1991 P Cr (PLP)

MUHAMMAD MUNIR KHAN, J.

This Criminal Appeal No. 87 of 1988 and connected Murder Reference No.4 of 1988 arise from the judgment of learned Sessions Judge, Bahawalpur, whereby, he on 21-5-1987 convicted Muhammad Ramzan (28) and his maternal-uncle Mashuq Hussain (20) under section 302/34, P.P.C. for the murder of Fida Hussain and sentenced Muhammad Ramzan to death and a fine of Rs.2,000, in default thereof further R.I. for one year and Mashuq Hussain to imprisonment for life and a fine of Rs.2,000, in default thereof one year's R.I.

2. The occurrence took place on 5-12-1986 at about Maghrabwela in village Ghulam Ali Channar at a distance of 16 k.m. from Police Station Nowshera Jadeed. F.I.R. Exh. P.C. was lodged by Maula Bakhsh, father-in-law of Fida Hussain deceased on the same day at 7-30 p.m. and was recorded by Muhammad Zafar Ullah, S.I. P.W.8.

13. The motive for the murder of Fida Hussain allegedly was that 3/4 days before the occurrence he in order to create illicit relations with, Mst. Naziran wife of Muhammad Ramzan appellant, had cut jokes with her.

4. As for the main occurrence it has been stated that at the eventful time, Maula Bakhsh complainant and his brother Raziq Bakhsh P.W.6 were sitting in their house near the place of occurrence. They heard noise of Fida Hussain deceased and rushed to the place of occurrence. They saw Mashuq Hussain appellant catching hold the right arm of Fida Hussain and Muhammad Ramzan appellant inflicting injuries on his (Fida Hussain) person. On receiving three knife blows Fida Hussain fell down on the ground, became unconscious and succumbed to the injuries on the spot. The occurrence was also seen by Imam Bakhsh P.W.7 and Allah Wasaya; (not produced). The aforesaid eye-witnesses apprehended Muhammad Ramzan alongwith knife on the spot. Mashuq Hussain, however, ran away from the place of occurrence. Leaving Muhammad Ramzan accused and the other eye-witnesses near the dead body, Maula Bakhsh left for police station to lodge the report.

5. After the registration of the case, Muhammad Zafarullah S.I. P.W.8 came to the place of occurrence. He found Muhammad Ramzan appellant in the custody of the witnesses on the spot. At that time Muhammad Ramzan was holding blood-stained knife Exh.P.3 with him, which he produced before the Sub- Inspector, who took the same into possession vide memo. Exh. P.D. attested by Imam Bakhsh P.W.7 and Allah Wasaya (not produced). Serologist Report Exh. P.K. shows that the knife recovered from the appellant was stained with human blood.

6. On 6-12-1986, Dr. Javed 'Hassan, P.W.9 conducted post-mortem examination on the dead body of Fida Hussain. He found following injuries on his person:-- (1) Stab wound on left side of chest about 6 c.m. below left nipple measuring 4-1/2 c.m. x 2 c.m. x thorix cavity deep. (2) A stab wound on right side of chest on lower part 8 c.m. below right nipple measuring about 5 x 1 x 1 c.m. (3) A stab wound on abdomen at epigastic region measuring 4 x 1 x 1 c.m. Injuries were caused by sharp-pointed edged weapon." In his opinion, the cause of death was shock due to injury to the lung and left ventrical of heart caused by injury No.l, which was sufficient to cause death in the ordinary course of nature. All the injuries were caused by sharp-pointed weapon. The death was immediate and the time between death and post-mortem was about 20 hours.

7. To prove its case, prosecution produced 8 witnesses. Maula Bakhsh P.W.5, Raziq Bakhsh P.W.6 and Imam Bakhsh P.W.7 have given the ocular account of the occurrence. They claim to have seen Mashuq Hussain appellant catching hold of the right arm of Fida Hussain deceased and Muhammad Ramzan giving him (Fida Hussain) knife injuries on his person. Maula Bakhsh P.W.6 and Raziq Bakhsh P.W.7 supported the alleged motive. Imam Bakhsh P.W.7 also supported the recovery of blood-stained knife Exh.P.3. from the appellant. Muhammad Zafarullah S.I., P.W.8 recorded the F.I.R. He supported the story of the arrest of the appellant from the spot and recovery of blood stained knife Exh.P.3 from him. Dr. Javed Hassan P.W.9 has proved the post- mortem examination report: The rest of the evidence is of formal nature.

