2005 PLP 1058 (YLR)

TANVIR BASHIR ANSARI, J.

Muhammad Riaz, Mukhtar Ahmad and Mumtaz alias Taj all sons of Falak Sher were tried under section 302/34, P.P.C. vide judgment dated 27-9-2000 passed by an Additional Sessions Judge, Okara. Muhammad Riaz and Mukhtar Ahmad were convicted under section 302(a), P.P.C. and both were sentenced to death as Qisas. Mumtaz Ahmad alias Taj was however, acquitted of the charge.

2. Murder Reference No.583 of 2000 has been made under section 374, Cr.P.C. for the confirmation of death sentence while Crl. Appeal No.1440 of 2000 has been filed by the convicts and Crl. Revision No.760 of 2000 has been preferred by the complainant for the award of compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. We propose to decide all these matters through this judgment.

3. The prosecution case as disclosed in the F.I.R. which was recorded upon the complaint of Muhammad Siddique complainant P.W.2 is that on the night between 7/8 of December, 1997, the complainant along with Saghir Ahmad deceased, Muhammad Yar P.W.3 and Muhammad Ayub, P.W.4 were proceeding to the house of Muzaffar Khan Patwari. Saghir Ahmad who was walking ahead of the complainant and other P.Ws. were induced by Muhammad Riaz etc. accused to enter the house of Muhammad Riaz whereafter the deceased Saghir Ahmad was attacked by the accused. It was alleged that Muhammad Riaz armed with hatchet, Mukhtar Ahmad armed with Sota and Mumtaz Ahmad empty handed inflicted repeated blows upon the person of Saghir Ahmad, as a result of which, Saghir Ahmad died at the spot. The motive of the occurrence is that Saghir Ahmad had developed illicit relations with Mst. Karam Nishan sister of the accused who had murdered Sahgir Ahmad on account of this annoyance.

4. The prosecution produced the complainant Muhammad Siddique as P.W.1, Muhammad Ayub as P.W.2 and Muhammad Yar as P.W.3. This set of witnesses provided the ocular account of the occurrence. Muhammad Yasin P.W.7 and Muhammad Aslam P.W.8 were the witnesses of the recovery of blood-stained Danda which according to these witnesses was recovered upon the pointation of Mukhtar Ahmad. The medical evidence was rendered by Dr. Muhammad Sharif P.W.11 while P.W.4, P.W.5, P.W.6, P.W.9 and P.W.12 were by and large formal in nature, the evidence regarding the investigation was furnished by Khadim Hussain H.C., P.W.13.

5. After the close of the prosecution evidence, the statements of the appellants was recorded under section 342, Cr.P.C. Muhammad Riaz appellant stated that Saghir Ahmad deceased attempted to develop relations with Mst. Karam Nishan who complained of the same to the appellants. He stated that on the night of the occurrence, Saghir Ahmad deceased along with two unknown persons jumped into their house over a wall and caught hold of Mst. Karam Nishan for forcibly abduction for Zina. He stated to have lost his self-control and on account of sudden provocation picked up a hatched and caused injuries to the deceased with both its sharp and blunt sides. The appellant Mukhtar Ahmad in his statement under section 342, Cr.P.C. denied his involvement in the occurrence and stated that he was not present at the spot at the time of occurrence. In defence Mst. Karam Nishan appeared as D.W.1 while Muhammad Riaz appeared as his own witness upon oath under section 340(2), Cr.P.C.

6. The learned trial Court appraised the aforementioned evidence on the record and convicted and sentenced the appellants as hereinbefore detailed.

7. The learned counsel for the appellants, in view of the statement made by Muhammad Riaz both under section 342, Cr.P.C. and his statement recorded on oath contended that he would stress the appeal for seeking reduction in sentence. Similarly, in view of the medical evidence rendered by P.W.11, Dr. Muhammad Sharif which, reported the presence of as many as 28 injuries on the person of deceased, 18 with a sharp edged weapon and 10 with a blunt weapon and also in view of the statements made by the witnesses and recovery of blood-stained Sota upon pointation of Mukhtar Ahmad made the same plea for reduction in sentence in respect of Mukhtar Ahmad appellant also. Pleading mitigating circumstances, it is urged that the manner in which the occurrence took place continues to remain shrouded in mystery and despite the evidence recorded by the eye-witnesses P.W.1, P.W.2 and P.W.3, it has not been established by the prosecution that the deceased was dragged into the house of Muhammad Riaz by Mumtaz Ahmad accused. It is contended that Mumtaz Ahmad has been acquitted by the learned trial Court. Reference is also made to the allegation in the F.I.R. where the dragging of the deceased into the house of Muhammad Riaz is not even mentioned. The learned counsel for the appellants has further referred to the statement of Muhammad Ayub as Exh.D.A. and Muhammad Yar as Exh.D.B made under section 161, Cr.P.C. wherein again it was not alleged that the deceased was forcibly dragged into the house of Muhammad Riaz. In Exh.D.A. as in Exh.D.B., it was stated that:-- It is submitted that the story narrated by the complainant as P.W.1, Muhammad Ayub P.W.2, and Muhammad Yar P.W.3 is a dishonest improvement upon the prosecution case which was disclosed in the first version of the complainant as well as the witnesses. The learned counsel for the appellants submits that in such a situation, the version of the defence as disclosed by the appellant Muhammad Riaz cannot be ruled out of consideration. Continuing in this vein, it is contended that Mukhtar Ahmad who is alleged to have caused injuries to the deceased with a Sota would be entitled to a similar treatment considering the mitigating circumstances that both the appellants are the real brothers of Mst. Karam Nishan. It is further submitted that even the prosecution has indicated the motive that on account of the illicit relations of Saghir Ahmad deceased with Mst. Karam Nishan, the appellants nursed a grudge and for this reason, the deceased was done to death. As regards the liability to pay compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. it is contended that upon the material on the record, the complainant is not entitled to any compensation as even according to the case of the prosecution, the deceased was maintaining illicit relations with Mst. Karam Nishan. It was the case of the complainant and the defence alike that the deceased had illicit relations or attempted to have illicit relations with Mst. Karam Nishan.

