1994 PLP 2054 (MLD)

Mumtaz alias Mutti alias Nawab son of Muhammad Yar was tried by the learned Additional Sessions Judge, Bahawalpur alongwith his acquitted co' accused Muhammad Amin, Sher Khan, Fayyaz, Munawar Khan and Muhammad Yar for the murder of Mst. Allah Bakhshai and Ahmad Nawa5'brother of the complainant Allah Dad (P.W.6) and was convicted and sentenced under section 304, Part II, Y.P.C. to undergo 7 years' R.I. and a fine of gs.3,000, in default whereof to suffer one year R.I. He was also extended the benefit of section 382-B, Cr.P.C. To assail his conviction and sentence he has come up in appeal.

2. The prosecution case in brief is that the F.I.R. Exh.PJ/1 was recorded on 9-5-1989 at 6-30 p.m. at Police Station Qaimpur on the complaint of P.W.6 Allah Dad recorded by P.W.9 Muhammad Mansha, A.S.I. to the effect that he was resident of Chak Islamabad, Mauza Karampur, Chah Sharianwala and at about 11/12-00 p.m. (night) he alongwith Ahmad Nawaz deceased, his brother, Muhammad Aslam (P.W.7) and Muhammad Hussain alias Mamla P.W. (given up) were proceeding from Chah Sharianwala to Chah Tahliwala and when they reached Basti Adamabad in front of the house of Muhammad Hussain Ghulam on the roadside, Mumtaz appellant armed with an iron handle, Munawar Khan, Muhammad Yar, Muhammad Amin, Sher Khan and Fayyaz (acquitted co-accused), all armed with Sotas, reached and caught hold of Ahmed Nawaz deceased and dragged him to the house of Muhammad Hussain. The appellant had given blow with iron handle of hand pump on the head of Ahmad Nawaz deceased and co-accused Munawar Khan inflicted Sota blow on his head, on which the deceased fell down. Co-accused Muhammad Yar, Fayyaz, Muhammad Amin and Sher Khan tied his hands and thereafter gave injuries with Sotas and iron handle. Ahmad Nawaz succumbed to his injuries at the spot and thereafter the appellant stated that Mst. Allah Bakhshai, his wife, be brought and be killed and in this way they would be saved. Thereafter the accused dragged Mst. Allah Bakhshai from the house of her father Muhammad Hussain and caused injuries on her with Sotas and iron handle, who also died at the spot. The P.Ws. had witnessed the occurrence. The motive behind the occurrence was that the accused suspected illicit liaison between the deceased. On the alarm of the complainant, P.Ws. reached and the accused escaped. Leaving behind P.Ws. to guard the dead bodies, the complainant reached the police station and lodged the F.I.R.

3. The appellant alongwith his co-accused were challaned and sent up for trial. Charge under sections 148, 364/149, 302/149 and 302/149, P.P.C. on two counts was framed, to which they denied and claimed trial.

4. The prosecution examined 11 P.Ws. in all to substantiate its case. P.W.6 Allah Dad complainant narrated the facts mentioned by him in the F 1 R? Exh.PJ/1. P.W.7 Muhammad Aslam supported his statement. They stated the ocular account as well as the motive behind the occurrence. The appellant was arrested on 10-5-1989 by P.W.10 Muhammad Sarwar Inspector, and the same day he led to the recovery of iron handle smeared with blood P

8. P.W.10 secured the same vide memo. Exh.PE attested by P.W.5 Muhammad Jamil and P.W.10 Muhammad Sarwar Inspector. The reports of the Chemical finer and that of the Serologist Exhs.PN and PO were positive.

5. The medical aspect of the case was furnished by Dr. Muhammad Igbal Javed (P.W.8) who conducted autopsy on the dead body of the deceased Ahmad Nawaz and found the following injuries on his person:

(1) Large lacerated wound measuring 10 c.m. x 2 c.m. x bone deep with depressed skull fracture and brain matter coming out situate on the occipital region near the vertex with friction of the wound specially. (2) Lacerated wound measuring 5 c.m. x 2 c.m. situate in left parietal region near middle line. It was bone deep with depressed fracture brain matter coming out. The wound is set antero posteriorly. (3) Lacerated wound measuring 6 c.m. x 2 c.m. deep with brain matter coming out on right parietal region near vertex and is set obliquely. (4) A lacerated wound 6 c.m. x 2 c.m. x scalp deep situate on right side of injury No.l set obliquely. (5) A contusion measuring 3 c.m. x 1 c.m. situate on the lateral half of right clavicular region. On exploration right clavicle was fractured in middle 1/3. (6) Multiple abrasion situate on the posterior aspect of right elbow covering on area of 3 c.m. x 3 c.m. with variable distance in between. (7) An abrasion measuring 2 c.m. x 1 c.m. situate on the aspect of right forearm in its middle 1/3 on radial side. (8) A circular collar of abrasion with variable distance in between on left wrist-joint. ?The Doctor opined that all the injuries were ante-mortem and caused by blunt weapons. Injuries Nos.l to 5 were caused by heavy blunt weapons and the others by light blunt weapons and frictions. Injuries on the skull namely Nos.1, 2 and 3 caused damage to the vital organ (brain) with haemorrhage leading to hypovolumic shock which was sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was within few minutes and between death and post-mortem within 24 hours. P.W.8 Dr. Muhammad Iqbal Javed also conducted autopsy on the dead body of Allah Bakhshai on the same day and found the following injuries on her person:

