MUHAMMAD ISMAIL Versus MUHAMMAD SIDDIQ
This is a jail appeal arising out of a judgment, dated 6‑3‑1988, of the learned Sessions Judge, Sargodha. The appellant, Muhammad Hayat, was tried under section 302 of the P.P.C. by the learned Sessions Judge. By his judgment, he convicted the appellant for the murder of Mst. Aishan, and sentenced him to undergo imprisonment for life and to pay a fine of Rs.25,000 or in default of the payment of fine to further undergone R.I. for four years. The fine, if recovered, shall be paid as compensation to the sisters of the deceased in equal shares. However, Hayat accused will not get the benefit of section 382‑B of the Cr.P.C.
2. The brief facts of the case are that the occurrence took place on 21‑9‑1986, at 2‑00 p.m. in the area of Kot Fateh Khan Dakhli, Kot Bhai Khan, which was at a distance of five miles from Police Station Jhawarian. The report Exh.P.A. was made by Sardar Yousaf‑ul‑Hassan before Fida Hussain Shah, S.I. at the bridge of Canal Jhawarian on the same day at 4‑15 p.m. According to the F.I.R. Sardar Yousaf‑ui‑Hassan complainant, Muhammad Din and Muhammad Hayat were attracted by an alarm of Mst. Hayatan (P.W.) and they all went to the sugarcane field of Havat accused, where he was killing Mst. Aisha, deceased, by giving her Kassi blows. They attempted to rescue her but the accused person dragged her in that field, left the deceased there and ran away with his Kassi. Mst. Hayatan, Muhammad Din and Muhammad Hayat (P.Ws.) remained with the dead body and Sardar Yousaf‑ul‑Hassan started for the police station. Fida Hussain, S.I. met him on the bridge Jhawarian and he made report before him who sent the same to the Police Station Jhawarian through Sher Ali F.C. for the registration of the case. Fida Hussain Shah, S.I. reached at the spot and found the dead body of Mst. Aisha, deceased, lying in a ditch. The S.I. prepared the injury statement Exh.P.G. and inquest report Exh.P.H. The S.I. recovered blood‑stained earth and took the same into possession after making the same into two parcels, and recorded the statements of the witnesses under section 161 of the Cr.P.C. The S.I. arrested the accused person, Hayat on 23‑9‑1986, and he got recovered blood‑stained Kassi, Exh.P.3 from the sugarcane field when the appellant was in his custody. He got recovered blood‑stained shirt of the accused, Exh.P.4, and blood‑stained Shalwar, Exh.P.5, lying in his Kotha. He took the same into 1sossession vide memo. Exh.P.E. after making the same into a sealed parcel, and recorded the statements of the recovery witnesses under section 161 of the Cr.P.C. He, after completing the investigation challaned the appellant.
3. The prosecution examined nine witnesses to prove its case.
4. The prosecution story rested upon the statement of Mst. Hayatan Bibi (P.W.6). She stated that Mst. Aisha, deceased, was her real sister. She was unmarried. Hayat, appellant, was her elder sister's husband. Mst. Aisha Bibi used to live in the same house where Mst. Hayatan Bibi (P.W.6) and her elder sister dived. She further stated that nine months back she was present at her Dera. Hayat, appellant, was working in the cotton field. Mst. Aisha deceased went to Hayat, appellant, for enquiring from him about `Lassi Pani'. She also went towards that side for seeking the cattle. When she was at a distance of seven Karams from Hayat accused, she heard him abusing the deceased in the cotton crop. She went there for rescuing the deceased but the appellant threatened her that if she advanced she would be murdered. Then she raised an alarm which attracted Sardar Yousaf‑ul‑Hassan and his servants, Muhammad Hayat and Muhammad Din. Hayat appellant gave Kassi blows on the deceased's head and she fell down. Thereafter he gave her successive blows on her neck and head. Mst. Hayatan Bibi (P.W.6) further stated that Khuda Bakhsh, father of Mst. Aisha, purchased the land and gave the same to his brother, Hayat, appellant and Nawaz. The deceased used to demand her share from the appellant but he refused. On cross‑examination she stated that her father's name was Muhammad Ramzan and her mother's name was Mst. Jallan. After her father's death her mother married Khuda Bakhsh, elder brother of the appellant, and out of that wedlock Mst. Aisha, deceased, was born.
5. Dr. Malik Muhammad Khan (P.W.8) conducted the post‑mortem examination on 22‑9‑1986 at 9‑30 a.m. on the dead body of Mst. Aisha, deceased and found the following injuries on her person:‑
(1) An incised wound 3" x 2" on the front of neck, cutting trachea and oesophagus;
(2) Incised wound 2‑1/2" x 1" on front of neck 2" below injury No.1, cutting trachea and oesophagus. The corresponding muscels were also cut.
(3) Incised wound 1" x " on front of head, 2‑1/2" from the hair‑line, cutting the bone below it.
(4) Incised wound 2" x " on the top of head 4" from the hair‑line.
(5) Incised wound 2‑1/3" x " on the top of head slightly towards the left side of head 6"from the left ear.
(6) Incised wound 2" x " on back of head 5" from the right ear. Bone was cut below injuries Nos.4, 5 and 6.
