P L D 1988 Lahore 557 (PLP)

AFRASAIB KHAN, J‑‑The appellant, Arif Masih son of Ali Masih, aged 20 years was convicted under section 302 P.P.C. for the murder of Sabir Masih aged 18/19 years and was sentenced to death plus a fine of Rs.2,000 and in default thereof to undergo six months rigorous imprisonment. He was ordered to pay compensation of Rs.8,036 under section 544‑A, Cr.P.C. to the legal heirs of the deceased and in default thereof to undergo six months' further rigorous imprisonment. Gulzar Masih and Manzoor Masih, co‑accused,. were convicted under section 323 P.P.C. for causing simple injuries to the deceased and were sentenced to pay a fine‑ of Rs.200 each and in default thereof to suffer one month's . each. Both of them were directed to pay a sum of Rs.300 each as compensation to the legal heirs of Sabir Masih, deceased, and in default thereof to suffer one ,month's R.I. each. They did not file appeal to challenge their conviction and sentence. By the same judgment dated 23‑4‑1986, the learned Additional Sessions Judge, Gujranwaia, proceeded to acquit Riaz Masih by giving him the benefit of doubt. The appellant has challenged his conviction and sentence by filing this appeal. The proceedings regarding the confirmation of death sentence of the appellant are afi‑ before us under section 374, Cr.P.C. The complainant Lai Masih has also filed a Criminal Revision (Cr.Rev.,Vo.558/86) requesting that the judgment of the learned trial Court dated 23‑4‑1986 may be revised so as to convict Riaz Masih under section 302 P.P.C. and to alter the sentences of Gulzar Masih and Manzoor Masih from section 323 to 302 P.P.C. We propose to dispose of all these matters together our consolidated judgment. 2, The prosecution case in brief is that the complainant Lai Masih ,is an agriculturist. He had cultivated maize crop in the neighborhood of village Dhondianwala. About 7/8 days ago, Arif Masih, cut the maize crop of the complainant whereupon Sabir Masih sort of the complainant lodged a protest before the appellant to why he has cut his fodder crop. Both of them exchanged abuses However, on the intervention of Rehman, Masih, tite matter was patched up. The appellant gave a threat that he will take revenge of the abuses. On the eventful day, at about Degarweta, the complainant LaL masin and his son Sabir MasiL (hereinafter to be referred as deceased) were coming towards their Dera and when they reached near the Dera the appellant armed with a stick, Gulzar Masih armed with a stick. Riaz Masih empty 'handed all residents of village Dhondawala and Manzoor Masih resident of' Sheikhupura armed with a stick came the Riaz Masih shouted a Lalkara that Sabir Masih should be caught hold of and that he shall be made to taste the hurting of abuses, whereupon the appellant gave a stick blow which landed on the head of the deceased. The second blow by a stick was caused by Manzoor Masih on the head of the deceased. On the receipt of these injuries, the deceased fell down on the ground. Gulzar Masih gave a sota blow on the left flank of the deceased. He inflicted another blow on the person of the deceased with his Sota. Younis Nfasih and Rehman Masih tame at the spot and witnessed the occurrence. Younis Masih inflicted a sota blow which hit Gulzar Masih on his head. All the accused ran away from the spot. The complainant disclosed that on account of falling of the night and that there was no arrangement for transport, the deceased remained in the village and was brought to Civil Hospital, Guiranwala on 30‑6‑1985 but the Doctor on duty advised the complainant party to take back the deceased to Civil Hospital, Naushehra Virkan. The complainant party could not catch any vehicle at that time and as such the deceased remained for the night in Guiranwala. On 1‑7‑1985, the deceased was brought back through a bus and reached the Bus Stand at about 10.00 a.m. However, the deceased succumbed to his injuries. The motive for the commission of the crime is that about 7/8 days before the occurrence in hand, exchange of abuses took place between the appellant and the deceased.

