1994 P Cr (PLP)

CH. GHULAM SARWAR, J.

Hassan and Khuda Bakhsh appellants alongwith Yasin and Allah Bakhsh co-accused were tried by the learned Sessions Judge, Dera Ghazi Khan for having committed the murder of Nazir Ahmad on 14-2-1988 at 9-00 a.m. at the Dera of one Salahuddin at Bahadur Garh at a distance of two miles from Police Station Batil, District Dera Ghazi Khan. Vide judgment, dated 2-2-1991 Hassan appellant was convicted under section 302, P.P.C. and was sentenced to death plus a fine of Rs.50,000 in default whereof to suffer two years' R.I. He is also to pay Rs.50,000 as compensation to be paid to the legal heirs of the deceased and in default whereof to suffer six months' R.I. Khuda Bakhsh appellant has been sentenced to imprisonment for life under the same section with a fine of Rs.25,000, in default whereof to undergo two years' R.I. He has also been directed to pay Rs.25,000 as compensation as envisaged under section 544-A, Cr.P.C. and in default to undergo further R.I. for six months.

2. The learned trial Judge "has referred the case under section 374, Cr.P.C. for the confirmation of death sentence vide Murder Reference No.112 of 1991 and both-the appellants have challenged their conviction and sentences through Criminal Appeal No.19 of 1991. Both matters shall be disposed of together through this single judgment.

3. Succinctly stated the case of the prosecution in narrow compass is that a day prior to 14-2-1988 there was some altercation between Khuda Bakhsh appellant and one Mst. Fatima, grandmother of the deceased regarding the demand of the hand of latter's daughter for the brother of the former. According to the prosecution case Khuda Bakhsh appellant got his brother Hassan appellant married with Mst. Sakina, daughter of Mst. Fatima aforesaid. Khuda Bakhsh wanted the hand of another daughter of Mst. Fatima for his another brother Karim Bakhsh, to which proposal Mst. Fatima did not agree. This annoyed Khuda Bakhsh appellant, who on the preceding day of the occurrence entered into an altercation with Mst. Fatima and also beat her. The dispute was referred to Salahuddin Khan Khosa aforesaid before whom the parties were to appear on the day of occurrence of this case. According to the prosecution case Nazir Ahmad deceased throughout supported Mst. Fatima, his grandmother during all the dispute/altercation between her and Khuda Bakhsh-appellant etc. On the day of 'occurrence, according to the prosecution case Nazir Ahmad deceased accompanied by Ghulam Haider, Khuda Bakhsh and Wahid Bakhsh P.Ws. went to the Dera of Salahuddin Khan. When they reached the Dera the deceased was about 20 Karams ahead of his companions. At the Dera according to the prosecution Khuda Bakhsh, Hassan, appellant Allah Bakhsh and Yasin co-accused were already present there (all the four accused are admittedly real brothers). On seeing Nazir Ahmad deceased Khuda Bakhsh appellant allegedly raised Lalkara saying that the deceased be riot spared, whereupon Yasin alias Sheela and Allah Bakhsh acquitted accused grappled with him and felled him down on the ground. Both of them pressed the deceased on the ground by sitting on him while Hassan appellant inflicted dagger blow on the right flank of Nazir Ahmad, deceased near his right arm pit. According to the prosecution case Hassan appellant had whipped out a Chhuri from the belt of his Chaddar. The P.Ws. tried to rescue Nazir Ahmad, deceased but were threatened by the accused with dire consequences if they advanced. The prosecution witnesses having been scared, did not advance so as to rescue the deceased. After inflicted of the solitary injury the accused ran away and Hassan appellant took along the weapon of offence. The witnesses raised commotion which attracted Sardar Salahuddin Khan Khosa at the spot but after the departure of the accused therefrom. The prosecution witnesses as also Sardar Salahuddin Khan Khosa removed Nazir Ahmad deceased (then alive) to hospital in a jeep but had hardly reached there when he succumbed to the injury and breathed his last. Ghulam Haider P.WS, the complainant left Khuda Bakhsh and Wahid Bakhsh P.Ws. with the deceased and himself left for the police station where he lodged F.I.R. Exh.P.D.

