JAVED MASIH Versus THE STATE
CH. GHULAM SARWAR, J. -- Jawed Masih appellant was tried under section 302, P.P.C. by the learned Additional Sessions Judge, Multan for committing the murder of one Tariq Masih on 3-6-1989 at about 12-00 (noon) in the area of Jamilabad, Nishtar Road, Multan and vide judgment, dated 13-9-1990 was convicted and sentenced to death and also to pay a fine of Rs.15,000, in default of payment whereof he was directed to undergo R.I. for two years. He was also directed to pay Rs.15,000 as compensation to the heirs of Tariq Masih deceased as required under section 544-A, Cr.P.C. and in default he was to undergo six months' S.I.
2. In this case the learned Sessions Judge had referred this case under section 374, Cr.P.C. for confirmation of death sentence vide Murder Reference No.17 of 1991 and in return the appellant has filed Criminal Appeal No.183 of 1990 through counsel and Criminal Appeal No.142 of 1990.through jail. All the matters shall be decided through this single judgment.
3. Succinctly stated the case of the prosecution in narrow' compass as stated by Munir Masih P.W.8 runs as under:--
"On 3-6-1989 at about 12 noon Munir Masih complainant alongwith his son Tariq Masih deceased aged 18/19 years was sitting on a cot outside his house under a mango tree situated in the land of Sarjent son of Sepahi Khan. In the meanwhile Jawed Masih appellant arrived there swiftly and asked Tariq Masih as to why he had complained about him to his wife. Munir Masih P.W. and Tariq Masih were trying to satisfy him when Iqbal Masih P.W.9 and Bashir Masih P.W. also arrived there. Suddenly Javed Masih appellant wipped out a knife out of his Shalwar and inflicted repeated blows on the person of Tariq Masih, which landed on the left side of his chest near heart, under the left rib and on the left buttock. Tariq Masih fell down. The P.Ws. tried to catch hold of Javed Masih but he succeeded in making good his escape alongwith the weapon of offence. Tariq Masih succumbed to his injuries at the spot. The occurrence besides the complainant was witnessed by Iqbal Masih and Bashir Masih P.Ws.
The motive behind this murder was explained that Javed Masih appellant was seen with Mst. Maani in the crop of Jawar, for which Tariq Masih had complained to Mst. Shamim Akhtar alias Nanni wife of Javed Masih appellant. Mst. Shamim Akhtar admonished her husband Jawed. Masih, on account of which he felt annoyed and murdered Tariq Masih by inflicting repeated knife blows."
The complainant after leaving the Chowkidar at the spot went to the police station and got, recorded complaint Exh.PA.; on the basis of which formal F.I.R. Exh.PA./1 was recorded.
4. Maqbool Ahmad Kamboh, Inspector/S.H.O. P.W.10 was present on Octroi Post No.l Jamilabad Road, Multan at 12-30 (noon) on 3-6-1989 when Munir Masih P.W.8 met him and he recorded his statement Exh.PA. and sent the complaint to the police station for the registration of the formal F.I.R. he then proceeded to the spot and prepare inquest report Exh.P.E. and injury statement Exh.P.D. of the deceased. He secured blood-stained earth from the spot and. took the same into possession vide recovery memo. Exh.P.F. On 5-6-1989 the I.O. arrested the appellant and on 6-6-1989 he got prepared the site plans Exh.P.B., Exh.P.B./1 and Exh.P.B./2. On 9-6-1989 the appellant led to the recovery of knife Exh.P.E. from the Jawar crop which was taken into possession vide recovery memo. Exh.P.H. He completed the investigation and got the appellant challaned.
5: P.W.5 Dr. Muhammad Altaf Hussain, Senior Medical Officer, Civil Hospital, Multan did autopsy on the dead body of Tariq Masih deceased on 4-6-1989 and found the following injuries on his persons:--
(1) A stab wound 2-1/4 c.m. x 1 c.m. x chest cavity deep on the front of left chest (pre-cardic area) 3-1/4 c.m. below and medial to left nipple.
