ABDUL SHAKOOR Versus THE STATE
IJAZ NISAR, J .‑‑Abdul Shakoor son of Abdul Ghani, aged 23 years, alongwith his brother Noor, aged 20 years, and his father Abdul Ghani, aged 70 years, was tried for the murder of Naveed Mujtaba, aged 8 years. Vide judgment dated 3‑4‑1985, the learned Addl. Session Judge, Toba Tek Singh convicted Abdul Shakoor appellant under section 302 P.P.C. and sentenced him to death plus a fine of Rs.5,000 or 'in default to undergo R.I. for one year. He was also directed to pay as compensation Rs.10,000 to the legal heirs of the deceased or in default to undergo 6 months' R.I. under section 544‑A Cr.P.C. Abdul Ghani, and Noor co‑accused were, however, given the benefit of doubt and acquitted.
This judgment will dispose of the appeal filed by Abdul Shakoor appellant and the connected murder reference.
The case of the prosecution is that on 14‑8‑1983 at about 6 a.m. Zahoor Ahmad PW.6 father of Naveed Mujtaba deceased was present in his house when Abdul Ghani accused (since acquitted) came there and started abusing him on the ground that the cattle of Zahoor Ahmad P.W. had damaged his crop. The latter returned the abuses. Abdul Ghani left that place threatening him with dire consequences. After a shortwhile Zahoor Ahmad P.W. went to plough his field. Mst. Rashidan Bibi daughter of Abdul Ghani (Sister of Abdul Shakoor appellant) passed through his fields. He forbade her to pass from there upon which there was an exchange of abuses between them. Zahoor Ahmad P.W. did not allow her to pass from his field as a result of which she went back. On the same day at about 8‑30 a.m. Zahoor' Ahmad left for his home in the company of his son Naveed Mujtaba deceased (8). On the way he stopped for taking bath in the 'bathroom of village mosque. In the meantime, Abdul Shakoor appellant armed with a hatchet and his brother Noor accused (since acquitted) empty handed came there. They challenged the deceased and ran after him declaring that he would not be spared because he had abused their father and sister in the morning. Zahoor Ahmad P.W. ran away. Noor accused caught hold of Naveed Mujtaba deceased and exhorted Abdul Shakoor appellant to kill him whereupon the latter gave four hatchet blows to him landing on the back, neck, left upper arm, chest and chin. Thereafter, Noor accused threw the deceased on the ground as a result of which he received some scratches/abrasions. On the alarm raised by Zahoor Ahmad PW.6 and Zawer Hussain PW.7 and Riaz (not, examined) came there and witnessed the occurrence. On their intervention the appellant and his brother left the spot. Naveed died at the spot. Leaving Zawar Hussain PW.7 near the dead body Zahoor Ahmad P.W. left for Police Station, Pir Mahal And lodged 'F.I.'R. Exh.PD at 10 a.m. The distance between the, spot and the Police Station being 6 k.m.
After recording the F.I.R. S.I. Ali Khan P.W.11 reached the spot. He prepared the injury statement Exh.PF and the inquest report Exh.PG in respect of the deceased and sent his dead body for post‑mortem examination. He arrested the accused on 16‑8‑1983. On the same day Abdul Shakoor appellant led to the recovery of blood‑stained hatchet P.1 through memo Exh.PE attested by Shamand PW.10, Khushal Khan (not produced) and Ali Khan S.I. PW.11. The hatchet was sent for chemical examination and as per‑report Exh.PK of the Serologist it was found to be stained with human blood.
3. The post‑mortem examination of Naveed Mujtaba, deceased revealed the following injuries:
(1) An incised wound 10 cm x 3 cm x boric cut on the back and left side of neck. The muscles, blood vessels and under lying vertebra was cut. The wound was transverse in direction.
(2) An incised wound on the back lateral and frontal surface of, upper part of left upper arm. The structure with humerus were cut and distal part was adherent with a tage of skin on medial surface.
(3) An incised wound 6 cm x 2 cm x bone deep on the front of upper part of chest just below .the root of neck. It .was transverse in direction.
(4) An incised wound 2 cm x 1/2 cm x sking deep below the chin. Transverse in direction.
(5) An abrasion 1 cm x l cm on the right side of forehead.
(6) An abrasion 1 cm 'x l' cm on' the right cheek.
All the injuries were ante‑mortem. Injuries Nos. 1 to 4 were caused by sharp‑edged weapon while injuries Nos.5 and 6 were caused by blunt weapon. Injuries Nos.1, 2 and 3 were grievous and rest were simple. The death was due to shock and haemorrhage as a result of injuries Nos.1 and 2: Probable tine between injuries and death was within a few minutes `and that between death and post‑mortem about 9 to 12 hours.
4. Abdul Shakoor appellant and his co‑accused denied the prosecution allegations. The appellant gave the following version of the occurrence:‑
"On the date of occurrence, Zahoor P.W. outraged the modesty of my sister when she was passing through a thoroughfare while going with my meal to our fields. Said Zahoor assaulted her and outraged her modesty. Her clothes were torn and she was rescued by neighbouring farmers when she reached me, she was weeping and her condition was miserable. On my query she said "she cannot tell me in words, what Zahoor had done with her". The situation provocated me and I ran towards the site where she was outraged but Zahoor was not present there.
I went to the village and knocked the door of Zahoor P.W. but he was not available. His son came out and asked me what was the matter. I told that his father had outraged the modesty of my sister. His son Naveed Mujtaba deceased used filthy language and said that he was to do first what his father had done. I do not know what happened afterwards."
