MUHAMMAD HANIF Versus THE STATE
Muhammad Hanif aged 16/17 was tried alongwith his brothers, Fateh Muhammad, Habibullah and Ali Sher, and Lal Khan sons of Jalal Khan aged 70 years, by Sessions Judge, Gujrat, for having murdered Maqsood Ahmad and for having launched murderous assault on Sardar and Inayat P.Ws. on 24-1-1986 at Degarwela in the Haveli of Fateh Muhammad in Chak Fateh Shah, at a distance of six miles from Police Station Mandi Baha-ud-Din, District Gujrat.
Learned trial Judge vide judgment, dated 31-8-1988 convicted Muhammad Hanif under section 302, P.P.C. and sentenced him to undergo imprisonment for life plus to pay a fine of Rs.25,000 in default whereof to undergo R.I. for five years. Half of the fine, on realization, has been directed to be paid as compensation to the heirs of the deceased.
His co-accused were acquitted vide the same judgment.
2. The convict has filed appeal through jail.
3. F.I.R. Exh.P.D./1 was registered at the police station on 24-1-1986 at 8-40 p.m. by Mushtaq Ahmad, Naib-Moharrir (P.W.3) on receipt of statement Exh. P.D. of Muhammad Yousaf (P.W.15) recorded by Rehmatullah S.I. (P.W.12) on the same day at 8-30 p.m. at Civil Hospital, Mandi Baha-ud-Din.
According to the F.I.R., wife of Ali Sher was abducted by Ilyas son of Ilam Din 5/6 months before the occurrence. Ashiq Ali was also accused of abduction. Sometime after the occurrence, abductee returned from village Lakhanawali. Ilyas was blamed of having received Rs.10,000 from the abductee which she had taken away while leaving her house. The relatives of the abductee were demanding the amount back. Ali Sher had asked the complainant also, that he should have the amount returned from Ilyas. Fateh Muhammad, nephew of Ali Sher, had convened a Punchait in that regard in his Haveli on the day of occurrence at Degarwela. The complainant party was also called to that Punchait. The complainant alongwith his son Maqsood Ahmad (deceased), P.Ws. Sardar and Inayat had gone to participate in the Punchait. Fateh Muhammad, Habib, Hanif (appellant), Ali Sher son of Imam Din, Lal Lambardar and many others from the village were also present in the Haveli. Ali Sher demanded the amount from the complainant. The complainant replied that there was no blame against his son. In the meantime, Lal Lambardar and Ali Sher raised a Lalkara that Maqsood etc. should not escape, whereupon Hanif gave a hatchet blow on the head of Maqsood Ahmad as a result of which he fell down. Fateh Muhammad gave Sota blows on his hips. When Sardar and Inayat P.Ws. went ahead to rescue Maqsood, Habib inflicted Sota blows to Sardar on the left arm and head. Inayat was given a blow on the mouth by Fateh Muhammad. The accused went away on being admonished by the people. The complainant removed Sardar, Inayat and Maqsood to Civil Hospital, Mandi Baha-ud-Din. They were medically examined. Maqsood was admitted in the hospital.
3. Medical Officer, Mandi Baha-ud-Din referred Maqsood Ahmad to Mayo Hospital, Lahore for specialized treatment, on the same day i.e. 24-1-1986 at late hours of the night. However, he died near the Chenab River Bridge while being taken to Mayo Hospital. His dead body was brought back to the police station.
Noor Hussain Shah, Inspector/S.H.O. after preparing injury statement Exh.P.A. and inquest report Exh. P.B. entrusted the dead body to Muhammad Yusuf Constable for transmission to mortuary for post-mortem examination. (According to the S.H.O., the dead body had been brought to the police station at 3-05 a.m. on 25-1-1986).
4. Amjad Hussain Shah, Additional S.H.O. (P.W.18) who had been entrusted with the investigation of the case, visited the spot on 25-1-1986 and collected blood-stained earth from there. He had arrested the appellant, Fateh Muhammad, Habib and Ali Sher on 27-1-1986. Hatchet P.7 got recovered by the appellant on 29-1-1986 was taken into possession vide memo. Exh. P.N. Sota P.8 and Sota P.9 got recovered by Fateh Muhammad and Habibullah on the same day were taken into possession vide memos. Exhs .P.O and P.P. respectively. All the weapons were recovered from the same house.
