1988 PLP 1502 (SCMR)

ALI HUSSAIN QAZILBASH, J.‑‑This is an appeal from the judgment and order of the Lahore High Court, dated 19‑.9‑1979, whereby the conviction of Manzoor Hussain and his brother Muhammad Arif, sons of Muhammad Ismail, under section 302/34, P.P.C. and their sentence to death and a fine of Rs.2,000 (each) or in default in payment thereof to one year's R.I. (each) imposed by the learned Additional Sessions Judge, Lahore, vide his judgment dated 15‑1‑1978, was maintained.

2. The appellants, namely, Manzoor Hussain and Muhammad Arif, alongwith two others, namely, Mushtaq and Salim, were tried by the learned Additional Sessions Judge, Lahore, under section 302/34, P.P.C. for the murder of Muhammad Akbar, resident of village Wandiala Dayal S,hah, Police Station Shahdra, Lahore, and vide his judgment dated 15‑1‑1978 while acquitting the latter two of the delict convicted the former two under section 302/ 34, P . P . C . and sentenced each of them to death and a fine of Rs.2,000 (each) and. in default of the payment of the fine, to one year's R.I. each: On realization of the fine, half of it has been ordered to be paid to the legal heirs of the deceased. The Lahore High Court which was seized of the murder reference and the appeal filed by Manzoor Hussain and Muhammad Arif against their conviction and sentence, after considering‑the entire case, confirmed the murder reference and dismissed the appeal vide its judgment dated 19‑9‑1979.

3. The occurrence is alleged to have taken place on 16‑2‑1975 at about 10 a.m. in the fields situate in Wandiala Dayal Shah which is at a distance of one and a half mile from P.S.Shahdra, Lahore. The complaint in this case was lodged by Taj Din P.W.1 and was recorded by Gohar‑ur‑Rahman S.I. P.W.11, at 10‑45 a.m., on the basis of which F.I.R. Ex.P.AI1 was drawn.

4. It was alleged in the report that on the day of occurrence at 10 a.m. the complainant (Taj Din) and his son Mehboob were on their way to village Wandiala Dayal. Shah on a rehra on the bank of the canal from Ghalla Mandi Shahdra Railway Station. When they reached near the vicinity of the place of occurrence, they saw Muhammad Akbar deceased, Mst.Salim Bibi, his sister‑in‑law, and Shehzad Ahmad cutting Javi‑Shatala from the said field when in the meantime Muhammad Arif and his brother Manzoor Hussain armed with daggers, Mushtaq armed with pistol went close to Muhammad Akbar. On seeing these the complainant and his son Mehboob Ahmad rushed towards Muhammad Akbar. They had hardly covered some distance when Mushtaq fired two successive shots at Muhammad Akbar, as a result of which he was injured and fell down in the adjoining field of Shatala. Thereafter, the three accused encircled Muhammad Akbar, Muhammad Mushtaq raised Lalkara threatening the complainant party not to come near the deceased and Muhammad Arif and Manzoor Hussain inflicted repeated blows with their daggers on the person of Muhammad Akbar. When they saw that Muhammad Akbar was dead, all the three brandishing their daggers and pistol in the air made their escape good towards Imamia Colony. The complainant, his .son, Mst.Salim Bibi and Shehzad Ahmad could not take any step for fear to their life. The appellants committed the present murder because of the previous enmity. The motive given in the F.I.R. was that about one and a half year prior to the occurrence, Muhammad Akbar deceased was arrested in a theft case in Sheikhupura and was in jail when in the meantime Muhammad Ismail, father of Manzoor Hussain and Muhammad Arif, abducted the wife of Muhammad Akbar, who had previous liaison with him. After some time when Muhammad Akbar .vas released on bail he got his wife back from Muhammad Ismail and 3/4 months afterwards Muhammad Akbar deceased chopped off the nose of Muhammad Ismail's mother and thus avenged the abduction of his wife. Muhammad Akbar was arrested and the case was still pending in the Court. Besides this, two years back land measuring 17 kanals situate in the area of Shahdra belonging to the Central Government was allotted to Muhammad Ayub, resident of Model Town. This land was formerly cultivated by Ibrahim, father of Muhammad Ismail, but later ort h1usarrat Khan, the attorney of the said Muhammad Ayub, leased out this land for five years to Muhammad Akbar deceased who started tilling the land and this was resented by the accused side.

