1981 P Cr (PLP)

SARDAR MUHAMMAD SHARIF KHAN, ACTG. C. J.-A youth Muhammad Nazir by name stands convicted under section 302, P. C. and sentenced to death by the Sessions Judge, Rawalakote for having committed murder of his mother's second husband, Abdus Samad by name. Abdul Aziz, the first husband of the said woman named Mst. Fatima Bibi had died and it was after his death that she entered into second marriage with Abdus Samad deceased. Mst. Fatima Bibi has as many as ten issues from the first husband and Muhammad Nazir convict is one of them. It is alleged that Muhammad Nazir did not like that his mother should have married with Abdus Samad. Not only this but two of the sisters of the convict were also given in marriage to some persons by Abdus Samad against the wishes of the convict, they say. Again, it is alleged that there had been a `shosha' the words 'shosha' was used in the sense of 'charcha' that Abdus Samad had illicit liaison or intimacy with one of the sisters of the appellant. All this they say created a malice and ill-feeling in his mind against Abdus Samad, the husband of his mother. It was stated that on the night of occurrence Abdus Samad deceased, Mst. Begurn Jan and Mst. Fatima Bibi wives and Mst. Nikki, sister of the convict and one Mst. Misar Jan wife of the brother of Abdus Samad deceased were present at the house of the deceased when all at once the appellant asked his sister Mst. Nikki whether his 'Chappals' (loose type of shoes) were got mended by her and on a reply in negative from her; he rose up to beat her with a stick. Abdus Samad intervened and snatched away the stick from the appellant and threw it away. On this, they say, appellant caught hold of Abdus Samad by his shirt with his left hand and with a knife (Chhuri Namaa) in his right hand, it was thrust into his abdomen as a result of which the latter fell over cot nearby and the appellant stood in the door blocking the same thereby threatening other inmates of the house not to move otherwise they would also be killed. The wives of the deceased somehow managed to slip out of the room (venue of occurrence) through a way from the cattle-pen and raised hue and cry attracting Ghulam Qadir brother of the deceased and some others namely Said Akbar, Fazal Hussain, Faqir Muhammad and Atta Ullah from the neighbourhood to the scene of occurrence. It appears that after the occurrence the appellant escaped from the scene of occurrence to another village namely 'Beerpani', where his sister is stated to have married before the arrival of the persons from the neighbourhood. Said Akbar, Fazal Hussain, Faqir Muhammad and Atta Ullah were the first persons to arrive who were followed by Ghulam Qadir. Ghulam Qadir after having heard from the inmates of the house left for the police station along with Muhammad Siddique Lumberdar who also appeared on the scene of occurrence and Said Akbar to lodge a report that Abdus Samad was killed by Muhammad Nazir appellant with a knife 'Chhuri Namaa' (like a 'Chhuri'). Accordingly, the report was lodged at the Police Station, Bagh which was recorded by Mr. Tariq Ajmi, A. S. I. incharge of the police station. That report is exhibited as P. A. As soon as the case was registered under section 302, P. C. against the appellant, the Police proceeded to the scene of occurrence for the investigation. Injury-sheet and inquest reports were prepared by Mr. Ajmi and then after having taken into posses sion the dead body of Abdus Samad., it was sent to the Civil Medical Officer, Bagh for post-mortem, which was conducted by the latter and medico-legal certificate was also issued accordingly. Injury No. 1 found in the abdomen of the deceased was homicidal as a result of which Abdus Samad succumbed to it instantaneously. 'Chhuri' Exh. P-1 was recovered from the possession of the appellant which could have caused injury No. 1 on the person of the deceased as per report of the Medical Officer. To testify the recovery of 'Chhuri' on the search of the appellant at the time of his arrest, Enayat Shah Constable was produced as a witness who prepared its seizure memo. Exh. P D. Ismail and Gul Rashid attesting witnesses of recovery memo. Exh. P D were given up by the prosecution for having been won over by the defence. Gul Rashid appeared as a witness of the defence who stated that at the time of the arrest of the appellant no 'Chhuri' was recovered from his possession. Though recovery memo Exh. P D containing 'Chhuri' alongwith other articles was admitted to have been signed by him ; yet according to him it was got signed by the Police on the next day after the arrest of the appellant when he went to the police at the place of investigation. The appellant himself stated under section 