MUHAMMAD HUSSAIN Versus THE STATE

Muhammad Hussain aged 45 years, appellant alongwith Muhammad Hanif aged 18 years, Loona aged 25 years and Munir Ahmed alias Manna aged 21 years (acquitted co-accused) was tried for the murder of Muhammad Hanif, deceased. Muhammad Hussain appellant was convicted and sentenced by the learned Additional Sessions Judge-1, Bahawalnagar vide his impugned judgment, dated, 23-12-1990 under, section 302, P.P.C. to undergo imprisonment for life and a fine of Rs.10,000, in default whereof to suffer further R.I. for two years. The appellant was also extended the benefit of section 382-B, Cr.P.C. The co-accused were acquitted by tie same judgment. The appellant has come up in appeal to assail his conviction and sentence.

2. Briefly, the prosecution case is that P.W.8 Muhammad Nawaz on 22-8-1989 at 5-30 p.m. lodged F.I.R. Exh.P.B. at Police Station Saddar, Chishtian, District Bahawalnagar recorded by P.W.5 Shaukat Murtaza, Inspector/S.H.O. to the effect that he was resident. of Basti Gharibabad Dakhli, Mauza Shahli Gharbi and had abducted about 8/10 months earlier to the present occurrence Mst. Zahooran wife of Muhammad Nazir and daughter of Muhammad Hussain, appellant. She was restored through Panchayat. The complainant wanted to marry Mst. Zahooran and for the same purpose he had given the hand of his niece to Muhammad Nazir, who divorced Mst. Zahooran. The complainant had also paid Rs.10,000 to the appellant for the hand of Mst. Zahooran, but Muhammad Hussain appellant besides the amount had also demanded the hand of the daughter of the complainant from his first wife for his son. On the day of occurrence, complainant alongwith Muhammad Hanif deceased, his brother, Ghulam Farid (P.W.10), Allah Din P.W. (given up), residents of Basti Gharibabad for final decision proceeded to the Chak No.ll/Ford. Muhammad Hussam appellant had apparently agreed to give the hand of Mst. Zahooran, but his son Muhammad Hanif and maternal-cousin, co-accused (since acquitted) had not agreed and went inside the room. After some time suddenly Muhammad Hussain appellant armed with a hatchet, Muhammad Hanif son of Muhammad Hussain armed with a hatchet and. Loona, co-accused armed with a Soti attacked the complainant party. Loona (acquitted co-accused) had given Sod blow to the complainant and said that nobody should be spared. Muhammad Hussain appellant alongwith acquitted co-accused Muhammad Hanif started giving hatchet blows one after the other to Muhammad Hanif deceased, brother of the complainant. Loona (acquitted co-accused) also gave Sod blows to the deceased. On the hue and cry all the three accused escaped. The complainant alongwith Allah Din P.W. (given up) found that the deceased had succumbed to his injuries. Leaving behind Ghulam Farid (P.W.10) and Allah Din P.W. (given up) to guard the dead body of Muhammad Hanif, the complainant reached the police station for reporting the matter. He had further alleged that on the abetment of Muhammad Munir alias Munna (acquitted co-accused) Muhammad Hanif was done to death. The appellant alongwith the acquitted co-accused were challaned and sent up for trial. Charges under sections 302/34, 302/109 and 307/34, P.P.C. were framed against them, to which they denied and claimed trial.

