RIAZ AHMAD Versus THE STATE

IJAZ NISAR, J .‑‑Riaz Ahmad (30) son of Ghulam Haider has been convicted by the learned Additional Sessions Judge, Multan on 12‑2‑1983 under section 302, P.P.C. for the murders of his father‑in- law Muhammad Yar (75) and his brother‑in‑law Muhammad Ibrahim (35) and sentenced to death on two counts and a fine of Rs.5,000 or in default to undergo two years' R.I. He was also convicted under section 307 , P . P . C . and sentenced to 8 years' R.I. plus fine of Rs.3,000 or in default to undergo one year's R.I. for murderously assaulting his mother‑in‑law Mst. Sarwar Mai. Half of the fine, if realized, was ordered to be paid to the heirs of the deceased while Rs.2,000 were ordered to be paid to Mst. Sarwar Mai P.W. as compensation.

2. Challenging his conviction and sentence Riaz Ahmad has filed an appeal while the learned Additional Sessions Judge has also made a reference for confirmation of the death sentence awarded to him. Both the matters are being disposed of together by this judgment.

3. The prosecution case in brief is that Mst. Raham Elahi, daughter of Muhammad Yar deceased and sister of Muhammad Ibrahim deceased was married to the appellant. About two months prior to the occurrence she left his house and came to the house of her parents. The appellant made strenuous efforts for her restoration but the two deceased were adamant and did not permit Mst. Raham Elahi to go back to him. Even, in the evening preceding the night of occurrence he had visited the house of his in‑laws for the above purpose but Muhammad Yar and Muhammad Ibrahim deceased made a point blank refusal to him.

On the night between 10/11‑6‑1978 Abdur Raheem P.W.6 (complainant), Allah Rakha P.W. 9 and Abdul Majid P.W. (given up) were asleep in front of the house of Muhammad Yar deceased while the latter, his son Muhammad Ibrahim deceased and his wife Mst. Sarwar Mai P.W. 8 were sleeping in the courtyard. At about midnight Abdur Raheem, Allah Rakha and Abdul Majid P.Ws. woke up on hearing an alarm and rushed to the courtyard of the house of Muhammad Yar deceased and saw in the light of a lantern the appellant giving Kassi blows to Muhammad Ibrahim deceased. They tried to intervene but the appellant threatened them with dire consequences. Out of fear they did not go near him. In the meantime, Muhammad Yar deceased and his wife Mst. Sarwar Mai P.W. woke up. The appellant also attacked them by giving Kassi blows to them. Abdur Raheem, Allah Rakha and Abdul Majid P.Ws. tried to apprehend him but he managed to run away by scaling over the eastern wall. Muhammad Ibrahim and Muhammad Yar deceased succumbed to the injuries there and then. Abdur Raheem P.W. 6 left for Police Station Shujabad and lodged the F.I.R. Exh. P.J. on the following morning at 8‑00 a.m. The distance between the spot and the police station, being 16 miles.

After recording the F.I.R. Abdul Karim A.S.I. P.W.10 proceeded to the spot and prepared the inquest report Exh. P.C. and injury statement Exh. P.C/1 of Muhammad Yar deceased. He also prepared the inquest report Exh. P.B. and injury statement Exh. P.B/1 of Muhammad Ibrahim deceased. The injury statement Exh. P.S. Of Mst. Sarwar Mai was also prepared by him and she was sent to Civil Hospital, Shujabad for medical examination. He also took into possession lantern P.2 through memo. Exh. P.M. Later Ch. Maqsud Ahmad, S.I. (not examined) took over the investigation from him. Maqsud Ahmad S.I. effected recovery of blood‑stained Kassi P.1 at the instance of the appellant from a sugarcane field on 21‑7‑1978 through memo. Exh. P.F attested, by Hayat Muhammad P.W. 4 and Allah Bakhsh P.W.7.

4. Dr. Moazzam P.W. 1 conducted post‑mortem examination on the dead body of Muhammad Yar (75) on 11‑6‑1978 and found the following injuries thereon:

(1) An incised wound 7" x 1" brain cutting deep, semi lunar in shape in the middle of head. Both‑frontal bones were cut through and through. The brain was injured one inch deep in horizontal position.

