HAZOOR BAKHSH Versus THE STATE
CH: GHULAM SARWAR, J.-- - Criminal Appeal No.68 of 1991 filed by Hazoor Bakhsh Shah, connected Murder Reference No.79 of 1991 made under section 374, Cr.P.C. and the Criminal Revision No.55 of 1991 filed by Syed Riaz Ahmad son of Sardar Ali, complainant against the acquittal of Ghulam Abbas co-accused arise from the judgment, dated 20-2-1991 passed by the learned Additional Sessions Judge, Rajanpur, whereby Hazoor Bakhsh appellant was convicted under section 302, P.P.C. and was sentenced to death for committing the murder of Shabbir Ahmad deceased. He was also fined Rs.20,000 and in default of payment thereof he was to undergo three years R.I. In case of recovery of fine, heirs of Shabbir Ahmad deceased were to get the same as compensation. Ghulam Abbas, respondent in criminal revision was, however, acquitted.
2. F.I.R. Exh.P.C. was lodged by Sardar Ali Shah P.W.3, father of Shabbir Ahmad deceased with Muhammad Siddique Dogar, S.1. P.W.8 at 6-15 p.m. on 23-1-1987 at Police Station Jampur, wherein he alleged that at Peshiwela the same day his son Shabbir Ahmad, deceased was constructing the wall of the house of his (complainant's) nephew Fiaz Muhammad in Mauza Kot Tahir, where the complainant and Wahid Bakhsh, P.W.4, was present. In the meantime both Hazoor Bakhsh appellant and Ghulam Abbas acquitted accused came in the house of Fiaz Muhammad aforesaid being armed with Sotas and raised Lalkara to Faiz Ahmad and Shabbir Ahmad to stop construction of the wall, else would be murdered, but both of them continued with the construction of the wall and in the meantime Ghulam Abbas exhorted appellant that Shabbir Ahmad deceased was not stopping construction of the wall and be killed so that he reaps the reward of his being a bully and for his taking illegal possession of Ihata Deh, whereupon Hazoor Bakhsh appellant inflicted Sota blow at the head of Shabbir Ahmad. Thereafter, Ghulam Abbas accused inflicted Sota blow at the neck of Shabbir Ahmad who fell down in an injured condition on the ground raising alarm. The complainant further alleged that they raised alarm and on their interference the accused decamped alongwith their weapons of offence proclaiming that they had finished Shabbir Ahmad and had thereby taken revenge of the illegal possession of their land. The complainant stated that had they not immediately intervened the accused persons would have killed Shabbir Ahmad at the spot. The latter was brought in an injured condition by the complainant and his son Khalil Ahmad. It was alleged that due to the previous enmity regarding possession of Ihata Deh and in consultation, Shabbir Ahmad had been injured, so a case under section 307/34, P.P.C. was registered. The injured was sent to the Civil Hospital, Jampur by Muhammad Siddique Dogar, S.I. P.W.8 alongwith his injury statement Exh.P.E./1 for medical examination.
3. After registration of the case the I.O. proceeded to the place of occurrence and prepared the site plan of the place of occurrence Exh.P.G. On 27-1-1987 on the receipt of information about the death of Shabbir Ahmad the dead body of the deceased was brought to Jampur where inquest report Exh.P.E./5 was prepared. On 4-2-1987 the I.O. Muhammad Siddique Dogar, S.I. P.W.8 arrested Hazoor Bakhsh appellant and Ghulam Abbas respondent and the former produced Sota P.1 which was taken into possession vide recovery memo. Exh.P.A. On 5-2-1987 the I.O. got prepared the scaled site plans Exh.P.D., Exh.P.D./1 and Exh.P.D./2 from Khadim Hussain, Patwari P.W.5. After investigation both the accused were challaned.
4. Dr. Abdul Waheed P.W.8 examined Shabbir Ahmad vide M.L.C. Exh.P.E. on 23-1-1987 and found, the following injuries on his person:--
(1) Lacerated wound 1/4 c.m. x 1/8 x superficial and swelling 4 c.m. x 2 c.m. on the top of the head.
(2) Complaint of pain in neck.
Injury No.1 was kept under observation. On written request of the 1.0. Exh.P.E./3 the doctor opined that the patient was unable to make statement, At 10-30 in the same night, the doctor informed the S.H.O. vide Exh.P.E./2 about the serious condition of the patient and referred him to Nishtar Hospital, Multan, where the latter expired on 27-1-1987 on account of injury No.1, so the offence was altered to one under section 302/34, P.P.C. vide daily Diary No.6.
