KHAN MUHAMMAD Versus STATE

CH. GHULAM SARWAR, J. --- Khan Muhammad, Riaz Ahmad appellants alongwith Ghulam Rasool their brother and one Muhammad Ramzan were tried by the learned Additional Sessions Judge, Multan, on the charge under section 302/34, P.P.C. for having committed the, murder of one Khadim Hussain deceased on 5-1-1989 at 8/9 a.m. in the area of Village Dakhna Gahru, Police Station Kehror Pacca.

2. Vide judgment, dated 28-2-1990, Khan Muhammad and Riaz Ahmad appellants were convicted under section 302/34, P.P.C. and both of them were sentenced to death. They were also directed to pay fine of Rs.10,000 each and if recovered half of it was to be paid by them to the legal heirs of the deceased. In default of the payment of fine they were also to suffer R.I. for two years each. Muhammad Ramzan and Ghulam Rasool were acquitted.

3. Aggrieved by the conviction and sentences the appellants have preferred Criminal Appeal No.44 of 1989 and the Case has also been referred to us under section 374, Cr.P.C. for the confirmation of death sentences. This judgment shall dispose of both the appeal and the reference.

4. The occurrence resulting into the death of Khadim Hussain deceased took place on 5-1-1989 at 8/9 a.m. in Village Dakhana Gahru at a distance of 4 miles from the Police Station City Kehror Pacca. The occurrence was reported at the police station vide F.I.R. Exh.P.G. by Shahnawaz (P.W.5) and was recorded by Ghulam Rasool S.I. (P.W.8).

5. Succinctly stated the case of the prosecution as narrated by Shahnawaz (P.W.5) runs as under:--

"I am a Zamindar. Riaz Muhammad son of Shah Muhammad, caste Mughal, resident of Basti Gahroo deals in the business of milk. My cousin Khadim Hussain son of Malik Ghaus Bakhsh had to receive the price of the milk yesterday on 4-1-1989 at evening time. Khadim Hussain had some altercation with Riaz, Khan Muhammad, Ghulam Rasul sons of Shah Muhammad and Muhammad Ramzan son of Muhammad Nawaz which was settled at the intervention of the respectables of the locality but all the four accused, mentioned above, threatened that they would avenge the insult extended to them. Today at about 8/9 a.m. I alongwith Ghulam Abbas son of Malik Muhammad Nawaz, Malik Pir Bux son of Malik Muhammad Murad, caste Gharoo, Nazeer Ahmad son of Ghulam Muhammad, caste Arain was sitting on cots lying at the gate of my uncle Malik Ghaus Bakhsh. When Khadim Hussain deceased was found coming from his house towards the Dera and in this process when he reached near the tube-well of Malik Rabnawaz Gharoo, then at that time, Riaz Ahmad armed with Sota, Khan Muhammad armed with Sota, Ghulam Rasul armed with Sota and Muhammad Ramzan Ghaghra armed with Sota came running from their house while exhorting Lalkara. Out of them, Ghulam Rasul accused prevented Khadim Hussain deceased and took him into his Japha from his front side and Riaz Ahmad and Muhammad Ramzan as well as Khan Muhammad accused also raised Lalkara that the insult should be avenged which was incurred upon them yesterday. They proclaimed that they would not leave him. We rushed towards the scene and in our view Riaz Ahmad accused inflicted a Sota blow which hit on the head of Khadim Hussain on his left side over the ear, Khan Muhammad accused inflicted a Sota blow which hit the deceased on the right side of his head above the ear. At that time, Ramzan accused stood nearby and continued to raise Lalkara that the deceased should not be spared today. I alongwith Nazeer Ahmad, Malik Pir Bakhsh and Ghulam Abbas raised Lalkara and thereafter on our intervention, the accused took to their heels with weapons of offence. Khadim Hussain fell on the ground and became unconscious. I alongwith Malik Pir Bux Ghahru, Nazir Ahmad Arain and Ghulam Abbas Ghahru picked up Khadim Hussain and took him to the Civil Hospital for examination and treatment in unconscious condition through tractor-trolly and on the way to the hospital, he succumbed to the injuries and expired. It is further mentioned that Riaz Ahmad, Khan Muhammad, Ghulam Rasul sons of Shah Muhammad and Nawaz son of Ramzan as a consequence and sequence to their altercation between the deceased about money, had committed the murder of the deceased Khadim Hussain in consultation with each other and in furtherance of their common object. I have come to the police station for reporting the matter after leaving the dead body of Khadim Hussain under the care of Nazeer Ahmad Arain and Ghulam Abbas in the Civil Hospital and request for proceeding against the accused persons."