(2) Incised wound 3" x 1" bone cutting deep on the right scapular region. The scapula was cut through and through.

Death occurred due to brain injury as a result of injury No. 1. Injury No. 2 was grievous in nature. Both the injuries were caused by sharp‑edged weapon. Duration between injuries and death was sudden and that between death and post‑mortem examination about 24 hours.

On the same day, he conducted autopsy on the dead body of Muhammad Ibrahim deceased (35) and found the following injuries on it:

(1) An incised wound 4" x 1", brain cutting, on the front‑of face at the level of root of nose, cutting both the orbits, maxilla, and base of skull the brain was cut through and through. The brain injury was 3" deep. The wound was horizontal in direction.

(2) An incised wound 5" x 1" x brain cutting on the frontal region. Frontal bone on the right side was cut through and through. The injury was 2" deep.

(3) An incised wound 4" x 1" x bone deep on the angle of left mandible. The mandible and maxilla were cut through and through.

(4) An incised wound 4" x 1" x bone deep on the right side of the face, maxilla mandible were cut through and through.

(5) An incised wound 2" x 1" bone deep on the centre of chin. It was horizontal in direction.

(6) An incised wound 4" x 1/2" skin deep on the right shoulder.

(7) An incised wound 1/2" x 1/4" on the dorsum of left index finger.

Death occurred due to brain injury as a result of multiple incised wounds on the head. Injuries Nos. 1, 2 and 4 were grievous in nature while the remaining were simple. Injuries Nos. 1 and 2 were individually sufficient to cause death. All the injuries had been caused by a sharp‑edged weapon. The time between injuries and death was immediate while that between death and post‑mortem was 24 hours. Exh. P.B. is the post‑mortem report and Exhs. P.B./1 and P.B./2 are the pictorial representations of injuries.

Lady Doctor Rashida Soharwardy, P.W.5 examined Mst. Sarwar Mai (56) on 11‑6‑1978 and found the following injuries.

Injury No. 2 was grievous. Both the injuries were caused by a sharp‑edged weapon within the duration of 1 to 18 hours.

5. The appellant pleaded not guilty to the charge and denied the prosecution allegations and stated to have been falsely involved. Explaining his involvement he made the following statement:‑‑

"I have been falsely involved in this case. Muhammad Yar deceased was related to me on my paternal side and he had married his daughter Mst. Raham Elahi with me and his grand daughter with my brother Allah Ditta. Mst. Sarwar Mai belongs to the brotherhood of Abdul Rahim and was also related to Allah Rakha P.W. Abdul Rahim and Allah Rakha P.Ws. were keen to get Mst. Raham Elahi and the wife of Allah Rakha in their family as wives of their brothers and I opposed them."

He stated that he was mentally deranged prior to the occurrence, at the time of occurrence and even after. He examined Hakim Hafiz Abdur Rehman D.W.1 and Dr. Khurshid Ahmad D.W.2 in his defence. According to D.W.1 the appellant remained under his treatment for Melancholia. He added that his father had put him under chains because of his mental ailment. Dr. Khurshid D.W. 2 stated that the appellant had been sent to him for medical examined by the Superintendent, New Central Jail, Multan about his mental state under the orders of the Court. He admitted him in the hospital and found him in a depressed mood with no response to the external stimuli having no orientation to time and space. He found him mentally deranged and of unsound mind but expressed his inability to state as to what was his mental state before the date of examination.

6. The prosecution examined Abdur Raheem P.W.6, Mst. Sarwar Mai P.W.8 and Allah Rakha P.W.9 to prove the occurrence. Abdul Majid an eye‑witness mentioned in the F.I.R. was, however, given up as having been won over. Hayat Muhammad P.W. 4 and Allah Bakhsh P.W.7 were examined to prove the recovery of Kassi P.1 at the instance of the appellant.

7. Relying on the motive, the ocular testimony supported by the medical evidence and the recovery of Kassi at the instance of the appellant the trial Court convicted and sentenced him as described above.