5. Dr. Abdul Waheed P.W.7 did the post-mortem examination on the dead body of Shabbir Ahmad on 28-1-1987 vide post-mortem report Exh.P.F. and found the following injuries on his person:--
(i) Stitched wound 9 c.m. x 1/8 c.m. on the right side of the head.
(ii) Stitched wound 3 c.m. x 1/8 c.m. on the right side of the head close to the right ear.
(iii) Stitched wound 5 c.m. x 1/8 c.m. on the left side of the head.
(iv) Lacerated wound 1/4 c.m. x 1/8 c.m. superficial and swelling 4 c.m. x 2 c.m. on the top of the head
(v) Swelling 1 c.m. x 1 c.m. on the back of the neck.
In the opinion of the doctor death occurred due to shock and haemorrhage due to injury No.1. Injury No.1 was grievous and injury No.3 simple, both ante-mortem caused by blunt weapons and injury No.1 was sufficient to cause death in the ordinary course of nature. The doctor has found the time between the injuries and death 4 to 5 days and between the death and post-mortem examination 24/30 hours.
6. The prosecution case apart from the medical evidence rested mainly on ocular testimony furnished by Sardar Ali Shah P.W.3, Wahid Bakhsh P.W.4. P.W.1 deposed that on 4-2-1987 the appellant produced Sota P.1 to the police which was taken into possession vide recovery memo. Exh.PA.; Irshad Hussain P.W.2 identified the dead body of the deceased. Khadim Hussain P.W.5 and Allah Ditta, Constable P.W.6 are the formal witnesses, whereas Muhammad Siddique Dogar, S.I.. P.W.8 is the 4nvestigatmg Officer of this case,
7. The appellant and the respondent Ghulam Abbas had pleaded not guilty to the charge when examined under section 342, Cr.P.C. They traversed the allegations of the prosecution in their entirety and while professing their innocence Hazoor Bakhsh appellant stated as under:--
"I am innocent. I tender in evidence plaint titled Sardar Ali etc. v. Allah Ditta etc. Exh.D.1, copy Exh.D2 for the deletion of the name from the list of plaintiffs in suit Sardar Ali etc. v. Allah Ditta etc. copy of plaint Exh.D.3 titled Sardar Ali v. Allah Ditta etc. copies of Exh.D.4 and D of Kalandaras under section 182, P.P.C. titled State v. Sardar Ali etc. copy Exh.D.6 in suit titled Ghulam Abbas v. Shabbir Ahmad etc. copy Exh.D.7 in suit titled Muhammad Shafi v. Shabbir Ahmad etc., copy Exh.D.8 of an application by Shabbir Ahmad in the Court of A.C., Jampur, copy Exh.D.9 in suit Ghulam Abbas v. Shabbir Muhammad Shah, copy Exh.D.10 in suit Syed Ghulam Abbas Shah v. Shabbir, copy Exh.D.11 of an application by Shabbir Ahmad in the Court of A.C., Jampur, for the registration of the case, under section 379/411, P.P.C.
The appellant and the respondent did not opt to appear as their own witnesses as provided under section 340(2), Cr.P.C. but they produced D.S.P. Shaukat Mehmood Bajwa in their defence who was examined as D.W.1. Appellant also produced documents Exh.D.1 to D.11 to prove the enmity due to the civil litigation between the complainant and the accused party, D.S.P. Shaukat Mehmood Bajwa D.W. deposed that according to his investigation Ghulam Abbas Shah respondent was innocent in the case. He admitted that some documents were produced before him regarding the previous civil and criminal litigation between the parties.
8. In this case the appellant has sent this appeal through jail so this Court appointed Sh. Muhammad Rahim, Advocate as counsel to argue the appeal on behalf of the appellant at the State expense. It was contended by him that the motive in the case was against Faiz Muhammad Shah who was present at the place of occurrence but neither any injury was caused to him nor he has been produced as P.W. by the prosecution at the trial so his non-production adversely affects the case of the prosecution. It was also argued that the ocular evidence in this case needs careful scrutiny due to the litigation civil as well as criminal being pending between the parties and an implicit reliance cannot be placed upon the statement of Sardar Ali Shah P.W.3 as he was not a truthful person when he had denied certain admitted facts during his cross-examination. It was also argued that the occurrence in this case took place in the midst of Abadi Deh but no independent witness has come forward to support the prosecution case. Lastly it was argued that due to the old enmity and criminal litigation pending between the parties and only a single injury was caused with a blunt weapon which is attributed to the appellant so the circumstances of the case do not call for the award of maximum penalty.
