MUHAMMAD Versus STATE

KHALIL-UR-REHMAN RAMDAY, J.----- Muhammad and his two sons, namely, Mukhtar and Bashir had been tried by a learned Additional Sessions Judge at Bhalwal, District Sargodha, for the murder of one Anar Khan.

2. Through a judgment dated 17-12-1990, all the three had been found guilty of the said charge and having been convicted under section 302/34 of the P.P.C., Muhammad accused had been sentenced to death while Mukhtar and Bashir had been punished with imprisonment for life. All the three had also been directed to jointly pay a fine of Rs.50,000 or else each one of them was ordered to suffer five years' R.I. An amount of R's.40,000, out of the said fine, was directed to be paid to the heirs of the deceased.

3. Murder Reference No.34 of 1991 seeks confirmation of the above said sentence of death while Criminal Appeal No.2/J of 1991, filed jointly by all the three appellants, impugns the above-noticed convictions and sentences recorded against them. Both these matters are being disposed of together through this single judgment.

4. The occurrence resulting in the present proceedings had taken place on 11-6-1987 at 5-30 p.m. near the house of one Shera Baluch on a metalled road in the area of village Nabi Shah Bala within the jurisdiction of Police Station Bhalwal. The same had been reported at the said police station at 6-30 P.m. by Gulzar Ahmad, a brother of Anar Khan deceased who had claimed that on the day of occurrence he had gone to his deceased brother at the Dera of one Ijaz Hussain and that they left the said Dera for their village at about 5-30 p.m. He had added that just as they had reached near the house of Shera Baluch, Muhammad Armed with a Barchha, Mukhtar armed with knife and Bashir armed with a hatchet emerged there whereafter, Muhammad accused raised a Lalkara that they had come to avenge their insult and inflicted a Barchha blow hitting the left front chest of Anar deceased which was followed by a knife blow dealt by Mukhtar accused and it was then Bashir accused who gave a hatchet blow on the head of the said deceased. The complainant had further alleged that Mukhtar accused and Bashir accused then repeated their blows and the three assailants left the deceased only on the intervention of Allah Ditta (P.W.8) and Muhammad Amir (given up) who had in the meantime reached the spot and had also witnessed the occurrence. The deceased had allegedly died at the spot.

5. Disclosing the motive for the said occurrence, the complainant had claimed that he was married to the daughter of Muhammad accused whom Anar deceased had given slaps on account of a domestic dispute about 8/10 days prior to the present occurrence; that Mst. Kaniz, the said wife of the complainant and the daughter of Muhammad accused had left her matrimonial home and had gone away to the parental home because of this dispute and it was on account of this grievance, that the three assailants had attacked the deceased and had done him to death.

6. During the course of investigation, all the three appellants had been arrested by Mumtaz Ahmad S.I. (P.W.9) on 15-6-1987. Thereafter, each one of them had led to the recovery of the respective weapons allegedly used by them during the occurrence in question. All the three weapons were found to be stained with blood and these recoveries had been effected on 18-6-1987.

7. When confronted with the prosecution case, all the convicts had denied their involvement in the occurrence in question and had in fact stated that the actual facts had been twisted though no details of the twisted or the real facts had been mentioned by any one of them.

8. Gulzar Ahmad complainant is a brother of the deceased. A daughter of Muhammad appellant who is thus a sister of Mukhtar and Bashir appellants is his wife. The other eye-witness, namely, Allah Ditta (P.W.8) is a cousin of the deceased. Muhammad appellant is the maternal-uncle of this Allah Ditta P.W. and Mukhtar and Bashir appellants are thus, his cousins. It may also be mentioned here that a sister of the deceased namely, Mst. Tasleem, is the wife of Bashir appellant.

9. It is true that both the eye-witnesses are closely related to the deceased but at the same time, it has also to be borne in mind that they are equally closely related to the appellants' party also. Nothing could be brought on record by the defence even in the form of a suggestion that the two eye?witnesses had any motive or reason to falsely implicate the three appellants in the occurrence in question. Although, through their statements under section 342 of the Cr.P.C. the appellants had not taken up any specific pica but the had impliedly claimed, through the suggestions made during the course of cross-examination of the eye-witnesses, that on account of the slaps given by Anar deceased to Mst. Kaniz abovementioned, one Muneer, a son of Muhammad appellant had slapped Mst. Tasleem and Mst. Rehmate, the two sisters of Anar deceased and had sent them to the house of the complainant/deceased; that on the day of occurrence, Anar deceased had caught hold of Mst. Kaniz when she had come out of her house and had dragged her, on which her clothes had got torn; that on the hue and cry raised by her, Muhammad appellant came out of the house after arming himself with a Chhuri and tried to rescue Mst. Kaniz at which, Anar deceased attempted to assault Muhammad appellant who gave injuries to Anar deceased under grave and sudden provocation and for the defence of his person. This explanation of the occurrence in question is not believable. It is on record that Muhammad appellant is about 65 years of age while Anar deceased was a young man aged about 30 years. If Anar deceased had mounted an assault on Muhammad appellant then it is not easily digestible that Muhammad appellant alone would be in a position to cause nine injuries on the person of Anar deceased and that also being armed only with a Chhuri.

10. In view of what has been noticed above, the testimony offered by the two eye-witnesses inspires confidence. No reason exists on record which could persuade us to conclude that Mukhtar and Bashir appellants had been falsely roped in only on account of their relationship with Muhammad appellant especially when Bashir appellant is the husband of a sister of the complainant and Anar deceased. The number and the seats of injuries received by Anar deceased further support the prosecution claim that the said injuries had been caused by more than one assailants.

11. The eye-witnesses had not been challenged with respect to the motive and in fact through the abovementioned suggestions, the defence had admitted that Anar deceased had given slaps to Mst. Kaniz and that she was at her parental home at the time of occurrence. The motive thus stands established on record and similar is the position with respect to the recoveries of the alleged weapons of offence recovered at the instance of the three appellants.

12. Consequently, we find no justification to interfere with the findings of guilt recorded by the learned trial Court against all the three appellants and their consequent conviction under section 302/34 of the P.P.C.

13. The matter of confirmation of the sentence of death awarded to Muhammad appellant has, however, engaged our attention. He is 65 years of age. Furthermore, it was the prosecution's own case that Anar deceased had given slaps to his daughter a few days prior to the occurrence. In the circumstances, imposition of the penalty of death on Muhammad appellant is not justifiable in the facts and circumstances of the present case.

14. The sentence of death awarded to Muhammad appellant is NOT CONFIRMED and he is instead punished with imprisonment for life.

15. We also find that a direction to all the three appellants to pay Rs.50,000 as fine is rather harsh. The amount of fine is, therefore, reduced to a sum of Rs.5,000 to be paid by each appellant and it is directed that any one of the appellants defaulting in making payment of the said fine shall suffer six months simple imprisonment. All 'the three appellants shall be allowed the benefit of the provisions of section 382-B of the Cr.P.C. and the entire amount of fine, if recovered, shall be paid to the heirs of Anar deceased.

16. Murder Reference No.34 of 1991 and Criminal Appeal No.2/J of 1991 are disposed of in the above terms.

DEATH SENTENCE IS NOT CONFIRMED.

N.H.Q./M-943/L ???????????????????????????????????????????????????????????????????????????????? Order accordingly.