the injuries were inflicted probably within half an hour". After necessary first aid, the Doctor referred him to the District Hospital, Sahiwal. Exh. P.B. is the carbon copy of the medico‑legal report.

7. Mushtaq Hussain Shah was being taken to the District Hospital Sahiwal as advised by Dr. Anwar Ali (P.W. 2) when he died. They took his dead body back to the village and then Ashiq Hussain Shah P.W. went to the police station and reported the incident to Ghazanfar Hussain Shah S.I. who happened to be at Baseerpur.

8. Autopsy on his dead body was performed by Dr. Muhammad Afzal Malik (P.W. 9) at 3‑30 p.m. on 18‑6‑1982. Dr. Muhammad Afzal Malik noticed 7 injuries; all of them were dressed except one which was an incised wound 1 c.m. x c.m. x skin deep, vertical, on the outer aspect of left lower chest 9 c.m. outer to upper end of injury No.4 noticed above. This injury, it appears, had escaped the notice of Dr. Anwar Ali (P.W. 2). Dr. Muhammad Afzal Malik had found the peritoneum punctured against the stab wound 3 c.m. x 1 c.m. deep going on the front of left upper abdomen, oblique, just below costal margin, 11 c.m. away from umbilicus, between 1‑2 o'clock position. This was, it is noteworthy, the same injury as was mentioned at serial No.1 by Dr. Anwar Ali (P.W. 2). There was a 2 c.m. long cut on the stomach close to the greater curvature at about middle. Greater omentum was mud‑stained at different parts, bruised and injured against injury No.5. Death, in the opinion of the Doctor, was due to haemorrhage and shock caused to the vital organ (stomach) by this injury, which was sufficient in the ordinary course of nature to cause death. All the injuries were ante‑mortem and had been caused by sharp‑edged pointed weapon. Probable time between injuries and death was about 6 to 8 hours and between death and post‑mortem examination about 12 hours.

9. Ghazanfar Hussain Shah S.I. (P.W. 10) went to the spot, inspected it, collected blood‑stained earth and made it into a parcel ' vide memo Exh.P.D. prepared the inquest report Exh . P. G . and despatched the dead body for post‑mortem examination. The appellants were produced before him by one Muhammad Anwar on 19‑6‑1982. At the time of the arrest of Mulik Shah,. appellant, the S.I. took into possession blood‑stained clothes, shirt P.6 and Chadar P.7 vide memo Exh.P.J. and dagger P.8 vide memo Exh.P.K. From Ahmad Ali, appellant he took into possession Chhuri P.9 vide memo Exh.P.L. He also had the site‑plans Exhs. P. A . and PA/1 prepared from Nisar Ahmad P.W. and recorded his notes in red thereon.

10. The prosecution called. 10 witnesses, including Dr. Anwar Ali (P.W.2), Dr. Muhammad Afzal Malik (P.W.9), Muhammad Hassan Machhi (P.W.5), Ashiq Hussain Shah (P.W.6), Ghulam Haider Ashfaq (P.W.7) and Ghazanfar Hussain Shah S.I. (P.W.10).

11. The evidence of the remaining P.Ws. can be dealt with shortly. Nisar Ahmad draftsman (P.W.1) had prepared the site‑plans Exh. P.A. and Exh.P.A./I in the scale of 20 feet to an inch. Their drawings and writing in black were in his hand. Akhtar Hussain H.C. (P.W.3) had, on receipt of complaint Exh.P.C., recorded formal F.I.R. Exh.P.C./1. On 27‑6‑1982, he had received four sealed parcels from Ghulam Sabir Constable, had prepared the necessary dockets and had handed them over to the same constable for being taken to the office of the Chemical Examiner, Lahore. Ghulam Sabir Constable (P.W.4) had taken the parcels to the office of the Chemical Examiner and delivered them there safely. Muhammad Zaman B.C. (P.W.8) had escorted the dead body to the mortuary. ''

12. In their statements under section 342 of the Cr.P.C. as also in their statements on oath, both the appellants denied having had anything to do with the murder of Mushtaq Hussain deceased. Ahmad Ali, appellant, did admit that he was a friend of Mulik Shah, appellant. Mulik Shah, appellant, also denied the motive part of the prosecution story; according to him, the land of their paternal‑aunts; was in possession of his father and Khasra Girdawari was in his name. He added that "the occurrence took place in the darkness and heavy wind‑storm was blowing on the night of occurrence. It was an unseen unwitnessed and blind murder. None of the P.Ws. were present at the spot at time of occurrence. Ashiq Hussain P.W, was informed about the occurrence at Chah Noor Shah, where he alongwith his family had gone to attend marriage of their relative Nazeer Ahmad alias Jeeray Shah and Ghulam Muhammad Shah, while Mushtaq Hussain deceased was removed to the hospital by Mubarak Ali Shah. The investigation of this case was not conducted by S.I. Ghazanfar Hussain P.W. and he conspired with the complainant party and falsely challaned me in this case". Explaining the enmity and "party faction" of the P. Ws. he stated as follows:‑

