MUHAMMAD MAZHAR-UL-HAQ Versus IJAZ-UL-HAQ

The propriety and the legality of the judgment, dated 5‑6‑1982 pronounced by Ch. Muhammad Rafiq, the then learned Additional Sessions Judge, Bahawalnagar, has been agitated in this appeal, who had convicted both the appellants on two counts for murdering Muhammad Yousaf and Mst. Fazeelat and awarded them life imprisonment each on two counts. No fine or compensation was awarded in this case.

2. The facts, which led to the detection of this crime, in substance, are that Muhammad Yousaf was suspected of having amatorial ties with Mst. Fazeelat, the daughter of Ghulam Muhammad appellant and the niece of Muhammad Hussain appellant. In order to slake the instinct of revenge, Ghulam Muhammad and Muhammad Hussain appellants, while armed with a rifle and a hatchet respectively, went to the land of Muhammad Yousaf where he was pruning the branches of Sheesham trees alongwith his brothers. He was taken to the house of Ghulam Muhammad on rifle point by the appellants and the brothers of Muhammad Yousaf could not intervene as they had been threatened with dire consequences. The brothers and mother of Muhammad Yousaf also followed them. On 28‑8‑1979 at about 5‑00 p.m. in the house of Ghulam Muhammad located in Chak No. 336/HR Muhammad Yousaf was made to stand in the courtyard and Ghulam Muhammad fired at him with his rifle and caused his instantaneous death. Mst. Fazeelat, the daughter of Ghulam Muhammad appellant, who was reclining on a cot, endeavoured to run away but she was fired by Ghulam Muhammad with his rifle on her back and she fell down. Muhammad Hussain appellant, who was armed with a hatchet, severed the neck of Muhammad Yousaf from his body and also separated his lower limbs. Similarly, Muhammad Hussain appellant slashed the neck of Mst. Fazeelat with his hatchet arid cut her lower limbs.

3. Ali Akbar, the complainant and brother of Muhammad Yousaf deceased, went to Police Station, Marot on the same night and lodged the F.I.R. Exh. P.A. at 11‑00 p.m. which was recorded by Tahir Mansoor P.W.10.

4. Both the appellants were arrested on 30‑8‑1979. Ghulam Muhammad appellant got recovered his rifle P.6 and two bullets P.7 and P.8 which were taken into possession vide memo. Exh. P.F. On 2‑9‑1979, Ghulam Muhammad also led to the recovery of his blood‑stained Chaddar P.1 and blood‑stained shirt P.2 which were taken into possession vide memo. Exh. P.B. On 30‑8‑1979 Muhammad Hussain led to the recovery of his blood‑stained hatchet P.9 which was made into a sealed parcel vide memo. Exh. P.G. On 2‑9‑1979, Muhammad Hussain appellant got recovered his blood‑stained Chaddar P.3, blood‑stained Kurta P.4 and blood stained piece of cloth P.5 which were taken into possession vide memo. Exh. P.C. On 29‑8‑1979, hatchet P.10, which belonged to Muhammad Yousaf deceased, was also taken into possession from the spot vide memo. Exh. P.J. After the completion of the investigation, the challan of both the appellants was submitted and, as a sequel to the impugned trial, they were awarded life imprisonment each on two counts.

5. The autopsy on the dead bodies of Muhammad Yousaf and Mst. Fazeelat was conducted by Dr. Ajab Khan Afridi P.W.12, who bed listed the following injuries on the corpse of Mst. Fazeelat:‑

(1) At incised wound 14 c.m. x 10 c.m. on the upper part of neck, cutting all the tissues and blood vessels and dividing the neck through and through.

(2) A lacerated wound of entrance with inverted margins on the back of middle part of left side of chest. Size 0.5 c.m. x 0.5 c.m. x going deep into the ‑best cavity. It has ruptured the stomach, diaphragm and liver and left lung.

(3) A lacerated wound of exit with inverted margins on the lower most part of front of right side of chest, size 3 c.m. x 2 c.m. x going deep into the chest cavity and communicating with injury No. 2.

