MUNIR AHMAD Versus THE STATE
KHALIL-UR-REHMAN RAMDAY, J. --- Allah Yar, Munir and Muhammad Yar were tried by a learned Additional Sessions Judge-of Okara for the murder of one Nazar Muhammad; were found guilty of the said charge and having been convicted under section 302/34, P.P.C., the first two were sentenced to death with a fine of Rs.5,000 or sufferance of one year's R.I. in default of payment of the said fine whereas, Muhammad Yar convict was punished with imprisonment for life plus a fine of Rs.5,000 or one year's R.I. in default of payment of the said fine.
2. One Dost Muhammad accused who was tried for having abetted the murder in question was, however, acquitted. His acquittal has not been challenged.
3. Murder reference No.219 of 1988 seeks confirmation of the sentence of death imposed on the first two convicts abovementioned.
4. Munir appellant challenges his conviction and sentences, recorded against him vide the aforementioned judgment, dated 29-9-1988 of the learned trial Court, through Criminal Appeal No.1033 of 1988 whereas Allah Yar and Muhammad Yar convicts have filed Criminal Appeal No.1043 of 1988 for the same purpose.
5. Faiz Ahmad complainant, on the other hand, through Criminal Revision No.623 of 1988, prays that the sentence of imprisonment for life awarded to Muhammad Yar convict be enhanced to a sentence of death and the sentences of fine imposed on all the three convicts be also enhanced and adequate compensation be directed to be paid by the three convicts to the heirs of the deceased.
6. All these matters are being disposed of together through this single judgment.
7. The F.I.R. which has finally culminated in the present proceedings before this Court bears No.95 and was recorded at Police Station Shahbhore on 13-10-1986 at 8-00 a.m. at the instance of Faiz Ahmad (P.W.1) who had informed the S.H.O. concerned that he was a resident of Chak No.29/4-L and was a cultivator by profession and that one of his real brothers, namely, Nazar Muhammad (the deceased of the present case) was employed in the Army and had come home on leave.
8. Faiz complainant had alleged that on the day of occurrence he and his deceased brother went to the village mosque for taking bath in the bath rooms of the said mosque and while Nazar deceased went to the bath room and started taking a bath, the complainant started taking out water from the well and started pouring the same into the water-tank of the said bath room. He claimed that Amanat Ali (P.W.2), Allah Yar son of Ramzan (given up) and Akbar (given up) also arrived there to take bath.
9. The complainant further claimed that in the meantime- the three appellants out of whom Allah Yar was armed with a pistol and Muhammad Yar and Munir were armed with hatchets also reached there whereafter Allah Yar appellant fired a shot which hit the front chest of Nazar deceased who fell in the bath room. The complainant and the P.Ws. attempted to step forward in order to intervene but Allah Yar fired a second shot in the air and kept the P.Ws. away.
10. The complainant stated that all the three appellants dragged Nazar out of the bath-room and then Munir and Muhammad Yar appellants inflicted further injuries on his person with their respective hatchets whereafter all the three appellants ran away from the place of occurrence.
11. Faiz complainant had disclosed that about 2-1/2 years prior to the occurrence another brother of his, namely, Ahmad Ali had enticed away one Mst. Gulzar Bibi who was the wife of a brother of Allah Yar appellant and the criminal case registered in connection therewith was pending trial and the said Mst. Gulzar Bibi was still in the custody of the said Ahmad Ali and it was on account of this grievance that the three appellants had done the deceased to death.
12. The defence, however, pleaded that Muhammad Yar and Munir appellants had been falsely implicated and had not participated in the occurrence in question nor were they even present at the place of occurrence at the relevant time.
13. Their version was that the aforesaid Mst. Gulzar Bibi had been abducted by Ahmad Ali abovementioned, Faiz complainant and their aunt Mst. Hafizan at the instance of Nazar Muhammad deceased; that the said Mst. Gulzar Bibi who was a Bhabhi of Allah Yar appellant had not been restored to them and was living in adultery with the said Ahmad Ali etc. and a criminal case in this connection, commenced at their instance, was also pending trial; that on the day of occurrence Allah Yar appellant was coming from his land with a hatchet in his hand and just as he reached the gate of the mosque aforementioned, he incidentally came across the said Mst. Gulzar Bibi who was accompanied by Nazar deceased as the two were perhaps going to the land of Nazar deceased; that when the two sides came close to each other, Nazar Muhammad deceased asked Mst. Gulzar Bibi, in a sarcastic manner, to salute her Jaith Allah Yar who complied accordingly at which Allah Yar appellant lost control of himself on account of this grave and sudden provocation and inflicted injuries on the person of Nazar deceased with his hatchet, that Nazar deceased tried to take out a pistol from his Dub which pistol fell down' in the process and under the same grave and sudden provocation Allah Yar appellant picked up the said pistol from the ground and fired at Nazar deceased who fell injured at the spot; that Mst. Gulzar Bibi despite a chase by Allah Yar appellant, managed to run away from the place of occurrence and that Allah Yar appellant left the hatchet and the pistol near the dead body of Nazar deceased and voluntarily went to the police station and reported the matter there.