Lai Khan was arrested by Manzoor Hussain, A.S.I. (P.W.5) on 23-2-1986 on rejection of his pre-arrest bail.
Challan was submitted to Court after completion of necessary investigation.
5. Statements of 18 P.Ws. were recorded at the trial.
Dr. Muhammad Rashid Javed, who had medically examined Maqsood Ahmad at 6-00 p.m. on 24-1-1986 while still alive had noted:--
(i) An incised wound 11 x 2 c.m. into bone deep cut on the top of head. (The wound was bleeding). The brain matter was coming out.
(ii) A tender swelling 6 x 4 c.m. on the right side of hip joint.
(iii) A tender swelling 6 x 4 c.m. on the left hip joint.
Injury No.l was declared grievous and dangerous to life while the other two injuries were declared simple. Injury No.l was opined to have been caused by a sharp-edged weapon while the remaining two were opined to have been caused by blunt weapon.
He had also medically examined Inayatullah P.W. on the same day and noted a contusion wound 0.5 x 0.5 c.m. on left side of upper lip. (Muscle surface was injured. The teeth were healthy).
He had also medically examined Sardar on the same day and noted:--
(1) A contused wound 5 x 1.c.m. x bone deep over back and left side of head.
(2) A contused wound 1.5 x 0.5 x muscle deep on left forearm.
(3) A contused wound 1.5 x 0.5 x scalp deep on the left side of top of head.
All the injuries were opined to have been caused by blunt weapon and were declared simple.
On being asked by the police, he had opined vide Exh. P.K. that Maqsood was not fit to make a statement. '
6. Dr. Nazir Ahmad Anwar, who had performed autopsy on 25-1-1986 at 11-00 a.m. appeared as P.W.8. He had noted the same injuries as found by Dr. Muhammad Rashid Javed (P.W.11). According to his opinion, death had occurred due to brain damage and haemorrhage resulting from injury No.1, which was an incised wound caused by a sharp-edged weapon. Time between injuries and death was opined to be 6 to 9 hours while the time between death and post -mortem was opined to be between 9 and 15 hours.
7. Ocular account was deposed to by Muhammad Yusuf (P.W.15), Sardar Muhammad (P.W.16) and Inayatullah (P.W.7).
Muhammad Yusuf repeated the facts given by him in the F.I.R. He, however, stated that Ali Sher had come to his flour Chakki to ask him to participate in the Punchait. He also stated that the wife of Ali Sher had returned within one hour. While admitting during cross-examination that he had not sent any body to the police station, he stated that had not intentionally delayed the lodging of the report. He stated that his- son Ashiq Ali had left for Saudi Arabia before this occurrence. According to him, 20/25 persons had participated in the Punchait. In answer to a question, he stated that Hanif was cutting wood with a hatchet in the Haveli when Punchait was being held. He admitted that Sardar P.W. was married to his sister. He stated that Mehrban, uncle of Ilyas, who was alleged to have abducted the wife of Ali Sher, had participated in the Punchait on behalf of Ilyas.
Sardar (P.W.16) also corroborated the testimony of P.W.15 and P.W.7.
Inayatullah (P.W.7) by and large corroborated the statement made by P.Ws. 15 and 16. However, instead of stating that Hanif had given hatchet blow to Maqsood, he stated that he had given hatchet blow on the head of Yusuf. The request made by the State counsel at the end of the statement to re-examine him was not allowed by the trial Judge. During cross-examination, he admitted that his wife and the wife of the deceased were first cousins. He also admitted that Yusuf complainant had contested election against Lal Khan and lost that. He stated that the wife of Ali Sher was abducted by Ilyas.
Both the P.Ws. i.e. P.W.15 and P.W.16 denied the suggestion that Ali Sher had gone out on the day of occurrence and left his wife in the house of Fateh Muhammad accused and that when Fateh Muhammad had gone to his lands, the deceased accompanied by his brother, Ashiq Ali, and Sardar P.W. had trespassed into the house of Fateh Muhammad in order to abduct the wife of Ali Sher and that Mohallahdars had collected on hue and cry raised by her and that in that pandonium Maqsood deceased and Sardar had suffered injuries.