"I have been falsely involved in this case. Mst. Riaz Begum Mst. Nawab Bibi, Mst. Sabiran Bibi, Mst. Sardar Begum and Mst. Janda Begum are my paternal aunts. Their land situate in Khasra No.117/3‑4‑7‑8/1 and 8/2 is under our possession and cultivation is entered in the name of my father Riaz Hussain in the Revenue record. The land of our paternal‑aunts was never it possession of the complainant or the deceased. Mst. Rehmat Bibi, Sughran Bibi and Mst. Maryam Bibi were the paternal‑aunts of my father. My great‑grandfather Syed Ahmad Shah had executed a will on 21‑6‑1944 about his landed property. According to will, Mst. Rehmat Bibi was not given any share of land, while Mst. Maryam Bibi and Sughran Bibi were given land till marriage or death whichever is earlier and after their marriage their share of land had to devolve on Khadim Shah and Asghar Shah brothers of my grandfather Syed Qasim Shah, as such there was no land in the name of Mst. Rehmat Bibi, Sughran Bibi and Maryam Bibi aforesaid, and the question of demanding of share of their land does not arise. My uncles have their own sons and there is no question of demand of their share of land as well. Moreover, I do not know any woman by the name of Mst. Batool Komhari of Baseerpur. The complainant has set up a false motive to involve me in this case at the instance of Ghulam Haider Ashfaq P.W., who is inimical to me on account of party faction as I belong to his opposite group. Mushtaq Hussain Shah belonged to a group of criminals and had many enemies.

13. Mulik Shah, appellant, examined two witnesses in his defence. They are Muhammad Ashraf S.D.O. of WAPDA, Sahiwal (D.W.1) and Muhammad Yousaf Shah, Retired ASI (DW2). Muhammad Ashraf Rasheed appeared with the record pertaining to Depalpur, Okara, and Baseerpur grid stations and stated that Baseerpur was fed by Depalpur 66,000 K.V., grid station, on 17‑6‑1982. The WAPDA kept monthly statement of every grid station. According to his record, "electricity had remained closed in 66000 K.V. grid station from 4‑47 a.m. to 4‑53 a.m. and 18‑26 p.m. to 18‑39 p.m. on the main line throughout District Okara and it remained closed on account of heavy rain and wind‑storm. 11000 K.V. grid station remained closed on 17‑6‑1982 from 19‑08 p.m. to 20 p.m. for 52 minutes and this grid station too supplied electricity to Baseerpur. The reason has not been mentioned in the statement.

14. The object of examining Muhammad Yousaf Shah, Retired ASI, was to prove that Ghazanfar Hussain Shah S.I. (P.W.10) had left most of the work connected with the investigation of this‑case done by this witness. This appears clearly from suggestion made to Ghazafar Hussain Shah S.I. Muhammad Yousaf Shah DW, however, denied that he had ever associated himself with the investigation of this case or that he was author of the documents Exhs.P.C., P.D., P.E., P.F., P.G., P.J., P. K. and P. L. The defence then wanted to cross‑examine the witness but this request was turned out by the learned trial Court.

15. In his defence Mulik Shah, appellant, produced a copy of will‑deed Exh.D.E. dated 21‑6‑1944, copies of Khasra Girdawari Exhs.D.F. and DG and a copy of Jamabandi Exh.D.H. His object in producing Exh.D.E. was to show that Syed Ahmad Shah predecessor -in‑interest of Muhammad Hussain Shah and Riaz Hussain had three sons Khadim Hussain, Qasim Shah and Asghar Ali and three daughters Mst. Maryam, Mst. Rehmat Bibi and Mst. Sughran Bibi; that by his will‑deed dated 21‑6‑1944 (Exh.D.E.), he had given the land to his sons Khadim Hussain and Qasim Shah; that the daughters did not own any land and that the land of his paternal‑aunts Mst. Riaz Begum, Mst. Nawab Bibi, Sabiran, Mst. Sardar Begum and Mst. Janda Begum comprising Khasra Nos. 117/3‑4‑7‑8/1 and 8/2 was under the cultivation of his father Riaz Hussain Shah. The copies of the Revenue record were produced in proof of this fact.