5. The prosecution in support of its case produced as many as twelve witnesses. Of them, Taj Din P.W.1 and Mst.Salim Bibi P.W.4 have furnished eye account of the incident. The appellants in their statements under section 342, Cr.P.C. denied the commission of the offence, the abduction of Mst.Mumtaz wife of the deceased by Muhammad Ismail, also denied the lease of the land measuring 18 kanals to their grandfather Ibrahim and before the occurrence to Muhammad Akbar deceased after getting its possession from their grandfather. They also denied to have been seen by Musarrat Khan P.W.12 soon after the occurrence. Both the appellants denied the recovery of the weapons of offence Exhs.P.11 and P.12 at their pointation and they also denied that the said weapons of offence were found stained with human blood. Explaining his injuries Muhammad Arif stated that he is a carpet manufacturer and sustained the injuries with chhuri while manufacturing carpet. Muhammad Arif and Manzoor Hussain, however, admitted that Muhammad Akbar deceased had chopped off the nose of their grandmother on 11‑1‑1974.

6. The deceased was found to have sustained the following injuries on his person:‑ "(1) Incised wound 1 " x 3/8" skin deep placed vertically on the (2) Incised wound 1" x " muscle deep on the mid lower lip going obliquely to the right chin. (3) Incised wound 5" x 1 on the front upper part of the neck about the thyroid cartilage more on the right side obliquely downwards slightly on the right side, vessels on the both sides were found cut against the injury. The oesophagus was also cut. There was a cut on the body of the second cervical vertebra. (4) Two incised wounds 5/8" x ", " x " both skin deep on the left side of neck near the mid line place transversely oblique. (5) Stab wound " x " going deep on the left side of neck transversely oblique 1 " below the angle of the jaw. (6) Incised wound " x " skin deep in between Nos.3 and 4. (7) Incised wound 1 " x " skin deep transversely upper part back of neck. (8) Incised wound " x 1/8" skin deep on the back mid of right side of neck. (9) Incised wound 1" x " going deep transversely oblique just above the inner end of left clavical. (10) Stab wound 1‑3/4" x 3/4" going deep vertically oblique 1" above the right nipple at 11 O' clock on the right chest. (11) Stab wound 1 " x " going deep on the right chest 5" below the right nipple at 7 O' clock. (12) Stab wound 1" x " going deep just below the mid of left clavical transversely. (13) Stab wound 1" x " going deep, " below the number 12. (14) Stab wound 1" x " going deep 2 " above the left nipple on the front of left chest at 12 O' clock vertically oblique. (15) Stab wound 1 " x 5/8" going deep front of left chest 4 " below the left nipple at 7 O' clock transversely oblique. (16) Incised wound 4" x 1" muscle deep front left shoulder, extending to the anterior axillary fold. (17) Stab wound 3/4" x 5/8" muscle deep inner front upper half left arm. (18) Incised wound 1 " x " muscle deep outer front lower end left arm. (19) Incised wound 1 " x " subcutaneous tissue deep on the back of the left hand between the roots of middle and ring fingers vertically. (20) Incised wound 1 " x " subcutaneous tissue deep front of the left palm transversely oblique. (21) Skin of the left index finger was chipped off. (22) Stab wound 1 " x " inner lower half right arm communicating with other wounds 1 " x 3/4" inner back lower part right arm 1 " apart from each other under the skin. (23) Incised wound " x 1/8" subcutaneous tissue deep on front of the right thumb on the tip. (24) Stab wound 1" x 1/2" going deep back mid left shoulder blade transversely oblique. (25) Incised wounds 1/2" x 1/6", 1/2" x 1/8" back of the right wrist joint both skin deep. (26) Incised wound 1/2" x 1/8" subcutaneous tissue deep the front of right thumb on the tip. (27) Stab wound 1" x 1/2" going deep back mid left shoulder blade transversely oblique. (28) Stab wound 1/4" x 1/4" going deep outer to the lower angle of left shoulder blade vertically oblique. (29) Stab wound 1" x 1/4" going deep on the back of left chest at the level of the tenth rib 1 '" away from the mid line. (30) Stab wound 2" x 1/4" going deep back inner lower part of the left chest vertically. (31) Abrasion 2" x 1 " outer upper half left thigh. (32) Stab wound 1" x 1/2" going deep on the left chest 4" away from the nipple at 4 0' clock transversely oblique." According to the doctor, all the injuries were ante mortem, injury No.3 was inflicted by a sharp‑edged weapon and injury Nos.5, 9, 14, '15, 16 and 30 by a sharp‑edged and pointed weapon and were individually sufficient to cause death.

7. Leave was granted to examine whether the accepted principles of criminal justice have been followed in placing reliance on the eye‑witness account as also the recoveries and to consider whether viz‑a‑viz the question of sentence, the chopping off of the nose of the grandmother of the appellants by the deceased did not work as continuing provocation.

