KARAM KHAN AND 2 OTHERS Versus THE STATE Haji Shams-ud-Din , S.M. Naeem for the State.,Sardar Muhammad Ishaq Khan and Sh. Zamir Hussain

This criminal appeal has been brought from a judgment dated 5-8-1985 whereby Hakim Syed Akhtar Irshad, Additional Sessions Judge, Attock convicted the appellants under section '302/34, P.P.C. for committing the murder of Muhammad Asif, deceased and sentenced them to imprisonment for life each and to a fine of Rs.10,000 each or in default thereof each of them to undergo one year R.I. The half of the fine, if realized was ordered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C.

2. This judgment will dispose of this appeal and Criminal Revision No. 141 of 1985 (ordered to be heard alongwith the appeal) which was filed by the complainant for the enhancement of the sentence awarded to the appellants to that of the capital one and also for the enhancement in compensation.

3. In the F.I.R. No. 134, dated 19-9-1984 lodged at 1-30 p.m. with the Police Station Pindigheb the complainant Sher Bahadur, father of the deceased alleged that he was informed at his house by Muhammad Ramzan son of Lal Khan of Pindigheb Town that he was present in his field at the noon time, he saw Muhammad Asif, the deceased on his way to the village after having purchased some domestic articles. All of a sudden the appellants Sultan Khan armed with a Chhuri, Karam Khah and Muhammad Iqbal (empty handed) emerged from the reeds, they raised Lalkaras and attacked Muhammad Asif, the deceased, Muhammad Asif looking for safety took to his heels. The appellants chased and overpowered him. Sultan Khan appellant inflicted a Churri blow on the right side of the back of his chest. Muhammad Asif spontaneously fell on the ground and expired there. Abdul Ghafoor and Noor Muhammad also witnessed the occurrence.

The complainant stated that the motive for the murder of his son was that 15/20 days ago, Gulab Khan son of Karam Khan and his son Muhammad Arif had a quarrel with each other, as a result of which the appellants in furtherance of their common intention murdered his son.

4. The investigation was conducted by Raja Mehboob Hussain S.H.O. Police Station Pindigheb.

5. Dr. Muhammad Ibrahim conducted the post-mortem examination on the dead body of Muhammad Asif aged 25 years of average built on 19-9-1984 at 4-30 p. m. He observed, "An incised wound 2.5 c. m. x 1 c.m. going forward on right side back of chest, 3 c.m. from mid-line, 22 c.m. from right shoulder. There were corresponding cuts on shirt and under-vest which were heavily stained with fresh blood." There was no other injury on the body.

On internal examination he found an incised wound 2.5 c.m. x 1 c. m. going forward on the back of chest wall on right side, 3 c.m. from mid-line, 22 c.m. from right shoulder, cutting the second rib posteriorly partially. Pleura was cut through the injury mentioned above. Right lung was injured and there was an incised wound 2.5 c. m. x 1 c. m. x 10 c. m. deep on back of upper lobe. The upper lobe was filled with blood. Stomach was full of semi digested food and clotted blood. Small and large intestines contained faecal matter and gases. Bladder was full of urine. Smegma was oozing from penis. All other organs were healthy.

In the opinion of the doctor death ensued as a result of the injury which punctured the right lung causing profused bleeding and leading to shock. The injury as caused according to him was sufficient in the ordinary course of nature to cause the death. The time elapsing between the causing of the injury and death was half an hour and between the death and the post-mortem examination 3 to 6 hours.

6. The appellants Karam Khan and Iqbal Ahmad were arrested on 22-9-1984. Sultan Khan appellant was arrested on 3-11-1984 from near village Sadrial, Police Station Fateh Jang. On 8-11-1984, Sultan Khan while in the custody of the police led to the recovery of the blood stained Churri from a shed situated in the courtyard of his house.

