MUHAMMAD YAR Versus MUHAMMAD AKRAM
SARDAR MUHAMMAD DOGAR, J. ‑‑ Muhammad Bashir, aged 25 years, was tried under section 302, P.P.C. for having murdered Muhammad Iqbal at Maghrabwela on 18‑4‑1984, in village Dhunna, at a distance of five miles from Police Station Sadar Sialkot, alongwith his brother Muhammad Rafiq, his paternal‑uncle Muhammad Ali and cousins Muhammad Afzal and Muhammad Yousaf. The learned trial Judge convicted Muhammad Bashir under section 302, P.P.C., vide judgment dated 31‑4‑1985 and sentenced him to death, plus to pay a Fine of Rs.5,000, in default whereof to undergo R.I. for two years. Fine, on recovery, has been directed to be paid as compensation to the heirs of the deceased. His co‑accused were acquitted by the learned trial Jud a vide the same judgment.
2. The convict has filed appeal he learned trial Judge as made reference for confirmation of death sentence. The complainant has filed Criminal Revision No. 592 of 1985, for setting aside the acquittal of the co‑accused of Muhammad Bashir. As all the matters arise from the same 'judgment they are being disposed of by a consolidated judgment.
3. F.I.R. (Exh.P.A.) was registere at Police Station Sadar Sialkot by Muhammad Sarwar, S.I. (P.W.14) on 18‑4‑1984 at 8‑30 p.m., on the statement of Muhammad Anwar (P.W.1), real brother of the deceased.
According to the F.I.R., the complainant arid his deceased brother had installed a tube‑well in their land. They used to sell extra water of the tube‑well to the needy cultivators of the village. Muhammad Shafi, acquitted accused Muhammad Ali and Muhammad Yousaf also used to obtain water on payment of cash by fixing share of the produce for irrigating their lands. Muhammad Shari (brother of acquitted accused Muhammad Ali) etc. Installed their own tube‑well three months prior to the occurrence and so had stopped purchase of water. The complainant asked them to clear the arrears of Rs.700/800. A demand in that regard was made on 17‑4‑1984 by the complainant and his deceased brother from Muhammad Shafi; Muhammad Ali and Muhammad Yousaf at their joint Dera, but they felt ill of that. They exchanged abuses also. Muhammad Ashraf Lambardar and Muhammad Bashir son of Barkat Ali intervened and separated them. All three of them while leaving extended threats that they will deal with them. The complainant did not lodge any complaint on account of relationship.
On the day of occurrence, the complainant alongwith his brother Muhammad Iqbal started for their tube‑well, after taking the food at sun‑set time. Iqbal was holding Huqqa and a milking pot, while the complainant was carrying Wanda of animals for the cattle. When they reached near the house of Muhammad Yousaf (acquitted accused), acquitted accused Muhammad Ali, Muhammad Afzal, Muhammad Yousaf and Muhammad Raiq armed with Chhuris and appellant Muhammad Bashir armed with a Khanjar, came out of his house. Muhammad Ali raised a Lalkara that Muhammad Iqbal shall not be spared alive today. Muhammad Ali hurled a Chhuri blow on Iqbal, which struck him on the right arm. Muhammad Afzal gave him Chhuri blows on the left shoulder and back. Where-after, all the five accused lifted him to a room where Muhammad Bashir caused an injury on his chest with the Khanjar while Muhammad Rafiq gave him injury on the right side of the chest with his Chhuri. Muhammad Yousaf also caused an injury with the Chhuri on the chest. Muhammad Iqbal fell down and died there. Muhammad Munir (P.W.3), Muhammad Bashir (P.W.2) and given up P.W. Shaukat reached the spot on hearing noise and witnessed the occurrence.
4. Muhammad Sarwar, S.I. (P.W.14), after recording the F.I.R. reached the spot. He despatched the dead body for post‑mortem examination after preparing injury statement (Exh.P.G.) and inquest report (Exh.P.H.). He collected blood‑stained earth from inside the room of Yousaf accused. Afzal, Yousaf and Muhammad Ali were arrested by hire on 18‑5‑1984. Appellant was arrested on 29‑5‑1984. On the same day, he led to the recovery of dagger (P.1) from near his tube‑well, after digging out the same. It was taken into possession vide memo. Exh.P.B. Muhammad Rafiq was arrested on 22‑8‑1984. Nothing was recovered from the acquitted accused. In fact, all of them were declared innocent during investigation by the S.H.O., which fact, according to him, was verified by Mahmoodul Hassan, Inspector also. After completion of necessary investigation challan was put to Court.
5. Statements of fourteen prosecution witnesses were recorded at the trial. The remaining P.Ws. were given up as unnecessary. Positive reports (Exhs.P.J. and P.K.) from the office of Chemical Examiner, and Exhs. P.L. and P.M. from the office of the Serologist were tendered in evidence.
