1984 P Cr (PLP)

R. A. Jeremy for the State. Date of hearing: 5th April, 1983. Barkat Ali, son of Muhammad Din, age 60, armed with hatchet, has been convicted vide judgment, dated 8-2-1980 of the Additional Sessions Judge, Gujranwala, under section 302, P. P. C. for the murder of Mst. Mukhtaran Bibi, aged 40 years, and was sentenced to life imprisonment plus fine of Rs. 7,000 or in default to undergo five years' rigorous imprisonment with the direction that if the fine was realized from him, half of it should be paid as compensation to the legal heirs of the deceased. The appeal of the convict is being disposed of by this judgment.

2. The occurrence took place on 8-2-1976 at 8-30 a.m. in the house of the deceased in Mohallah Ghanipura, Street No. 6, Chhichharwali. Purani Chungi, at a distance of one mile from Police Station City, Gujranwala. Statement (Exh. P.B./1) was made by Mst. Iffat Parveen (not produced), daughter of the deceased at 9-00 a.m. on the same day at Purani Chungi Chhichbarwali, Gujranwala, and it was recorded by Rana Muhammad Yasin S. I. (P.W. 13). On the basis of the aforesaid statement formal F.I.R. (Exh. P.B. 13) was registered Police Station City Gujranwala on the same day at 9-30 a.m. by Hashmat Ali Shah Muharrir A.S.I. (P.W. 2).

3. The motive, as stated in the F.I.R., is that the appellant used to reside in the house of the deceased as a friend of her husband, namely, Muhammad Hussain (not produced). The appellant did not do any work and was, therefore, a burden on the husband of the deceased who was a labourer. After the laps of some time the appellant asked for the hand of Mst. Iffat Parveen, daughter of the deceased, for his nephew Muhammad Anwar. But the request was declined for the reason that the said Muhammad Anwar was a bad character and had divorced his previous wife. The refusal led to an altercation between the appellant and the deceased and the deceased not only abused the appellant but also refused to serve him the evening meals. On the following day i.e. the day of the occurrence, when Muhammad Hussain, husband of the deceased, had left the house for his work, there was again an altercation between the deceased on one side and the appellant on the other. The deceased is stated to have abused the appellant and also ordered him to get out of the house. On this, it is stated, that the appellant became furious and attacked the deceased with a hatchet.

4. In the F.I.R. the occurrence is reported to have taken place in the following manner: On having been enraged, the appellant picked up a hatchet and attacked the deceased while the occurrence was being witnessed by Mst. Iffat Parveen, her daughter. The deceased tried to hide herself in a room but the appellant chased her there. He gave first blow of hatchet to the deceased which fell on her forearm. He gave second blow of hatchet which fell on her left cheek. Thereafter, the deceased fell down and while she was in the fallen condition, the appellant gave her two more blows with the hatchet which fell on her head. In the meantime Mst. Iffat Parveen raised alarm which attracted to the scene of crime Rehmat Ali (P. W. 7) and Muhammad Sharif (P. W. 9), their neighbours. Rehmat Ali and Muhammad Sharif P. Ws. tried to rescue the deceased from the clutches of the appellant but he threatened them not to come near him or he would murder them. They, therefore, held back out of fear. After causing injuries to the deceased the appellant ran away alongwith the hatchet. When Mst. Iffat Parveen entered the room alongwith the two other eye-witnesses, they found that the deceased had died on the spot. Leaving behind Rehmat Ali P. W. to guard the dead body. Mst. Iffat Parveen along with Muhammad Sharif P. W. proceeded to, lodge a report with the police.

5. In the light of the facts given in the F.I.R. there were three eye-witnesses of the occurrence, namely Mst. Iffat Parveen, daughter of the deceased (not produced), Rehmat Ali (P. W. 7) a neighbour, and Muhammad Sharif (P. W. 9) another neighbour. It may be pointed out at this stage that Mst. Iffat Parveen has not been produced by the prosecution, although she is the first informant in this case. She spears to have given an affidavit to the effect that neither she witnessed the occurrence nor was it witnessed by Rehmat Ali and Muhammad Sharif P.Ws. It is submitted by learned counsel that she might have given this affidavit because of a compromise between the parties. In the same way Rehmat Ali P. W. is also stated to have given an affidavit to the effect that he did not witness the occurrence. But he did appear before the trial Court and got his statement recorded in which he supported the prosecution version. He was confronted with his affidavit. He admitted having made the affidavit but stated that he had been made to do so. Learned counsel also points out that the motive could not be proved because neither Muhammad Hussain husband of the deceased, was produced in support of the same, nor Mst. Iffat Parveen, daughter of the deceased, was produced in support of the same. Be that as it may, the trial Court has relied upon the ocular testimony of Rehmat Ali and Muhammad Sharif P. Ws. as corroborated by the recovery evidence in the instant case.