(2) An incised wound 2 c.m. x 1 c.m. on the outer aspect of left side of abdomen 2-1/2 c.m. above the illiac crest in oblique direction.
(3) An incised wound 1 c.m. x 1 c.m. x 1 c.m. on the outer aspect of left hip 5 c.m. below on lateral side of illiac crest.
(4) An incised wound 1 c.m. x 1/2 c.m. x muscle deep on the outer aspect of left thigh in middle part.
In his opinion the death in this case occurred due to haemorrhage and shock caused . by injury No.l (the vital organ heart) which was sufficient to cause death in the ordinary course of nature. All the injuries were ante mortem and were inflicted by sharp-edged weapon. Probable time between injuries and death was immediate and time between death and post-mortem was 24 hours. Exh.P.C. is the post-mortem examination report and Exh.P.C./1 is the diagram showing the locale of injuries.
6. To substantiate the charge against the appellant the prosecution examined as many as ten witnesses besides P.W.5 the Medical Officer who did the post-mortem examination on the dead body of the deceased. These P.Ws. included P.Ws.1, 2, 3, 4, 6 and 7 as the formal witnesses and Munir Masih P.W.8 and Iqbal Masih P.W.9 are the witnesses who rendered the eye-witness account of the occurrence. P.W.10, the Inspector is the Investigating Officer of this case. The learned Public Prosecutor tendered in evidence the positive reports of Chemical Examiner Exh.P.J. and Exh.P.K. and that of Serologist Exh.P.L. and Exh. P.M. in order to prove the origin of the blood as of human.
7. When confronted with the prosecution evidence during his examination under section 342, Cr.P.C. the appellant traversed the allegations of the prosecution in its entirety and while professing his innocence he took up the following plea:--
"I live in the house of my father-in-law, alongwith my wife. On the day of occurrence, I was present in the house of my father-in-law, which is situated at a distance of 10/15 yards, from the place of occurrence. On hearing hue and cry, raised by Mst. Manni, I rushed from the house of my father-in-law, towards the place of occurrence, where I saw Tariq Masih (deceased) holding Mst. Manni who was trying to rescue herself. I intervened and tried to rescue Mst. Manni, from the clutches of Tariq Masih but he attempted to inflict a knife blow on me. I after snatching the same knife from the hand of Tariq Masih, inflicted knife injuries to him in my defence and to rescue Mst. Manni from Tariq Masih, deceased. The P.Ws. are inter se related, therefore, they have falsely deposed against me."
7. The learned counsel for the appellant contended that the motive which perpetrated the appellant to commit this crime was not proved by the prosecution as according to him both the eye-witnesses had admitted during cross-examination that the deceased had not told them about the illicit liaison of Mst. Manni with the appellant and also that Mst. Manni was an aunt of the appellant so such relations of the appellant with his aunt could not be expected. Regarding the eye-witnesses it was contended that both P.Ws.8 and 9 being the relatives of the deceased were interested witnesses and the only witness namely Bashir Masih who was an independent witness was given up. Some discrepancies in the statements of both the P.Ws. were also highlighted to show that those were fatal to the case of the prosecution and also he stressed that these witnesses were not present at the place of occurrence. It was also argued that no recovery in terms of section 103, Cr.P.C. was ever effected therefore, there was no corroboratory circumstances to direct capital punishment in the case. It was maintained that the medical evidence is not in full accord with the ocular account. Lastly it was argued that there are mitigating circumstances which did not warrant capital punishment.
8. The learned AA: G. appearing on behalf of the State submitted that it is a broad daylight murder, which was committed by the single accused while causing four injuries on the person of the deceased with a specific motive so this appeal filed by him is liable to be dismissed. He supported the judgment of the learned trial Court.
