MUHAMMAD HAYAT QASMI Versus MUHAMMAD HUSSAIN, PROPRIETOR SIAL TRADERS, LAHORE
MIAN ABDUL KHALIQ, J. --- Muhammad Alam aged 13 years was tried for the murder of Muhammad Azam, his brother and was sentenced to death under section 302, P.P.C. by the learned Additional Sessions Judge, Bahawalnagar vide his judgment, dated 21-12-1991. The appellant has come up in appeal to challenge his conviction and sentence, and the murder reference sent by the learned Sessions Judge under section 374, P.P.C. is also before us. Both shall be disposed of by this judgment.
2. Briefly the prosecution case is that P.W.2 Mst. Parveen Akhtar lodged F.I.R. Exh.P.B. at Police Station Sadar, Haroonabad on 16-3-1991 at 8-30 a.m. to the effect that about 3-1/2 years earlier slie was married with the deceased Muhammad Azam and from the wedlock a son aged 2 years and a daughter aged 2 months were born. About 6/7 months ago Muhammad Azam deceased, husband of the complainant on a dispute of partition of Ahata and land had murdered his father Muhammad Nawaz and a case was registered on the complaint of Muhammad Alam (appellant), which was compromised in the Court due to the intervention of the elders. Muhammad Azam deceased was released and reached the house. In spite of the compromise Muhammad Alam had a grudge and the accused/appellant had many a time expressed about the same and on the evening of 15-3-1991 Muhammad Alam appellant had threatened Muhammad Azam deceased in presence of P.W3 Lal Khan and P.W. Mushtaq Ahmad (given up), brothers of the complainant. At about 3-00 a.m. on hearing the noise, P.W.2 complainant alongwith P.W3 Lal Khan and P.W. Mushtaq Ahmad (given up) reached the spot and witnessed in the lights of an electrict bulb that Muhammad Alam appellant was giving repeated blows of hatchet to Muhammad Azam deceased, who was lying on the cot and within the sight of P.Ws. Muhammad Alam was given hatchet blows on the throat and left temporal and while brandishing the hatchet escaped. Muhammad Azam succumbed to his injuries at the spot. Leaving behind Lal Khan (P.W3), Mushtaq Ahmad P.W. (given up) to guard the dead body, P.W.2 Mst. Parveen Akhtar reached the police station alongwith Malik Dost Muhammad and lodged F.I.R. Exh.P.B. which was recorded by P.W.7 Abid Akhtar, Inspector/S.H.O. The appellant was challaned an sent up for trial. A charge under section 302, P.P.C. was framed against the appellant, to which he denied and claimed trial.
3. The prosecution examined 8 P.Ws. in all to substantiate its case. P.W.1 Dr. Muhammad Sarwar on 16-3-1991 at about 3-00 p.m. conducted autopsy on the dead body of the deceased Muhammad Azam and found the following injuries:--
(1) An incised wound 12 c.m. x 3 c.m. x 3 c.m. on the left side of the neck, just below mandible also touching the mandible, starting from below left ear upto middle of neck (front side). Sternocledomastoid muscle caroted artery and vein incised. Injury deep upto vertebral column.
(2) An incised wound 10 c.m. x 2 c.m. x bone deep on right side of the head 5 c.m. above the right ear, oblique in direction. Brain matter looking from the wound.
(3) An incised wound 11 c.m. x 2 c.m. x bone cut on right side of the head 2 c.m. below injury No.l oblique in direction. Brain matter looking from the wound. No other injury was seen on the body. and had opined that the cause of death was severe haemorrhage and shock due to injuries Nos.l, 2 and 3 which were sufficient to cause death in the ordinary course of life. All the injuries were with sharp-edged weapon and ante-mortem. Probable time that elapsed between injuries and death was immediate whereas between death and post-mortem within 24 hours.
