1988 P Cr (PLP)

KHIZAR HAYAT, J.‑‑ Haq Nawaz son of Abdul Sattar (18) and Ahmed Nawaz son of Muhammad Khan (62) have been tried and convicted by Additional Sessions Judge, Jhang, under section 302/34, P.P.C. and sentenced to death and a fine of Rs.5,000 or in default to undergo two years' R.I., each vide judgment dated 6‑7‑1985, for having committed murder of Allah Yar (22) on the night between 25/26‑4‑1984 in his house in Chak No.193/JB, District Jhang. The convicts have filed separate appeals (Criminal Appeals Nos. 538 and 539 of 1985, respectively) challenging 'their conviction and sentence and the trial Court has sent the proceedings under section 374, Cr.P.C., for confirming their death sentence (Murder Reference No. 176 of 1985). Both appeals and the murder reference are being disposed of by this single judgment.

2. Motive for the occurrence was stated to be that Haq Nawaz (appellant) had two young sisters. Ahmad Nawaz (appellant) used to visit the house of Haq Nawaz whom Allah Yar (deceased) prohibited from coming there. The appellants took it ill. On the evening preceding the night of occurrence Ahmad Nawaz (appellant) asked the deceased to accompany him but he refused. For these reasons the appellants had allegedly committed the murder of the deceased.

3. On the fateful night the deceased was asleep in his courtyard. His uncle Zulfiqar (P.W.6) and his sisters Mst. Sahib Bibi (P.W.7) and Mst. Daulan P.W. (not produced) were also sleeping near him. A lantern was burning there as it was a dark night. Zulfiqar (P W.6) suffered from Asthma who on account of this ailment was awake at midnight. He saw that Haq Nawaz (appellant) armed with a Toka and Ahmad Nawaz (appellant) armed with a hatchet came to the Charpoy of Allah Yar (deceased). He asked them as to who they were? At this, Ahmad Nawaz asked Haq Nawaz to finish Allah Yar quickly whereupon Haq Nawaz dealt him Toka blows on the head of the deceased and then Ahmad Nawaz gave him two blows from wrong side of hatchet which landed on his jaw and neck. Zulfiqar (P.W.6) raised cries. Mst. Sahib Bibi (P.W.7) and Mst. Daulan also got up and witnessed the occurrence. Mst. Sahib Bibi caught hold of Haq Nawaz but he escaped after pushing her back. Ahmad Nawaz also decamped. Allah Yar became unconscious due to the injuries. He was removed to Rural Health Centre, Bhowana, at a distance of 4 miles. Dr. Muhammad Aslam (P.W.1) medically examined him at 7‑5 a.m. on 26‑4‑1984, while alive, and found following injuries on his person:‑ (1) An incised wound 10 c.m. x 3 c.m. x cutting underlying bone in the line of injury from before backward 4 c.m. above the left ear on the skull. (2) An incised wound 9 c.m. x 1 c.m. x cutting the underlying bone at two parallel places c.m. from each other, 2 c.m. below injury No.1 and parallel to it on skull. (3) An incised wound 8 c.m. x 1 c.m. x cutting the underlying bone just behind injuries Nos. 1 and 2 on the skull from above downward. (4) A swelling 8 c.m. x 8 c.m. on the left side of neck just below the left ear with multiple abrasions over. (5) A lacerated wound 1 c.m. x c.m. fracturing the left mandible at the level of the angle of mandible. The patient was unconscious and vomiting. Blood pressure was 80/50 mm. Hg. Pulse was weak. The pupil of left eye did not respond to light. All the injuries excepting injury No.4 were grievous. Injuries Nos. 1 to 3 were caused with sharp‑edged weapon while the rest were result of blunt weapon, caused within 6 hours duration. The deceased remained unconscious' throughout and died on 27‑4‑1984 at 2‑12 a.m., in the hospital. The same doctor conducted post‑mortem examination on the dead body at 9‑15 a.m., the same day, and noted the injuries as mentioned above. On opening the skull he found scalp and skull cut underneath injuries Nos. 1 and

2. Stomach contained digested food material. Small intestine contained little amount of digested food material while the large intestine contained faecal matter. In his opinion the death occurred due to shock and haemorrhage caused by injuries Nos. 1, 2 and 3 which were sufficient, collectively as well as individually, to cause death in the ordinary course of nature. Injury No.4 was simple and caused with blunt weapon. Duration between injuries and death was about 26 hours and between death and post‑mortem examination about 7 hours.