8. After hearing the learned counsel for the parties for and against the appeal and perusal of the record, we find that the prosecution has been able to bring home the charge to the appellants. It is a broad daylight occurrence, enacted in the open fields, report of which was made within 45 minutes in P.S. Shahdra, situate at a distance of one and a half mile which we think was with reasonable promptness and the complainant party, as such, had hardly any time to fabricate a false case. The report was made by Taj Din P.W.1. It is true, as the record stands, that he is a highly interested witness but that reason alone would not be sufficient to discard his evidence altogether unless it suffers from other infirmities. He has given a graphic account of the incident in the F.I.R. and has stuck to the same version at the trial. Some discrepancy is discernible in the version given by him in the F.I. R. where he had attributed effective firing at the deceased by Mushtaq (the acquitted accused) whereas at the trial he deposed that Mushtaq had fired in the air to frighten them. Except the above, no other major and noticeable discrepancy has been noticed in the version of the occurrence given by Taj Din P.W. In the F.I.R. and at the trial he has consistently charged the two appellants for inflicting repeated knife and dagger blows to the deceased and this is fully supported by the medical evidence, the details of which have been given in the earlier part of the judgment. At the trial the other witness who gave the eye witness account of the incident was Mst.Salim Bibi. She is the sister‑in‑law of the deceased and the record is absolutely silent that she had any personal enmity with the appellants. That being so, under no circumstance, she can be termed as an interested witness. She has explained her presence at the spot at the relevant time quite satisfactorily and the defence has miserably failed to bring anything on the record to create doubt about her presence at the place of the occurrence at the crucial time. At the trial, she has fully supported the version given by Taj Din. She .vas unison with Taj Din in accusing the two appellants of giving successive blows with their respective weapons to the deceased. The careful perusal of the statements of these two witnesses clearly shows that they not only corroborate each other's version of the occurrence but also fully support the medical evidence. Since nothing has been brought on the record by the defence to create doubt about their presence and the version of the occurrence given by them, therefore, we are of the view that the Courts below were fully justified in relying on these two witnesses.

9. Another circumstance which corroborates the eye version account of the incident given by Taj Din and 1st. Salim Bibi P. Ws. is the recovery of blood‑stained knife Ex.P.11 effected at the instance of Manzoor Hussain appellant and blood‑stained dagger Ex.P.12 at the pointation of Muhammad Arif appellant. Both the weapons were recovered on 23‑2‑1975 when the Investigation Officer and the recovery witnesses were led by the appellants to two different places where they had concealed their weapons and the same were recovered at their instance vide memo Exs.P.D. and P.E. Though the Courts below held Nazir Ahmad P.W.5, the solitary recovery witness produced, as a stock witness and kept his evidence out of consideration but believed the version of Gohar‑ur‑Rehman, the Investigating Officer, and rightly too because the police officer is as good a witness as any other witness and also because nothing has been brought on the record by the defence that the recoveries were fabricated by the Investigating Officer. The fact that both the weapons were used in the commission of the offence is also supported by the report of the Serologist Ex.P.N/1 who reported that the knife and the chhuri were stained with human blood. The injuries on the left thumb of Muhammad Arif appellant which were contemporaneous with the date of occurrence is an additional ground for his participation in the crime.

10. The motive for the offence which has been given in detail in the F.I. R. is yet another very strong circumstance against the appellants. Though both the appellants have denied in their statements under section 342, Cr.P.C. about the abduction of Mst. Mumtaz Begum, wife of the deceased, by their father Muhammad Ismail and also their annoyance over the taking of the possession of the land measuring 18 kanals by Muhammad Akbar deceased but have admitted the chopping off of the nose of their grandmother by the deceased.

11. In view of the above we think that the conviction of the appellants under section 302/34, P.P.C. recorded by the learned trial Court and confirmed by the learned Judges of the High Court is well founded and is hereby maintained.

12. As for the sentence, we are of the view that in view of the peculiar circumstances of the case, it needs interference. One of the motives put forward by the prosecution and admitted by the appellants' was the chopping off of the nose of their grandmother by Muhammad Akbar deceased. By chopping off the nose of that lady by the deceased, not that a grievous injury was inflicted on that lady, butt this act of the deceased undoubtedly brought infamy and dishonour to the whole family of the appellants. Such an injury which in our society is always taken as a disgrace, can hardly be tolerated anal forgotten by a family which consists of young people. The number of injuries inflicted by the two appellants on the dead body of Muhammad Akbar speaks volumes of anger, vendetta and provocation the accused party was nursing against the deceased, lapse of time notwithstanding. Though it cannot be said that the appellants had committed this gruesome murder under the impulse of sudden provocation but it can at least be said that they were led to commit the murder under continuing provocation. This furnishes an extenuating circumstance for awarding a lesser penalty. We, therefore, while maintaining the conviction of the appellants under section 302/34, P.P.C. alter their sentences of death to imprisonment for life and enhance the fine to Rs.10,000 or in default in payment thereof, further R.I. for two years. The fines if realized shall be paid as compensation to the heirs of the deceased as laid down under section 544‑A, Cr.P.C. Benefit of the provision of section 382‑B, Cr.P.C. is, however, allowed to the appellants. With these modifications the appeal is dismissed. M.B.A./M‑492/S Order accordingly.