NADEEM SHAH Versus THE STATE
SARDAR MUHAMMAD DOGAR, J. ---Nadeem Shah (25) was tried by the Sessions Judge, Jhang, for having murdered Muhammad Yousuf on 1-7-1989, at 9-00 a.m. in the field of Lal Shah, at a distance of 1-1/2 acres from the house of the deceased, in village Nekokara, 23 k.m. away from Police Station Garh Maharaja, District Jhang.
Vide judgment, dated 1-12-1990, he was convicted under section 302, P.P.C. and sentenced to death, plus to pay a fine of Rs.10;000 in default whereof to undergo S.I. for six months. Half of the fine of recovery, was directed to be paid as compensation to the heirs of the deceased.
2. The appeal filed by the convict and the reference made by learned trial Judge for confirmation of sentence of death are being disposed of together.
3. F.I.R. Exh.P.H. was registered at the Police Station by Muhammad Khan, Inspector/S.H.O. P.W.10 on 1-7-1989 at 12-30 p.m. on the statement of Ghulam Muhammad P.W.8.
According to F.I.R., Muhammad Yousuf (deceased) son of the complainant was working in the village as a goldsmith. On the day of occurrence, he (deceased) was sitting in his house, alongwith his father, i.e. the complainant, Muhammad Bakhsh uncle and Muhammad Nawaz P.W. Nadeem Shah (appellant) called' Muhammad Yousuf and asked him to accompany him as he had some business with him. Muhammad Yousuf joined him (the appellant) and started walking alongwith him. The complainant also followed them. When they reached in the field of Lal Shah, at a distance of about 1-1/2 acres, Nadeem Shah brought out a Chhuri from his fold and after catching him by the collar, inflicted a blow on his chest, declaring that he will teach him a lesson for having estopped him from visiting his shop'. He gave another blow to the deceased on the left shoulder, as a result of which he fell down. Thereafter, Nadeem Shah caused two more injuries on the left buttock and right side of back. On the noise raised by the complainant, Muhammad Bakhsh and Muhammad Nawaz, who were sitting in his house, came there and witnessed the occurrence. Nadeem Shah ran away waving the Chhuri. Muhammad Yousuf died at the spot.
4. While stating about motive for the occurrence, the complainant gave out that the deceased was running a jewellery shop. Nadeem Shah appellant often used to visit the shop, without any purpose. Many a time the deceased estopped him from visiting the shop, as his clients were ladies and his (appellant's) visit was unwelcomed.
A day before the occurrence, a quarrel had taken place over that, between the deceased and the appellant, at the shop in the presence of Khuda Bakhsh P.W. Nadeem Shah had told the deceased that the village was not his father's property and that he will continue visiting and will teach him a lesson for estopping him. The complainant alleged that the deceased was done to death by the appellant due to that grievance.
5. Muhammad Khan, S.H.O. after registering the case, went to the spot and despatched the dead body for post-mortem, after preparing necessary papers. Blood-stained earth was collected by him from there, vide memo. Exh.P.J.
The S.H.O. arrested the appellant on 7-7-1989 and took into possession blood-stained Chhuri P.4 got recovered by him on the same day, vide memo Exh.P.O. Challan was submitted to Court to him, after completion of necessary investigation.
6. Statements of ten P.Ws. were recorded at the trial.
Dr. Ghulam Farid Khalid, who had performed autopsy on 1-7-1989 at 4-45 p.m., appeared as P.W.2. He had noted following injuries on the body of the deceased:---
(1) Stab wound 3 x 2 c.m. about 8 c.m. deep, passing through and through 2nd intercostal space just lateral to sternal bone, on left side of the chest, cutting upper lobe of left lung, and piercing left ventricle of the heart.
(2) Stab wound 2 x 1/2 c.m. x muscle deep on right side of back of chest.
(3) Stab wound 2-1/2 x 1/2 c.m. muscle deep on back left shoulder.
(4) Stab-wound 2 c.m. x 1/2 c.m. x muscle deep on left gluteal region.
(5) Abrasion 2 x 1 c.m. on left knee front part.
(6) Abrasion 3 x 2 c.m. on front of the right knee.
On opening the thorax, he had found stab wound passing through second intercostal space of left side of the chest, lateral to sternal bone. Left pleura, left lung and left ventricle were found pierced.
Death was opined to have occurred due to bleeding and cardiogenic shock, resulting from injury No.l. Injuries Nos.l to 4 were opined to have been caused by sharp-edged weapon, while injuries Nos.5 and 6 were opined to have been caused by blunt weapon.
Probable time between the injuries and death was opined to be immediate while the duration between death and post-mortem was opined about 7 to 8 hours.