14. Before entering upon the appreciation of the material available on record, it may be noticed here that Faiz complainant who claims to be an eye witness of the occurrence in question is a real brother of Nazar deceased.
15. Ahmad Ali who finds mention in the motive part of the present occurrence and who had abducted/enticed away Mst. Gulzar Bibi, a Bhabhi of Allah Yar appellant is also a brother of the complainant and the deceased.
16. Another eye-witness of the occurrence in question, namely, Amanat (P.W.2) is a Chachazad of the complainant and the deceased and his sister is the wife of Faiz complainant.
17. Allah Yar and Muhammad Yar appellants are also stated to be related inter se though the exact relationship has not come on record. Munir appellant who is a resident of a different village is alleged to be their friend.
18. Allah Yar appellant also appears to be a close relative of the complainant party.
19. His sister is the wife of Amanat P.W. and in turn a sister of Amanat P.W. is the wife of Allah Yar appellant.
20. Mansha (P.W.5) who had allegedly witnessed the recovery of pistol (P.1) from Allah Yar appellant and the recovery of hatchet (P.2) at the instance of Munir appellant is a Phuphizad of the complainant and the deceased. His father and the father of Allah Yar appellant are first cousins and his wife is a Chachazad of Allah Yar appellant.
21. It has also come on record that besides the animosity created between the parties on account of the abduction/enticing of Mst. Gulzar Bibi there never was any other enmity or animosity between the two parties.
22. Reverting to the merits of the case, it may be mentioned that a perusal of the two versions of the occurrence in question would reveal that there is no cavil between the two parties about the motive of the occurrence in question. In fact the appellants have gone a step further by claiming, through their statements under section 342, Cr.P.C. that Nazar deceased was the one who was actively pursuing the abduction case in question on behalf of the persons accused thereof.
23. The time of occurrence is not in dispute between the two sides either.
24. Therefore, what remains to be resolved is whether the occurrence had taken place outside or inside the mosque; whether Munir and Muhammad Yar had also participated in the same and finally whether the same had occurred in the manner as alleged by the prosecution or in the manner claimed by the defence?
25. If the defence version about the place of occurrence has to be accepted then the obvious inference would be that the prosecution had shifted the venue from an open public place which could have been easily visible to the eye witnesses, to a closed place in the courtyard of the mosque in question and further to a still more exclusive, private and closed place like the bath-room which would render the presence of the eye-witnesses on such spots less believable as compared to an open public place.
26. Therefore, no man of ordinary prudence would be prepared to believe that the prosecution would fabricate a story which would render things more difficult for them to prove.
27. As per the prosecution story, the deceased had been given a fire-arm injury in the bath-room of the mosque from where he was dragged out into the courtyard where further hatchet blows were caused on his person.
28. Barkat Ali Investigating Officer (P.W.9) had found and collected blood in and from the courtyard of the mosque which is just outside the bath-room which is a fact corroborating the prosecution version about the place of occurrence. It is true that blood was not recovered from the bath-room but the non-seizure of the same from the bath-room is understandable because the same would be instantaneously washed away by the water.
29. From the record it also appears that when Barkat Ali Investigating Officer visited the spot, he found the body of the deceased covered with a Chadar and further that after the post-mortem examination of the body of the deceased, only a Chadar (P.3) was handed over to Shamsher Ali F.C. (P.W.8). Reference may be made to the inquest report Exh. P.J. and to the statements of Shamsher Ali F.C. (P.W.8) and Barkat Ali Investigating Officer (P.W.9).
30. This fact indicates that the deceased was wearing only a Chadar (loin cloth) at the time of his murder which fact further supports the prosecution plea that the deceased was taking a bath when he was attacked.
31. This analysis of the material available on record leads us to believe that the occurrence had not taken place outside the mosque, as claimed by the defence, but had taken place in the courtyard and in the bath-room of the mosque as canvassed by the prosecution and we hold accordingly.