(1) Large lacerated wound measuring 10 c.m. x 2 c.m. x bone deep with depressed fracture and brain matter coming out on right parietal region. (2) Lacerated wound measuring 4 c.m. x 2 c.m. bone deep with depressed , fracture on left parietal region. (3) Bruise 2 c.m. x 1 c.m. on right cheek below right eye. (4) Lacerated wound measuring 1 c.m. x 1 c.m. on left side of forehead above the left eye-brow. It was scalp deep wound. In his opinion, Injuries Nos.1 and 2 were caused by heavy blunt weapons and Injuries Nos.3 and 4 were caused by light blunt weapons. All the injuries were ante-mortem. Injuries Nos.1 and 2 caused brain damage (vital organ) and shock, which was sufficient to cause death in the ordinary course of nature. The time between injuries and death was within few minutes and between death and post-mortem was within 24 hours. 6, The appellant when examined under section 342, Cr.P.C. denied the prosecution evidence against him and in answer to a question "Why this case against you and why the witnesses have deposed against you?" he stated that the witnesses had deposed falsely due to close relationship with the deceased. None of them was present at the time of occurrence as they reside at a distance of more than one K.M. from the spot. He did not make statement on oath as envisaged under section 340(2), Cr.P.C. but produced D.W.1 Muhammad Bakhsh who stated that he had seen the appellant armed with iron handle (Hatti) and inflicting injuries to one Doltana. He also killed his wife Mst. Allah Bakhshai and at that time Muhammad Aslam (P.W.7), Allah Dad complainant (P.W.6) and Muhammad Hussain alias Mamla P.W. (given up) were not present at the spot. The police reached the spot and arrested the appellant. He had stated the facts before the police. The appellant also made written statement Exh.DC in which he stated that:

"Mst. Allah Bakhshai deceased d/o Muhammad Hussain by caste Ghulam, was his legally-wedded wife; who had developed illicit liaison with Ahmad Nawaz deceased. During the days of occurrence, she was putting up in her father's house. On 8/9-5-1989 at 10/11-00 p.m., he saw from the house of his uncle adjacent to the house of Muhammad Hussain; that Ahmad Nawaz deceased took Allah Bakhshai from the courtyard inside the Kotha for `Zina'. On seeing this, he was highly enraged, lost power of self-control, took up an iron handle (Hatti) and rushed to the house of Muhammad Hussain, knocked at the door raising `Lalkara' to Ahmad Nawaz and Allah Bakhshai. That Ahmad Nawaz deceased unbolted the door and came outside to flee from the place; when he in a fit of'grave and sudden provocation inflicted blows to deceased with iron handle, bringing him low on the ground. In the meanwhile, Mst. Allah Bakhshai rushed outside and when intervened to save her paramour he dealt injuries to her also, with iron handle due to `Ghairat' and both died on the spot. That his co-accused were not present at the spot nor they caused any injuries to both deceased. On the following day, i.e. 9-5-1989 at Fajarwela, Muhammad Hussain, his father-in-law, informed the police about the incident. He produced iron handle to A.S.I. on the spot and narrated the said facts; that the co-accused have been implicated falsely, on the behest of Shah Nawaz Pirzada of Sheikh Wahin and in connivance with the police."

7. It is a two-version case. The appellant raised a specific plea i.e. that he had witnessed the deceased together inside the Kotha for the purpose of Zips He was highly enraged and lost his power of control, took up an iron handle (Hatti), rushed to the house of Muhammad Hussain and knocked at the door raising Lalkara. Ahmad Nawaz deceased unbolted the door and came outside to run away from the spot, when the appellant in a fit of grave and sudden provocation inflicted iron handle on him. Meanwhile Mst. Allah Bakhshai deceased rushed outside and intervened to save her paramour and due to Ghairat he also inflicted iron handle blow on her and she also died at the spot.

8. P.W.6 Allah Dad complainant and P.W.7 Muhammad Aslam also stated the motive behind the occurrence as narrated in the F.I.R. Exh.PJ/1 that the appellant suspected illicit liaison between the deceased persons. The prosecution version was totally disbelieved in its entirety by the trial Court and the plea of the appellant was accepted in toto. The deceased were done to death by the appellant when they were found together by him. The motive of the occurrence as stated by P.W.6 and P.W.7 was that the appellant suspected illicit liaison between both the deceased. The occurrence took place at mid-night. The appellant had seen them in the Kotha of the house of Muhammad Hussain alias Manila father of Mst. Bakhshai deceased. The appellant under grave and sudden provocation took an iron handle of a hand pump and killed both of them. The plea raised by the appellant is spelt out from the evidence on record and the circumstances appearing in the case and the same was satisfactorily explained by him. The trial Court rightly accepted the plea raised by the appellant.

9. It is surprising that the trial Court convicted the appellant under section 304, Part II, P.P.C. on one count only. The learned counsel for the appellant has accepted notice that why the appellant should not be convicted for the second count also.

10. Pursuant to the above discussion, I am of the view that the appellant had committed an offence under section 304, Part I, P.P.C. and accordingly he is convicted thereunder on two counts for causing the murder of Ahmad Nawaz and Mst. Allah Bakhshai deceased and the sentences shall run concurrently with benefit of section 382-B, Cr.P.C. The learned counsel for the appellant has prayed for leniency in the matter of sentence. The State has neither filed any appeal or revision, nor the complainant has preferred revision against the impugned judgment. The appellant was arrested on 10-5-1989, and since then 5 years has passed. I am of the view that the period already undergone by him in jail shall meet the ends of justice. The appellant shah however, deposit a fine of Rs.5,000 on each count and in case of default in its payment, he shall suffer 3 months' R.I. on each count. The appellant shall deposit the amount of fine in the trial Court within one month. Order accordingly' N H.Q./M-1685/L?????????????????????????????????????????????????????????????????????????????? Order accordingly.