MUHAMMAD ARSHAD Versus THE STATE
KHALIL-UR-REHMAN RAMDAY, J.----- One Muhammad Arshad, his elder brother Abdul Hakeem and their cousin Abdul Rashid were tried by a learned Additional Sessions Judge at Faisalabad for the murder of one Shabbir Hussaih. Through his judgment dated 8-9-1992, the said learned trial Judge acquitted Abdul Hakeem and Abdul Rashid but found Muhammad Arshad guilty of the said charge and upon his conviction under section 302 of P.P.C., punished him, with death and a fine of Rs.10.000 or two years R.I. in default of payment of the said fine. The entire amount of fine was directed to be paid to the heirs of the deceased, as compensation.
2. Murder Reference No.340 of 1992 seeks confirmation of the said sentence of death while Arshad appellant approached this Court through Criminal Appeal No.785 of 1992 calling in question the above-noticed conviction and sentences recorded against him. Both these matters are being disposed of together through this single judgment.
3. The occurrence in question had taken place on 17-2-1991 at about 7-20 p.m. near the cattle-shed of Bashir complainant in Chak No.257/R.B. about 6 k.ms from Police Station, Dijkot of District Faisalabad and the said occurrence had been reported by Bashir complainant who is the father of Shabbir deceased, to Azhar Hussain Shah, S.-I. (P.W.9) at the Lorry Adda of Dijkot at about 9-00 p. m.
4. Narrating the occurrence and the background leading thereto. Bashir complainant had mentioned that he was a resident of Chak No.257/R.B.; was a cultivator and that he had also kept some sheep and goats. He had added that on the day of occurrence he was present in his house at about 7-20 p.m. with other members of his family when Abdul Hakeem accused came to their House and called out Shabbir Hussain deceased who consequently went out at which, Abdul Hakeem accused started abusing him. The complainant had added that in the meantime he also came out of his house alongwith his son Shaukat (given-up) at which juncture, Abdul Hakeem accused and Shabbir deceased had reached his cattle-shed where the complainant, his son Shaukat and his cousin Sultan (P.W.7) also reached. The complainant had further claimed that Abdul Hakeem accused was accusing Shabbir deceased that the sheep of the said deceased spoiled the crop of the accursed party and that he would teach a lesson to the deceased for the same. The complainant had further mentioned that the deceased sought forgiveness from Abdul Hakeem accused who flared up and called out his brother Arshad appellant and others and asked him to bring a gun whereafter, Arshad appellant armed with a .12 bore gun and his cousin Abdul Rashid armed with a revolver reached there. The complainant had further alleged that Abdul Rashid accused fired three successive shots in the air whereafter Arshad appellant came near Shabbir deceased and fired a shot at his front chest who fell injured and died at the spot.
5. The complainant had further disclosed that Abdul Hakeem and others had a suspicion that the sheep of the complainant party used to spoil the fodder brought by the accused party for their cattle and that it was on account of this grievance that the abovementioned accused persons had done the deceased to death.
6. Azhar Hussain Shah, (S.-I./Investigating Officer (P.W.9) visited the place of occurrence and collected blood-stained earth vide memo. Exh.P.G. He had also found one crime empty of .12 bore P.6 at the place of occurrence which he seized vide memo. Exh.P.H. During the course of further investigation, Abdul Rashid (acquitted accused) had allegedly led to the recovery of a pistol P.4 on 26-2-1991 while Arshad appellant was alleged to have led to the recovery of his licensed. .12 bore gun P.5 on 2-3-1991, Both these weapons were taken into possession vide memos. Exh.P.D. and Exh.P.E. respectively.
7. According to the report of the Forensic Science Laboratory (Exh.P.N.), the abovementioned crime empty had been found not to have been fired from the .12 bore gun allegedly recovery from Arshad appellant.
8. When confronted with the prosecution case under section 342 of the Cr.P.C., Arshad Appellant pleaded that Bashir complainant and his sons were 'high-handed people': that they had kept goats and sheep which spoiled the crops of the Zamindars; that on the day of occurrence Arshad appellant's wife objected to the deceased as to why he was keeping his sheep in their Ihata and an altercation ensued during the course of which, Shabbir deceased gave beating to the wife of the appellant: that as a result of this beating, the pregnancy of the wife of the appellant which she was carrying also aborted; that it was while Shabbir deceased was beating the wife of Arshad appellant that some inmates of the house fired a shot at the deceased and that he and his co-accused had been falsely implicated in the occurrence in question. The, other accused persons adopted the statement made by Arshad appellant.
9. Arshad appellant claimed that it was while Shabbir deceased was beating up his wife who had given her a rather severe beating that some-one had fired a shot from inside his house killing the deceased. According to the evidence led at the trial, the defence never produced any doctor to prove any injuries or marks of violence on the person of the wife of the appellants nor was any doctor examined to establish that the beating so given to the said wife of the appellant had resulted in miscarriage of her pregnancy. This defence plea therefore, was a bald and unsubstantiated claim and could, thus, not be acted upon. It was next pleaded that the complainant party were desperados and the complainant had remained involved in a number of criminal cases. Copies of some F.I.Rs. had been placed on record. Even if it be presumed that the complainant had remained involved in some cases, that did not give anyone the licence to murder his son and his plea is, therefore, not relevant for the purpose of deciding the fate of the present case.