6. The appellant was arrested on 15-2-1976, seven days after the occurrence by Rana Muhammad Yasin S.I. (P.W. 13). At his instance blood-stained hatchet (Exh. P. 5) was recovered and taken into posses sion vide memo. Exh. P. E. dated 15-2-1976. The attesting witnesses are Muhammad Sharif, son of Rahim Bakhsh (P. W. 8), Muhammad Yousuf (not produced) and Rana Muhammad Yasin S.I. (P. W. 13). According to the report of the Serologist (Exh. P. J.) the aforesaid hatchet was found to be stained with human blood.

7. The appellant in his statement before the trial Court denied having participated in the occurrence. He disowned the recovery and stated that he had been falsely implicated due to enmity of the P. Ws. Three witnesses were produced in defence. Two of these D. Ws. were produced in order to show that fifteen days before the arrest of the appellant he was in his village in Tehsil Sadiqabad, District Rahimyar Khan and had continued to remain there. These statements are made by two ordinary villagers and there is nothing in support of the same. The third D. W. is Mr. Arshad Mahmood Kawaja, Advocate who was produced to show that an affidavit was made by Rehmat Ali (P. W. 7) in his presence to the effect that he had not witnessed the occurrence. He also stated that Mst. Iffat Parveen had made an affidavit in his presence to the effect that neither she nor the two eye-witnesses had seen the occurrence. It may be pointed out at this stage that so far as Rehmat Ali P. W. is concerned, he was confronted with his said affidavit and he stated that he had made it but he was forced to make it. The thrust of the argument of learned counsel is that these affidavits were made for no other reason except that the parties had compromised and, therefore, the P. Ws. were backing out.

8. The Medical Officer, namely, Dr. Muhammad Irshad Bhatti, who conducted post-mortem examination on the dead body of the deceased, had left Saudi Arabia and, therefore, he could not be produc ed. His post-mortem examination report (Exh. P. F.) was proved by Muhammad Yousuf Dispenser (P. W. 12). According to this report, the post-mortem examination on the dead body of the deceased was conducted by Dr. Muhammad Irshad Bhatti at 1-30 p.m. on 9-2-1976. He found on her person an incised wound on the left side of the face, another incised wound on the left side to top and back of head and still another incised wound in front of the above injury on the head, incised wound on the lowest part of the back of head, incised wound on the left back of elbow and incised wound on the upper part of right shoulder-blade. In has opinion these injuries were ante-mortem and caused with a heavy cutting weapon. All the injuries were grievous except the last injury which was simple. In his opinion death had resulted due to the head injuries which had damaged the brain and brain matter was coming out of the wounds. These injuries were sufficient to cause death in the ordinary course of nature as these led to shock and haemorr hage. The death in this case took place due to coma caused by the severe head and brain injuries.