(4) In incised wound 30 c.m. x 10 c.m. x through and through the lumbar region of the body dividing the body through and through and cutting all the tissues, large and small intestines and cutting the fourth lumbar vertebra.

(5) An incised wound at the back of left elbow 2 c.m. x 1 c.m. x 0.5 c.m. deep.

6. He leas opined that the death of Mst. Fazeelat occurred as a result of the rupture of the left lung, stomach, liver and large arid small intestines. Injuries Nos. 1, 2, 3 and 4 were individually and collectively sufficient to cause death in the ordinary course of nature.

He had also performed the autopsy on the dead body of Muhammad Yousaf, and had listed the following injuries on his dead body

(1) An incised wound on the uppermost part of neck, size 12 c.m, x 9 c.m. x dividing the neck through and through.

(2) An incised wound 5 c.m. x 3 c.m. x 1 c.m. on the front of left shoulder joint.

(3) A lacerated wound of entrance with inverted margins on the front of upper part of chest at the right side. There was no burning and tatooing, Sire of wound 0.5 c.m. x 0.5 c.m. x going deep into the chest cavity and rupturing the right lung.

(4) A lacerated wound of exit with inverted margins on the back of upper part of right side of chest. Size 1 c.m. x 1 c.m. x going deep into the chest cavity and communicating with injury No. 3.

(5) An incised wound 32 c.m. x 10 c.m. x dividing the lumbar region through and through cutting the intestines and both the kidneys.

7. This Medical Expert has opined that injuries Nos. 1, 3, 4 and 5 were individually and collectively sufficient to cause death in the ordinary course of nature and injuries Nos. 3 and 4 were caused by a fire‑arm.

8. Mst. Fatima Bibi was medically examined by Dr. Muhammad Insha P.W.7, who had observed the following injuries on her person:‑

(1) An abrasion 2" x 1/8" and bruise at deltoid medial of the right hand upper limb.

(2) One bruise 2"' x 1" at the back of the right scapula.

(3) One bruise 2" x 1" at the back below the scapula of right side.

All the injuries were found to be simple in nature.

9. Ali Akbar, who is the real brother of Muhammad Yousaf deceased, has narrated the incident, as stated in the F.I.R. He has, however, added that Mst. Fatima, their mother, had tried to intervene and she was injured by Muhammad Hussain with his hatchet. He has depicted the motive for the commission of this double murder as there was a strong suspicion that Muhammad Yousaf and Mst. Fazeelat were having guilty associations with each other. In his cross‑examination, he has clarified that they, three brothers, were armed with hatchets and the house of Ghulam Muhammad was at a distance of four Acres from the watercourse. From the watercourse, he means the place where Muhammad Yousaf and his brothers were cutting the branches of the Sheesham trees. According to him, both the dead bodies were lying near the door of a thatched but belonging to Ghulam accused.

10. Muhammad Sharif, who is the Headman of Chak No. 336/H.R., P.W.2, has testified that he was present at a distance of one and half Acres when he heard the hue and cry and his nephew Asghar was also sitting with him. They ran towards the watercourse and saw Muhammad Yousaf being goaded by the appellants whereas Muhammad Younas and Muhammad Akbar P.Ws. were entreating the appellants to spare him and their mother was also following them. According to this witness, Ghulam Muhammad killed Muhammad Yousaf and Mst. Fazeelat with his rifle and Muhammad Hussain separated the heads of both the deceased from the trunk and the lower portions from under the umbilicus were cut and separated from the main body. He had identified the dead body of Mst. fazeelat at the time of autopsy. He is also a witness to the recovery of the Blood‑stained clothes of both the appellants. When subjected to the cross -examination, Mohammad Sharif., the Headman of the village, has stated that there is no regular Abadi and we villagers are residing in their own land and he could not see any other person raising hue and cry. It was suggested that Muhammad Sharif is the grandfather of Muhammad Yousaf and is an interested person. He is not the real grandfather of Muhammad Yousaf deceased but is related to him from their brotherhood. The statement of Muhammad Sharif cannot be disbelieved on that account because he is an owner of land adjoining to the land of the deceased.

