2002 P Cr (PLP)

Appellant namely Muhammad Ikram son of Bashir Ahmad was tried by the learned Additional Sessions Judge, Depalpur, District Okara for the murder of one Muhammad Yaseen in case F.I.R. No.372 of 1994, dated 4‑9‑1994 under section 302, P.P.C. registered at Police Station Haveli Lakha, who' vide judgment, dated 26‑2‑1998 convicted and sentenced the appellant under section 302(b), P.P.C. to imprisonment for life and to pay compensation amounting to Rs.20,000 to be paid to the legal heirs of the deceased or in default of payment whereof to further undergo six months' R.I. Being aggrieved by the conviction and sentence, the appellant filed instant criminal appeal bearing Criminal Appeal No.223 of 1998.

2. Case F.I.R. No.372 of 1994 (Exh.P.B.) was got registered at Police Station Havali Lakha, District Okara upon the statement of Sakhi Muhammad P.W.2/complainant with regard to the murder of his brother namely Muhammad Yaseen, which took place in the area of village Wasaway Wala, Tehsil Depalpur, District Okara about 4 Kms. away from the police station. Story of the prosecution as narrated in the F.I.R. is that complainant and his brother were servants of one Mian Naseem Khan Watoo. On the last night in order to cut fodder, both of them went to the tubewell of Mian Muhammad Tufail Watoo son of Akbar Khan. Statedly, after cutting some fodder, due to darkness, both of them slept at the tubewell alongwith Noor Muhammad P. W.3 and Atta Muhammad (other servants of Mian Naseem Khan Watoo). At about 2‑00 a.m., the complainant alongwith Atta Muhammad and Noor Muhammad P.Ws. woke up, upon hearing barking of the dogs and in the light of lantern, they saw Muhammad Ikram appellant standing on the right side of Muhammad Yaseen (deceased), who was holding a hatchet. Within the view of these witnesses, Muhammad Ikram appellant inflicted two hatchet blows hitting left mandible and left side of the neck of the deceased. Muhammad Yaseen died at the spot due to above-said injuries. Statedly, appellant after the occurrence decamped from the scene of crime raising threats to the witnesses. Motive for this occurrence as narrated in the F.I.R. is that Muhammad Ikram (appellant) had illicit liaison with one Mst. Razia Bibi, wife of Muhammad Ali resident of Village Wasaway Wala. Muhammad Ikram (appellant) suspected that Muhammad Yaseen (deceased) had also developed illicit liaison with Mst. Razia Bibi and on account of this suspicion he committed the murder of Muhammad Yaseen. After the occurrence, complainant reported the matter at the police station where formal F.I.R. (Exh.P.B.) was registered by Khushi Muhammad (S.‑I./P.W.8), who after recording the F.I.R. proceeded at the spot, and conducted the investigation. The Investigating Officer after inspecting the dead body prepared injury statement Exh.P.G., inquest report, Exh.P.H., and sent the dead body to the mortuary for post mortem examination. During the spot inspection, he collected blood stained earth and secured the same vide recovery memo. Exh.P.C. On the same day, last‑worn clothes of the deceased were also produced before the Investigating Officer which were taken into custody vide recovery memo. Exh. P. A. During the investigation, the Police Officer also got prepared site plan, Exh. P. E. and Exh. P. E./1 through Muhammad Ramzan, Patwari/P. W.4. On 6‑9‑1994, the appellant namely Muhammad Warn was arrested in this case, who on the same day, led to the recovery of blood‑stained hatchet, P.4, which was taken into possession vide recovery memo. Exh.P.D. After completion of the investigation, challan was submitted before the learned trial Court.

3. During the trial, prosecution produced ten witnesses in order to prove the charge against the appellant. Sakhi Muhammad, P. W.2/complainant, and Noor Muhammad P. W.3 narrated the circumstances under which the appellant committed the murder of Muhammad Yaseen (deceased) and had supported the prosecution case. Dr. Sajid Lateef, P.W.5, conducted post‑mortem examination on the dead body of Muhammad Yaseen (deceased) and observed following injuries:‑ "An incised wound gapping 10 x 4 c.m. on the left cheek extending from tragers of the left jaw to the left angle of the mouth. Mandible and upper and lower teeth were visible. Muscles on mandible were totally cut. An incised wound 10 x 5 c.m. (gapping) on the left side of the neck, extending from the left side of the neck to almost mid line (front of the neck). Under the line, servicle vertebra was also injured by the sharp‑edged weapon i.e. cut was present on it. Major blood vessel of this side was totally cut." In the opinion of the doctor, death in this case was caused due to hypo volumeic shock caused by excessive haemorrhage resulted from cut of major blood vessels of neck on left side. Investigation of this case was conducted by Manzoor‑ul‑Hassan, S.‑I./P.W.7, as well as by Khushi Muhammad, S.‑I./P.W.8, as narrated in the earlier part of this judgment. Rest of the witnesses, being formal in nature, need not to be discussed. Learned D.D.A. tendered in evidence report of Chemical Examiner, Exh.P.I. and Exh.P.J. as well as report of Serologist Exh. P. K. and Exh. P.L, and closed the case of the prosecution.