4. Muhammad Sharif S.I. P.W.9 recorded the F.I.R. on the statement of the complainant and reached the hospital at about 11-30 a.m. He prepared the injury statement Exh.P.H. and inquest report Exh.P.G. of the dead body of Nazir Ahmad deceased. He then reached the spot and took blood-stained earth into possession vide memo. Exh.P.E. He prepared the site plan of the place of occurrence as Exh.P.J. He arrested Khuda Bakhsh and Hassan appellants on 8-3-1988 and got recovered blood-stained Chhuri P.7 from the house of Hassan appellant at his instance which was secured vide memo. Exh.P.F. He got prepared the site plans of the place of occurrence Exh.P.B. and Exh.P.B./1. After investigation the appellants alongwith two others were challaned.

5. Dr. Saif Ullah P.W.4 did the post-mortem examination on the dead body of Nazir Ahmad deceased on 14-2-1988 at 3-00 p.m. and found the following single injury on the dead body:-- "A stab wound on the right side of the chest i.e. 1-1/2" situated on the seventh inter costal space and the 7th rib was fractured. There was blood .on the chest:' According to the doctor cause of death in this case was internal haemorrhage due to the injury which was sufficient to cause death in the ordinary course of nature. Time between injury and death was 3-4 hours while the same between death and post-mortem was 2-3 hours. Exh.P.C. is post-mortem report and Exh.P.C./1 is the pictorial diagram showing the local of injury.

6. To substantiate the charge against the appellant the prosecution examined nine witnesses in support of its case including Dr. Saifullah P.W.4, Ghulam Haider, Khuda Bakhsh as the eye-witnesses of the occurrence. Muhammad Sharif, S.I. being the Investigating Officer and the remaining as the recovery or the formal witnesses. Positive reports from the office of the Chemical Examiner Exh.P.K./1 and Exh.P.L. and that of the Serologist Exh.P.L./1 were also tendered in evidence. Ghulam Haider P.W.5 reiterated what he had already stated in F.I.R. Exh.P.D. and Khuda Bakhsh P.W.6 corroborated him in material particulars of this case as he also claims to have accompanied the deceased and others to the Dera of Sardar Salahuddin Khan Khosa.

7. The appellants alongwith their two co-accused when confronted with the prosecution evidence during their statements under section 342, Cr.P.C. all the four accused traversed the allegations of the prosecution in. their entirety and while professing their innocence except Hassan appellant all the accused denied their involvement in the case while claiming that they were falsely implicated being brothers of Hassan appellant, However, Hassan appellant, took up the following plea:-- "The case is false. On the fateful day I was present at the Dera of Salahuddin Khan Khosa in response to his call for the settlement of dispute. Nazir Ahmad deceased came there with Mst. Fatima. While myself, Mst. Fatima and deceased Nazir Ahmad were talking to each other on the subject. Nazir Ahmad deceased abused me during the conversation and harshly said, "you have insulted my grandmother and have beaten her" and simultaneously gave a Sota blow to me which luckily did not hit me. I then reacted and in self-defence as well as under grave and sudden provocation gave a single Chhuri blow to the deceased. Neither my co-accused nor alleged eye-witnesses were present there at that time." None of the accused including the appellants opted to appear in their own defence as envisaged by section 340(2), Cr.P.C. and nor they produced .any defence evidence.

8. The learned counsel for the appellants contended that the judgment under challenge is bad in the eye of law inasmuch as the appellant Hassan has been convicted under section 302, P.P.C. while Khuda Bakhsh appellant was convicted without application of section 34, P.P.C. It was also argued that the learned trial Court has erred in placing reliance on the testimony of two eye witnesses namely Ghulam Haider P.W.5 and Khuda Bakhsh P.W.6 who were close relatives of the deceased, interested and also stand contradicted on material points. It was also argued that the learned trial Judge neither discussed nor reached any conclusion about the evidence of recovery of weapon of offence so it could not have been considered as a corroborative piece of evidence. Some discrepancies were also highlighted in the depositions of the P.Ws. to make the prosecution case as doubtful. It was lastly argued that the occurrence in this case was not a pre-planned but took place in a chance meeting of both parties where it resulted in a sudden fight in which Hassan appellant caused a single injury so it is not a case of capital punishment.

9. The learned AA.-G. appearing on behalf of the State however, supported judgment of the learned trial Court but conceded to the extent that there are circumstances which do not warrant death sentence in the case.