6. Dr. Syed Sajjad Ali, who had performed autopsy on the dead body of Muhammad Iqbal on 19‑4‑1984 at 1‑15 p.m. appeared as P.W.5. He led noted eight injuries on the body of the deceased. On internal examination, he had found right lung cut under injury No.1 and right lobe of liver cut under injury No.2. Under other injuries, skin, faciae 'and muscles were only found partially cut Injuries 1 and 2 were declared grievous and dangerous while the rest of the injuries were declared simple. Death was opined to have resulted due to injuries 1 and 2.
7. The ocular account was depose to by Muhammad Anwar complainant (P.W.1), Muhammad Bashir (P.W.2) and Muhammad Munir (P.W.3),
Muhammad Anwar repeated the facts given by him in the F.I.R. During cross‑examination, he admitted that Yousaf acquitted accused was a married person and was living at the back of his house and one could go from their roofs to his house. He admitted that Muhammad Munir and Bashir eye‑witnesses were his nephews, being sons of his first cousins while Shaukat given up P.W. was son of his real brother. He also admitted that Muhammad Younas (P.W.10) was married to the sister of Bashir eye‑witness while sister of Munir P.W. was married to Murad Ali given up P.W.
Muhammad Bashir (P.W.2) and Muhammad Munir (P.W.3) corroborated the statement made by P.W.1. Muhammad Munir, however, did not say anything about the incident of motive.
P.Ws. 1 and 2 denied the suggestion that the story of motive was false. All three of them denied the suggestion that they had not witnessed the occurrence and had made incorrect statements. They also denied the suggestion that the deceased had entered the house of Yousaf (accused) with‑an evil design, where he was apprehended by the appellant and was given injuries due to provocation.
Muhammad Munir (P.W.3) during cross‑examination stated that he had seen the drop scene of the occurrence while standing in the lane and had not entered the house of the accused.
Muhammad Ashraf Lambardar (P.W.4), who deposed about having witnessed the recovery of dagger (P.1) at the instance of the appellant stated during cross‑examination that the Khanjar was recovered on the following day of the occurrence and the appellant was apprehended by the police on 19‑4‑1984. In answer to another question, he stated that, `It would be incorrect to suggest that the recovery was effected after two months of the occurrence'.
Ghulam Muhammad (P.W.9), who deposed about having witnessed the. recovery of dagger (P.1) at the instance of the appellant stated that Muhammad Bashir had led to the recovery of dagger on 8‑6‑1984. During cross‑examination, he admitted that his sister was married to cider brother of the deceased, that his village was 40 miles away from the place of occurrence and that he had come to the village of occurrence on third day, after hearing about the murder of the deceased. He stated that he had remained in the village of occurrence for 35/40 days. He stated that he had returned to his village on the following day of recovery of dagger.
Muhammad Sarwar, S.I., who had registered the case, arrested the accused and during whose custody Muhammad Bashir appellant is stated to have led to the recovery of dagger (P.1) stated that the appellant had led to the recovery of Khanjar on 29‑5‑1984. It may be noted here that the date of recovery of Khanjar in his statement recorded in English is 29‑5‑1984 while in Urdu date of recovery is recorded as 8‑6‑1984.
The statements of the other witnesses are moreor less of a formal nature.
8. The appellant during his statement under section 342, Cr.P.C denied the prosecution case as a whole. He denied that dagger was recovered at his instance. According to him, he had caused injuries to the deceased with the Chhuri, which he had produced before the police on the following day of occurrence, at the time of his arrest. He stated as follows, in answer to the question, why this case against you?:‑
"The deceased was a man of bad character. He trespassed into the house of Muhammad Yousaf accused, who is my first cousin, with a view to outrage the modesty of his wife. When he tried to molest the chastity of my cousin's wife, I was attracted by her hue and cry and when I saw the deceased trying to commit some immoral act with my sister, I was enraged and in a fit of grave and sudden provocation I caused him injuries inside the house of Yousaf accused with a Chhuri which produced before the `Thanedar' on the following day of the occurrence at the time of my arrest. My co‑accused were not present on the spot nor they caused any injury whatsoever to the deceased. They have also been found innocent during the investigation The motive story is false and fabricated."
All the other accused denied the prosecution case and pleaded innocence.
9. Learned counsel for the appellant contended that the prosecution had failed to prove the motive for the occurrence, that all the eye‑witnesses were related and interested, that evidence of recovery of dagger (P.1), on the stated day stands belied by the statement made in cross‑examination by P.W.4, and that the version put-forth by the appellant was more probable and nearer the truth than the prosecution version.
10. Learned counsel for the State/Complainant defined the judgement of the trial Court and contended that the occurrence was reported promptly were specific parts were assigned to the accused and as such there was no possibility of false involvement or exaggeration. Learned counsel for the complainant while arguing the revision petition submitted that in view of the fact that the F.I.R. was lodged promptly, there was no time at the disposal of the complainant to have involved innocent persons assigning them specific roles, particularly when they were also related to the complainant.