He examined in defence his sister Mst. Rashidan Bibi as DW.1 Nazir Ahmad as DW.2 and Muhammad Aslam Head Constable as DW.3. The former stated that on the day of occurrence she was taking meals for her brother when Zahoor P.W met her and told her that he would teach her a lesson for her father having abused him in the morning over the alleged damage of crops by his cattle and started abusing her in a dirty manner and also torn her shirt whereupon she started weeping. Meanwhile a person appeared there who separated them and that if he had not intervened Zahoor might have killed her or outraged her modesty. She apprised her brother about it and enquired from him about her father. On his inquiry as to what had happened she told him that it was not possible for her to explain it in words what Zahoor had done with her. On hearing this, the appellant ran towards the village. In cross‑examination she stated that she had got 8 issues and was married about 15 years back.
Nazir Ahmad DW.2 stated that he had separated Mst. Rashidan Bibi and Zahoor P.W. In cross‑examination he stated that he did not see any injury or abrasion on the person of Mst. Rashidan Bibi. He admitted that the accused were from his brotherhood.
Muhammad Aslam DW.3 proved the F.I.R No.220 dated 30‑11‑1982 Exh.DC.
5. The prosecution examined Zahoor P.W.6 and Zawar Hussain P.W.7 as eye‑witnesses. Shahmand PW.10 and Ali Khan S.I. PW.11 were examined to prove the recovery of blood‑stained hatchet P.1 at the instance of the appellant. The narration of occurrence by Zahoor Ahmad PW.6 has already been given above. Zawar Hussain PW.7 stated that at the time of occurrence he was present at the Chowk of the Masjid and thus witnessed it.
6. Relying on the ocular testimony, the motive and the recovery the trial Court convicted and sentenced the appellant as described above.
7. Learned counsel for the appellant has not disputed the time and place of occurrence. His main stress is that the motive set up by the prosecution is false and that the occurrence was the result of Zahoor Ahmad, father of the deceased outraging the modesty of his sister Mst. Rahidan Bibi which would take the case out of the purview Of section 302, P.P.C. or in the alternative make out a case for the award of lesser penalty.
8. We have thoroughly perused the evidence led by the prosecution as well as the defence and find that the presence of Zahoor Ahmad PW.6 and Zawar Hussain PW.7 at the spot at the relevant time-stands fully established. Zawar Hussain PW.7 is an unconnected witness and had no reason to depose falsely. The eye‑witnesses stand corroborated by the medical evidence as well as recovery of blood‑stained hatchet P.1 at the instance of the appellant. Shahmand PW.10 and Ali Khan S.I. PW.11 have given a consistent account of the manner, mode and place of recovery of hatchet P.1.
9. As regards the motive the prosecution case is that father Ghani, father of the appellant had abused Zahoor Ahmad P.W. father of the deceased on the day of occurrence on the ground that his cattle had caused damage to his crop. Abdul Ghani in his examination under section 342 Cr.P.C. did not deny his visit to the house of Zahoor Ahmad P.W. and admitted that he had told him to look after his cattle so that they should not spoil his crop. According to Zahoor Ahmad PW.6 he had forbidden Mst. Rashidan Bibi from passing through his land which led to an exchange of abuses between them and he did not allow her to pass through his fields. His version finds support from the evidence of Mst. Rashidan Bibi according to whom Zahoor Ahmad PW had declared that he would teach her a lesson for her father having taken exception to the damage caused to his crop by his cattle and abused her on that account. Conversely the appellant's version is that Zahoor Ahmad had not only abused his sister but had also outraged her modesty. Mst. Rashidan Bibi has not levelled any such allegation against him and on the other hand stated that if a man whose name she did not know had not come and intervened Zahoor Ahmad P.W. would have either killed or outraged her modesty. According to her she had got abrasions on her knees and elbow and nail scratches at the hands of Zahoor Ahmad appellant but she stands belied in this behalf by Nazir Ahmad DW.2 who stated that he did not notice any injury or abrasion on her person. Admittedly, she was not medically examined. Assuming for the sake of arguments that Zahoor Ahmad PW.6 father of the deceased had misbehaved with her the question that would fall for determination is as to whether there was any justification for brutally murdering his 8 years old son Naveed Mujtaba deceased who had nothing to do with the said incident. According to the appellant he was provoked on hearing the woeful tale of his sister and under provocation ran towards the village and knocked at the door of Zahoor Ahmad P.W. but he was not available and his son (the deceased) came out and asked him about the matter and he told him that his father had outraged the modesty of his sister whereupon the deceased used filthy language and that he (the appellant) did not know what happened afterwards. Impliedly he admits the occurrence. The plea raised by him is not acceptable for the reasons that the occurrence had not taken place at the house of the deceased but near the village mosque and further that the deceased being a child of 8 years could not be expected to justify the action of his father or having hurled filthy abuses at the appellant. It is a settled proposition of law that mere vulgar abuse is not such a grave and sudden provocation as is contemplated by Exception 1 to section 300, P.P.C. The appellant was not justified at all to take the life of an infant for the act of his father. It would be opposed to all sense of justice to allow the plea of grave and sudden provocation in the circumstances of the present case or to consider it as a mitigating circumstances. The conduct of the appellant in brutally murdering a lad of 8 years without any justification or for no fault of his does not entitle him to any leniency in the matter of sentence. Accordingly, upholding his conviction and sentence we dismiss his appeal.
The death sentence of the appellant is confirmed.
M.Y.H./A‑278/L Appeal dismissed.