4. P.W.2 Mst. Parveen Akhtar, widow of the deceased corroborated the contents of F.I.R. Exh.P.B. lodged by her and had stated that she alongwith P.W3 and P.W. Mushtaq Ahmad (given up) had in the light of the electric bulb, witnessed the appellant inflicting injuries on Muhammad Azam, deceased with the hatchet. P.W3 Lal Khan, another eye-witness has stated that the deceased was his maternal-uncle's son and about one year earlier Muhammad Azam deceased murdered his father due to dispute of land and Ehata. The appellant was complainant in the said case and the case was compromised. The appellant bore a grudge against the deceased and earlier to the present occurrence the appellant bad threatened Muhammad Azam deceased to take revenge of the murder of his father and at about 3-00 a.m. (night time) on the night of occurrence he was sleeping in the house of the deceased alongwith Mushtaq Ahmad P.W. (given up). They heard a noise and reached the spot and witnessed in the light of the electric bulb that the appellant was inflicting injuries to the deceased with the hatchet. He tried to apprehend the appellant, but he fled away. Leaving behind P.W.3 Lal Khan and Mushtaq Ahmad P.W. (given up), P.W.2 left for the police station to lodge the report. P.W.3 also witnessed the recovery of blood-stained earth vide memo. Exh.P.C. and blood stained cot P.1, Razai P.2, Gaddah P.3, pillow P.4, two Chadars P.5/1-2 and Safa P.6 (all blood-stained) vide memo. Exh.P.D. The memos were attested by him. The appellant also led to the recovery of blood-stained hatchet from his Kotha from underneath a box in the presence of P.W.3 which was secured by P.W.7, Abid Akhtar, Inspector/S.H.O. vide memo. Exh.P.E. attested by him. P.W.4 Shaukat AIL Constable escorted the dead body of the deceased to the mortuary and post-mortem examination and the doctor handed him over blood-stained last-worn clothes of the deceased shirt P.8 and Shalwar P.9 which he delivered to P.W.7 Abid Akhtar, S.H.O., who secured the same vide memo. Exh.P.F. P.W.5 Ghulam Yasin, Tracer, Municipal Committee had prepared the site plan Exh.P.G. and its duplicate Exh.P.G./1 of the place of occurrence. P.W.6 Farzand Ali, Constable had kept in Malkhana sealed parcel of blood-stained hatchet which he handed over to Muhammad Shabbir, Constable (P.W.8) for onward transmission to the office of Chemical Examiner. P.W.7 Abid Akhtar, Inspector/S.H.O. recorded F.I.R. Exh.P.B. on the statement of P.W.2 Mst. Parveen Akhtar complainant reached the spot, prepared inquest report Exh.PA./2, injury statement PA./3, inspected the spot, secured blood-stained earth therefrom vide memo. Exh.P.C. He also took into possession blood-staiend cot P.1, blood-stained quilt P.2, blood-stained Gaddah P3, blood-stained pillow P.4, two blood-stained Chadars P.5/1-2 and blood-stained Safa P.6 which were secured by him vide memo. Exh.P.D. He despatched the dead body to the mortuary, recorded the statements of the P.Ws., deposited the sealed parcels with the Moharrir on 20-3-1991. He arrested Muhammad Alam appellant, who while in custody on 23-3-1991 led to the recovery of blood-stained hatchet P.7 from a trunk lying in the residential room of his house, which was secured by P.W.7 vide memo. Exh.P.E. He deposited the sealed parcel of hatchet with the Moharrir and after completion of the investigation challaned the appellant. P.W.8 Muhammad Shabbir, Constable had delivered two sealed parcels containing blood-stained earth and blood-stained hatchet in the office of Chemical Examiner in tact or 30-3-1991.
5. The appellant when examined under section 342, Cr.P.C. denied the prosecution evidence against him and the recovery of blood-stained hatchet P. at his instance. In answer to a question "why this case and why the P.Ws. have deposed against you", the appellant replied:--
"The P.Ws. are inimical towards me. They want to grab my property. had got a case registered against Mushtaq, Lal Khan P.Ws. and their third brother Altaf for the murder of my father as they had murdered my father. Moreover, two of my sisters were married in Watta with Mushtaq P.W. and his brother Altaf in exchange of complainant and her sister Shamim Akhtar who was married with Mazhar KhanMazhar Khan had died and my brother Muhammad Azam Khan had been insisting on the P.Ws. that widow of Mazhar deceased Le, Shamim Akhtar should be married with me and only then he will agree to the Rukhsati of my sister who is married to Altaf to which the P.W s. were not agreeable. He had even threatened to divorce the complainant. Nobody had seen this murder. There was suspicion against the P.Ws. but they have involved me in this case on account of previous enmity and to save their own skin. I am innocent and have not committed the murder of Azarn deceased." and further stated that he was innocent and the F.I.R. was lodged after preliminary investigation at the spot, where the people had told the police that it was a blind murder. The appellant had not made statement on oath as envisaged under section 340(2), Cr.P.C. but produced D.W.1 Mst. Roushan Bano, his mother, in his defence, who briefly stated that the appellant is her son and the deceased was also her son and his son Muhammad Azam deceased had died about 8/9 months ago. She did not know how the deceased had died. The complainant was also residing with her as well as the deceased and the appellant and after taking night meals she alongwith the appellant and kids slept in the room. The complainant was sleeping in the separate Kotha. At about Fajar prayer time the complainant woke her up and at that time the appellant was sleeping in the room. The complainant told her that the deceased had been murdered by some unknown assailants. She found the deceased dead, started weeping and crying and after Fajar prayer many persons reached. The appellant alongwith some other persons went to the police station to lodge the report. The police reached the spot and ultimately the appellant was falsely involved.