10. We have given our earnest thoughts to the arguments advanced by both sides and have also gone through the prosecution evidence with the able assistance of the learned counsel for the appellants. We find that Ghulam Haider P.W.5 being a paternal-cousin of Nazeer Ahmad and Khuda Bakhsh P.W.6 being his paternal-uncle who used to live with Nazir Ahmad (deceased) in one Haveli were naturally supposed to have accompanied him for the settlement of issue of dispute at the Dera of Sardar Salahuddin Khan Khosa. Since both the parties had been either summoned by Sardar Salahuddin Khan Khosa at his Dera himself or they had gone themselves for the settlement of the dispute but they were present there as the venue of occurrence is the Dera of Sardar Salahuddin Khan Khosa. Since this part of the story has been admitted by Hassan appellant himself so much importance is not attached to the contradiction whether the parties went there themselves or were summoned by Salahuddin. In our view both the eye-witnesses are the natural witnesses of the occurrence and the eye-witness account rendered by them is quite consistent, cogent and natural. They were thoroughly cross-examined but they withstood the same without any material discrepancy. Small discrepancies highlighted in the statements of P.Ws.5 and 6 in our view are not so important which could adversely affect their credibility. The most important aspect of the case is that nothing has been brought on record to show that these eye witnesses were inimical towards the appellant. 11 We also find that ocular evidence in this case is fully supported by the,, medical evidenced, the doctor has found the injury at the place where both the eye-witnesses have pointed out or for that matter where Hassan appellant has himself admitted to have caused the same. We also find that Khuda Bakhsh appellant wanted the hand of another daughter of Mst. Fatima for his another brother Karim Bakhsh, to which proposal Mst. Fatima did not agree, for which Khuda Bakhsh nourished the grudge and altercation between Khuda Bakhsh and Mst. Fatima was referred to Salahuddin Khan Khosa where the parties appeared on the day of occurrence. In view of the positive assertion of the details of the motive part of the prosecution story and its admission by the appellant Hassan goes to prove that prosecution has successfully substantiated the same. Chhuri P.7 being blood-stained was recovered at the instance of Hassan appellant land the same lends corroborative support to the ocular account as Hassan appellant himself admits having caused Chhuri blow to the deceased. The crux, therefore, is that the ocular account furnished by P.Ws.5 and 6 and the evidence of motive, the medical evidence and the recovery evidence lend a strong corroboration to the same.

12. We are conscious of the fact that P.Ws.5 and 6 are closely related to Nazir Ahmad deceased and they had accompanied him to the Dera of Sardar Salahuddin Khan Khosa being his relatives to support him but the depositions of these eye-witnesses demonstrate the type of intrinsic worth of the said testimony which makes these witnesses reliable. Moreover we find nothing on record which could persuade us to hold that the prosecution had failed to prove the guilt of Hassan appellant if not against Khuda Bakhsh appellant.

13. So far as Khuda Bakhsh appellant is concerned he is alleged to have raised Lalkara at the time of occurrence thus exhorting his co-accused to commit the murder. Although Khuda Bakhsh appellant is the bone of contention but the part assigned to him is a mere proverbial Lalkara. Such allegations as held by the Honourable Supreme Court of Pakistan are very frequently made to implicate innocent persons. In view of the facts of this case we are of the view that the possibility of false implication of Khuda Bakhsh cannot be ruled out in this case when the occurrence suddenly took place at the Dera of Salahuddin Khan Khosa. We, therefore, acquit Khuda Bakhsh appellant from the charge of murder of Nazir Ahmad deceased.

14. In the circumstances no doubt is left in our mind that the prosecution has been able to prove the case against Hassan appellant beyond any reasonable doubt and not against Khuda Bakhsh appellant. The conviction of appellant under section 302, P.P.C. is, therefore, maintained. We are however, not inclined to confirm the death sentence our reason, for not doing so, is that the occurrence in our view was not a pre-planned but took place suddenly in a meeting at the Dera of Sardar Salahuddin Khan Khosa and only one blow was given by Hassan appellant and there was no attempt to repeat the injury to the deceased.

15. Resultantly we reduce the sentence of Hassan appellant from death to imprisonment for life but maintain the sentence of fine as well as the sentence regarding compensation. The appellant Hassan, however, is found entitled to the benefit provided under section 382-B, Cr.P.C.

16. The death sentence against Hassan appellant has not been confirmed so the murder reference is answered in the negative. The appeal filed by the appellants is accepted qua Khuda Bakhsh appellant and is dismissed with the modification in the sentence regarding Hassan appellant. Khuda Bakhsh appellant be released forthwith if not required in any other case. N.H.Q./H-110/L Order accordingly.