8. When examined under section 342, Cr.P.C., Mashuq Hussain appellant denied all the incriminating circumstances. He stated that he was falsely involved due to his relationship with Muhammad Ramzan appellant. He did not produce any evidence in defence. While admitting to have killed Fida Hussain deceased on the spot, Muhammad Ramzan appellant raised the plea of grave and sudden provocation. In reply to question No.9, he stated:-- "I was returning from a marriage function in Basti Jamalpur alongwith my wife Mst. Fida Hussain deceased who was hiding in cotton crop pounced upon my wife and tried to outrage her modesty. She cried and I killed Fida- Hussain out of sudden and grave provocation. I told my story to all those who had collected there and to the police. Mashuq Hussain was not there and he had not participated in the occurrence." He produced Jamal Muhammad D.W.1 and Mst. Nazir Mai D.W.2. D.W.1 stated that on hearing the alarm raised by the wife of Muhammad Ramzan appellant, he went to the place of occurrence and saw that Maula Bakhsh and 3 other boys were grappling with Muhammad Ramzan appellant and apprehending him on the spot. He also saw Fida Hussain lying on the ground in injured condition. He did not see the accused there. Mst. Nazir Mai wife of Muhammad Ramzan appellant appeared as D.W.2. She stated that at the eventful time, she and her husband Muhammad Ramzan were going to their house and when they reached near the house of Maula Bakhsh complainant, Fida Hussain deceased emerged from the cotton field and caught hold of her. She raised alarm whereupon Muhammad Ramzan attacked the deceased with a tape-recorder. So she was released and went to her house. She stated that there was no other accused at that tune.

9. Believing the prosecution case and disbelieving the defence version, the trial Court has convicted and sentenced the appellants as stated above.

10. Learned counsel for the appellants submits that the eye-witnesses are related to the deceased; that Mashuq Hussain was not present on the spot; that the occurrence took place in the manner told by Muhammad Ramzan appellant; that the defence plea is supported by the two defence witnesses. In the alternative, the learned counsel for the appellants requested for reduction in sentence of Muhammad Ramzan. Learned counsel for the State assisted by the learned counsel for the complainant has supported the judgment of the trial Court.

11. We have carefully considered the arguments addressed by the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, statements made by the accused persons under section 342, Cr.P.C. defence evidence and the circumstances appearing in the case. The occurrence took place at about Maghrab time. The F.I.R. was lodged on the same day at 7-30 p.m. There is nothing in evidence to show that the F.I.R. was not lodged at the time and place as it purports. Muhammad Ramzan appellant was apprehended on the spot alongwith the blood-stained knife. Muhammad Zafarullah S.I./P.W.8 has supported the version of the arrest of Muhammad Ramzan appellant on the spot and the recovery of blood-stained knife from him. Muhammad Ramzan has also admitted the killing of the deceased by him. No doubt Maula Bakhsh P.W.5 is father-in-law of the deceased and Raziq Bakhsh P.W.6 is brother of Maula Bakhsh and as such they are closely related to the deceased, but they have successfully faced the test of cross -examination. Learned counsel has not been able to point out any infirmity in their statements. So the evidence given by them cannot be discarded on the ground of their relationship with the deceased. They had no previous enmity with the appellant to involve him falsely in the case. Imam Bakhsh P.W.7 is quite independent witness having no animus against the appellants. He has corroborated the story of the prosecution, arrest of the appellant (Muhammad Ramzan) on the spot and the recovery of the blood-stained knife from him. The medical evidence shows that the injuries found on the person of the deceased were caused by sharp-edged weapon. For all these reasons, we feel that the ocular account of the occurrence given by the eye-witnesses cannot be discarded.

12. This brings us to the plea of grave and sudden provocation raised by the appellants. We find that there is even no reasonable possibility of the defence version being true, for the reasons that this plea was not disclosed by the appellants or Mst. Naziran D.W.2 to Muhammad Zafar Ullah S.I./P.W.8 at the time of the arrest of Muhammad Ramzan appellant. Mst. Nazir Mai has stated that Muhammad Ramzan had injured the deceased with a tape-recorder, which is falsified by the medical evidence. In his statement recorded under section 342, Cr.P.C. Muhammad Ramzan has suppressed the weapon with which he killed the deceased. He did not dare to give evidence on oath in disproof of the charge against him. So we are convinced that no exception can be taken to the conviction of Muhammad Ramzan under section 302, P.P.C. The case of Mashuq Hussain appellant is bit distinguishable. He was empty-handed. He was not apprehended on the spot. He had not completely overpowered the deceased. He was simply catching the right arm of the deceased. In the peculiar circumstances of the case, only one person could have caused the fatal injury. So as a matter of abundant caution, we feel inclined to give him benefit of doubt on the question of his vicarious liability.

13. We have considered the question of sentence of Muhammad Ramzan appellant with utmost care on our part. We find that there are mitigating circumstances in his favour for lesser penalty, inasmuch, according to the prosecution case itself the deceased had teased his wife 2/3 days before the occurrence. So the act of killing the deceased was somewhat provoked. Pursuant to the above discussion, while giving him the benefit of doubt, Mashuq Hussain appellant is acquitted of the charge. He is on bail and stands discharged of the bail bonds. The conviction of Muhammad Ramzan appellant under section 302, P.P.C. recorded by the trial Court is upheld but the sentence of death is reduced to imprisonment for life. The fine of Rs.2,000 and the sentence in lieu thereof awarded by the trial Court is maintained. However, the appellant shall get the benefit of the provisions of section 382-B, Cr.P.C. M.A.K./M-2980/L Order accordingly.