4. Learned trial Court after recording the entire prosecution evidence, examined the appellant under section 342, Cr.P.C. wherein he while answering to the question, "do you want to say anything else", replied as under:‑‑ "I am innocent. The prosecution have concealed the true facts and had fabricated false version. In fact, I alongwith my sister were residing at the tubewell of Tufail Bhatti. The deceased, who was a man of bad character, attempted to commit Zina‑bil‑Jabr with my sister, on her alarm, I was attracted to the spot and to save my sister from that criminal assault, I inflicted injury with ordinary hatchet on the person of Muhammad Yasin. I voluntarily appeared before the police but the police fabricated false version and suppressed the true facts." The appellant did not make any statement under section 340(2), Cr.P.C. and produced Mst. Mussarat Nazir as D.W.I. The defence witness supported the plea taken up by the appellant while making statement under section 342, Cr.P.C.

5. Learned trial Court after appraisal of evidence available on record, vide judgment, dated 26‑2‑1998 convicted and sentenced the appellant as narrated earlier in this judgment.

6. Learned counsel for the appellant submitted that the appellant committed the murder of Muhammad Yasin under grave and sudden provocation in order to protect the honour of his sister; that both the eye witnesses namely Sakhi Muhammad (P.W.2/complainant) and Noor Muhammad P.W.3, were not the resident of the area and were introduced later on to strengthen the prosecution case; that the motive for this occurrence was never established during the trial and the same was also disbelieved by the learned trial Court while passing the impugned judgment. It was lastly argued that in the circumstances of this case conviction of the appellant under section 302(b), P.P.C. was not sustainable in the eye of law. Conversely, learned State Counsel had vehemently opposed the contentions raised by the learned counsel for the appellant.

7. Arguments heard. Record perused.

8. It is a case of two versions in which time, place and weapon used during the occurrence are admitted factors which need no discussion. The only question to be resolved is whether story narrated by the prosecution is sustainable or defence plea taken up by the appellant is to be relied upon.

9. As far the prosecution case is concerned; Sakhi Muhammad, P.W.2/complainant/real brother of the deceased, and Noor Muhammad, P.W.3, had come forward in support of the prosecution case and had narrated the circumstances under which the appellant committed the murder of Muhammad Yaseen. Admittedly, both these witnesses were the residents of village Wasaway Wala situated about three furlongs away from the place of occurrence. The reason for these witnesses to be present at the spot was that they were directed by their master namely Mian Naseem Khan Watoo to cut fodder, from the land of one Muhammad Tufail Watoo, which was purchased by him. Neither Mian Naseem Khan Watoo was produced before the trial Court nor during the investigation he made any statement about the purchase of fodder from one Muhammad Tufail Watoo or to the fact that the deceased and the witnesses were his servants. Similarly, no evidence was collected by the Investigating Officer that fodder had to be cut from the field of Muhammad Tufail Watoo because Mian Naseem Watoo was short of fodder in those days. In the circumstances, presence of the witnesses at the spot when this occurrence took place seems to be doubtful. This occurrence allegedly took place during the dark hours of night. Statedly, both the eye‑witnesses saw the occurrence in the light of lantern. The presence of lantern is neither shown in the site plan, Exh. P. E. and Exh. P. E. / 1, prepared by Muhammad Ramzan, Patwari/P. W .4, nor the presence of the same was mentioned in the first inspection note prepared by the Investigating Officer. Similarly, during the investigation no lantern was ever taken into custody by the Police Officer.

10. The motive for this occurrence as set up in the prosecution case was that appellant was having illicit liaison with one Mst. Razia Bibi, who suspected that Muhammad Yaseen (deceased) had also developed illicit relation with said Mst. RXzia Bibi and on account of that suspicion the appellant committed the murder of Muhammad Yaseen (deceased). To this effect, only Sakhi Muhammad (P.W.2/complainant) narrated before the learned trial Court. The Investigating Officer during the cross- examination admitted that he never recorded the statement of Mst. Razia Bibi or her father in support of the motive version mentioned in the F.I.R. nor he collected any direct evidence in this regard. In this view of the matter, sole statement of Sakhi Muhammad (P.W.2/complainant) would be of no value/help to the prosecution and in the circumstances learned trial Court has rightly taken out of consideration this part of the prosecution case. The evidence relied upon by the prosecution is not worth reliance and the same cannot be taken into consideration for convicting a person on the charge of capital sentence.

11. As far the defence plea taken up by appellant during the trial, that he committed the murder of Muhammad Yaseen under grave and sudden provocation in order to protect the honour of his sister namely Mst. Mussarat Nazir, is concerned, the statement of Investigating Officer reveals that the first version of the appellant during the investigation was that he committed the murder in order to protect the honour of his sister. Statement of Mst. Mussarat Nazir, D.W.1, also supports the defence plea of the appellant, which inspires confidence, rings true and lends ample support to the plea taken up by the appellant before the trial Court.

12. The upshot of the above discussion is that presence of both the eye‑witnesses namely Sakhi Muhammad (P.W.2/complainant) and Noor Muhammad, P.W.3, at the relevant time was doubtful and the conviction of the appellant under section 302(b), P.P.C. is not sustainable, same is set aside. The defence plea taken up by the appellant attracts the provision of section 302(c), P.P.C. Accordingly, while dismissing the appeal, conviction of the appellant is converted under section 302(c), P.P.C. and he is sentenced to imprisonment for ten years' R.I. The appellant shall also get the benefit of section 3&2‑B, Cr.P.C. Since the deceased, at the time of murder, was indulged in immoral activities, his legal heirs are not entitled to get any compensation under section 544‑A, Cr.P.C. With this modification, instant criminal appeal stands disposed of. H.B.T./M‑1308/L Order accordingly