4. A.S.I. Muhammad Siddiq (P.W.8) hearing about the occurrence reached Bhowana Hospital, the same day at 9‑30 p.m. The deceased was unconscious so he recorded statement of Zulfiqar (P.W.6) Exh.P.F. and sent it to police station for registering a formal F.I.R. and himself proceeded to the spot. Initially a case under section 307/34, P.P.C. was registered but after death of Allah Yar on 27‑4‑1984 the charge was converted to section 302/34, P.P.C. He prepared inquest report Exh.P.M. of the deceased on 27‑4‑1985 and sent the dead body for post‑mortem examination under police escort. During spot inspection on 26‑4‑1984 he prepared rough site plan Exh.P.N. of the place of occurrence, collected blood‑stained earth from there and sealed it into a parcel vide memo. Exh.P.J. On 27‑4‑1984 the investigation was taken up by S.I. Saeed Akhtar S.H.O. Bhowana (p.W.9). He arrested the appellants on 1‑5‑1984. Haq Nawaz (appellant) while in custody led to the recovery of blood‑stained Toka P.5 from an earthen bin of his house which was seized vide memo. Exh.P.H. attested by Ahmad (P.W.5) and Muhammad son of Sajawal P.W. (not produced) besides the Investigating Officer S.I. Saeed Akhtar (P.W.9). Ahmad Nawaz was declared innocent and placed in column No.2 of the challan. The earth and the Toka were found to be stained with human blood vide Chemical Examiner's report Exh.P.O. and Serologist's report Exh.P.Q. Ahmad Nawaz (appellant) was summoned vide order, dated 28‑4‑1985 and tried with Haq Nawaz.

5. At the trial, prosecution examined 9 witnesses in all. Zulfiqar (P.W.6) and Mst. Sahib Bibi (P.W.7), the two eye‑witnesses have supported the, prosecution version as given in paragraphs 2 and 3 above. The complainant (P.W.6) in his cross‑examination stated that Ahmad Nawaz (appellant) was a retired Patwari. He had been visiting his village for the last 4 years. He used to visit the house of Haq Nawaz (appellant) when he was still serving as Patwari. He stated that he had not stopped Ahmad Nawaz from visiting his Chak. At the time of occurrence his wife and children were not present in the house, however, his brother Muhammad Nawaz was present and was sleeping alongwith him in front of the door of Allah Yar (deceased). He also stated that mother of Allah Yar was alive and she was sleeping 4/5 Karams away from his Charpoy. Haq Nawaz (appellant) resided at a distance of one Killa from the house of the deceased. At the time of occurrence he was sitting on the cot and saw the accused near the cot of the deceased. He raised cries while sitting on his cot but nobody from amongst the neighbours had come there. Allah Yar received injuries in lying position. Mst. Sahib Bibi (P.W.7) held Haq Nawaz in her Jappha but he escaped without causing any injury to her. They carried the injured to the hospital on a cot. The police station is at a distance of one mile from the hospital. On their way to the hospital they had passed in front of the police station and he had asked Muhammad Nawaz to inform the police of the occurrence. The lantern was hanging with a log of wood near Chhappers 3/4 feet away from our cots towards north because it was a dark night. He repelled the suggestion that Allah Yar had illicit relations with Mst. Fatima, an unmarried sister of Haq Nawaz (appellant). He admitted that Ahmad Nawaz was declared innocent but explained that police had favoured him.