7. Ocular account was deposed to by Ghulam Muhammad, P.W.8 and Muhammad Nawaz P.W.9.
Ghulam Muhammad after repeating the facts given by him in the F.I.R., stated during cross-examination that Muhammad Bakhsh and Noor Muhammad; P.Ws. were his brothers while Muhammad Nawaz. P.W. was the son of his mother's sister. He also admitted that sister of Nawaz P.W. was married to his brother, Muhammad Bakhsh P.W. He stated that Muhammad Nawaz was residing in his village which was at a distance of one mile from the place of occurrence and he had installed a grinding machine there. He gave out that Muhammad Nawaz had come to talk to him about the marriage of his son and daughter with his son and daughter. However, he.admitted that ages of the said children ranged from 6/7 to 10/11 years. He stated that Nadeem Shah had not entered their house and had called out his son while standing outside the door. While admitting that the mother of the appellant was residing at Shorkot, where she was in service, he denied the suggestion that he (accused) was living alongwith his parents there. He gave out that his deceased son was married 4 years prior to the occurrence and had a son aged one year,, at the time of occurrence. However, he denied the suggestion that the wife of his deceased son was not living with him. The suggestion that no child was born to her, was also denied by him. He also denied the suggestion that his son was not keeping his wife in his house and used to pursue young boys and girls. He gave out that his son was running the shop ip a room of his house. He admitted that he was not present at the time of incident when the appellant had extended threats to his deceased son. He admitted that they had not forbidden the deceased to accompany Nadeem Shah. While denying the suggestion that he had not witnessed the occurrence, he also denied the suggestion, that on the day of occurrence, early in the morning, the deceased had taken away Mst. Kalsoom to the sugarcane field and that he was apprehended there and murdered by the brothers of Mst. Kalsoom under grave and sudden provocation. He denied the suggestion that he had lodged a false report.
8. Muhammad Nawaz, P.W.9, while corroborating the statement made by P.W.8 about the actual occurrence, also claimed to have witnessed the collection of blood-stained earth from the spot. During cross-examination he stated that he had asked Muhammad Bakhsh P.W. to accompany him to the house of the complainant as he wanted to talk about the matrimonial affairs of his son and daughter, with the complainant. He stated that when Nadeem Shah (appellant) had called the deceased from his house, he did not know about the incident which had taken place between him (appellant) and the deceased. He explained that they (himself and Muhammad Bakhsh) were at a distance of 12 Karams, when the appellant had run away after inflicting injuries to the deceased. He denied the suggestion that he had not witnessed the occurrence and had made a false statement due to relationship.
9. Manzoor Hussain who had witnessed the recovery of blood-stained Chhuri P.4 at the instance of the appellant appeared as P.W.7 and verified that fact. During cross-examination he admitted that the deceased was cousin of his wife. He admitted that he was residing at a distance of 15 miles from the place of recovery. While admitting that mother of the appellant was serving at Shorkot, he denied the suggestion that he was living at Shorkot alongwith his father. He gave out that the Basti, where, the house, from which the recovery was effected, was situated, at a distance of 3 acres from the main Abadi of the village. He explained that the Basti from where the recovery was effected, consisted of one house only. He denied the suggestion that he had made a false statement due to relationship.
10. Muhammad Khan, S.H.O. Who had registered the case, investigated the same and submitted challan to Court after arrest of the appellant and recovery of Chhuri P.4 at his instance, appeared as P.W.10 and gave the details of the investigation done by him. During cross-examination he denied the suggestion that he had recorded the F.I.R. after holding preliminary inquiry, at the spot. He gave out that he had visited the shop, where the deceased was working but had not recorded the statements of the surrounding shop-keepers. He denied the suggestion that motive version of the prosecution case, was concocted. He denied the suggestion that the appellant was residing jointly with his father at Shorkot. While admitting that he had not associated any Lumberdar, Member, Union Council or Chowkidar to attest the recovery of Chhuri, he denied the suggestion that he had created the false evidence of recovery, in order to strengthen the prosecution case.
The statements of the remaining P.Ws. are more or less of a. formal nature. il. Positive reports Exh.P.L. and P.M. from the office of the Chemical Examiner and Exhs.P.N. and P.O. from the office of the Serologist, were tendered in evidence.
12. The appellant during his statement under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence. He denied, that he had led to the recovery of Chhuri. He stated as follows in answer to the question, "Have you anything else to say?":---
"I am innocent. The deceased was a man of bad character. He had turned out his wife from the house after two days of his marriage and had developed illicit relations with Mst. Kalsoom. On 1-7-1989 at morning prayers time the deceased was seen with aforesaid Mst. Kalsoom in the sugarcane field in compromising position, and that Malangi brother of said Mst. Kalsoom on seeing them in that condition chased Muhammad Yousuf deceased and when the deceased had covered a short distance, said Malangi overpowered him and caused him injuries. It was unwitnessed incident. Said Malangi is my private servant. The complainant falsely involved me in this case due to suspicion. I permanently reside with my parents at Shorkot. I had gone to my village in summer vacation and said Malangi was acting as my cook in the village."
He declined to make statement on oath under section 340(2), Cr.P.C. Although, on 8-11-1990, he expressed desire to produce evidence in defence, yet on 15-11-1990, he made statement that he does not want to produce any evidence in defence.