8. Rehmatullah S.I. (P.W.12) who had recorded the statement Exh. P.D. of Muhammad Yusuf P.W. on the basis of which formal F.I.R. Exh.P.D./1 was recorded at the police station appeared and deposed that.
9. Amjad Hussain Shah S.I. who had arrested the accused including the appellant except Lal accused appeared as P.W.18 and gave the details of the investigation done by him. He also stated about the recovery of. hatchet P.7 at the instance of the appellant and Sotas at the instance of Fateh Muhammad and Habib.
Statements of the remaining witnesses are more or less of formal nature.
10. The appellant and the acquitted accused during statements under section 342, Cr.P.C. denied the prosecution case and pleaded innocence. However, neither they produced evidence in defence nor made statements under section 340(2), Cr.P.C.
11. Since the appeal has been riled through jail nobody represents the appellant. I, therefore, proceed to decide the same with the assistance of the learned counsel for the State.
12. The suggestion that occurrence had taken place in a different manner was denied by P.Ws. 15 and 16. Learned trial Judge while considering the stance of the accused in that regard rejected the same by giving cogent reasons. I have no reason to disagree with that particularly so when none from the side of the accused were found injured.
13. It is the prosecution's own case that the occurrence had taken place in the Haveli of Fateh Muhammad (acquitted accused), where Punchait had been convened to consider the demand of Ali Sher for return of Rs.10,000 which, according to him, his wife had taken with her at the time of abduction/elopement. It is also not disputed that the allegation of abduction of the wife of Ali Sher was against Ilyas, and Ashiq son of the complainant, was only blamed, for having helped him. The dispute, therefore, mainly was between Ilyas and his family and the accused party.
14. Mehrban, uncle of Ilyas, had attended the Punchait to represent Ilyas. The thrust of dispute would have been against Mehrban in the absence of Ilyas. Maqsood deceased was not connected with the abduction of wife of Ali Sher. Although he was brother of Ashiq Ali yet the allegation against Ashiq was also of a minor nature. He could not have become the target of the accused for any pre meditated attack. The stance of the complainant party, therefore, that on the Lalkara raised by Ali Sher and Lal (acquitted accused) that Maqsood should not escape, the appellant had inflicted a hatchet blow on his head does not sound well nor inspire confidence.
15. P.W.15 stated during cross-examination that when Punchait was being held, Hanif (appellant) was cutting wood in the Haveli with a hatchet. That means that he was not regularly participating in the Punchait. He was 16/17 years at the time of trial which took place two years after the occurrence. He would be about 15 years at the time of occurrence. He thus would not have been a spear man of the accused party. In the circumstances, it cannot be assumed by any stretch of imagination that Hanif would have been an active party in any premeditation to commit the murder of Maqsood. In fact, the above enunciation shows that Maqsood could not have been a target even, for a definite and positive murderous assault. All the same, there is no cogent reason to discard the statements of the two P.Ws. that the incised injury on the head of Maqsood was caused by Hanif particularly so when the same rinds corroboration from the recovery of hatchet at his instance. The evidence of recovery of which can be safely relied upon.
16. The above analysis of the situation, brings me to draw the conclusion that something happened during Punchait which resulted in quarrel during which Hanif gave a blow to Maqsood with hatchet which he was already holding which unfortunately proved to be fatal.
17. It is also in evidence that about 20 persons were participating in the Punchait from the side of the accused while only 3/4 persons were participating from the side of the complainant. If there had been a premeditation to commit the murder, the deceased and the other P.Ws. would have been caused much larger number of injuries, than that, they were found to have suffered. Moreover, the appellant would have, also, not stopped, after having inflicted one injury only. He would have repeated the blows to the deceased and might have caused injuries to other P.Ws. as well. His conviction and sentences under section 302, P.P.C. are, therefore, not sustainable. The same are set aside. He is instead held liable for having committed offence under section 304, Part I, P.P.C. and convicted accordingly. He shall undergo R.I. for ten years plus to pay a fine of Rs.5,000 in default whereof to undergo R.I. for one year. Fine, on recovery, shall be paid as compensation to the heirs of the deceased. Benefit of section 382-B, Cr.P.C. shall be given to the appellant.
H.B.T./M-3012/L Order accordingly.