3. Sardar Ali Shah 5.1. P.W.6 investigated the case. On 1‑7‑1985 he recorded the statement Exh.PD made by the complainant Lai Masih. The injury statement Exh.PE and the inquest report Exh.PE of the deceased were prepared by the witness. The dead body was sent to Civil Hospital Kamoke for post‑mortem examination under the care of Sher Ali Khan FC P.W.9. The place of occurrence was visited by the witness and he prepared the rough site plan Exh.PG. All the accused were arrested by the witness and Gulzar Masih, Arif Masih and Manzoor Masih were found injured. Their injury statements Exh PH, Exh.PJ and Exh.PK were prepared. Shirt P4 and Banyan P5, both blood stained, were taken into possession vide memo. Exh.PL frcm. Gulzar Masih. The last worn clothes of the deceased Shirt P6 and Shalwar P7 were taken into possession vide memo,Exh.PM. Both the articles were blood‑stained. The appellant Arif Masih led to the recovery of Sots, PI which was taken into possession vide memo.Exh.PA. Manzoor Masih accused led to the recovery of Sots, P2 which was taken into possession vide memo.Exh.PB. Gulzar Masih, accused, led to the recovery of Sots P3 which was taken into possession vide memo. Exh.PC. Nadir Masih and Inayat Masih attested these memos. The witness got prepared the site plan Exh.PN and Exh.PN/1 from Akhtar Naqash Draftsman P.W.7.

4. Muhammad Ashraf, Dispenser P.w.10 stated that he has been working with Dr. Muhammad Ramzan, Medical Officer, Tehsil Level Hospital, Kamoke. The said Doctor Muhammad Ramzan had gone abroad five months back. The witness stated that he identified his handwriting signatures. Thus the witness verified the handwriting and signatures of the Doctor. The post‑mortem examination was conducted upon the dead body ‑of Sabir Hussain on 2‑7‑1985 and following injuries were found on his person:‑‑ (1) Lacerated wound 2 cm x .0.5 cm on the left side of head about nine cm above left ear. (2) An abrasion I cm x 0.5 cm on the right side of forehead about 1.5 cm outer end of right eye‑brow. (3) An abrasion 0.5 cm x 0.5 cm on right side of face about four cm in front of right ear. (4) A contusion mark 2 cm x 0.5 cm on front and middle of left leg. ,injury No. I was grievous and dangerous in life whereas other injuries were simple. All the injuries were ante‑mortem and the same were caused by blunt weapon.. The death in the opinion of the Doctor occurred due to shock and intra‑cranial haemorrhage as a result of injury No.1 which is sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was about 40 hours and between death and post‑mortern , Dr. Jameel Ahmad was summoned as C.W.I on 2-7-1985 he medically examined Gulzar Masih and found the following injuries on his person: (1) Lacerated wound 6 cm x J cm x bone deep on left side of scalp. (2) Contusion 8 cm x 1 cm on the outer side of left arm on upper part. (3) Contusion 4 cm, x I cm on the back of the left side of the chest on outer side. All the injuries were simple and caused by blunt weapon. On the same day at about 6.45 p.m. the witness medically examined the appellant and found the following injury on his person. (1) Swelling 2 cm x 2 cut on the proximal digest of little finger on the left hand. The injury was simple and was caused by a blunt weapon. On the same day at about 7.00 the witness medically examined Manzoor Masih and found that he following injuries, on his person:‑ (1) Swelling 3 cm x 3 cm with abrasion 1 cm x 1 cm on the top of head. (2) Contusion 3 cm x I cm on the back of right hand. (3) Abrasion 1 cm x I cm. on the inner side of left leg. All the injuries were simple and caused by blunt weapon. The duration of the injuries was within three days' time.