16. The learned trial Judge was "convinced the bad blood did exist between the murdered man and Mulik Shah accused and that is what Mulik Shah conceded in his statement recorded under section 342. Cr.P.C.". In the view of the learned trial Judge, Ashiq Hussain Shah P.W. gave a consistent and convincing account of the occurrence; Muhammad Hussain and Ghulam Haider Ashfaq P.Ws. were independent and disinterested witnesses. Ghulam Haider Ashfaq P.W., who was a resident of that locality, had given "the minutest details of the occurrence". He had no relationship with the complainant party and had no enmity or ill‑will against the accused persons. The learned trial Judge saw no reason to hold that the incident took place at night time "when it was pitch dark and no light was available at that time". In this connection, he referred to the testimony of Muhammad Ashraf Rasheed DW and observed that his statement was based upon record which had not been prepared by him. As to the recoveries of dagger P.8 and Chhuri P.9 from the appellants, the learned trial Judge observed that the appellants had been produced before the S.I. by Muhammad Anwar, who had been killed during the pendency of the case. The other two witnesses to the recoveries, Sabir Ali and Amir Hussain were given up as won over. To these recoveries, so observed the learned trial Judge, section 103 of the Cr.P.C. had no application. In the circumstances of the case, the learned trial Judge saw no reason to reject the testimony of Ghazanfar Hussain S.I.

17. That the incident occurred at the place mentioned by the eye‑witnesses admits of no doubt; it was not disputed before us. The site‑plan Exh.PA. shows that point No.1, where Mushtaq Hussain was killed, was in the street, where the house of the deceased was situated. In the same street was the house of Muhammad Hussain Machhi (P.W. 5) and the house of Sufi Rehmat Ali. According to the First Information Report, the time of the incident was the sunset time and the sunset time on the date of incident should be around 7‑45 p.m. Ashiq Hussain Shah P.W. was consistent with himself when he said in his examination‑in‑chief that when they reached the place of incident, the sun had set. He, however, added that bulbs were burning at the house of Sufi Rehmant Ali and at the Darbar and that he had identified. the appellants with the aid of their light. That house, according to him, was about 10 or 12 paces from the place of incident. Ghulam Haider Ahsfaq P.W. was also an ordinary resident of Baseerpur; he had gone to the house of Muhammad Hussain Machhi P.W. to find out if the breads had been baked. The combined effect of all these facts appears to be that the time of the incident was near about sunset time. Muhammad Hassan Machhi (P.W. 5) and Ghulam Haider Ashfaq (P.W. 7) were completely independent and disinterested witnesses. As has been seen above, Muhammad Hassan Machhis (P.W. 5) had his residential house in the same street and there appears nothing on the record to doubt the testimony of Ghulam Haider Ashfaq P.W. that he had gone to the house of Muhammad Hassan Machhi in connection with, the baking of the breads. It is common knowledge that in village, Machhis do the business of bread‑baking and if Ghulam Haider Ashfaq had gone to the house of Muhammad Hassan Machhi in that connection, then it goes a considerable way to show that the time of the incident was near about sunset time. Learned counsel for the appellants, relying upon the fact that in the FIR no bulb was mentioned, and that in the witness‑box, the eye‑witnesses had thought it necessary to introduce a bulb, argued and also sought to draw strength for his contention from the statement of Muhammad Ashraf Rashad (D.W.1) that it was dark at the time of the incident, and the time of incident was much later than the sunset time. In this connection, he also referred to the evidence of Dr. Muhammad Afzal Malik (P.W. 9), who had noticed that "greater omentum was mud‑stained at different parts". From this fact, learned counsel wanted it to be inferred that there had been rain and wind‑storm on the day of incident, which had resulted in the failure of electricity and there could, therefore, be no electricity light at the time of the incident. As was rightly observed by the learned trial Judge, the evidence of Muhammad Ashraf Rashad D.W. was based upon record which had not been prepared by him. He admitted that the information that there had been heavy rain and wind‑storm, had been supplied by the Line Superintendent, Okara. On that fact, therefore, only the Line Superintendent could depose. The effect of "greater omentum" being mud‑stained was, by itself, no evidence of rain, for the street was made of brick‑soling and the blood from the wound could, by mixing with the earth, produce mud. In any case, according to the record, the electricity light had failed between 18‑26 p.m. and 18‑39 p.m. on account of rain and wind‑storm and the grid station had remained closed from 19‑08 to 20‑00; he could not give the reason for the closure of electricity during the hours 19‑08 and 20‑00. In any case we do not think that merely because the eye‑witnesses had mentioned electricity light in their statements in Court should necessarily result in dissipating the claim of the eye‑witnesses that they had seen the incident taking place. As has been seen above, Ashiq Hussain Shah P.W. had reached the hospital with the deceased at about 9‑45 p.m. on 17‑6‑1982; he explained that he took two hours to reach the hospital; that though wagons and tractor‑trollies were available in Baseepur, yet no wagon or tractor‑trolley was readily available in spite of search. That Ashiq Hussain Shah had been able to reach the hospital, with the deceased by about 9‑45 p.m. appears to us to be more in accord with the time of the incident being the sunset time. We are, therefore, unable to agree that the incident had gone unwitnessed. Learned counsel then referred to the copy of the record of rights Exh.DH to point out that Riaz Hussain, father of Mushtaq Hussain Shah deceased and Ashiq Hussain Shah, was owner of 11 Kanals in Khata No.544/44, which included land bearing Khasra No.117/3‑4‑7‑8/1 and 8/2 and that Riaz Hussain Shah was in possession of much more than he owned, that is 28 Kanals 7 Marlas of land. In this connection, he also referred to the will‑deed Exh.D.E. and copies of Khasra Girdawari Exhs.D.F. and D.G. The will deed by Ahmad Shah great‑grandfather of Mulik Shah, appellant, and Mushtaq Hussain Shah deceased and Ashiq Hussain Shah P.W. was executed in the year 1944. It is sufficient to say that according to it, Ahmad Shah had tried to disinherit some of his heirs and the principal beneficiaries under the will were his sons, Khadim Hussain and Qasim Shah, the latter being the common ancestor of Mushtaq Hussain Shah deceased, Ashiq Hussain Shah P.W. and Mulik Shah, appellant. In any case, Mulik Shah, appellant himself admitted in his statement on oath that he had "a long‑standing dispute over the cultivation of land with the deceased, party"; he also admitted that the share of the paternal‑aunts of his father was "with the deceased party". We are, therefore, in agreement with the learned Judge that bad blood existed between the parties. Learned counsel also argued and for this argument sought to derive support from the opinion of Dr. Muhammad Afzal Malik, namely, that time between death and post‑mortem examination was about 12 hours, that the time of incident was much later than the sunset time. The exact time of the death of Mushtaq Hussain deceased is not known; but as has been seen above the deceased had reached the hospital at 9‑45 p.m. and it was somewhere thereafter that he had died on his way to Sahiwal. Nothing, therefore, appears to turn on the opinion of the Doctor that 12 hours had elapsed between the death and post‑mortem examination.