32. It is on record that the appellant party was seriously aggrieved of the abduction/enticement of Mst. Gulzar Bibi who was a Bhabhi of Allah Yar appellant and had even commenced criminal prosecution of the members, above noticed of the complainant party who were consequently facing the ensuing trial. It is also on record that despite initiation of these criminal proceedings, the complainant party had not restored the said Mst. Gulzar Bibi to the appellant party.
33. It further appears on record that Allah Yar appellant is a next door neighbour of the complainant party.
34. In this state of affairs, the defence plea that the complainant party would be openly parading the said Mst. Gulzar Bibi in the streets of the village, instead of concealing her somewhere, does not inspire confidence.
35. It is equally unbelievable that Nazar Muhammad deceased would be going towards his land early in the morning and would choose to take Mst. Gulzar Bibi alongwith him especially when it is known that in the villages people do not go out on to the streets or on to the fields for a pleasure stroll especially in the company of such vulnerable females and in case Nazar deceased was going to the fields for some work then he could have chosen more able-bodied persons available in his house such as his brothers and would not have taken along a female who had been abducted by his brother and the family of which abductee lived only next door.
36. In any case Nazar deceased who was an educated person and was employed in the Army cannot be expected to be going out in the public with a female, half-naked, wearing only a Chadar.
37. Consequently, the explanation offered by Allah Yar appellant, for the death of the deceased at his hands, is not plausible.
38. The medical evidence available on record makes the Appellants' story more absurd.
39. It is in evidence that Nazar deceased had received as many as five incised wounds on his person, three out of which were on his head and at least two of them were deep enough to have even exposed his brain matter.
40. Allah Yar appellant claims that having received these hatchet blows the deceased was till in a position to take out a pistol from his Dub. This claim, in view of the medical evidence available on record, cannot be accepted.
41. Therefore, we are led to believe that the occurrence in question had not taken place in the manner described by the defence and having juxtaposed the two versions we hold that the said occurrence had taken place in the manner alleged by the prosecution.
42. Munir appellant is not a resident of the village of the two parties and resides in a different village. The complainant party has no enmity or ill-will against him. No reason has been brought on record to show as to why the eye witnesses would have implicated him in the murder of Nazar deceased.
43. Likewise no reason exists on record to justify false involvement of Muhammad Yar appellant.
44. The deceased had received one fire-arm injury, five incised wounds, one abrasion and a contusion on his person.
45. It has already been held by us that Allah Yar appellant could not have inflicted these injuries alone nor could .he have by himself dragged the deceased out of the bath-room into the courtyard of the mosque.
46. In the circumstances, Allah Yar appellant could not have accomplished the murder in question without the assistance of some others. The eye-witnesses had named Muhammad Yar and Munir appellants as the accomplices and as has been noticed above, there is nothing on record to suggest that the prosecution had maliciously substituted these two for the ones who had actually assisted Allah Yar in the mission in question.
47. Therefore, we hold that Muhammad Yar and Munir appellants had also participated in the occurrence in question and had inflicted injuries on the person of the deceased, as alleged.
48. Consequently, we maintain the conviction of all the three, appellants recorded by the learned trial Court under section 302/34, P.P.C.
49. It is, however, the prosecution's own case that the murder in question had been caused because of the enticement/abduction of Mst. Gulzar Bibi, a Bhabhi of Allah Yar appellant, by Ahmad Ali, a brother of Nazar deceased. It is on record that Nazar deceased was the one who was actively pursuing the case on behalf of the persons accused of the said abduction/enticement. It is also on record that Mss. Gulzar Bibi had not been restored to the appellant party till the occurrence in question and the complainant party was till holding the said female in their custody.
50. The murder in question had thus been caused to vindicate the family honour of Allah Yar appellant.
51. Resultantly, we are of the view that the circumstances of this case do not justify the imposition of death penalty on any of the persons responsible for the murder of Nazar deceased.
52. Therefore, the sentences of death imposed on Munir and Allah Yar appellants are not confirmed . They shall instead suffer imprisonment for life under section 302/34, P.P.C. The sentence of imprisonment awarded to Muhammad Yar by the learned trial Court and the sentences of fine imposed on all the three convicts are maintained.
53. But it is directed that the entire amount of fine imposed on all the three appellants, if realised, shall be paid to the heirs of the deceased as compensation.
54. The benefit of the provisions of section 382-B, Cr.P.C. is also allowed to all the three appellants.
55. Murder Reference No.219 of 1988 is answered accordingly and the two Criminal Appeals filed by the appellants i.e. Criminal Appeal No.1033 of 1988 and Criminal Appeal No.1034 of 1988 are also disposed of in the above terms.
56. For the reasons above stated, Criminal Revision No.623 of 1988 is dismissed.
H.B.T./M-2966/L Order accordingly.