11. The incident' of motive in this case, according to P.Ws. 1 and 2, had occurred on a demand made by the complainant and the deceased for the return; of Rs.700/800, which they owed to them, for having used the water. It is prosecution's own case that the accused had installed their own tube‑well three months prior to the occurrence. It has not been stated with any exactitude as tot since when the accused owed the said amount to the complainant and the deceased. Muhammad Ashraf Lambardar, in whose presence the accused had extended threats to the deceased and the complainant, after exchange of abuses appeared as P.W.4. He did not say anything in this regard. If he had witnessed such an incident, he would have definitely narrated the same at the trial. Neither P.W.1 nor P.W.2 stated anything about Iqbal deceased having played any specific role at the time of said incident. If the accused had launched attack on the day of occurrence on account of said incident, they would have same grievance against the complainant as against the deceased, because he was also present when the, said incident took place. Not only he was not given any injury but he was not even threatened with anything, although he was available to the accused. The evidence of incident of motive does not, therefore, inspire confidence. The learned trial Judge also did not believe the same, for the reasons given by him in the impugned judgment, which, on going through, we have no reason to differ with.
12. The evidence of recovery of dagger (P.1) at the instance of the appellant on 8‑6‑1984, deposed to by P.W.9 and S.I. (P.W.14) is belied by the statement made by Muhammad Ashirf Lambardar (P.W.4), that the Khanjar was recovered on the following day of occurrence. In this regard, he categorically denied the suggestion that the Khanjar was recovered two months after the occurrence. The date of arrest of the accused given by the S.I. and the other witnesses also is contradicted by the said witness. According to him, the appellant was arrested on 19‑4‑1984, i.e. some one and a half months before the date of arrest given by the S.I. The statement made by P.W.9 in this regard, even otherwise, does not inspire confidence, for the reason, that, not only, he is related to the deceased but he had also shown extra interest in the case; in that he had remained in the house of the complainant for 35/40 days after the occurrence and had returned back to his village a day after the alleged recovery from the appellant. In the circumstances, we do not consider it safe to accept the evidence of recovery of dagger (P.1) produced at the trial.
13. The manner of happening of the occurrence has been deposed to by three witnesses, i.e. P.W. 1 to 3. The appellant during his statement under section 342, Cr.P.C, had put up his own version about the happening of the occurrence. As the defence and the prosecution have put up two different versions, the same have to be examined by placing them in juxtaposition so as to come to the conclusion as to whether the prosecution version is true and worth acting upon or the story putforth by defence is more probable and nearer the truth.
14. The prosecution version of the happening of the occurrence has been deposed to by three witnesses, who are admittedly related inter se as well as to the deceased. P.W.1 is real brother of the deceased while the other two are nephews of the deceased and of the complainant. Their statements that the deceased was caused injuries firstly in the lane are belied by the fact that no blood was found in the lane nor any trail of blood was found upto the room, where the deceased was lifted to by the accused, according to the prosecution. The milking pot and Huqqa, which was being carried by the deceased, was also not found lying either in the lane or in the courtyard of the house where the deceased was lifted No explanation has been given in this regard also.
The claim made by all the three eye‑witnesses that they had seen Bashir appellant, Muhammad Rafiq and Yousaf (acquitted accused) giving injuries on the chest of the deceased is incompatible with the situation. In that it is the case of the prosecution that the deceased had been lifted by the accused inside the room. It is not the case of the witnesses that they had also entered the room. If they had not clone so, how could they have noted the seats of the injuries specifically given by them.
Yet the other important aspect in this regard is, that Muhammad Munir (P.W.3) categorically stated during cross‑examination that he had seen the drop scene of the occurrence while standing in the lane and had not entered the house of the accused. We cannot even imagine that a person standing in the lane could have seen the seats of injuries given by three accused to the deceased in a room of the house.
In the light of these circumstances, the prosecution version cannot be accepted as true and the same has to be discarded. in consequence of which, the version put forth by the appellant, has to be given weight. That being the position, the appellant cannot be burdened with the liability of having intentionally committed the murder of the deceased. His case falls under Exception 1 of section 300, P.P.C. His conviction under section 302, P.P.C. is, therefore, set aside and instead he is convicted under section 304, Part I, P.P.C., for having committed culpable homicide not amounting to murder. He is sentenced to undergo seven year R.I., keeping in view the period that he spent in jail during trial. He is also sentenced to pay a fine of Rs.2,000 in default whereof to suffer six months R.I.
16. Since we have not accepted the prosecution version and instead have accepted the plea advanced by the appellant, which excluded the participation of the respondents (acquitted accused, tae revision petition fails and the same is, therefore dismissed.
Death sentence not confirmed.
S.A./M-1001-/L Appeal accepted.