10. Nothing had been brought on record to demonstrate that the occurrence had not taken place at the venue alleged by the prosecution and that the same had in fact taken place near or outside the house of Arshad appellant. The prosecution case was supported by the testimony of Bashir complainant and Sultan P.W. who are both residents of the immediate vicinity of the place of occurrence and, thus, no serious exception could be taken to these two witness having actually witnessed the occurrence. No previous enmity or ill-will existed between the parties which could have led the eye-witnesses to falsely accuse Arshad appellant of the murder in question. The defence did not have the courage even to suggest any animosity between the two parties. The two eye witnesses were, thus, independent and natural witnesses of the occurrence and nothing existed on record which could cause any doubt about the veracity of their testimony vis-a-vis Arshad appellant.
11. Having thus, examined the entire material "available on record and having considered all aspects of the present case we find that no exception could be taken to the finding of guilt, recorded by the learned trial Judge against Arshad appellant and we hold accordingly.
12. This brings us to the question of confirmation or otherwise of the sentence of death awarded to Arshad appellant.
13. It was the prosecution's own case that it was Abdul Hakeem accused who had first come to the house of Shabbir deceased; had called him, out and had thereafter started abusing him. This Abdul Hakeem accused had not armed himself before coming to the house of the deceased and was empty handed. According to the prosecution, it was while abuses were being exchanged that Abdul Hakeem accused had got suddenly flared up; had called for his brother Arshad to bring a gun who consequently came to the place of occurrence after so arming himself and fired a solitary shot which, however, proved fatal. Therefore, even in the case of Arshad appellant, it could not be said that he had any pre-design or plan to kill the deceased. The death of Shabbir deceased was thus, the result of a sudden flare-up and in such a situation, the superior Courts had ordinarily considered it unsafe to uphold the maximum penalty of death. Therefore, the sentence of death awarded to Muhammad Arshad appellant is Not, Confirmed.
14. The learned trial Judge appears to have been ignorant and oblivious of the fact that state of law relating to murder and hurt matters had undergone a change as from 2nd of October, 1990 in pursuance of the Amending Ordinance No.VII of 1990 and section 302 simpliciter had ceased to exist in the earlier form. The punishment of death' for Qatl-i-Amd could, after the abovementioned date, be either under section 302(a) or 302(b) of the P.P.C and not just under section 302 of the said Code and further that according to the provisions of section 302 of the P.P.C. as the same existed on the day of occurrence i.e. on 17-2-1991, the punishments which could be awarded for Qatl-i-Amd did not include a punishment of fine.
15. The result is that Muhammad Arshad Appellant is found guilty and convicted under section 302(b) of the P.P.C. and he shall suffer imprisonment for life on the said charge. He shall be allowed the benefit of the provisions of section 382-B of the Cr.P.C.
16. As has been mentioned above, the sentence of fine is no longer a punishment authorised by section 302 of the P.P.C,. Therefore, the sentence of fine imposed on Arshad appellant by the learned trial Judge is set aside which would also mean non-payment of any compensation to the heirs of the deceased because, as per the judgment of the learned trial Court, it was the amount of fine which, if recovered, was to be paid to the heirs of the deceased by way of compensation. In this view of the matter, we issued notice to the appellant to show cause why he should not be directed to pay compensation to the heirs of the deceased in terms of the provisions of Section 544-A of the Cr. P.C. This notice was accepted by the learned counsel for the appellant and having heard the parties, we direct Arshad appellant to pay an amount of Rs.50,000 to the heirs of the deceased, as compensation, which amount of money shall be recoverable as arrears of land revenue in terms of the said provision and in default of payment of which amount of money the said Arshad appellant shall suffer a further S.I. for six months.
17. Murder Reference No.340 of 1992 and Criminal Appeal No.785 o1 1992 are disposed of in the above terms.
Sentence of death is not confirmed.
18. A copy of this judgment shall be sent to the learned trial Judge wherever he be presently posted for his information and guidance.
19 Before we part with this judgment, we would like to notice that while describing relationships between persons, the learned trial Courts and learned trial Judges use expressions such as 'uncle', 'cousin', 'aunt', 'brother-in-law' etc. Needless to mention that these expressions are vague and do not convey the specific relationships. The learned trial Judges/Courts are, therefore, directed that in future, instead of using such-like expressions, they shall state the exact relationship between the individuals such as 'Khalazad', Chachazad', ' Mamunzad' etc. for 'cousin' or a ' Chacha' or a ' Taya' . ' Khalu' or ' Phupha' etc. for the expression 'Uncle' and so on. These specific relationships do not necessarily have to be expressed in Urdu but can even be specifically stated in English language. The learned trial Judges and Courts are directed accordingly.
20. The Registrar of this Court shall send copies of this judgment to all the learned Sessions Judges in the Province who shall then circulate the same amongst all the learned Judges and trial Courts.
N.H.Q./M-493/L Sentence reduced.