18. Both the appellants had been produced before Ghazanfar Hussain S.I. on 19‑6‑1982; they were produced by one Anwar Khan, who, died before he could appear in Court. At that time, Mulik Shah,' appellant, was wearing blood‑stained clothes; he also produced blood‑stained dagger P.8; Ahmad Ali appellant, had appeared with his Chhuri P.9. The dagger and the clothes of Mulik Shah, appellant were found to be stained with human blood; in this connection, reference may be made to the Chemical Examiner's report Exh.PM and the Serologist's report Exh.PN. Ahmad Ali, appellant's Chhuri P.9 was not found stained with blood. But this, in view of the evidence of Muhammad Hassan Machhi (P.W. 5), Ashiq Hussain Shah (P.W. 6) and Ghulam Haider Ashfaq (P.W. 7), fully implicating him, should make little difference. We find nothing unusual in the appearance of the appellants with their weapons of offence before the Investigating Officer, for some time culprits do so appear to avoid the rigours of investigation. Learned counsel for Ahmad Ali, appellant, argued that he had no motive whatever to join hands with Mulik Shah, appellant, to kill Mushtaq Hussain Shah. The evidence, however, is that he had a joint cart‑donkey business with Mulik Shah, appellant, and they were friends. In any case, none of the witnesses, Muhammad Hassan Machhi, Ashiq Hussain Shah and Ghulam Haider Ashfaq had any reason at all to falsely implicate him.

19. For these reasons, we hold that both the appellants were rightly convicted under section 302 read with section 34 of the P.P.C. There is no mitigating circumstance in the case of Mulik Shah, appellant. His appeal is rejected and his death sentence is confirmed. As regards Ahmad Ali, appellant, he had no motive of his own to kill Mushtaq Hussain Shah; he appears to have acted under the influence of Mulik Shah, appellant. The fatal injury was admittedly caused by Mulik Shah, appellant. We would, therefore, reduce his sentence to, imprisonment for life and fine of Rs.1,000 and his imprisonment in default in payment thereof to six months' R.I. He shall also have the period of his detention during the trial counted towards his sentence under section 382‑B of the Cr.P.C.

S. G. D./M‑918/L Order accordingly.