8. Learned counsel for the appellant states that the eye‑witnesses examined by the prosecution were closely related to the deceased and no independent witnesses from the locality had been examined. Abdur Raheem P.W.6 and Allah Rakha P.W.9 are sons‑in‑law of Muhammad Yar deceased while Mst. Sarwar Mai P.W.8 is widow of Muhammad Yar deceased and mother of Muhammad Ibrahim deceased. It is further stated that the time of occurrence has been changed so as to fit in with the medical evidence. The motive is also far‑fetched, it is added. The appellant was a mentally deranged person incapable of knowing that what he was doing was either wrong or contrary to law.

9. No doubt the above quoted eye‑witnesses were closely related to the deceased persons but their evidence cannot be discarded merely on that score. Mst. Sarwar Mai P.W.8 is a natural witness because she lived in the same house where the occurrence had taken place. Furthermore, the presence of injuries on her person proves her presence at the spot at the relevant time. One of the injuries received was grievous in nature and was caused by the same weapon as the injuries of the accused. She stands corroborated by her sons‑in‑law namely, Abdur Raheem and Allah Rakha P.Ws. on all material particulars. They have given cogent explanations for their presence at the spot on the night of occurrence. According to Abdur Raheem P.W.6 he lived at a distance of two squares from the spot and had visited the house of his father‑in‑law at the distance of the appellant who had solicited his help for the restoration of his wife. He stated that Allah Rakha P.W.9 had also come for the same purpose. He went on to say that the discussion about the restoration of Mst. Raham Elahi started in his presence and continued till 8 p.m. and he had stayed there on the asking of Muhammad Yar deceased because it had become very late. The occular account furnished by Abdur Raheem P.W.6, Mst. Sarwar Mai P.W.8 and Allah Rakha P.W.9 is corroborated by the medical evidence. The eye‑witnesses examined by the prosecution had no motive to falsey involve the appellant. There is nothing on record to show that anybody else had any motive or animus against the deceased. Abdur Raheem P.W.6 and Allah Rakha P.W.9 were not related to the deceased only but were related to the appellant also being his Humzulf. In the absence of any enmity they would not have falsely involved him in the case of the present nature. Mst. Sarwar Mai P.W.8 could not be expected to falsely involve the appellant who was her son‑in‑law. The motive also stands established and lends corroboration to the occular testimony. Mst. Raham Elahi wife of the appellant had deserted him and was living in the house of her parents who were not permitting her to go back to the appellant despite his strenuous efforts. According to the witnesses the appellant had tried very hard for her restoration but Muhammad Yar anti Muhammad Ibrahim deceased were adamant and had refused his request lastly in the evening proceeding the night of occurrence. The appellant had solicited the good offices of his Humzulf namely, Abdur Raheem P.W.6 and Allah Rakha P.W.9 for this purpose but they too could not prevail upon Muhammad Yar and Muhammad Ibrahim deceased to allow Mst. Raham Elahi to accompany the appellant. Though Abdur Raheem P.W.6 has made improvement upon his statement made in the F.I.R. that Mst. Raham Elahi was not willing to return to her husband for the reason that he associated with the women of ill repute and had been cruel to her but in the case initially set up by him in the F.I.R. there is no such mention where the only hurdle in the restoration of Mst. Raham Elahi to the appellant was stated to be the stubborn attitude of Muhammad Yar and Muhammad Ibrahim deceased. It is borne out from the record that appellant had two children from Mst. Raham Elahi and had been earnestly trying for her restoration but without any success.

10. It appears from the material on record that the appellant haul remained under treatment for mental disease prior to the occurrence' and thereafter but as it was not a legal insanity within the meaning of section 84, P.P.C.; no benefit can be given to him of it. Apart from this fact there are other circumstances which make out a case for lesser sentence. According to the prosecution the appellant had been trying hard for the restoration of his wife and children but could not succeed due to the persistent refusal of Muhammad Yar and Muhammad Ibrahim deceased without any substantial cause. Considering it as an extenuating circumstance we, while maintaining his conviction, alter his sentence from death to imprisonment for life on two counts under section 302, P.P.C. His conviction and sentence under section 307, P.P.C. for murderously assaulting Mst. Sarwar Mai P.W. is, however, maintained. Both the sentences shall run concurrently.

With the above modification in the sentence, the appeal is otherwise dismissed.

The death sentence awarded td the appellant is not confirmed.

M. Y. H./R‑54/L Appeal partly allowed.