9. The learned Assistant Advocate-General appearing on behalf of the State supported the judgment of the learned trial court. However, he conceded that there are extenuating circumstances to alter the death sentence into life imprisonment. .
10. The learned counsel for the complainant in the revision petition argued for remanding the case back to the learned trial Court for recording conviction also against Ghulam Abbas respondent.
11. In this case we find that the learned trial Judge while dealing with the motive of this occurrence which perpetrated the appellant to commit this crime held that the bone of contention for occurrence was over construction of wall and Ghulam Abbas Shah had no concern with it. He found that motive stood established from the documentary evidence produced by the appellant himself in the form of Exh.D.1 to Exh.D.11 which proved that many civil and criminal disputes between the parties were pending and so they were inimical towards each other. The ocular account furnished by the complainant Sardar Ali Shah P.W.3 also admitted the litigation and the D.S.P. D.W.1 deposed that all these documents were also taken into possession by him which were produced by the P.Ws. In this case we also find that both the sides are very closely related to each other and the occurrence having taken place amongst the close relatives so in such a situation the outsiders rarely come forward to expose themselves to the enmity of one or other of the parties. Wahid Bakhsh P.W.4 is an independent and reliable witness. He has fully corroborated the prosecution version furnished by Sardar Ali P.W.3 in all material particulars. He has advanced reasons that why he was present at the place of occurrence as he resides at a distance of 1/2 Acres from the place of occurrence so he is a natural witness and in no way can be termed as chance or an outsider in the circumstances of this case. Wahid Bakhsh P.W.4 is a respectable landlord having tube-well and landed property and there is no suggestion of his enmity with the appellant. Some suggestions were put during cross-examination to the witnesses that Shabbir Ahmad deceased had died due to the falling of the roof and the accused were falsely involved in the case due to enmity. We find that the defence could not find a single witness from the village in support of this assertion. They have produced only one D.S.P. Shaukat Mehmood who has categorically stated that only Hazoor Bakhsh appellant is guilty in the case and not Ghulam Abbas.
12. We also find that the ocular evidence is fully supported by the medical evidence. Dr. Abdul Waheed P.W.7 proved that Shabbir Ahmad deceased sustained lacerated wound on the top of his head on 23-1-1987 and also a complaint of pain in his neck. Both the eye-witnesses have categorically deposed that the victim had suffered two blunt weapons injuries one on the top of his head and the other at the neck, the same being the version in the F.I.R. and during the trial so it was confirmed at the time of post-mortem examination. The objection was raised that when Shabbir Ahmad deceased was conscious according to the doctor till 10-30 p.m. on 23-1-1987 then why his statement was not recorded by the police. We find that the doctor has not stated any where that though Shabbir Ahmad was conscious but was also able to make statement. We also find that at the trial on 14-5-1989 the same doctor stated that when Shabbir Ahmad was brought before him he was in semi conscious condition.
13: We are conscious of the fact that P.W.3 Sardar Ali Shah is closely related to the deceased and the parties were even inimical towards each other but the above-noted facts and circumstances demonstrate the type of intrinsic worth of the said testimony which makes these witnesses reliable. Moreover we find nothing on record, which could persuade us to hold that the prosecution had failed to prove the guilt of Hazoor Bakhsh appellant. However, we have I not been persuaded to set aside the acquittal of Ghulam Abbas respondent and to remand back the case to the trial Court for fresh trial. Taking into account the ocular account being corroborated by the medical evidence and the evidence of motive we are of the view that no exception can, thus be taken to the finding of guilt recorded against the appellant by the learned trial Court.
14. We, however, do not agree with the lower Court that the case call for the award of the maximum penalty. We find that only solitary bang blow caused by the appellant proved fatal and there was an old enmity due to civil and criminal litigation being also pending between the parties. The award of the lesser penalty will, therefore, in our view can meet the ends of justice, the amount of the fine imposed is also on the high side and therefore, calls for 8 suitable reduction, the appellant being not in a position to file an appeal through counsel. We accordingly maintained the conviction of the appellant under section 302, P.P.C. but reduce his sentence from death to imprisonment for life. He shall have to pay Rs.2,000 as fine and in default he will undergo R.I. for six months. The fine if realised, shall be paid to the heirs of the deceased. The appellant is also found entitled to the benefit provided under section 382-B, Cr.P.C.
N.H.Q./H-11/L
Sentence reduced.