7. The Prosecution at the trial under section 302/34, P.P.C. iri support of its case produced in all thirteen witnesses confining the eye-witness account to Muhammad Ramzan P.W. 9, and Noor Muhammad P.W. 10 who supported the facts as mentioned in the F.I.R. (Abdul Ghafoor, Muhammad Arif and Gul Muhammad were given up) the medical evidence by Dr. Muhammad Ibrahim P.W. 1, the recovery of blood stained Chhuri witnessed by Muhammad Din P.W. 8 and Raja Mehboob Hussain Sub-Inspector P.W. 13; blood-stained earth from the spot vide memo. Exh. P.C. and articles as to the Soda Salf purchased by the deceased Ex. P2/1-3 (sugar one kilogram, powder milk one kilogram and one Chattak tobacco) vide recovery memo. Ex. P.E. recovered from the place of occurrence; the Chemical Examiner's reports Ex. P.J. and Ex. P. K. stating the collected earth and the Chhuri as blood-stained; the reports of Serologist Ex. P.L. and P.M. stating that the origin of the blood was that of human; the site plan Ex. P.B (prepared by the Patwari) and the site plan Ex. D.F. (prepared by the Investigating Officer).

8. The relation between the parties inter se as manifested by the evidence and not controverted is that Iqbal Ahmad appellant is the son of Karam Khan appellant and Sultan Khan appellant is the son-in-law. Karam Khan appellant is brother-in-law of the complainant Sher Bahadur (P.W. 12), Iqbal Ahmad, appellant is the nephew of Sher Bahadur. Sultan Khan appellant, the son-in-law of Karam Khan is the stepson of the sister of Sher Bahadur, the complainant.

9. After the close of the evidence offered by the prosecution the appellants in their examination under section 342, Cr.P.C. denied the case as set up by the prosecution. Sultan Khan appellant however, stated that, "a false case has been made out against me and I have been roped in, in the case. P.Ws have deposed falsely against me. I quarrelled with Muhammad Ramzan P.W. over the purchase of 'shisham' trees and my brother-in-law Habib Khan had appeared against Noor Muhammad P.W. in a case a/s. 307, P.P.C. in which Noor Muhammad P. W. of this case was convicted."

No evidence was led by Iqbal Ahmad and Sultan Khan appellants in defence. Karam Khan appellant produced in his defence Gulab Khan as D.W. 1 who was the son of Karam Khan and brother of Iqbal Ahmad appellant. He deposed that no quarrel took place between him, Muhammad Arif P.W. (not produced) and Muhammad Asif deceased. He was neither insulted nor humiliated by the deceased. He said that he remained on training as a reservist from 1-9-1984 to 30-9-1984. He made a number of applications to the higher officers about the false involvement of the appellants in the case. He produced the postal receipts of the applications Ex. DG/1-9 and the acknowledgment receipts Ex. D.H./1-6. He also stated that no action was taken by the police on the said applications. He tendered a copy of the record of rights appertaining to 1972-73 (Ex. D.1) and the photostat copy of an application moved by Gulab Khan D.W. (marked 'A') and covering letter (marked 'B'). A photostat copy of inspection note Ex. D.E. and an unscaled site plan Ex: D.F. prepared by the Investigating Officer on 19-9-1984 were also brought on to the record.

10. The learned Additional Sessions Judge disbelieved the evidence regarding motive as having not been proved. The learned Judge observed that at the time in a case under sections 307/148/149, P.P.C. the complainant and the appellants had joined their hands on one side of the case so according to him in the circumstances the immediate cause for the murder remained shrouded in mystery. Sher Bahadur, the complainant (P.W. 12) had no enmity with the appellants and in his entire cross-examination nothing was brought on the record to prove that Sher Bahadur had any motive to falsely implicate his own relatives as well as his own party-men. In his cross-examination the minor discrepancies as pointed out had no bearing on the main issue.

The learned Additional Sessions Judge believed Muhammad Ramzan P.W.9 and Noor Muhammad P.W. 10 as the eye-witnesses giving a true account of the occurrence observing that they had absolutely no enmity with the appellants to depose against them as falsely nor any motive to falsely implicate. As to certain contradictions pointed out to him in the statements of the said two eye-witnesses he was satisfied that those considerations were not material. In his view the ocular account of the occurrence had come from an unimpeachable source so the prosecution had established its case as to the murder of Muhammad Asif. He did not give any weight to the defence.

