1999 P Cr (PLP)

SH. ABDUR RAZZAQ, J.‑‑‑ Criminal Appeal No.573 of 1993 stands preferred against judgment, dated 13‑7‑1993 passed by Mian ‑ Abdul Haleem Sadiq, Sessions Judge, Khushab whereby he convicted and sentenced Khan Muhammad son of Yar Muhammad, Caste Awan Resident of Nidhu Dakhli Warrchha, Tehsil and District Khushab to face death penalty under section 302(b), Pakistan Penal Code. The Court of Session at Sargodha has sent Murder Reference No.264 of 1993 as contemplated under section 374 of the Code of Criminal Procedure for the confirmation of the death sentence awarded to Khan Muhammad. Both the aforesaid appeal and aforesaid Murder Reference are being disposed of through this consolidated judgment.

2. F.I.R. Exh.P.E. was registered on the statement of Ghulam Ahmad (P.W.5) on 26‑2‑1993 at 6‑15 p.m. at Police Station Gujral, District Khushab.

3. Briefly stated the facts are that Ghulam Ahmad‑complainant (P.W.5) resides with his family in village Nidhu Dakhli Warrachha. On 26‑2‑1993 he alongwith his son Muhammad Khan deceased who is an army personnel and had come on leave, were on their way to their "Dera" after offering their Jumma prayer at Quaidabad. At about 3‑00 p.m. they reached near the tubewell of Allah Bux Shahbazi situated within the area of Utra when accused Khan Muhammad son of Yar Muhammad, his son‑in‑law, emerged on the scene armed with hatchet. He (accused) shouted at Muhammad Khan deceased that he would teach him a lesson for not allowing his wife to live with him and inflicted a hatchet blow which landed on his head as a result of which he fell down. In that position, the accused inflicted another blow which hit him on the back of his head. On the hue and cry of complainant, Sultan Muhammad son of Sher Muhammad, Mst. Kama] Khatoon and Mst. Nazir Khatoon daughter and daughter‑in‑law rushed to the place and witnessed the occurrence. Seeing them coming Khan Muhammad accused succeeded in decamping from there. The complainant, Sultan Muhammad, Mst. Kamal Khatoon, and Mst. Nazir Khatoon then removed the injured to Civil Hospital, Quaidabad who succumbed to the injuries before any medical aid could be provided to him.

4. The motive behind this occurrence is that Mst. Rehman Bibi daughter of complainant is married with Khan Muhammad accused. She had deserted her husband for the last 3 months and was residing with the complainant Khan Muhammad accused suspected Muhammad Khan deceased to be responsible for desertion of his wife and nourished grudge against him.

5. Allah Bux, S.‑I. (P.W.8) recorded F.I.R. Exh.P,E. on the statement of Ghulam Ahmad (P.W.5). He proceeded to hospital where the dead body of Muhammad Khan was lying. He prepared his injury statement Exh.P.G. inquest report Exh.P.H. and despatched the dead body through Manzoor Hussain Constable (P.W.2) for post‑mortem examination. On 27‑2‑1993 he visited the place of occurrence, secured blood‑stained earth vide memo. Exh.P.C. he arrested the accused who led to the recovery of blood‑stained hatchet P.4 from his "Dera" which he secured vide memo. Exh.P.D. and prepared site plan of place of recovery Exh.P.D./1. On the same day Manzoor Hussain Constable (P.W.2) produced before him blood‑stained last‑worn clothes of deceased P.1 to P.3 which he secured vide memo. P.B. On the same day he got the site plan inspected from Patwari who on 2‑3‑1993 handed over to him site plans Exh.P.A. and Exh.P.A./1. After completing investigation he submitted the challan in the Court.