6. Ghulam Rasool S.I. (P.W.8) after, recording the F.I.R. accompanied by other police officials reached the hospital Keror Pacca and prepared the inquest report of the deceased Exh.P.H. and also made an application Exh.P.H./1 for the post-mortem examination. He inspected the spot and took into the possession the last-worn clothes of the deceased vide memo. Exh.P.B. He directed the Draftsman to prepare the site plans which are Exhs.PA. and PA./1 and Exh.PA./2 on 6-1-1989 which were prepared on 8-1-1989. He then handed over the investigation to Muhammad Bashir S.H.O. (P.W.9) who arrested all the accused on 18-1-1989. He also took into possession Sota P.4 vide memo. Exh.P.C. which was got recovered from Khan Muhammad appellant on 11-1-1989. He also took into possession Sota P.5 vide recovery memo. Exh.P.D. which was got recovered by Riaz Ahmad appellant from his house. The other acquitted accused also got recovered Sotas. He completed the investigation and submitted the challan.

7. Dr. Muhammad Hussain (P.W.10) did the post-mortem examination on the dead body of Khadim Hussain deceased on 5-1-1989 at 1-00 p.m. and found the following injuries on his person:--

"(1) A swelling 5 c.m. x 4 c.m. on parietal region of scalp right side which was diffused and was 12 c.m. above right eyebrow and 6 c.m. above right ear pinna with pulpiness. On shaving the area multiple tiny laceration in the whole swollen area were present.

(2) Swelling 6 c.m. x 4 c.m. on left temporo-parietal region of scalp 4 c.m. above left ear pinna and 10 c.m. above left eyebrow was present. Pulpiness in the swollen area was present."

In his opinion injuries Nos.1 and 2 both were ante-mortem. Each injury individually was grievous as well as dangerous to life in nature. Each injury individually would have been sufficient to cause death in ordinary course of nature. The time between injury and death was within about 3 hours whereas between death and post-mortem was within 3 hours. Exh.P.K. was the carbon copy of the post-mortem which was in his hand and bears his signatures. Exh.P.D./1 is the diagram showing the locale of injuries. Inquest report Exh.P.H./1 bears his signatures and also endorsed by him. Exh.P.H./2 is the injury statement which was also endorsed and signed by him. .

8. In order to substantiate its case at the trial the prosecution placed reliance upon the ocular testimony furnished by Shah Nawaz (P.W.5), Pir Bux (P.W.6) and Ghulam Abbas (P.W.7). All the three eye-witnesses are the relatives of the deceased. Nazir P.W. the eye-witnesses has been given up. Dr. Muhammad Hussain (P.W.10) is the Medical Officer who did the post-mortem examination on the dead body of the deceased. The remaining P.Ws. are the formal and police witnesses whereas Ghulam Rasool and Muhammad Bashir (P.Ws. 8 and 9) are the Investigating Officers.

9. With the assistance of the learned counsel for the appellants and the learned AA.-G., we have carefully perused the record of the case and we have also heard the learned counsel at length. The learned counsel for the appellants contended that all the three eye-witnesses are related to the deceased and there was only one independent witness who has not been examined by the prosecution. It was vehemently argued that it was the complainant party which nourished the grudge against the appellants' side as the complainant Shahnawaz (P.W.5) had suspicion about the illicit relations between his wife and one Muhammad Ali brother-in-law of Khan Muhammad appellant. That Muhammad Ali was the brother of Mst. Jannat wife of Khan Muhammad appellant so a day earlier i.e. on 4-1-1989 the deceased alongwith the P.Ws. tried to abduct Mst. Jannat but Mst. Faiz Elahi (D.W.) intervened as a result of which she also sustained injuries. It was alleged that as a result of this incident of 4-1-1989 the present occurrence took place on 5-1-1989 under grave and sudden provocation. The existence of certain contradictions and improvements were also highlighted by the learned counsel for the appellants to make the case of the prosecution as doubtful. It was also argued that medical evidence is not in full accord with the ocular account which assails the claim of the eye-witnesses of having witnessed the occurrence. It was lastly argued that for the sake of argument if the case of the prosecution is accepted as a whole truth then the parties admittedly having no previous enmity and being stranger to each other and having caused only single blow by each of the appellants which was not repeated, so it is not a case of capital punishment.