9. I have heard learned counsel for the parties and carefully perused the record. Learned counsel argues that the motive is not established, in the instant case, because no witness was produced in support of the motive version. It is next submitted that the first informant, namely, Mst. Iffat Parveen, was not produced in the instant case and, therefore, there is no F. I. R. in the instant case. It is then pointed out that admittedly Mst. Iffat Parveen made an affidavit before an Advocate to the effect that the occurrence was unwitnessed, that she did not lodge the F. I. R. and that the two eye witnesses produced by the prosecution, in the instant case, namely, Rehmat Ali and Muhammad Sharif P. Ws. had not witnessed the occurrence and that this Advocate had been produced as a D. W. It is next submitted that even Rehmat Ali P.W. had made an affidavit before the same Advocate and when he was confronted in the cross -examination that he had made an affidavit to the effect that he had not witnessed the occurrence, he did not deny the fact but only stated that he had been made to sign the said affidavit. It was then pointed out that the parties have entered into a compromise and that since this was the position, the appellant be either acquitted or if he is to be convicted and sentenced, then his conviction be altered to section 304, Part I, P. P. C. and he should be sentenced thereunder to a fixed term of imprisonment instead of life imprisonment. This submission is being advanced in the background of what is stated to be a compromise between the parties. I have pointed out to learned counsel that I agree with him that motive in the instant case could not be established as no witness for proving the motive, as set up by the prosecution, had been produced. It is a well-established principle of criminal justice that if the motive is shrouded in mystery, then the trial Court can award lesser penalty considering it as an extenuating circumstance: This is what the trial Court has precisely done in this case, i.e. he has maintain ed conviction of the appellant under section 302, P.P.C. and sentenced him to life imprisonment. So far as the ocular testimony, in the instant case, is concerned. I have gone through the statement of Rehmat Ali P. W. who is a neighbour. He has consistently supported the prosecution version to the effect that he heard alarm coming from the house of the deceased and he alongwith Muhammad Sharif P.W. rushed to the spot. They witnessed that the appellant was giving hatchet blows to the deceased and thereafter he decamped. When they reached near the deceased she had expired as a result of the injuries sustained by her. Both these eye-witnesses are neighbours and they have no motive to falsely implicate the appellant. So far as the affidavit of Rehmat Ali P.W. is concerned, he might have made the same because there was some compromise effected between the parties. He did not disown the making of the affidavit in the cross-examination but told the truth by stating that he was made to make that affidavit. This in fact is a further proof that he was making a correct statement before the trial Court and not a false statement. So, in my view the ocular testimony was rightly believed in the instant. cases. Anyway, the ocular testimony is further corroborated by the recovery evidence. Learned counsel submitted that the recovery evidence was of a doubtful nature for the reason that the sole public attesting witness of this recovery produced was a man of no substance being a shopkeeper, he did not reside at the place of occurrence but he was living at as distance of three miles from the spot from where the recovery wet effected and finally the recovery was made after five days from a spot which did not appear to be a place inaccessible to the general public I have carefully considered this aspect of the case. In my view the ocular testimony is by itself sufficient to sustain the conviction and sentence in the instant case and it does not require any corroboration. But I do not agree with learned counsel about his assertions in respect of the recovery evidence. In my view the recovery is not o: a doubtful nature and it was made in the presence of the Investigating Officer who attested the same as well as Muhammad Sharif (P.W. 8), the recovery witness, who had no motive to falsely implicate the appellant. In the end learned counsel vehemently argued that there is a document placed on the record, namely, Ex. D.W. 313 which is a compromise between the parties and that in the light of this com promise the sentence of the appellant be reduced. I am afraid, I cannot do so: Learned counsel submitted that the case be brought under "sudden provocation" in the sense that it was the deceased who abused the appellant and also threw him out of the house and it was in retaliation of the same that the appellant was suddenly provoked and caused injuries to her with a hatchet. Learned counsel wants me to bring this case under one of the Exceptions to section 300, P.P.C. so that he could be convicted and sentenced under section 304, Part II, P.P.C. In my view this is not possible. In fact it was a case of deliberate murder performed in a gruesome manner and even if the motive, set up by the prosecution, could not be established in the light of the ocular testimony, it was a case in which extreme penalty could have been awarded under section 302, P.P.C., but the trial Judge has already) taken a lenient view by awarding lesser penalty to the appellant. The compromise can have only this effect in the instant case that instead of awarding the extreme penalty to the appellant the trial Judge has awarded lesser penalty. The same is the effect of the motive not being established. Since this is the position, in my considered opinion the prosecution has succeeded in establishing its case as against the appellant beyond .any shadow of doubt. In the circumstances, his conviction as well as the sentence awarded to him are quite proper and they are accordingly maintained. The result is that this appeal is dismissed. However, the Jail authorities are directed to grant the benefit of the provisions of section 382-B, Cr. P. C. to the appellant at the time of computation of his sentence of life imprisonment. With this observation this appeal is dismissed. M. A. K. Appeal dismissed