6. A charge under section 302, P.P.C. was framed against the accused to which he pleaded not guilty and claimed trial.

7. In order to bring home guilt to the accused prosecution examined P. W.1 Abdul Rehman Patwari who prepared site plans Exhs.P.A. and P. A./1. Manzoor Hussain Constable P.W.2 escorted the dead body of Muhammad Khan deceased on 26‑2‑1993 for post‑mortem examination. He produced blood‑stained clothes P.1 to P.3 before the Investigating Officer on 27‑2‑1993 who secured the same‑ vide memo. Exh.P.B. On 28‑2‑1993 Qutab Sher P.W.3 handed over to him two sealed parcels containing blood‑stained earth and hatchet for onward transmission to the office of Chemical Examiner, Lahore which he delivered there intact on 1‑3‑1993. On 2‑3‑1993 he returned alongwith parcels and results and handed over the same to Moharrir on 3‑3‑1993 P.W.3 Qutab Sher Moharrir was given two sealed parcels of blood‑stained earth as well as hatchet by the Investigating Officer on 27‑2‑1993 for keeping in Malkhana which he delivered to Manzoor Hussain P.W.2 on 28‑2‑1993 for onward transmission to the office of Chemical Examiner, Lahore. P.W.4 Ata Muhammad is a marginal witness of memo. Exh.P.C. whereby blood‑stained earth at two places was secured and was made into a sealed parcel. He further deposed that on the same day accused led to the recovery of blood‑stained hatchet P.4 which was secured vide memo. Exh.P.D. P.W.5 Ghulam Ahmad is the complainant and he supported his version appearing in complaint Exh.P.E. P.W.6 Sultan Muhammad is an eye witness of the occurrence and has supported the prosecution version as given by Ghulam Ahmad complainant P.W.5. He further stated that he had identified the dead body at the time of post‑mortem examination P.W.7. Dr. Muhammad Ishfaq deposed that on 27‑2‑1993 at 7‑00 a.m. he conducted the post‑mortem examination of Muhammad Khan and found following injuries on his person:‑‑ (1) An incised wound 1-1/2" x 1‑1/2" on the right side of the skull with obvious fracture of the right parietal bone 5" above the right ear. (2) A lacerated wound 3‑1/2 x 2" on the back of the right side of the skull with obvious fracture of the occipital bone, with meningies denuded. It was two inches away from the right ear. In his opinion the cause of death was due to shock, haemorrhage, and damage to the skull, brain, and membranes, i.e. the vital organs of the body as a result of injury No.2 he further stated that injuries Nos.l and 2 were grievous while injury No.2 was dangerous to life and was sufficient to cause death in the ordinary course of nature. He stated that after the post‑mortem examination he handed over the dead body to Manzoor Hussain Constable (P.W.2) alongwith last‑worn clothes of the deceased. He produced post‑mortem examination report Exh.P.F. and sketch of injuries Exh.P.F./1. P.W.8 Allah Bux, S.‑I. is the Investigating Officer whose evidence has already been discussed above. Learned A.D.A. produced the Report of Chemical Examiner Exh.P.I. and that of Serologist Exh.P.K. and closed the case of prosecution vide his statement, dated 28‑6‑1993.

8. While examined under section 342, Cr.P.C. accused denied all the incriminating circumstances appearing against him in prosecution evidence and stated that deceased was murdered when he was all alone and nobody saw him being murdered and he had been implicated due to enmity and suspicion. He neither chose to produce any defence evidence nor examined himself under section 340(2), Cr.P.C.

9. After going through the evidence produced by the parties, the trial Court convicted and sentenced the appellant/accused vide judgment under appeal.

10. We have heard the learned counsel for the parties and have gone through the record with their assistance.

11. Learned counsel for the appellant/accused has laid much stress on the factum of going of complainant as well as of deceased, for offering their Jumma prayer at Quaidabad. His contention is that when various mosques were available in village Warrchha, there was no reason of going of complainant and of deceased to Quaidabad for offering their Jumma prayer. He next argued that as per admission of Ghulam Ahmad (P.W.5) they had gone by foot and had also returned by foot. His contention is that when buses were plying in between village Warrchha and Quaidabad situated at a distance of about 8 miles the question of going by foot does not appeal to reason fie, thus, submitted that the very going and returning of complainant as well as Muhammad Khan deceased is not free from doubt. He next contended that as per F.I.R. Exh.P.E. the presence of one Sultan Ahmad son of Sher Muhammad has been shown at the place of occurrence. However, Sultan Ahmad son of Sher Muhammad has not been examined whereas Sultan Muhammad son of Sher Muhammad has been examined as P.W.6. His contention is that Sultan Ahmad son of Sher. Muhammad disclosed in F.I.R. Exh.P.E. is another person whereas Sultan Muhammad son of Sher Muhammad examined as P.W.6 is son‑in‑law of complainant. That Sultan Muhammad son of Sher Muhammad (P.W.6) has been substituted in place of Sultan Ahmad son of Sher Muhammad who had refused to depose in favour of prosecution. He further contended that had Sultan Muhammad son of Sher Muhammad son‑in‑law of complainant been present on the spot alongwith Mst. Kamal Khatoon and Mst. Nazir Khatoon daughter and daughter‑in‑law of the complainant, he must have specifically disclosed his relationship with Sultan Ahmad son of Sher Muhammad as his son‑in‑law. That non‑mentioning of relationship with Sultan Ahmad son of Sher Muhammad clearly shows that it was some other Sultan Ahmad son of Sher Muhammad than Sultan Muhammad son of Sher Muhammad who has been examined as‑P.W.6. Tie thus, submitted that if the statement of Sultan Muhammad P.W.6 is excluded from consideration there remains the solitary statement of Ghulam Ahmad P.W.5 which in absence of any independent corroboration cannot be made base for passing an order of conviction. He next argued that as per contents of F.I.R. Exh.P.E. the appellant/accused suspected the deceased to be responsible for the desertion of his wife so it afforded a reasonable cause and that can be considered a mitigating circumstance for at least awarding lesser punishment. He, thus, submitted that prosecution has failed to establish its case against the appellant beyond any reasonable doubt and in the alternative appellant/accused is entitled to lesser punishment and prayed that sentence awarded be altered to imprisonment for life.