342, Cr. P. C. that he wanted to take away Mar. Nikki from the house of Abdus Samad to Pindi as his sisters were defamed at the house of his mother's husband. On his demand of taking Mst. Nikki, Abdus Samad refused to comply with his wishes as a result of which both of them were entangled with each other and while they were involved as such, Abdus Samad asked his wife, Mst. Begum Jan to kill him who (wife) then wanted to hurl blows of knife at him but while doing so one of them was landed at her own husband as a result of which the latter died and the appellant was falsely involved in the case so as to save Mst. Begum Jan. The prosecution examined Ghulam Qadir. P. W. 1, Mst. Fatima Bibi P. W. 2, Mst. Misar Jan P. W. 3, Mst. Rashid & Begum P. W. 4, Muhammad Siddique Khan P. W. 5, Alam Din P. W. 6, Munshi Mir Zaman Patwari P. W. 7, Anayat Shah Constable P. W. 8, Mr. Tariq Ajmi, the Investigating Officer P. W. 9 and Mr. Mushtaq Ahmed Gardezi, Civil Medical Officer, P. W. 10 as their witnesses to establish the case against the appellant. And appellant examined Gul Rashid the only witness in his defence about whom a short description has just been made earlier. The learned counsel for the appellant and the learned Advocate-General were heard and the perusal of the record of the case was also made. The learned counsel for the appellant has raised two preliminary objections to the following effect Firstly, for the sentence being passed on 'the appellant in his absence, the judgment is a nullity in the eye of law. In order to support his contention, he cited Tufail v. Emperor (A I R 1927 Lah. 870). That was a case where after the evidence was recorded under section 512, Cr. P. C. by the Court ; the accused was convicted and sentenced thereof. Obviously, that was an illegal conviction in the absence of the accused but here we find that this is not the case. The whole case was heard in the presence of the appellant and the day for the announcement of the judgment was also fixed by the trial Court within his knowledge. The counsel of the appellant was present on the day of the announcement of the judgment though the appellant was absent from the Court and thus absconded. It cannot, therefore, be held that announcement of the judgment was bad in law. The trial Court had committed no irregularity or illegality in announcing the judgment on the day it had already been notified: though the appellant absented himself. Secondly, it was argued that the case being that of murder was triable by the District Criminal Court consisting of a Sessions Judge and a District Qazi under the provisions of Islami Tazeerati Act and not by the Sessions Judge alone. This contention of the learned counsel would have held water but in view of an amendment of section 24 of the Islami Tazeerati Act, no merit is left in it. Section 24 (amended) of the Islami Tazeerati Act provides that in case the prescribed standard of evidence according to Islamic Law of evidence is not available namely at least two adult mule Muslims so as to bring the case of murder within the purview of section 5 of the 'Islami Tazeerati Act', the same is to be tried under the provisions of Penal Code by a Court of competent jurisdiction as established by the Criminal Procedure Code. Therefore, this objection is also repelled. On the other band the learned Additional Advocate-General has contended that the appeal was filed after the period of limitation pres cribed. No copy of the judgment is found to have been delivered either to the counsel present before the Court, or to the appellant: himself by the trial Court when be was arrested by the Police so that the appeal could be filed by either of there in time allowed under law. It was during the case of instant reference now taken up with the appeal that the copy of the judgment was delivered by the High Court to the appellant so as to file an appeal against the judgment of the trial Court. Thus the non delivery of the copy of the judgment to the appellant or his counsel constitutes a sufficient cause under section 5 of the Limitation Act to condone the delay for determination of the appeal on merits in the interest of justice. After having dealt with the preliminary objections raised by the parties we proceed further for disposal of the appeal as well as the reference. There are two eye-witnesses of the occurrence who were produced by the prosecution namely Mst. Fatima Bibi mother of the appellant and Mst. Misar Jan. They have made their statements quite consistent in all respects and deposed therein that it was the appellant who killed Abdus Samad with 'Chhuri' Exh. P-1. Nothing from their cross-examinations could be detected against them so as to discredit their evidence. They