6. Mst. Sahib Bibi (P.W.7) stated that when she held Haq Nawaz in her Jappha he pushed her back and she had fallen down and then the appellant escaped. She stated that she had identified the appellants in the light of the lantern. On confrontation with her police statement Exh.D.A. it was not found recorded there that she was pushed by the appellant as a result of which she had fallen down. She stated that her husband Shah Beg resided at Chah Baggey Wala at a distance of 2 miles from the place of occurrence. She has two children and her son is 10/12 years old. She denied that at the time of occurrence she was at Chah Baggey Wala or that after the occurrence she had been called from there. She stated that her mother was ailing for the last two months, who was also sleeping in the courtyard beside Muhammad Nawaz and Mst. Fatima, her brother and sister. Allah Yar, injured, was taken to the hospital from the spot about an hour before sunrise. At that time he was unconscious and some of them thought that he had died while the others said that he was alive. She denied that the deceased was a vagabond or that he had illicit relations with Mst. Fatima, sister of Haq Nawaz (appellant). She stated that Ahmad Nawaz (appellant) resided in their Abadi for 3/4 years after constructing a house there. She denied that she was deposing falsely and had involved the appellants due to suspicion.

7. S.I. Saeed Akhtar (P.W.9) partly investigated the case. He stated that Ahmad Nawaz (appellant) was found innocent by D.S.P. Crimes Branch and was placed in column No.2 as many persons had appeared in his defence during investigation. Haq Nawaz (appellant) stated before him that the deceased had illicit relations with his sister and that he alone had committed the murder.

8. Haq Nawaz (appellant), when examined under section 342, Cr.P.C. in reply to question No.9 stated that the deceased was sleeping in his house all alone and Mst. Sahib Bibi and Mst. Daulan Bibi P.Ws. were at Chah Baggey Wala on that night as their mother was lying sick there and that some unknown persons had committed the murder of Allah Yar during the night and that he has been falsely involved due to suspicion because the deceased had illicit relations with his sister. He further stated that Ahmad Nawaz (appellant) was friend of his maternal‑uncle who has been falsely implicated with the purpose that he should not arrange defence for him (Haq Nawaz). He denied the recovery of blood‑stained Toka (P.5) from him saying that it had been planted on him to strengthen the prosecution case. Ahmad Nawaz (appellant) also denied the allegations and attributed his involvement in the case due to enmity. No oral evidence has been produced in defence. Haq Nawaz (appellant) had, however, produced school leaving certificate Exh.D.B. in order to show that he was born in the year 1969 and that at the time of occurrence he was about 15 years old.

9. Learned trial Court relying on motive, the recovery of weapon and the ocular testimony held both the appellants guilty under section 302/34, P.P.C. and sentenced them to death and fine as indicated above.

10. Learned counsel appearing on behalf of the appellants submitted that presence of eye‑witnesses at the relevant time is doubtful. Had they been present near or around the spot then deceased would have been taken without delay to the hospital rather than next morning. He further argued that it was a dark night occurrence and the assailants whosoever they were had disappeared in the veil of darkness and the lantern has been introduced to make the identification of the assailants by the P.Ws. appear as possible. No lantern has, however, been seized from the spot. It is submitted that Ahmad Nawaz is an old man of more than 62 years age. He has no relationship with the appellant nor any old enmity with the deceased, so his participation is doubtful. Alternatively learned counsel has submitted that the deceased had illicit relations with his sister and it seems that Haq Nawaz (appellant) alone for vindicating his family honour had killed him giving him blows with the right and wrong side of Toka, therefore, he is entitled to lesser penalty and Ahmad Nawaz to clean acquittal. Learned counsel for the State assisted by complainant's counsel has supported the conviction as well the sentence.

11. We have carefully considered the contentions of learned counsel for the parties and also perused the record with their assistance. The time and place of occurrence and death of Allah Yar by violence is not denied by the defence. Haq Nawaz (appellant) resided at a distance of one Killa from the house of the deceased. He averred that the deceased had illicit relations with his sister. It is in evidence that Haq Nawaz is cousin of the deceased and of Mst. Sahib Bibi P.W. Ahmad Nawaz appellant at the time of occurrence was admittedly 62 years old and Haq Nawaz was about 15 years old as per his school leaving certificate Exh.D.B.