13. Muhammad Bakhsh who was named to have witnessed the incident that took place, between the appellant and the deceased, a day before the occurrence, i.e. 30-6-1989, at the shop of the deceased, was although named as P.W. yet he was not examined at the trial. No reason was given for not examining him. Although Ghulam Muhammad P.W.8 deposed about the occurrence, yet he admitted during cross-examination, that neither, he had witnessed the incident which formed motive, nor the deceased had talked to him about that, prior to the occurrence in question. No other P.W. stated anything about motive for the occurrence. That being so, we find weight in the argument of learned counsel for the appellant that the prosecution has not been able to lead any evidence to prove motive fur the occurrence, and so they shall be deemed to have failed to prove the motive.
14. The contention of learned counsel for the appellant that the claim of the eye-witnesses of having seen the appellant taking away the deceased from his house and of having witnessed the occurrence, does not appear to be true, has been considered by us, in the light of the arguments advanced by him.
The argument that since a quarrel had taken place between the deceased and the appellant, a day before the occurrence, and: the appellant allegedly had threatened the deceased that he will teach him a lesson, neither the deceased would have accompanied him, nor his father would have allowed him to accompany the appellant, is contradictory to the stance of the defence that no incident, as alleged by the complainant had taken place on 30-6-1989. If that was so, there would have been no reason for the complainant to have felt any apprehension. Even apart from, that, it cannot be assumed, that for mere exchange of words, even if they were in bad taste, the deceased would have refused to accompany the appellant, when he had called him, because the appellant, apart from being a co-villager, was his casual visitor also.
1.5. The argument that had all the P.Ws. been present, the appellant would not have succeeded in inflicting injuries to the deceased, without resistance, and that in all probability, he would have been overpowered, at the spot, has not impressed us for the reason, that according to the ocular account, .the appellant had inflicted 4 blows successively, after saying, "as to why he had forbidden him to visit the shop and he will teach him a lesson, for that". In our view, in such a state of suddenness, the witnesses might not have envisaged that attack nor conceived the idea of putting resistance. Mere fact that the P.Ws. did not intervene physically, in the circumstances, in our view, is no ground to reject their testimony.
16. The other fact which goes in favour of the prosecution is that the occurrence had taken place only at a distance of 1-1/2 acres from the house of the complainant. He and anybody else sitting with him in the house, could easily have reached the spot and witnessed the occurrence on hearing the alarm of the deceased, which he must have raised after being attacked, even if it is believed that the complainant had not followed his son.
Prompt lodging of the report also supports the claim of presence of the eye-witnesses.
17. The argument that the reasons disclosed by P.W.9 of his presence in the house of the complainant appeared to be highly improbable, in our view, does not disprove his claim. They were already related to each other. So, they could have got together to talk about the future of their children, even if they had not reached the aged of majority. P.W.9 was not residing at a longer distance. His house was situated at a distance of one mile from the place of occurrence. He might have come to visit his relatives even for minor things.
Apart from the fact that the claim of the eye-witnesses does not appear to be doubtful, the other important aspect, is, that the stance of the appellant that the deceased actually had been done to death by the brothers, or servant of brother of Mst. Kalsoom, with whom allegedly the deceased was seen in a provocative position in the sugarcane field, has not impressed us at all. If the deceased had been murdered by the brothers of Mst. Kalsoom as suggested during cross-examination or by Malangi servant of the brother of Mst. Kalsoom, as stated by appellant in his statement under section 342, Cr.P.C. the complainant would not have let them go scot free, and instead named the appellant alone for the murder of his son. Except the incident of quarrel which according to the complainant had taken place between the deceased and the appellant, a day before the occurrence, there is nothing else on record to hold that there was any animosity between the family of the deceased and the appellant. After all why should he have chosen him to be named falsely?
18. The evidence of recovery of blood-stained Chhuri, which in our view, inspires confidence, lends corroboration to the ocular account. Mere fact that P.W.7 who deposed about the recovery of Chhuri, was related to the deceased A through wife, and the fact that he did not belong to the Basti, from where the appellant had, got recovered the Chhuri, in our view, is not sufficient to discard his testimony, particularly so when the same finds corroboration from the Investigating Officer also, who definitely had no personal animosity with the appellant. It is worth noticing that it is on record that the recovery was effected from the house in a Basti, which was situated at a distance of about 3 acres from the village Abadi. The said Basti according to P.W.7 consisted only of the house from where the recovery was effected.
That being so, even if the Investigating Officer had wanted to join any Councillor, Lumbardar or Chowkidar to attest the recovery, he could not have done so as none was residing near the place, wherefrom the recovery was effected.
19. The medical evidence in turn, also lends corroboration to the ocular account.
As a result of the above discussion and enunciation of the evidence, we are convinced that the prosecution has been able to prove the case against the appellant beyond reasonable shadow of doubt. His conviction under section 302, P.P.C. is, therefore, maintained.
21. Since the prosecution had failed to prove motive alleged for the occurrence, the agonising cause for the occurrence (motive) remained shrouded in mystery. In the circumstances, sentence of imprisonment for life, plus to pay a fine of Rs.10,000, in our view, will meet the ends of justice in this case. Order accordingly. The sentence of death is not confirmed.
Whole of the fine, on recovery shall be directed to be paid as compensation to the heirs of the deceased. Benefit of the provisions of section 382-B, Cr.P.C. shall be extended.
N.H.Q./N-178/L Sentence reduced,