The learned AA.-G. assisted by the learned counsel for the complainant supported the judgment of the learned trial Court and submitted that the defence plea is indirectly misconceived and the prosecution has proved its case beyond reasonable doubt through the ocular testimony furnished by the three eye-witnesses, corroborated by the medical evidence and the evidence of motive.

10. We have heard the arguments advanced by the learned counsel and have also carefully gone through the entire evidence. Although all the three eye-witnesses were related to the deceased but we find that they were cross-examined at length by the defence but they failed to elicit anything favouring the appellants. We have also noticed that these witnesses had no direct enmity with the appellants and thus there was hardly any reason for them to falsely imptlicate them in this case. The appellants denied their participation in the occurrence in their statements under section 342, Cr.P.C. but they produced two defence witnesses to prove the occurrence of a day earlier wherein it was stated that Mst. Jannat wife of Khan Muhammad appellant was tried to be abducted by Khadim Hussain deceased alongwith Shahnawaz, Nazir and Abbas P.Ws. but Mst. Faiz Elahi D.W. intervened, as a result of which the deceased and the P.Ws. failed in their mission. D.W.2 a lady doctor appeared to say that she examined D.W.1 on 4-1-1989 at 11-30 p.m. On the basis of this evidence it was argued that it was due to this incident the appellants might have protested to the deceased and this occurrence is the result of sudden flare-up without any pre-meditation. We find that it was a serious incident wherein D.W.1 had also sustained injuries. But no immediate action was taken against the deceased and the P.Ws. in spite of the fact that Mst. Faiz Elahi (D.W.1) was medically examined. The defence has failed to explain that why that incident was not reported to the police and if the police had not taken cognizance of the same then why Khan Muhammad appellant did not file a complaint about the said occurrence. We endorse the finding of the learned trial Court in this behalf, as that if the incident of the abduction of the wife of the appellant had taken place and in that incident D.W.1 had received injuries then why the complaint was not filed against the complainant party.

11. On the other hand the motive as set up by Shahnawaz (P.W.5) that a day before the occurrence there was altercation between the deceased and the appellants where the appellants threatened the deceased to avenge the insult ? and consequently they caused the murder of the deceased on the following day appears to be correct for the reasons that it has duly been supported by the testimony of P.W.5 to P.W.7 against whom no ill-will on their behalf towards the appellants had been brought on the record.

12. We find that the ocular account furnished by P.WS, P.W.6 and P.W.7 is quite cogent, consistent and natural. There are certain contradictions in their statements but those are not such which can adversely affect the case of the prosecution. The discrepancies highlighted are the natural outcome when the witnesses with rural background are asked to reproduce the facts. We find that the medical evidence is not at tagent with the ocular account furnished by the eye-witnesses. Unfortunately there is nothing on the record nor any material has been brought on record to show some animus of the appellants with the eye-witnesses so as to necessitate to seek for corroborative evidence. In this case we find that this is such a case which hardly requires more corroboration when we have held that there was no direct animus between the appellants and the eye-witnesses. In this view of the matter we hold that the prosecution has brought guilt home to the appellants.

13. So far as the question of punishment in this case is concerned we find that the elements to be considered for assessing quantum of sentence are (a) the nature of the offence, (b) the circumstances in which it was committed, (c) the degree of deliberation shown by the offender, (d) the provocation which he received, (e) the antecedents of the person to be sentenced (f) his age and character. These matters should be established by evidence and not by impression created on spur of the moment. In this case the appellants are said to be armed with ordinary Sotas only and they gave one injury each upon the person of the deceased. Having taken into consideration the facts and circumstances of this case we are of the view that sentence of life imprisonment to each of the appellants would be sufficient in this case to meet the ends of justice.

14. Resultantly, we alter the sentence of death awarded to the appellants by the learned trial Court to imprisonment for life. However, we increase the sentence of fine from Rs.10,000 each to Rs.30,000 each. On realisation whole of it would be paid to the legal heirs of the deceased as compensation as envisaged under section 544-A, Cr.P.C. In default of payment of fine both the appellants shall have to suffer two years' R.I. each.

15. This appeal is disposed of in terms of the above order and the murder reference is answered in the negative as the death sentence awarded to the appellants are not confirmed.

N.H.Q./K-128/L

Death sentence reduced.