5. The eye‑witness account has been provided by Lal Masih P.W.3 and Younas Masih P.W.5. Lal Masih P.W.3 is the complainant and father of the deceased. He stated that Manzoor Masih is the son of paternal-aunt of the appellant while Riazz Masih is the son of Paternal aunt of‑ Gulzar Masih. Gulzar Masih is Uncle of the appellant. He gave the whole description of the incident from beginning to end. His statement was supported by Rehman Masih P.W.4 and Younis Masih P.W.S. The appellant made a statement on oath under section 340 Cr.P.C He stated that he is innocent inasmuch as he had no quarrel over cutting of maize crop with the deceased. The recovery was planted upon him and further that he has been implicated in the case. on account of enmity. He disclosed that a day before the occurrence, the deceased had cut a joke with his sister. Sabir Masih etc. visited his house with an object to enter into a compromise. His father was away to Karachi. He refused to effect the compromise and that he was subjected to injuries on that day. The appellant proceeded to say in his statement that the deceased received incidental injuries on account of which his father did not take him to Civil Hospital Guranwala but instead he took him to Dispensary Herchoke wherein he made a statement that the deceased received incidental injuries. The appellant made a supplementary statement under section 342 Cr.P.C. Wherein he stated that he was arrested by the police while he was present in his house and that recovery has been planted upon him. He submitted that the prosecution witnesses are related to one another and inimical to him. Similarly, other accused also made statements under section 342 Cr.P.C. Riasat Ali was produced as D.W.I. He stated that the complainant has close relatives in his village Herchoke. He stated that the deceased was brought in his village where he declared that the deceased received injuries in an accident. Dr. Muhammad Rafi Siddiqui, Medical Officer, Herchoke appeared as D.W.2. He stated that on 1‑7‑1985 the deceased was brought to him by his father Lal Masih. Sabir Masih deceased had injuries on his person. The complainant disclosed that *the deceased received injuries in an accident.

6. Learned counsel for the appellant forcefully submitted that the occurrence in hand took place on 29‑6‑1985 at 5‑00 p.m. and the same was reported to the Police Station Naushehra Virkan at a distance of only 8 miles after the delay of more than two days, namely, 1‑7‑1985 at 1.30 p.m. Learned counsel stated that the prosecution has failed to give reasonable and plausible explanation for lodging the F.I.R. after such a long delay. Learned counsel next submitted that the ocular account provided by Lal Masih P.W.3, Rehman Masih P.W.4 and Younis Masih P.W.5 is in conflict with the medical evidence and as such no credence could be given to such evidence. Learned counsel argued that it is established on record that the injuries on the person of the deceased were received by him in an accident. Learned counsel submitted that Rehman Masih P.W.4 being a neighbour of the deceased had deposed in favour of the prosecution. Learned counsel submitted that he is a false witness. Similarly the learned counsel attacked the evidence deposed by Younis Miasih P.W.5. Lastly, the learned counsel submitted that at any rate, there are mitigating circumstances under which the appellant is entitled to be given the lesser penalty. He has stated that the appellant is a young man of 18/19 years. He has given solitary blow and he did not give any further injury to the deceased, Learned counsel stated that this, is in the evidence that the deceased cut joke with the real sister of the appellant, therefore, the family honour of the appellant was involved and thus he deserves to be awarded lesser punishment in the case‑. Learned counsel for the complainant in support of his revision petition submitted that there are absolutely no mitigating circumstances under which the appellant could be awarded lesser penalty in the case. He maintained that the injury attributed appellant proved fatal and the injury caused by him was sufficient in the ordinary course of nature to cause death. The learned State counsel has supported the judgment of the learned trial Court.