3. The prosecution examined 10 P.Ws. in all to substantiate its case. P.W.1 Gulzar Ahmad, had escorted the dead body of the deceased to the mortuary, after autopsy on 23-8-1989, the: Doetor handed him over last-worn clothes of the deceased, blood-stained Chadar P.1 and shirt P.2 which he produced before the Investigating Officer, who secured the same vide memo. Exh.PA. attested by him. P.W.2 Muhammad Siddique, Patwari had prepared site plans Exhs.P.B. and P.B./1. P.W.3 Muhammad Bakhsh had identified the dead body of the deceased at the time of post-mortem examination. P.WA Muhammad Sharif who joined the investigation and the police secured blood stained earth from near the dead body of Muhammad Hanif deceased and made it into a sealed parcel vide memo. Exh.P.C. attested by him. After about 22 days he joined the investigation. Muhammad Hussain appellant while in police custody led to the recovery of blood-stained hatchet P.3 from his Jhuggi which was secured vide memo. Exh.P.D. attested by him P.W.5 Shaukat Murtaza, Inspector/S.H.O. recorded the formal F.I.R. Exh.P.F., proceeded to the spot, prepared injury statement Exh.P.G. of Muhammad Nawaz (P.W.8), collected blood-stained earth from the spot vide memo. Exh.P.C., prepared injury statement of deceased Muhammad Hanif Exh.P.J. and Inquest Report Exh.P.K and despatched the dead body to the mortuary. He arrested Muhammad Hussain appellant on 10-9-1989 and on 16-9-1989 he, in police custody, led to the recovery of hatchet P.3 from his Jhuggi, which was secured by him vide memo. Exh.P.D. After completion of the investigation he challaned the accused. P.W.6 Muhammad Abdullah, A.S.I. had kept in Malkhana sealed parcels containing blood-stained earth, two sealed parcels containing hatchets handed over to him by P.W.5. He entrusted the said parcels to P.W.7 Muhammad Younus for delivery in the respective offices. P.W.7 Muhammad Younus Foot Constable was handed over three sealed parcels containing blood-stained earth and hatchet which he delivered in the respective offices intact. P.W.8 Muhammad Nawaz is the complainant who corroborated the contents of F.I.R. Exh.P.F.

4. P.W.9 Dr. Muhammad Afzal Saqib, on 23-8-1989 at 8-00 am. conducted autopsy on the dead body of deceased Muhammad Hanif and found the following injuries:--

(1) An incised wound over left ear. Ear was cut in the middle. Mandible was also cut. Size 15 c.m. x 3 c.m. x 3 c.m.

(2) An incised wound over right side of head 8 c.m. above right ear. Size 8 x 3 x 1 c.m.

(3) An incised wound over left side of head 6 c.m. above left ear 8 x 2 x 1 c.m.

(4) An incised wound over middle of top of head 11 c.m.. x 3 c.m. x bone deep:

(5) An incised wound over right side of root of neck blood vessels were cut. Size 8 c.m. x 2 c.m. x 2 c.m.

The doctor was of the opinion that cause of death was haemorrhage and shock due to injuries Nos.l and 5, which were sufficient to cause death in the ordinary course of nature. Injuries Nos.2, 3 and 4 were simple in nature. All the injuries were caused with sharp-edged weapon and ante-mortem in nature. Time between injuries and death was instantaneous and between death and post-mortem within 24 hours.