11. The learned counsel for the appellants has contended that Muhammad Ramzan (P.W. 9) has not been 'proved as a tenant on the land as alleged by the prosecution, therefore, there was no occasion for him to be present at the place of occurrence and have witnessed the occurrence. Noor Muhammad (P.W. 10) is a chance witness. No weight can be given to his evidence without any corroboration. The prosecution case lacks in evidence. The participation of Iqbal Ahmad and Karam Khan appellants is highly doubtful. The offence as alleged falls under section 326, P.P.C. as against Sultan Khan appellant.

12. The learned counsel for the State has supported the judgment of the learned Additional Sessions Judge as it is.

13. The learned counsel Sardar Mohammad Ishaq Khan for the complainant who is also the revision petitioner has submitted that in this case the F.I.R. was lodged very promptly. Sher Bahadur (P.W.12), Mohammad Ramzan (P.W.9) and Noor Mohammad (P.W.10) are truthful witnesses. The case as put by the prosecution stands established without giving rise to any doubt. The appellants have been rightly convicted. The appellants and the complainant happen to be closely related. Sher Bahadur in no case will involve them falsely. The ocular evidence is quite independent. The witnesses have no enmity with the appellants so as to falsely involve them. Even if Noor Mohammad is taken as a chance witness his evidence cannot be discarded on this ground. The legal weight can be attached to his statement because the same stands corroborated by the statement of Muhammad Ramzan P.W. The case as a whole warrants the awarding of a capital sentence. The learned counsel has relied in support of his submissions on Javed Ahmad alias Jaida v. The State and another (1978 S C M R 114), in which it has been observed, "when a crime is committed on a public thoroughfare, or at a place frequented by the public generally, the presence of passers-by cannot be rejected by describing them as mere chance witnesses, unless, of course, it is found that the witnesses concerned could not give any satisfactory explanation of their presence at or near the spot at the relevant time, or there is otherwise any inherent weakness or contradiction in their testimony." Muhammad Ashraf and another v. The State P L D 1977 S C 538, in this case it has been observed, "No doubt, the Courts have been rather cautious in accepting the testimony of chance witnesses and that too not without corroboration but chances do occur in life and more often in frequented public places like bus stands, railway platforms, level crossings etc. The presence of a witness at such public resorts would considerably detract from the prejudice usually attached to the testimony of a witness casually appearing at the scene which of course has to be subjected to the well-settled tests of credibility." Muhammad Shaikh and another v. Maminuddin Shaikh and others P L D 1971 Dacca 106, in which it has been observed, ..the said appellate Court should have given due importance to the assessment of the evidence by the trial Court which had the opportunity to look into the demeanour of the witnesses and acquire first hand impression from the evidence of the said witness." Chakar and another v. The State 1971 P Cr. L J 1121, in this case it has been held that, "The statements under section 161 Cr.P.C. are generally recorded in slip-shod manner and the omissions are not unusual. The credibility of the witnesses has to be considered in the light of the evidence which they give at the trial as well as the other circumstances of the case." Dost Muhammad v. The State PLD 1963 S C 285, in this case it has been observed. "There are cases, within those actions which constitute culpable homicide amounting to murder, as defined by the law, where justification can be found for refusing to impose the death penalty. The criminal appellate Courts, when in cases of this kind they impose a sentence other than death are obliged, as part of their function, to state their reasons for altering the sentence imposed in compliance with law, by the original Court."

14. Sh. Zamir Hussain, Advocate appearing alongwith Sardar Mohammad Ishaq Khan, Advocate has added to his submissions by saying that the deceased would have managed to escape had the assailants not been three in number.

15. In elaborating the ground taken by the learned counsel for the appellants as to the eye-witnesses the learned counsel has referred to a copy of the Jamabandi Ex.D.I for the year 1972-73 and has maintained that Khasra No.1366 where Mohammad Ramzan was allegedly cutting the grass has been specifically shown as 'Khud Kashat (by the owners) so it is false to say that Mohammad Ramzan was a tenant in that Khasra number and as such present there.