(7) Contused swelling 4 x 3 on right cheek. Dissection below injuries Nos. 3, 4, 5 and 6 revealed that there was fracture of corresponding bones of he scalp that was parietal, frontal, temporal and occipital bone. Clotted blood was present in brain substance.
6. In the opinion of the doctor, the death had occurred due to cumulative injuries Nos.1, 2, 3, 4, 5 and 6 which led to excessive bleedings internal and external, shock and brain were damaged, which were sufficient is ordinary course of nature to cause, death. The injuries were ante‑mortem and were caused by sharp-edged weapon besides injury No. 7 which was caused by blunt weapon Time between injuries and death was immediate while between dr4ith and post- mortem examination was 19‑30 hours.
7. The Serologist opined vide his report, Exh.P.N., that the earth, Kassi and clothes of the accused, Hayat, were stained with human blood.
8. The appellant was examined under section 342, Cr.P.C. He denied the allegations of the prosecution and he narrated a different story. He stated that her" had seen Mst. Aisha, deceased, in compromising position with Nawaz in the cotton crop and under grave and sudden provocation he killed Mst. Aisha, deceased and Nawaz ran away from the spot.
9. Sher Ali F.C. (P.W.1) delivered the said sealed parcels of this case intact in the office of the Chemical Examiner, Lahore which were given to him by Mazhar, Moharrer of the police station.
10. Mazhar Hussain Shah M.H.C. (P.W.2) on 21‑9‑1986 at 4‑15 p.m. on the basis of complaint Exh.PA. recorded formal F.I.R. Exh.PA./1. On 25‑9‑1986 Fida Hussain Shah S.I. had given him two sealed parcel containing blood‑stained earth and two sealed parcels containing blood‑stained Kassi and clothes. He had placed the same in the Malkhana intact. On 27‑9‑1986 he had given the said four sealed parcels to Sher Ali F.C. for onward delivery in the office of the Chemical Examiner, Lahore intact.
11. Abdur Rehman P.W.3 escorted the dead body of the deceased for post- mortem examination, to the mortuary at Sargodha. Thereafter, he gave her last worn clothes, Shalwar Exh.P.1 and shirt Exh.P.2 to the Investigating Officer who took the same into possession vide memo. Exh.P.B. He attested the memo.
12. Ahmad Bakhsh, Patwari P.W.4 prepared the site plans Exh.P.C. and Exh.P.C./1 in the scale of 40 Karams equal to one inch.
13. Ghulam Muhammad P.W.5 stated that he joined the investigation of this case. He served tea to the police. Thereafter, they directed him to thumb‑mark the blank paper which he did. He was cross‑examined by the learned public prosecutor.
14. Ghulam Qadir P.W.7 brother of Mst. Hayatan P.W. stated that in his presence Hayat accused got recovered his blood‑stained clothes, Shalwar Exh.P.5 and shirt Exh.P.4 from a Bharola lying in his Kotha. The police took the same into possession vide memo. Exh.P.E. after making the same into a sealed parcel he attested the memo. pertaining to the same.
15. The learned Sessions Judge said in his judgment that the appellant had admitted having killed the deceased under grave and sudden provocation. But Mst. Hayatan (P.W.6) stated that he had killed the deceased intentionally as she was demanding from him the share of the land of her father.
16. The prosecution case, according to the F.I.R. was that the appellant had a suspicion that the deceased had illicit relations with Nawaz. Mst. Hayatan (P.W.6) had also stated before the police that the appellant suspected the deceased for having illicit relations with Nawaz, and for that reason he had killed the deceased. She had not stated before the police that the deceased demanded the share of her father's land from Hayat, appellant. Mst. Hayatan Bibi had categorically stated that the accused had killed Mst. Aisha in her presence by giving her Kassi blows.
17. I have heard the learned counsel for the State and have perused the record minutely.
18. This is a case of broad daylight murder, and the convict appellant had admitted to have murdered the deceased, Mst. Aisha. He had tried to set up the defence of grave and sudden provocation but miserably failed to substantiate and support the same in any manner whatsoever. In all the evidence on record, especially eye‑witness account and medico‑legal report and doctor's testimony belie his version that he had caught the deceased in a compromising position with Muhammad Nawaz. Here it may be pertinent to point out that in para. 6 of his; jail appeal he once again changed his version and now alleges that m fact it was Muhammad Nawaz who had committed the murder with the co‑operation of the eye‑witness, Mst. Hayatan (P.W.6). Therefore, the appellant is guilty of the offence under section 302, P.P.C. and has been rightly convicted of the same. The learned Sessions Judge has already taken into account the fact that the motive was covered in mystery and has not awarded him maximum penalty provided by law and has sentenced him under section 302, P.P.C. to undergo imprisonment for life, and to pay a fine of Rs.25,000 or in default to undergo R.I. for four years.
19. It may be pointed out that the State has not moved for enhancement of the sentence. Therefore, I am also of the view that the sentence already awarded meets with the ends of justice and does not call for any interference, and the sentence already awarded to the appellant is upheld. However, the appellant shall get the benefit of section 382‑B of the Cr.P.C. This appeal is dismissed.
M.Y.H./M/1115/L Appeal dismissed