12. Prosecution has relied on the evidence of motive, ocular testimony and the evidence of recovery of blood‑stained Toka (P.5). It is not clearly stated as to why Allah Yar (deceased) objected to Ahmad Nawaz's visiting the house of Haq Nawaz. He had no right to do. It is not stated that the deceased had ever physically stopped Ahmad Nawaz from going to Haq Nawaz's house resulting in any quarrel between them. Contrarily Haq Nawaz, appellant averred during investigation and also in his statement under section 342, Cr.P.C. that the deceased had illicit connections with his sister. So Haq Nawaz had a grievance against the deceased whereas Ahmad Nawaz had none.

13. As for the recovery of blood‑stained Toka (P.5) made at the pointation of Haq Nawaz, appellant, we find that he was arrested five days after the occurrence and recovery was effected about 15 days after the occurrence, therefore, the appellant had ample time to do away with the Toka or at least wash off the blood from it before his arrest. We are not convinced that the Toka was besmeared with, blood when recovered after many days.

14. Ocular testimony in this case furnished by Zulfiqar complainant (P.W.6) uncle of the deceased and Mst. Sahib Bibi (P.W.7) his sister. House of Zulfiqar P.W. in the site plan Exh.P.N. prepared by S.I. Muhammad Siddiq (P.W.8) is shown adjacent to the house of the deceased. Mst. Sahib Bibi stated that there is no compound wall around Zulfiqar's house so both houses have common courtyard. The occurrence took place in the last week of April and the villagers start sleeping in their courtyards in that season, therefore, Zulfiqar P.W.'s presence in the courtyard is not unusual. Mst. Sahib Bibi P.W. is married and she lived at Baggeywala about 2 miles away from the place of occurrence. It is in evidence that mother of Sahib Bibi P.W. was ailing in the days of occurrence, so it is possible that she had come to her parents' house for seeing and looking after her mother. Presence of both these eye‑witnesses at the relevant time is, therefore, quite natural.

15. The next question is whether the witnesses were able to correctly identify the assailants? Haq Nawaz appellant is not only their co‑villager and neighbour but is also related to them. A lamp was also burning in the courtyard. The deceased had suffered half a dozen injuries which means the assailants remained at the spot for quite some time. Furthermore, Mst. Sahib Bibi P.W. grappled with him, therefore, she could identify him even without the light of lamp. So the question that whether a lamp was burning at the spot or not became immaterial in the circumstances. The other eye‑witness Zulfiqar P.W. stated that on seeing both the assailants near the cot of the deceased she shouted as to who they were. At this Ahmad Nawaz, appellant, raised a Lalkara exhorting Haq Nawaz to quickly finish the deceased. Mst. Sahib Bibi P.W. does not say that Ahmad Nawaz had raised a Lalkara instigating Haq Nawaz (appellant) to finish the deceased. He (Ahmad Nawaz) is fairly old man and had no motive to kill the deceased as observed earlier. It looks strange that he went armed with a hatchet but used it from blunt side while causing injuries to the deceased. Again injury No.5 does not appear to be the result of blow with wrong side of the hatchet. It seems to be result of striking of body against the Charpoy, while injuries were being caused to him on the head with Toka. No body grappled with him. The fact that Zulfiqar complainant seeing the assailants shouted as to who they were, suggests that he had not identified them. Considering the entire material on record we are of the view that it cannot be held with certainty that the person accompanying Haq Nawaz (appellant) was Ahmad Nawaz (appellant). Consequently, we hold that Haq Nawaz was correctly identified while giving blows with Toka to deceased while Ahmad Nawaz was not. He is not connected with the crime beyond reasonable doubt. Conviction of Haq Nawaz; under section 302, P.P.C. is, therefore, maintained while that of Ahmad Nawaz is hereby set aside. He is directed to be released forthwith if not required to be detained in any other case.

16. This brings us to the question of sentence of death awarded to Haq Nawaz. The appellant appears to have murdered the deceased on account of his having illicit relations with his (appellant's) sister which constitutes a mitigating circumstance, therefore, his sentence F of death is altered to imprisonment for life. The sentence of fine imposed by the trial Court is, however, maintained. Appeal of Ahmad Nawaz appellant is accepted while that of Haq Nawaz (appellant) is dismissed. Death sentence is Not confirmed. M.Y.H./H‑65/L Order accordingly.