1994 P Cr (PLP)

Sakhi Ladha appellant son of Allah Wasaya, aged 24/25 years was tried by the learned Sessions Judge, Rahimyar Khan for the murder of Muhammad Arshad deceased, who vide his impugned judgment, dated 19-11-1989 convicted and sentenced the appellant under section 302, P.P.C. to undergo imprisonment for -life and a fine of Rs.10,000, in default whereof to suffer further R.I. for 2 years. The fine, if realized, was directed to be paid too the legal heirs of the deceased as compensation under section 544--A, Cr.P.C. The appellant was extended the benefit of section 382-B, Cr.P.C. He has come up in appeal to assail his conviction and sentence.

2. The prosecution case as unfolded in the F.I.R. Exh.P.G. recorded on the statement of P.W.8 Muhammad Aslam by P.W.12 Asghar Ali, S.H.O. is to the effect that he was resident of Chak No.204/P, Tehsil Sadiqabad, was a cultivator and was tenant of Ch. Muhammad Hanif, and near his house the appellant resided, who suspected that Muhammad Arshad deceased son of the complainant who was a student of VIIIth Class had illicit relations with Mst. Shahzadi, sister of the appellant. The complainant, many a time, stated before the appellant that it was incorrect that the deceased had illicit relations, but he was adamant and on the day of occurrence i.e. on 3-10-1987 at about 2-00 p.m. when the complainant was proceeding towards his house after purchasing essential articles from Mauza Khalti, his son Muhammad Arshad deceased, Zafar Iqbal (P.W.9), Mahmood Ahmad (P.W.10) and Habibullah P.W. (given up) from the school were returning to their houses, when they reached in the Jungle in the area of Mauza Khalti, suddenly the appellant emerged from a bush with a hatchet in his hand, raised Lalkara and ran after the deceased and at some distance inflicted hatchet blows on his neck one after the other. The deceased fell on the ground. The complainant with the help of P.Ws. tried to apprehend the appellant who threatened that if anybody would come near, he would meet the same fate, escaped from the spot. Muhammad Arshad deceased succumbed to his injuries. Leaving behind P.W.9 War Iqbal, P.W.10 Mahmood Ahmad and P.W. Habibullah (given up) to guard the dead body, the complainant reached Police Station Kot Sabzal and lodged the F.I.R. The appellant was challaned and sent up for trial. A charge under section 302, P.P.C. was framed to which he pleaded not guilty and claimed trial.

3. The prosecution examined 13 P.Ws. in all to substantiate its case. P.W.1 Dr. Tanveer Salim Bajwa on 3-10-1987 conducted autopsy on the dead body of Muhammad Arshad deceased and found the following injuries on his person: -- (1) Incised wound 4" x 1" on the left side of the head. Skin muscle bone was cut and brain was coming out. (2) Incised wound 4" x 1-1/2" on the left side of neck, 1/2" below left ear kin cut and mandible was cut. (3) Incised wound 3" x 1/2" on the left side of his neck 1" below injury No.2, Skin and muscles were cut. Carotid vessels were also cut. (4) Incised wound 6" x 2" x spine deep just above sternum transversely skin trachea, oesophagus, vessels on both sides and muscles were cut. and opined that the cause of death in this case was shock and haemorrhage due to injuries Nos.1 to 4 which were inflicted by sharp-edged weapon and were sufficient to cause death in the ordinary course of nature. The injuries were ante-mortem. The probable time that elapsed between injuries and death was immediate and between death and post-mortem examination was 16 to 20 hours. EXh.P.A. is the copy of post-mortem report.

4. P.W.8 Muhammad Aslam complainant, P.W.9 Zafar 1Qbal and P.W.10 Mahmood Ahmad stated the ocular account. P.W.11 Mian Nazar Muhammad had witnessed the recovery of blood-stained hatchet P.2 at the instance of the appellant. C.W.1 Ch. Muhammad Yaqoob, D.S.P. was also examined. The other witnesses were formal in nature.

5. The appellant when examined under section 342, Cr.P.C. denied the prosecution evidence against him and in answer to the question "Why the P.Ws. have deposed against you and why this case against you?" replied, "The prosecution version was concocted one. He was going to cut fuelwood. He had hatchet with him. He saw his sister Shehzadi with Muhammad Arshad deceased in an objectionable condition in cotton field. He caused the death of the deceased under grave and sudden provocation. Mst. Shehzadi escaped. He appeared before the police alongwith hatchet and informed the police. No P.W. was present. Muhammad Aslam (P.W.8) was the father of the deceased, whereas others were friends. He further stated that he was innocent". Neither he made statement on oath as envisaged under section 340(2), Cr.P.C. nor produced evidence in defence.

6. The learned trial Court after evaluating the evidence on record convicted and sentenced the appellant.

7. I have heard the learned counsel for the parties and have perused the record. The learned counsel for the appellant has vehemently contended that the P.Ws. had not witnessed the occurrence and the deceased was done to death by the appellant under grave and sudden provocation when he witnessed him in the company of his sister Mst. Shehzadi in the cotton crop field. The P.Ws. were not present and hatchet blood-stained P.2 had been planted on the appellant. The appellant had appeared himself before the police after commission of the offence.