11. Mst. Ghulam Fatima Bibi P.W.3, who was injured by Muhammad Hussain when she had tried to intervene, has corroborated the prosecution case in toto. She has also stated that her son Muhammad Yousaf was suspected of having illicit liaison with Mst. Fazeelat and, therefore, both of them were murdered. She has clarified in reply to a Court question that Ghulam Muhammad was standing at a distance of one Karam when he fired at Muhammad Yousaf.

12. Abdul Rashid P.W.4 is a witness of the recoveries and had also identified the dead body of Muhammad Yousaf at the time of autopsy. Tahir Mansoor S.I. P.W.10 has corroborated that he had correctly recorded the F.I.R. Exh. P.A., recovered the weapons of offence and the blood‑stained clothes of both the appellants.

13. In his statement recorded under section 342 of the Cr.P.C. Ghulam Muhammad appellant has explained as under‑‑

'As a matter of fact, on the day of occurrence, at about evening time, I came from my fields. I was with a rifle P.6. When I entered my Dera. I found that under the Chapper, the deceased Yousaf and my daughter Mst. Fazeelat were in a compromising position. I lost self‑control and under grave and sudden provocation fired at them. Subsequently, I picked up the hatchet and separated the heads and legs of the two deceased. I had picked up this hatchet from sender the Chapper. Perhaps this was the hatchet which the deceased vas carrying. After these murders, I myself went to the police station and narrated the incident and produced the rifle. The police however, did not record my report and came to the place of occurrence and then in collusion with the complainant party got me and my co‑accused involved in the murder case. Muhammad Hussain was not with me at the time of occurrence."

14. Muhammad Hussain appellant, however, made a different statement and pleaded to be innocent.

15. The learned counsel for the appellants has contended that the F.I.R. was delayed and no plausible explanation of its delay had been furnished by the complainant. I do not countenance this argument because the police station is eleven miles away and Ali Akbar has explained that the motor‑bike by which they were travelling got out of order and, therefore, the delay in the lodging of the F.I.R. took place. It was pointed out on behalf of the appellants that, on account of grave and sudden provocation, Ghulam Muhammad was tempted to kill his own daughter and his paramour and he deserved the benefit of exception to section 300 of the P.P.C. and lesser punishment. He has cited Muhammad Nawaz and 4 others v. The State 1987 P Cr. L J 1597 and Bashir Ahmad and others v. The State P L D 1985 Lah. 158 in support of his stand. It has also been added that the plea of the accused even if not taken is inferable from the prosecution evidence.

16. This argument is devoid of force because Muhammad Yousaf deceased was goaded to his house by Ghulam Muhammad appellant on rifle point and Ali Akbar, Muhammad Sharif and Mst. Ghulam Fatima have giver, a cogent and convincing account of this incident. Mst. Ghulam Fatima is an injured witness and can hardly be disbelieved. There was a strong suspicion of illicit relations between both the deceased but the appellants had done a cruel act by getting rid of both the deceased and had cut their limbs and necks after firing at them with his rifle. The eye‑witness account has been corroborated by the evidence of motive, medical evidence and the recoveries of the weapons of offence and the blood stained clothes of the appellants.

17. The defence plea put forth by Ghulam Muhammad appellant is not believable as the incident took place at 5‑00 p.m. It was not expected of Ghulam f Muhammad to have his rifle when he had gone out from his house. He has admitted that Muhammad Yousaf deceased was having a hatchet with which he had cut the bodies of both the deceased. The possession of a hatchet by Muhammad Yousaf at the time of this incident reinforces the fact that he was taken from his land when he was cutting the branches of the Sheesham trees and was handling a hatchet. In case, Ghulam Muhammad appellant had used hatchet P.10 belonging to Muhammad Yousaf deceased, it should have been stained with blood but no stain of blood was found thereon. In this manner, the prosecution has proved its case to the hilt. The sentence awarded to both the appellants in appropriate as they had committed a double murder to vindicate the honour of the family. I, therefore, dismiss this appeal. I, however, extend the benefit of section 382‑B of the Cr.P.C. to both the appellants. The appellants were released on bail. They should be taken into custody and sent to jail to serve their terms of) sentence.

H.B.T./G‑202/L Appeal dismissed.