12. Conversely the judgment under appeal has been supported by the learned counsel for the State. It is argued that a specific part has been attributed to the appellant/accused and the question of substitution does not arise as the appellant/accused is son‑in‑law of the complainant and the question of his mistaken identification also does not arise. It is further argued that no father‑in law would involve his son‑in‑law falsely in a case of this nature as it will definitely affect the future life of his daughter. It is further argued that prosecution evidence has been thoroughly discussed by the lower Court and there is nothing on the record to discredit the same.

13. According to the contents of F.I.R. Exh.P.E. the complainant alongwith his son Muhammad Khan were returning from Quaidabad after offering their Jumma prayer. They were waylaid by Khan Muhammad son of Yar Muhammad‑appellant/accused who being armed with hatchet raised Lalkara that Muhammad Khan will not be allowed to go alive for disallowing his wife to live with him. The occurrence is stated to have taken place at about 3‑00 p.m., so the question of substitution and mistaken identification does not arise. The statement of Ghulam Ahmad (P.W.5) stands fully corroborated by the statement of Sultan Muhammad (P.W.6). Learned counsel for the appellant/accused has laid much stress on the statement of Sultan Muhammad (P.W.6) and has tried to show that he was not present at the spot. His contention is that it was some other Sultan Ahmad son of Sher Muhammad who was present at the spot and as he refused to support the prosecution, so he was replaced by Sultan Muhammad (P.W.6), a son‑in‑law of the complainant. The mere fact that name of Sultan Ahmad son of Sher Muhammad has been mentioned in the F.I.R. Exh.P.E. does not mean that it was not Sultan Muhammad son of Sher Muhammad who has been examined as P.W.6. If Sultan Ahmad son of Sher Muhammad was another person than Sultan Muhammad son of Sher Muhammad (P.W.6), what prevented the defence to produce that man in his defence. Admittedly neither the appellant/accused produced any defence evidence nor even recorded his own statement under section 340(2), Cr.P.C. This fact alone is sufficient to discard the stand of the defence that Sultan Muhammad (P.W.6) was not the person who was present at the time of occurrence. Again it does not appeal to reason that father of deceased would leave the real culprit and would substitute a person, who is no less than his own son‑in‑law. False substitution and implication is not rare commodity. But facts of each case have its own importance. In the instant case the son of complainant has been murdered at the hands of his own son‑in- law. Under peculiar circumstances of this case it cannot be said that a father would implicate his son‑in‑law falsely for the murder of his son and thereby would deprive his daughter of the love and affection of her husband. Thus, the contention of the learned counsel for the appellant/accused regarding false involvement of the appellant/accused hardly carries any weight. Similarly the contention regarding substitution of Sultan Muhammad (P.W.6) in place of Sultan Ahmad son of Sher Muhammad also does not ring true and is devoid of any force.

14. The appellant/accused has committed the murder of Muhammad Khan by inflicting two hatchet blows on his head resulting into his death. The appellant/accused is responsible for this pre‑planned callous murder of the deceased and has rightly been convicted and sentenced vide judgment under appeal. We do not find any force in the arguments advanced by the learned counsel for the appellant/accused and consequently dismiss the appeal,

15. Death sentence is confirmed H.B /K‑74/L Appeal dismissed