6. We have heard the learned counsel for the parties and have perused the record. The prosecution case rests upon motive, eye-witnesses, medical evidence and the recoveries.
7. The motive as stated by P.W.2 in F.I.R. Exh.P.B. was that the deceased had murdered his real father due to the dispute on partition of Ahata and the land, and the appellant was the complainant, but the case was compromised and the appellant bore grudge against the deceased. On the previous evening of the occurrence, the appellant had threatened the deceased m presence of P.W3 Lai Khan and Mushtaq Ahmad P.W. (given up). P.W3 has also stated about the motive behind the occurrence and has supported the statement of P.W.2. The motive behind the occurrence has been proved on record.
8. The ocular testimony has been furnished ... by P.W.2 Mst. Parveen Akhtar complainant and P.W3 Lal Khan, brother of P.W.2. The appellant is brother of the deceased, husband of P.W.2 and also maternal-cousin of complainant and Lal Khan P.W3. P.Ws. 2 and 3 had witnessed the appellant giving hatchet blows to the deceased in the light of the electric bulb. The appellant is closely related to the eye-witnesses and they have no motive to falsely involve the appellant in the present case. The statements made by P.W.2 and P.W3 cannot be brushed aside on account of their being close relationship with the deceased P.Ws.2 and 3 had witnessed the appellant inflicting injuries on the deceased with the hatchet.
9. The medical evidence furnished on record by the statement of P.W.1 Dr. Muhammad Sarwar is in consonance with the statements of P.W.2 and P.W3. The recovery of hatchet P.7 was disbelieved by the trial Court as the place from where it was secured by P.W.7 was not in the exclusive possession of the appellant. Moreover, there was no reason for the accused to keep blood stained hatchet in his house especially when there is no such evidence that after the occurrence the appellant had gone to his house or had brought to conceal the same.
10. Learned counsel appearing for the appellant has vehemently contended that no probable cause has been furnished by the prosecution about the presence of P.W.3 in the house of the deceased. P.Ws.2 and 3 have specifically stated that the appellant had threatened the deceased of dire consequences on the previous evening of the occurrence and P.W.3 being brother of P.W.3 and brother-in-law of the deceased was naturally interested in his safety. P.W.3 alongwith Mushtaq Ahmad P.W. (given up) is another brother of P.W3 slept in the house for the safety of their sister's husband/deceased. The statements made by P.Ws.2 and 3 cannot be brushed aside or thrown away on account of their relationship with the deceased. The appellant is also maternal-cousin of P.W.2 and P.W3. The defence version is not convincing, but is also not plausible. D.W.1 is mother of the appellant who tried to save her son. Neither she made statement before the police during the investigation about the innocence of the appellant nor had approached the authorities to complain against the false involvement of the appellant in the present case.
11. The motive against the appellant stands proved from the statement of P.Ws.2 and 3. The statements made by the P.Ws. in a straightforward manner inspire confidence and implicit reliance can be placed on their testimony. F.I.R. Exh.P.B. recorded on the statement of P.W.2 contains the name of the A accused, the weapon carried by him, the name of the witnesses and the manner in which the occurrence took place, all are given in the F.I.R. The ocular testimony furnished on record by the statements of P.Ws.2 and 3 is in consonance with the medical evidence as stated by P.W.1.
12. The prosecution has succeeded in establishing its case beyond doubt against the appellant. The appellant was 13 years of age (minor) at the time of commission of the offence, hence not liable to Qisas under section 306, P.P.C. B The death sentence is, therefore, not confirmed and his sentence is altered to 14 years' R.I. under section 308, P.P.C. The appellant shall also pay Diyat to the legal heirs of the deceased. The appellant, however, shall not be entitled to the share of Diyat.
N.H.Q./M-1212/L Order accordingly.