8. Conversely, the learned counsel for the complainant as well as the learned counsel for the State have prayed for the dismissal of the appeal of the convicts on the ground that this was a case of premeditated murder which was perpetrated in a very cruel and gruesome manner as is indicated through the medical evidence which shows as many as 28 injuries upon the person of the deceased. It is stated that the appellants caused repeated injuries upon the vital parts of the deceased with hatchet as well as the Sota which caused instantaneously death of the deceased and in this view of the matter. There were no mitigating circumstances for awarding a lesser sentence. It is contended that the ocular evidence supported by the evidence of the recovery and the medical evidence fully justified the capital punishment awarded to the appellants by the learned trial Court.

9. In support of the criminal revision for award of the compensation, it is submitted that the deceased who was a young man was done to death in a brutal manner and that his legal heirs are fully entitled to receive compensation under section 544-A, Cr.P.C.

10. Arguments have been heard and record perused.

11. From a perusal of the evidence of recovery of blood-stained Sota upon the pointation of Mukhtar Ahmad recorded by P.W.7 and P.W.8 coupled with the medical evidence recorded by Dr. Muhammad Sharif P.W.11, the statement of Muhammad Riaz recorded under section 342, Cr.P.C. and under section 340(2), Cr.P.C. and also considering the statement of Mst. Karam Nishan D.W.1, there is no manner of doubt that the appellants were guilty of the charge and were rightly convicted by the learned trial Court.

12. The learned counsel for the appellants has confined submissions only to the aspect of reduction in sentence and has referred to the evidence on the record in this context alone. We have examined the statements of Muhammad Siddique complainant P.W.1, Muhammad Ayub, P.W.2 and Muhammad Yar P.W.3 and are of the firm view that cumulatively their statements do not establish the manner in which the occurrence is stated by them to have taken place. The time of occurrence is not stated in the F.I.R. Exh.P.A. All that is stated in the F.I.R. is that the complainant along with the deceased and P.W.2 and P.W.3 were proceeding to meet Muzaffar Khan Patwari in his house when at 10-30 p.m. in the night, the deceased was induced to enter the house of Muhammad Riaz.

13. We have examined the ocular account and do not find it sufficient for establishing the manner in which the occurrence is alleged to have taken place. Firstly, it is improbable nay unlikely that the said P.Ws. along with the deceased would be going to meet Muzaffar Khan Patwari in such late hours of the night as alleged. Secondly, while the first version of the prosecution as disclosed in Exh.P.A., Exh.D.A. and Exh.D.B. is that Saghir Ahmad deceased was called into the house of Muhammad Riaz, it is departed from the statement of P.Ws.1, 2 and 3 where it is stated that the deceased was dragged into the house by Mumtaz Ahmad. Mumtaz Ahmad co-accused has been acquitted by the learned trial Court. It is also not explained as to why the eye-witnesses reached the place of occurrence after 15 minutes of the alleged dragging of the deceased inside the house of Muhammad Riaz when they were only at a distance of 30/35 yards from the deceased at the time of occurrence. We therefore, find that the details of the occurrence as alleged by the prosecution are shrouded in mystery.

14. We are thus, not persuaded to differ from the jdugemnt of conviction recorded by the learned trial Court. We are nevertheless persuaded to hold that in the circumstances enumerated hereinbefore, the sentence of the death awarded to the appellants is excessive and not warranted under the circumstances. We therefore, convert the death sentence awarded to each of the appellants into imprisonment for life with benefit of section 382-B, Cr.P.C.

15. As a result of the foregoing, Crl. Appeal No.1440 of 2000 is dismissed subject to the modification in sentence as stated above. The Murder Reference No.583 of 2000 is answered in the negative. The Crl. Revision No.760 of 2000 wherein compensation is claimed against the convicts has no merit as the deceased even according to the prosecution was having illicit relations with Mst. Karam Nishan and it was in the house of Mst. Karam Nishan that he was done to death by the appellants who are her real brothers. The reliance is placed upon the case of Muhammad Ilyas v. The State 1991 PCr.LJ 1086. The Crl. Revision is dismissed. H.B.T./M-797/L Order accordingly.