8. P.W.8 Muhammad Aslam complainant narrated the facts mentioned by him in the F.I.R. Exh.P.G. P.W.9 Zafar Iqbal and P.W.10 Mahmood Ahmad also supported the statement of P.W.8 Muhammad Aslam. P.W.8 during cross- examination stated that he had moved an application to D.I: G. Police for transfer of the investigation, and his statement was recorded by D.S.P. under section 161, Cr.P.C. as well as the other witnesses. He also produced Muhammad Asghar, an eye-witness of the occurrence who was not examined as a P.W. He was confronted with his previous statement and made dishonest improvements wherein he stated before the D.S.P. that during the occurrence he had witnessed the appellant alongwith Maqbool, paternal-uncle of the appellant and Sallu, brother of the appellant armed with hatchets running from there. He had also not stated before the D.S.P. that he did not know what he stated before the police earlier as he was not in senses which was confronted with Exh.D.A. He had never applied to the higher authorities for transfer of the investigation conducted by the D.S.P., Haroonabad and he had not even filed private complaint against the remaining two persons. He further stated during cross-examination that five or ten days before the occurrence the appellant had started suspecting the deceased for carrying on with Mst. Shehzadi. He also refuted the suggestion that he was not present at the spot and the appellant witnessed his sister with the deceased in an objectionable position and caused his death under grave and sudden provocation. P.W.8 Muhammad Aslam is the father of the deceased, whereas P.W.9 Zafar Iqbal is the friend and a school-fellow of the deceased. He stated during cross- examination that he was examined by the D.S.P. where he stated that he did not know that the appellant suspected the illicit relations of his sister with the deceased, and the same was never told by the complainant to him. P.W.10 Mahmood Ahmad is a class-fellow of the deceased and also his school friend. During cross-examination he stated that he did not remember if he was examined by the D.S.P. and had not stated before the D.S.P. that the appellant had caused injuries to Muhammad Arshad deceased in his presence. He did not state before the D.S.P. that 3/4 unknown persons disappeared in the bushes after murdering Muhammad Arshad.

9. P.Ws.8, 9 and 10 stated that they had witnessed the appellant inflicting injuries to the deceased in their earlier statements, but later on they made dishonest -improvements in their statements before the D.S.P. and stated that they had witnessed three persons including the appellant running from the spot after infliction of the injuries to the deceased. P.W.8 Muhammad Aslam complainant who is father of the deceased, had at one stage disowned the contents of the F.I.R. Exh.P.G. recorded on his statement. The appellant is stated to be armed with a hatchet and if it is taken as it is, i.e. that the appellant was all alone and 3/4 eye-witnesses were present there but they never tried to apprehend the appellant. They were four in number and the appellant was single Banded, and they could easily apprehend or at least chase him for his apprehension. Muhammad Asghar, another eye-witness, named*by the eye witnesses before the D.S.P. was never examined.

10. The appellant was allegedly arrested by P.W.12 Asghar Ali, S.H.O. on 28-10-1987 i.e. after 25 days of the occurrence and he was alleged to have led to the recovery of blood-stained hatchet P.2 from the Jungle which was an open place. The appellant stated that on the very first day of the occurrence he himself voluntarily appeared before the police. P.W.11 Mian Nazar Muhammad, recovery witness, stated during cross-examination that his house was situated at a distance of 2/2-1/2 miles away-from the place of recovery, and the recovery was effected 5/6 days after the occurrence. He also stated that the appellant was arrested 5/6 days before the day of recovery. It clearly shows that the appellant was in police custody from the day of occurrence. No doubt reports of the Chemical Examiner Exh.P.J./1 and that of the Serologist Exh.P.K./1 are positive, but in the circumstances, the same have no evidentiary value. P.W.12 Asghar Ali, S.H.O./I.O. stated during cross-examination that at the time of arrest the appellant stated that he suspected illicit liaison between the deceased and his sister Mst. Shehzadi. F.I.R. Exh.P.G. recorded by P.W.12 Asghar Ali on the statement of complainant Muhammad Aslam (P.W.8) after an hour of the occurrence with promptitude clearly contains that the appellant suspected illicit relations between the deceased and his sister.

11. It is a two-version case, and placing the case of the appellant in juxtaposition with that of the prosecution, the Court has to see that if any possibility even remote exists about the correctness of the plea raised by the appellant. P.W.12 who on the spot prepared inquest report ExI1.P.C. has clearly mentioned that the deceased was bare footed and if the deceased was coming from the school, as stated by the eye-witnesses, then he should have been wearing shoes. No doubt P.Ws.8, 9 and 10 have denied the suggestion that the deceased was not done to death when he was seen in the company of Mst. Shehzadi by the appellant. The eye-witnesses made somersault in their statements and had also made embroidery, made dishonest improvements and if their statements are thrown away, the Court is left with the statement of the appellant only, which, in the circumstances, is to be believed in totality. The statements made by eye-witnesses P.W.8, P.W.9 and P.W.10 do not inspire confidence.

12. Pursuant to the above discussion, it is established and proved that the appellant is guilty of an offence under section 304, Part I, P.P.C. The appellant is in jail since his arrest on 28-10-1987 i.e. for a period of 6 years and 3 months as calculated by the learned counsel for the parties and I am of the view that 8 the period already undergone by the appellant in jail with a fine of Rs.10,000 in default whereof to suffer further R.I. for 2 years, shall meet the ends of justice. Order accordingly. N.H.Q./S-413/L Order accordingly.