5. P.W.10 Ghulam Farid is another eye-witness of the present occurrence who had stated that about 9/10 months earlier to the occurrence, Mst. Zahooran daughter of Muhammad Hussain appellant and wife of Nazir Ahmad had eloped with Muhammad Nawaz (P.W.8), complainant. After some days Muhammad Nawaz (P.W.8) returned Mst. Zahooran to Nazir Ahmad through Panchayat. Nazir Ahmad had stated in the Punchayat that he did not want to retain Mst. Zahooran as his wife and that Muhammad Nawaz (P.W.8) should give the hand of his niece to him which was accepted by him and Nazir Ahmad divorced Mst. Zahooran. Thereafter, P.W.8 gave his niece Mst. Irshad in marriage to Nazir Ahmad. After becoming Talaq between Mst. Zahooran and Nazir Ahmad effective, P.W.8 Muhammad Nawaz paid Rs.10,000 to the appellant Muhammad Hussain and contracted Nikah with Mst. Zahooran. P.W.10 further stated that on the day of occurrence, he alongwith P.W.8 Muhammad Nawaz and deceased Muhammad Hanif went to the house of the appellant for settlement of a Rishta, demanded by the appellant from P.W.8. They, reached there at about 12-00 noon/1-00 p.m. where the appellant alongwith his acquitted co-accused were present. The appellant asked them to sit outside the Haveli under Kikar and Jand trees. The appellant demanded from Muhammad Nawaz (P.W.8) the hand of his daughter from his first wife for his son and then he would be happy. P.W.8 accepted his demand. P.W.10 Ghulam Farid and Allah Din P.W. (given up) became sureties. All the accused went inside the Haveli and all of a sudden Loona (acquitted co-accused) armed with Soti, Muhammad Hussain appellant and Muhammad Hanif (acquitted co accused) armed with hatchets reached. Loona gave a Soti blow on the neck of P.W.8 Muhammad Nawaz, while Muhammad Hussain appellant and Muhammad Hanif (acquitted accused) started inflicting hatchet blows to the deceased. They raised hue and cry while the deceased fell down. The accused escaped alongwith their weapons. The deceased succumbed to his injuries. Leaving behind P.W.10 Ghulam Farid and Allah Din P.W. (given up) to guard the dead body, P.W.8 proceeded to the police station for reporting the matter.

6. The appellant when examined under section 342, Cr.P.C. denied the prosecution evidence against him as well as the recovery of blood-stained hatchet P.3 at his instance from his Jhuggi. In answer to a question "why this case and why the P.Ws. deposed against you?" he'stated:--

"Due to enmity and relationship with the deceased and the complainant. In fact the complainant had abducted my daughter Mst. Zahooran Bibi, wife of Muhammad Nazir and she was returned back through the intervention of the Panchayat against the wishes of the complainant and he had grudge: against me. On the day of occurrence Mst. *Zahooran my daughter had gone to ease: herself in the early hours of the morning near the place of occurrence. After some time on her hue and cry I went to the place of occurrence after picking a hatchet from the courtyard of my house and in order to save her from abduction I caused injuries to Muhammad Hanif deceased and Muhammad Nawaz complainant. Muhammad Nawaz complainant fled away whereas Muhammad Hanif deceased continued dragging my daughter for abducting her, therefore, I for the purpose of saving m3 daughter caused injuries to him and released my daughter. After this I, of my own accord appeared before the police alongwith the hatchet and narrated the abovementioned occurrence but the police, in connivance with the complainant party involved me in this case falsely. The Nikahnama and divorce deed have been fabricated after this occurrence with the connivance of Chairman, Union Council concerned. My daughter was abducted again by the complainant after this occurrence when we were arrested in this false case. I am innocent."

7. I have heard the learned counsel for the parties at length and have perused the record. It has been vehemently urged by the learned counsel for the appellant that the complainant P.W.8 Muhammad Nawaz had abducted complainant's daughter Mst. Zahooran, who was married to Muhammad Nawaz and was returned through the intervention of the Panchayat and on the day of occurrence Mst. Zahooran had gone to ease herself in the early hours of the morning near the place of occurrence. The.appellant heard hue and cry, went to the said place after picking a hatchet and in order to save her daughter from abduction he caused injuries to Muhammad Hanif deceased and Muhammad Nawaz, complainant. The complainant fled away. Muhammad Hanif deceased continued dragging his daughter for abduction and for saving his daughter the appellant inflicted injuries to him and released his daughter. He on his own appeared before the police alon6yvith the hatchet and narrated the incident. The Nikahnama and divorce deed had been fabricated after the occurrence with the connivance of the Chairman, Union Council. The P.Ws. are interested and the recovery has been planted. Mst. Zahooran was again abducted by the complainant after the occurrence.