9. We have gone through the evidence in this case with the assistance of the learned counsel for the appellant and have given our earnest consideration to the arguments advanced by both sides. In this case the prosecution case as narrated by Munir Masih P.W.8 and supported by Iqbal Masih P.W.9 is that it was appellant who committed the murder of Tariq Masih deceased on 3-6-1989 at 12-00 (noon) as he had the grievance that it was the deceased who had told his wife about the appellant's illicit liaison with one Mst. Manni. On the other hand we find that the defence version as taken up by the appellant is that he is living in the house of his father-in-law alongwith his wife which is situated at a distance of 10/15 yards from the place of occurrence. On the day of occurrence he heard hue and cry raised by Mst. Manni, he came out and saw that she was under the catch-hold of the deceased and on his intervention to rescue Mst. Manni the deceased attempted to inflict knife blow on him and the appellant after snatching the same knife from the deceased caused him injuries in his defence and to rescue Mst. Manni from him (deceased). If put in juxtaposition we are to see that which of the two versions is more probable and natural. Evidently the findings of the learned trial Court in this case regarding the involvement of the appellant as an accused are more probable, natural and appeal to reason.
10. We find that the defence plea taken up by the appellant has not been substantiated and carried behind the story of the suggestions put to P.W.8 Munir Masih and P.W.9 Iqbal Masih. Both the eye-witnesses categorically denied if the deceased had caught hold of Mst. Manni and the appellant had gone to her rescue where deceased attempted to inflict knife blow to the appellant and he therefore, caused him the injuries after snatching the knife from the deceased. This assertion raised by the appellant is negated from the fact that no mark of violence was found on the person of the appellant, preceding the scuffle. Even otherwise it is unimaginable and sounds incredible that mere catching hold of Mst. Manni by the deceased, could infuriate the appellant to the extent that he caused the death of Tariq Masih in the said context. Viewing from each angle we find that the plea raised by the appellant is as bald as it is baseless and which does not emerge from the attending circumstances of this case. We are of the view that was rightly brushed aside by the learned trial Court.
11. We also find that in the circumstances of this case the right of self-defence would be negated as according to the appellant he had snatched the knife from the deceased then what sort of apprehension he was having from him when he had become armless 4/5 injuries on the vital part of the deceased in this case are sufficient to rule out the plea of private defence when the appellant did not even receive a scratch on his person.
12. We endorse the findings of the learned trial Court that the eye-witness account rendered by P.Ws.8 and 9 being cogent, consistent and natural, is also corroborated by the medical evidence, which is in its full conformity and belies the claim of the defence that the eye-witnesses were not present at the place of occurrence. The appellant has admitted the occurrence in the case and stated that he snatched the knife from the hand of the deceased then how he could refuse its recovery so his stand is without any foundation and basis. The recoveries in our view also successfully corroborate the case of the prosecution.
13. In view of the discussion made above we hold that the prosecution had succeeded in establishing the guilt against the appellant beyond any shadow of doubt. The eye-witness account coupled with the evidence of motive, the medical evidence and the recoveries of blood-stained earth and knife brought home the charge against the appellant.
14. Regarding the question of punishment which should be awarded in this case, we are of the opinion that there are indications of some serious provocation existing, when according to the prosecution motive behind the occurrence was that the deceased had told Mst. Shamim Akhtar wife of the appellant about his liaison with one Mst. Manni. Although it is not a case of grave and sudden provocation but we are of the view that the appellant felt insulted which caused temporary imbalance of his mind and he, therefore, committed this murder. The origin of fight in this case also appears to be shrouded in mystery. Considering this as a mitigation we alter the death sentence awarded to the appellant to life imprisonment. However, the sentence regarding fine and the compensation shall be maintained. The benefit as provided under section 382-B, Cr.P.C. shall also be awarded.
15. Resultantly the appeals filed by the appellant fail with a modification in the sentence as mentioned above and the murder reference is answered in the negative as the death sentence has not been confirmed in the case.
N.H.Q./J-70/L
Sentence reduced.