The prosecution in order to prove that Mohammad Ramzan is a tenant in the said Khasra number has relied upon the evidence of Fida Hussain Patwari (P.W.6) who has stated that Mohammad Ramzan is recorded as tenant in Khasra No. 1366 as per Khasra Girdawaris from 1982 to 21-10-1984, regarding which the learned counsel for the appellants has said that the entries in the Khasra Girdawaris are fake. For his comments on the same he has banked upon the statement of the Patwari made in his cross-examination which is, "It is correct that pages of register Khasra Girdawari running from Sr. No.1 to 1172 are blank and they do not contain names of owners or cultivators, except at page 125, Khasra No.8416/1161. I made entries in the register of Khasra Girdawaris of Khasra No.1173 to 1188 and thereafter the entries in column Nos. 2 and 3 upto 1204 are blank. From Khasra Nos. 1205 to 1226 the entries in column Nos. 2 and 3 are not recorded except for Khasra No.1218. The entries in column Nos. 2 and 3 of register of Khasra (Gridawari) against Khasra No.1227 are recorded. It is correct that entries in column Nos. 2 and 3 against Khasra Nos. 1228 to 1344 except 1244 are blank. The entries against column Nos. 2 and 3 are recorded in Khasra Nos. 1345 to 1386. The entries in Khasra Nos. 1387 to 1427 are blank in column Nos. 2 and 3. The last Jamabandi was prepared in 1972-73, therefore, the entries in column Nos. 2 and 3 of register of Khasra Girdawari were left blank. The record of rights is prepared for the entire estate. It is incorrect to suggest that wrong entries in register of Khasra Girdawaris were made at the instance of complainant party." In view of the comments offered by the learned counsel it has been put to him that if he prefers this Court may go for the additional evidence under section 428, Cr.P.C. to remove his doubts provided it can be positively shown that Mohammad Ramzan is not a tenant is the said Khasra number by calling the owners of the Khasra number in question and the lambardar. He has sought instructions from Gulab Khan (present in the Court), the son of Karam Khan appellant who has also appeared as D.W.1. Gulab Khan has shown his unwillingness as to the further ascertainment of the same fact to the hilt. From this conduct of Gulab Khan it appears that there is nothing more to negative that Mohammad Ramzan is a tenant in the said Khasra number, therefore, no exception can be taken to the reliance of the trial Court on the evidence in this behalf. The learned trial Court has relied upon Mohammad Ramzan as an eye-witness of the occurrence. It is true that Noor Mohammad (P.W.10) who says that at about noon time on the relevant day he and Abdul Ghafoor were going to Pindigheb Town since he was not feeling well and intended to take some medicine from the town while Abdul Ghafoor wanted to purchase some articles. When they reached on the back of Hariwala Kas on the side of Nowshera village he saw that was a chance witness and as of abundant caution the Court was to look for other evidence, at the same time it has been pointed out to the learned counsel for the appellants that the conviction can be based on the evidence of a solitary witness in the scheme of the criminal law if true. Since the trial Court has at least relied upon Mohammad Ramzan as an independent witness, therefore, there is nothing as material on the record to come to the contrary so far as the stabbbing by Sultan Khan is concerned.

The learned counsel for the appellants has attempted to make a capital of an observation appearing in the medical evidence based upon the post-mortem report "Smegma was discharging from penis" by submitting that the deceased was done away with by somebody when he tried to commit with him carnal intercourse. Dr. Mohammad Ibrahim (P.W.1) has stated in his cross-examination that in Medical Jurisprudence the word smegma is defined as a prostatic fluid, that is, discharge due to some violence or severe pain from the penis. It is not related to sexual stimulation. Then in answer to a question that whether the smegma was a prelude to the emission of semen the reply given by the doctor was that that was incorrect. He further stated that that was correct that in case of the erection of male organ smegma was the first substance to emit. There was a possibility that at the time of the infliction of injury on the person of the deceased his penis was in erected position.