have fully supported the prosecution story brought before the Court 'Chhuri' Exh. P-1 was also identified by Ghulam Qadir P. W. 1, the maker of the report and his daughter Mst. Rashida Begum P. W. 4, and who have further deposed that it belonged to them. One month prior to the occurrence, they say, it was obtained by the appellant at the time when it was being used by the daughter of Ghulam Qadir in peeling the peaches as it was found within his liking. Alam Din P. W. 6, a blacksmith also states that this 'Chhuri' Exh. P-1 was got sharpened from him by the appellant when it was taken to him for the purpose. The presence of the appellant at the scene of the crime at the time it was committed is not in dispute. After the occurrence he absconded from the scene of occurrence. Absconding of the appellant soon after the occurrence from the house of the deceased is also corroborative of the D testimony of the eye-witnesses. Ghulam Qadir and Muhammad Siddique P. Ws. who reached, in a way, just after the commission of the crime were also told the name of the killer of Abdus Samad deceased and he is the appellant. The relationship of the mother and the son is such a vital factor involving unquenchable affection that evidence of his mother against her real son cannot be lightly brushed aside. She must be believed to have spoken truth and to believe as such there is no reason whatsoever for the coming to discard her evidence. Abdus Samad, the victim succumbed to a fatal injury on his person and abdomen is a vital part of the body which was struck into by the appellant with a knife or say 'Chhuri' and this wound on the person of the deceased is also admitted by the appellant having been caused with a knife though in a different manner that is to say that according tea him when the deceased and the appellant were grappled Mst. Begun Jan wife of the former wanted to hurl knife blows at the latter at the instance of the deceased but instead of stabbing the appellant the blow of knife fell on the deceased. This version of the appellant cannot be believed in any manner. The statement of Gul Rashid, a prosecution witness allegedly won over, who appeared as a witness of the appellant is immaterial in tire circumstances of the case described above. It was with the knife or say 'Chhuri' Exh. P-1 that the injury No.1 was caused by the appellant. There is nothing on record to support the version of the appellant in relation to the injury received by the deceased. Nevertheless reputation with regard to the character of the deceased might be bad. Injury No. 1 was caused by a sharp weapon which was penetrated into the abdomen and it was sufficient in the ordinary course of nature to cause death of Abdus Samad who succumbed to the same just on its very infliction. That being so, the infliction of the wound on the vulnerable part of the body was proved to have been caused within the knowledge of the appellant that death was certainly bound to occur as it was inflicted on a very tender vital part of the body of the victim. Thus the offence of murder is brought home to the appellant by the prosecution beyond a reasonable doubt and the Sessions Judge was right to hold him guilty of the offence of murder. He was awarded death penalty the capital punish ment provided by law. But in the circumstances of the case we feel that imprisonment for life provided by law would do in place of capital punishment; At the time the offence was committed by the appellant he was below 15 years of his age. His state of mind it seems was perturbed at the time of the commission of the offence due to the disreputation brought to his family by Abdus Samad deceased who was suspected to have illicit intimacy with one of the sisters of the appellant despite the fact that the mother of the girl (Mst. Isam Jar.) and the boy (appellant) was married to him. This is on record. Obviously the appellant had an agitated mind who in order to vindicate his honour inflicted a fatal blow with the knife on the person of Abdus Samad when he rose to intervene between Mst. Nikki, the sister of the appellant and the appellant himself as a result of which the stick to be used against his sister was snatched by the deceased. There had been only a single blow inflicted by the appellant on the person of the deceased and no more. Therefore, the sentence of death passed on the appellant may not be appreciated and is commuted to imprisonment for life. With this modi fication in the sentence of the appellant his appeal is dismissed and resultantly the reference submitted by the learned Sessions Judge is also dismissed. A copy of this judgment shall be sent to the convict for his information etc. in the Jail at Muzaffarabad. Order accordingly.