8. P.W.8 Muhammad Nawaz complainant in the F.I.R. Exh.P.F. recorded on his statement has specifically stated that about 8/10 months earlier to the present occurrence he had abducted Mst. Zahooran wife of Muhammad Nazir and daughter of the appellant, but due to intervention of the Panchayat he had returned her back. He wanted to marry Mst. Zahooran and for the said purpose he had given the hand of his niece to Muhammad Nazir, ex-husband of Mst. Zahooran who divorced her. He had also paid Rs.10,000 to the appellant and also had agreed to give the hand of his daughter from the first wife to the son of the appellant, and on the day of occurrence he along P.W.10 Ghulam Farid, P.W. Allah Din (given up) and the deceased had reached near the place of occurrence and the incident took place. P.W.10 Ghulam Farid has supported and corroborated the statement of P.W.8 Muhammad Nawaz. P.W.8 Muhammad Nawaz is brother of the deceased, whereas P.W.10 Ghulam Farid is uncle of Muhammad Nawaz (P.W.8) and deceased Muhammad Hanif, P.W.8 had produced certificate of Talaq issued by the Chairman of the concerned Union Council pertaining to the dissolution of marriage between Nazir Ahmad, previous husband of Mst. Zahooran P.W.8 Muhammad Nawaz also produced Nikahnama Exh.P.M. and according to the same Muhammad Nawaz (P.W.8) complainant and Mst. Zahooran daughter of the appellant were married on 27-3-1989. The present occurrence took place on 22-8-1989 Exhs.P.L. and P.M. clearly show that Muhammad Nazir, ex husband of Mst. Zahooran had divorced her and the divorce had become effective on 9-3-1989. P.W.8 Muhammad Nawaz and Mst. Zahooran had married on 27-3-1989 which is evident from Nikahnama Exh.P.M.

9. P.Ws.8 and 10 are closely related to the deceased i.e. P.W.8 is the brother, whereas P.W.10 is the uncle and their statements cannot be relied upon unless corroborated by independent evidence on record. The appellant was arrested by P.W.5 Shaukat Murtaza, S.H.O. on 10-9-1989 and during interrogation on 16-9-1989 he led to the recovery of blood-stained hatchet P.3 from his Jhuggi, which was made into a sealed parcel and secured by P.5 vide memo. Exh.P.D. attested by P.W.4 Muhammad Sharif and P.W. Shah Muhammad (given up). No doubt Muhammad Sharif (P.W.4) is the uncle of the deceased and was resident of 7 miles away from the place of recovery, but he had joined the investigation being uncle of Muhammad Hanif deceased. Only a suggestion was put to him that the recovery was not effected in his presence. P.W.5 Shaukat Murtaza S.H.O. has corrobrated the statement of P.W.4. Moreover, the report of the Chemical Examiner Exh.P.P. and that of the Serologist Exh.P.S. are positive. P.W.5 has no malice against the appellant and no motive whatsoever to falsely involve him in tile present case. The statements made by P.Ws.8 and 10 are strengthened by the recovery of blood stained hatchet P.3 at the instance of the appellant, as well as presence of I injuries on the person of P.W.8.

10. The appellant had raised a specific plea and placing the case of the appellant in juxtaposition with that of the prosecution, nothing was brought on record by the defence in support of its case. Only P.W.8 was given verbal suggestions, whereas no suggestion was given to P.W.10 and P.WS. The appellant even at the time of his arrest had not stated before P.W.5 Shaukat Murtaza, S.H.O. about the murder of the deceased at his hands when the deceased was dragging and trying to forcibly abduct Mst. Zahooran. The appellant neither produced evidence in defence nor made statement on oath as envisaged under section 340(2), Cr.P.C. The defence had not been able to prove the presence of Mst. Zahooran at or near the place of occurrence at the relevant time. The plea raised by the appellant is not spelt out from the 18 evidence on record and the circumstances appearing in the case.

11. Pursuant to the above discussion, I am of the view that no exception can be taken to the impugned judgment and resultantly the appeal fails and is dismissed.

N.H.Q./M-1185/L Appeal dismissed