According to Webster's New Twentieth Century Dictionary Second Edition the word 'smegma' means in physiology, a thick, cheesy secretion found under the prepuce in males and around the clitoris and labia minora in females and in Blakiston's Gould Medical Dictionary Fourth Edition the word 'smegma' means, "Smegma (smegmuh) n. (Gk. smegma, soap, unguent), Se-bum-smegmatic (smeg-matick) adj. smegma cli-to-ri-dis (kli-tori-dis) (BNA). The substance secreted by the sebaceous glands of the prepuce." In gist it may be found as stuck on the outer part yet there is no denying of the fact that, it is a kind of substance as a result of the secretion of glands. In Modi's Medical Jurisprudence and Toxicology 21st Edition on page 344 it is given, "On the 23rd February 1923, a man complained at the police-station that one Dhani had committed rape on his daughter. He was immediately arrested and sent to Modi for medical examination. He found a uniform layer of smegma covering the glans penis, gave an opinion that he could not have had sexual intercourse during the I last twenty-four hours. The man was released. " The observation being utilized by the learned counsel for the appellants yields not anything to support him as to the carnal intercourse as there is a complete absence of the corresponding facts and effects.

As to the other aspect of the case regarding the participation of Iqbal Ahmad and Karam Khan certain considerations have arisen so as to weigh in the mind of the Court to make it waver as to the participation of the said appellants. If it is taken up that the appellants as suggested by the learned counsel for the complainant were in ambush behind the reeds then one thinks that whether these appellants would do so all empty handed. The general experience is that each participant happens to have some weapon may be a Danda simplicitor but never empty handed. The second consideration is that it has been alleged by the prosecution that appellant Iqbal Ahmad caught hold of the deceased from the back of his neck and Karam Khan appellant held Mohammad Asif from his right arm and Sultan Khan appellant came running and gave him a Chhuri blow on the right side of the back of the chest of Mohammad Asif deceased then what made Sultan Khan appellant to be choosy about inflicting the injury at the back and not on the front which can from this situation be taken as exposed to him. It appeals more to the sense that the deceased to heels on seeing Sultan Khan appellant after throwing his purchase and in the process of overtaking Sultan Khan was only successful in reaching him from behind whereat he immediately inflicted the Chhuri blow. This is not to be construed that the eye-witness specifically Mohammad Ramzan (P.W.9) has been disbelieved as to the manner of the occurrence but it has been emphasised that as an appellate Court this consideration has heavily weighed in the mind of the Court so as to make it to vacillate as to its finding regarding the participation of Karam Khan and Iqbal Ahmad appellants in the commission of the offence, and according to the settled law when a Court passes through such a state of mind then the benefit of doubt falls as due.

The submissions made by Sardar Mohammad Ishaq Khan counsel for the complainant in view of the aforesaid can only be sustained as to the conviction of Sultan Khan appellant and not beyond that, therefore, in the result the appeal regarding Sultan Khan is dismissed. His conviction and sentences are maintained as the case stands proved against him in the opinion of the learned Addl. Sessions Judge with whom this Court is not minded to differ and in so far as the submission of the learned counsel for him that the offence is covered under section 326, P.P.C. and not under section 302, P.P.C. is concerned suffice it to say that the Chhuri in possession of Sultan Khan disclosed a deliberate preparation having been wielded forcefully causing the disastrous result while emerging from behind the reeds, therefore, the presumption arose against him that he intended whatever followed immediately as a consequence which presumption had not been displaced. The appeal as to Iqbal Ahmad and Karam Khan is accepted. Their conviction and sentences are set aside. They are to be released forthwith if not required in any other case.

The learned Addl. Sessions Judge has withheld the awarding of the capital sentence for the reason that only a solitary Chhuri blow was given by Sultan Khan to the deceased which caused the death. He did not repeat the blow. There are decisions to this effect as well, therefore, no interference in this regard is called for and in the circumstances the compensation already awarded requires no enhancement. Resultantly the revision petition for enhancement is dismissed.

S.G.D./K-50/L Order accordingly.