KARIM BAKHSH Versus THE STATE
This appeal emerges out of a judgment, dated 7-1-1985 pronounced by the learned Sessions Judge, Bahawalnagar, who had convicted both the appellants under section 302/34, P.P.C. and had ordered them to suffer life imprisonment and a fine of Rs.2,000 each. In default of the payment of fine, they were to undergo rigorous imprisonment for six months' each. They had been directed to pay Rs.2,000 each as compensation to the heirs of the deceased or in default thereof to suffer R.I. for six months' each as envisaged under Section 544-A of the Cr.P.C.
2. The facts which led to the detection of this crime, in substance are that Qadir Bux deceased was suspected of having illicit affection and guilty association with Mst. Janon the sister of the appellants. Qadir Bakhsh had tried to appease the appellants but they still felt chagrined. On 14-12-1983 at Deeger Din time, Khan Muhammad the complainant, his uncle Qadir Bakhsh who had adopted their residence at Dera Baqir Kasura in Chak No.290/HR, were sitting in their land. They had kept their cattle at Toba Baqirwali which was at a distance of 41 miles from their village. Khan Muhammad complainant and Qadir Bakhsh (deceased) originally belonged to Chak No.289/HR. Qadir Bakhsh went towards his house for having a round of his crops. After a short-while the complainant, Nabi Bakhsh and Ahmad Bakhsh also went to guard their crops. When they came in the area of Chak No.290/HR, they heard the cries of Qadir Bakhsh from a deserted house belonging to Baqir Kasura. They rushed to the place and saw Qadir Bakhsh lying with his face downward. Rahim Bakhsh was sitting on his neck and Karim Bakhsh was thrusting a Danda in his anus. Qadir Bakhsh was bleeding from the anus, nose and mouth. The eye-witnesses challenged the appellants but they threatened them with dire consequences. Qadir Bakhsh was unconscious, The appellants said that they had slaked sense of revenge and then ran away. Qadir Bakhsh succumbed to the injuries at the spot.
3. Khan Muhammad the nephew of Qadir Bakhsh left Nabi Bakhsh and Ahmad Bakhsh at the spot near the dead body and went to Chak No.310/HR to the house of Nazar Muhammad Ranoka and took him to the police station where they lodged the F.I.R. on 15-12-1983 at 4-00 a.m.
4. The police came to the spot and collected blood-stained earth and they prepared the inquest report Ex.PB and the injury statement Ex.PC and sent the dead body for autopsy to the mortuary. Dr. Capt. Mushtaq Ahmad, who was posted in Civil Hospital. Fortabbas in those days conducted the autopsy on the dead body of Qadir Bakhsh and found the following injuries:----
(1) A contused wound on the right eye. Both lids were swollen and blackened. There was sub-conjunctival haemorrhage. Eye-ball was intact.
(2) A contused wound at the bridge of nose. Nasal bone was fractured. There was bleeding from nostrils.
(3) Both lips were blood stained. There was no sign of bleeding from oral cavity.
(4) Both ears were dark blue. Left auricle was swollen. (Sub-chondrial haematoma).
(5) A contused wound on the interior aspect of right shoulder, 3 x 2 cm.
(6) A linear lacerated wound on the peritoneum extending from anterior margin of anal ring to scrotum. There was laceration of anal ring.
In accordance with the opinion of this medical expert, Peritoneum was ruptured at multiple places. Peritoneum cavity was full of blood. Mesentry of stomach was blood-stained and small intestines were perforated at multiple sides. According to him Colon, Spleen and Bladder were also found ruptured. He added that injury No.6 was the main cause of the death of Qadir Bakhsh. When subjected to cross-examination, he has deposed that the dead body was brought to the Hospital on 16-12-1983 at 2-00 p.m. by Muhammad Abbas FC and he completed the post-mortem examination by 3-00 p.m.
5. The appellants were arrested on 29-12-1983. Karim Bakhsh led to the recovery of blood-stained Danda P-11 which was taken into possession vide memo. Ex.PK. After the completion of the investigation challan of both the appellants was submitted. As a sequel to the impugned trial, they were awarded the aforementioned punishment.
6. The two eye-witnesses of this occurrence have been examined by the prosecution, who are Khan Muhammad the complainant (PW.9), Nabi Bakhsh (PW.10). Ahmad Bakhsh was not examined. Khan Muhammad (PW.9) corroborated the version put forth in the F.I.R. and had stated that Karim Bakhsh had thrusted the Danda into the anus of Qadir Bakhsh and was twisting and winding the same and he had lodged the F.I.R. thereafter. He was subjected the lengthy cross-examination, who testified that Rahim Bakhsh was holding Qadir Bakhsh by his left arm and was giving fist blows by his right hand. Qadir Bakhsh had left 40/50 minutes before them.
7. Nabi Bakhsh (PW.10) has corroborated the version stated by his fellow deponent Khan Muhammad and had deposed that Karim Bakhsh had thrusted a Danda into the anus of Qadir Bakhsh and was found pressing the same, whereas Rahim Bakhsh had overpowered him to facilitate this offence. Nabi Bakhsh is related to the deceased Qadir Bakhsh but there is no close relationship between them.
8. It has been contended that the statements of both the eye-witnesses are markedly discrepant regarding the overpowering of Rahim Bakhs and thrusting Danda into the anus. These are minor discrepancies which do not appear to be very material. The case was' tried after about a year and the people do not forget the minor details of the incident. Although both the eye-witnesses are the relatives of the deceased, yet they had no enmity against the appellants. Their statements have rightly been believed by the learned Sessions Judge.
9. The recovery of Danda was affected on 29-12-1983 i.e. 15 days after this incident. It was not expected of the appellants to have preserved the Danda in order to produce it before the police. They could have easily destroyed it. The factum of recovery of Danda P-11 'has rightly been disbelieved by the learned trial Court.
10. We are left with ocular witnesses of this account, the medical evidence and the motive for the commission of this crime. The motive for the commission of this crime is self-evident. Qadir Bakhsh was alleged to have dishonoured the family by promoting illicit liaison with Mst. Janon, the sister of the appellants, and they intended to disgrace Qadir Bakhsh by thrusting Danda in his anus. All these factors put together show that both the appellants are guilty of this offence. In case, they wanted to kill Qadir Bakhsh they would have broken his skull or would have hit the vulnerable parts of his body with the Danda, which was being wielded by Karim Bakhsh at that time. They chose to thrust it in the anus of Qadir Bakhsh in order to wreak vengeance of their dishonour.
11. It is to be seen whether by killing a man after thrusting a Danda in his anus, constitute culpable homicide amounting to murder or it is a culpable homicide not amounting to murder. The Crown v. Muhammad Shafi and others P L D 1954 Lah. 395 is a similar case wherein it was held that it is culpable homicide not amounting to murder as death is not intended but the assailant certainly knows that, it could cause death and the accused were sentenced under section 304, Part-I1. P . P. C . A I R 1932 Lah. 199 has also been referred to in this judgment. In A I R 1932 Lah. 199 a sentence off one year's R.I. was found to be sufficient but in P L D 1954 Lah . 395, Division Bench ruling five years' R.I. was awarded to the accused and it was further adjudicated that the provision of section 34, P.P.C. could be extended in such a case. In the circumstances, I partly accept this appeal and hold that the appellants are guilty under section 304, Part-II, P.P.C. Both of them shall suffer five years' R.I. each. The amounts of fine and compensation are not altered. Both the appellants shall have the benefit of section 382-B, Cr.P.C. The appeal is decided accordingly.
M . A . K / K-48/ L Appeal partly accepted.