7. We have heard the learned counsel for the parties and have, perused the record. The eye‑witness account provided by Lal Masih P.W.3, Rehman Masih P.W.4 and Younis Masih P.W.5 inspires confidence. The motive part of the prosecution story has been proved. It is established on the record that there was no other enmity or ill will under which the appellant could be involved falsely in the case. The complainant Lal Masih P. W. 3 has given the evidence regarding, the motive by saying that the appellant cut the fodder from the maize, crop of the complainant party and on this incident there was an exchange of abuses between the appellant and the deceased. Rehman Masih P.W.4 intervened and separated the parties. To the same effect is the statement of Rehman Masih P.W.4. He said that he physically intervened and separated the parties, and the appellant issued serious threats to the deceased that he will be taught a lesson for abusing him. Thus, from the evidence of these two witnesses the motive is proved beyond doubt. Similarly, actual occurrence wherein Sabir Masih, deceased, was done to death by the appellant also stood established beyond doubt by reliable and cogent evidence of Lal Masih P W. 3,1 Rehman Masib P.W.4 and Younis Masih P.W.S These witnesses were subjected to cross‑examination and their evidence remained was not at all shaken by the defence. Undoubtedly, Lal Masih P.W.31 and Younis Masih P.W.5 are the father and brother of the deceased' but there appears no reason whatsoever to discard their truthful evidence. In any case, Rehman Masih P.W.4 is wholly an independent! witness. The learned counsel could not successfully attack the truthfulness of the evidence of this witness. He simply stated that his evidence may be rejected for the reason that he happened to be a neighbour of the deceased. Nothing else was said by the learner counsel regarding the evidence of this important witness. In our considered view, the mere fact that Rehman Masih P.W.4 is a neighbour of the deceased is not at all a sufficient ground to disbelieve his evidence. On the contrary, the witness has no ill-will against the, appellant and as such he supported the case of the prosecution in its totality. The evidence of the witness has completely corroborated the statements made by Lal Masih P.W.3 and Younis Masih P.W.5.! The other argument of the learned counsel for the appellant is that! there is delay in lodging the F.I.R. In our view, the delay in lodging the F.I.R. has sufficiently been explained by Lal Masih P.W.3 and Younis Masih P.W.5 in their evidence. It may be observed that after the occurrence, the injured was brought by the complainant party to their house and during that time night had already set in and there were no arrangements for transportation of the deceased to hospital. On the next day, the decease was taken to Gujranwala hospital but the Doctor on duty advised the complainant party that they should take the deceased back to Naushehra Virkan hospital as the occurrence had taken place within the jurisdiction of that hospital. In this process, night intervened and on the next morning, they brought the deceased in a lorry to Nausilenra VirKari, In our view it affairs regarding the transport, road and the financial position of the complainant party was enough and sufficient explanation for lodging the F.I.R. with delay. We, therefore, give no importance whatsoever to the contention of the learned counsel for the appellant. The statement of the appellant made by him under section 340 Cr.P.C, will implicate him in the commission of the crime in so many words. To begin with, he stated that the deceased had cut jokes with his sister Mat. Tanziran. Thereafter the deceased and other people came to his house for a compromise. According to the plea of the appellant, the complainant party inflicted injuries on his person. The appellant pleaded that the deceased got incidentally. In other words, it is admitted by the appellant that he was injured at the hands of the complainant party and that the appellant failed to disclose in which incident the deceased received fatal injuries nor any evidence was led by him to that effect. In our view, the appellants ,recorded a story which is otherwise not proved on record, All The prosecution witnesses unanimously stated that a blunt weapon, injury was inflicted by the appellant on the head of the deceased .Dr. Muhammad Ramzan says that left and right parietal bones were fractured under injury No.1 with blood clots in large quantity found in right and left hemisphere of brain. According to the medical evidence, this injury proved fatal. In the opinion of the Doctor, injury No.1 was grievous and dangerous to life. Thus, the medicine evidence is wholly in line with the ocular account given by P.W.3, P.W.4 and P.W.5. The prosecution has been able to prove its case beyond reasonable doubt against the appellant by the ocular account, motive and the medical evidence. Thus, the appellant was rightly and correctly convicted under section 302 P.P.C. by the learned trial Court. However, regarding the quantum of sentence, 'we are of the view, that this is in the evidence that the deceased had cut indecent jokes with Mst. Tanziran, a real sister of the appellant and as such, his family honour was involved in the case. Keeping this fact in view, we find ‑it to be a case of penalty. We accordingly sentence Arif Masih, appellant, to imprisonment for life and fine of Rs.10,000 and in default two years under section 302 P.P.C. The entire amount of fine, is recovered, shall be paid as compensation to legal heirs of the deceased. The benefit of section 382‑8, Cr.P.C. shall also be given to the appellant. This appeal is dismissed subject to above modification. The sentence of death is not confirmed. In view of above decision in appeal, we find no substance in the revision petition which is dismissed. M. Y. H./A-397/L Death sentence was not confirmed.