2013 P Cr (PLP)

SH. NAJAM UL HASAN, J.

Muhammad Mansha appellant along with Muhammad Ansar and Mst. Shazia Bibi co-accused were tried by a learned Additional Sessions Judge, Wazirabad in case F.I.R. No.166 dated 7-6-2005 under section 302/34, P.P.C. registered at Police Station Sadar Wazirabad. At the conclusion of trial, the trial Court vide judgment dated 1-12-2006 acquitted co-accused of Muhammad Mansha appellant whereas the appellant was found guilty of the offence of qatl-e-amd of Mudassar Iqbal and consequently convicted under section 302(b), P.P.C. and sentenced to death. He was further directed to pay Rs.1,00,000 as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased or to further undergo six months' S.I. Feeling aggrieved of the conviction and sentence. Muhammad Mansha has filed Criminal Appeal No.1897 of 2006 whereas the State has approached this Court by way of Murder Reference No. 101 of 2007 seeking confirmation of death sentence upon the convict. Both these matter being interconnected, are disposed of together through this single judgment.

2. Occurrence in the present case took place on 7-6-2005 at 1-30 p.m. in the house, of the Muhammad Mansha appellant/accused party situated in Village Bharo Ke Cheema within the jurisdiction of Police Station Saddar Wazirabad, Distt. Gujranwala in which Hafiz Mudassar Iqbal, brother of Saif Ullah complainant (P.W.7) was killed allegedly by Muhammad Mansha, appellant and his co-accused, his sister Mst. Rehana Kauser was also injured. The occurrence was reported to the police by the complainant by way of statement (Exh.PC) on the basis of which formal F.I.R. (Exh.PC/1) was registered at 5-40 p.m. on the same day.

3. Narrating, the prosecution story in the F.I.R. (Exh.PC/1) the complainant alleged that his sister Mst. Rehana Kauser was married to Muhammad Ansar (acquitted accused) four years back but their relations were not cordial and the spouses remained quarrelling with each other. On the fateful day in the morning they quarrelled with each other and sister of the complainant informed him on telephone about the incident upon which the complainant along with his brothers Hafiz Mudassar Iqbal, Sami Ullah and cousin Ghulam Sarwar came to her house at Baro Ke Cheema (place of occurrence). It was alleged that the complainant party were present, in the house and conversation was going on with the accused party when suddenly the matter got flared up and Muhammad Sarwar (P.O.) raised a lalkara to kill the complainant party as they were interfering in their domestic affairs upon which Mst. Shazia caught hold of Mudassar Iqbal (deceased) from his hair. Thereafter Muhammad Mansha (appellant) gave a dagger blow on left side of his chest. He was followed by Ansar Mahmood who gave dagger blow on back side at right flank upon which he fell down. His sister Mst. Rehana Kauser tried to save her brother upon which she was given a dagger blow on right hand by Muhammad Mansha. Thereafter the accused persons fled away from the scene of occurrence. The complainant and others took. Mudassar Iqbal to the T.H.Q. Hospital Wazirabad wherefrom he was referred to D.H.Q. Hospital Gujranwala but he succumbed to injuries on the way to hospital.

4. Dr. Muhammad Safdar Sheikh (P.W.4) medically examined Mudassar Iqbal at 1-50 p.m. on 7-6-2005 who was brought by the police with the history of fight. The condition of patient was very serious. He observed following injuries on his person:-- (i) Incised wound, 3.5 x 2 cm x going deep on left upper chest middle portion, 2 cm of midline, 9 c.m from left nipple. (ii) Incised wound 4.5 cm. x 2 cm x going deep left low chest on the back. Corresponding cut was present on kameez. Both the injuries were found fresh and caused by sharp edged weapon. Condition of the patient was precarious as such he was referred to D.H.Q. Hospital Gujranwala. He, however, expired on the way.

5. Dr. Hafiz Muhammad Akram Gondal. (P.W.6) performed post mortem examination on the dead body of Hafiz Mudassar Iqbal and found following injuries. (i) Incised wound 3.5 cm x 2 cm x deep on left upper chest middle part, 2 cm from midline, 9 cm from left nipple. (ii) Incised wound 4.5 cm x 2 cm x deep right lower chest on the back. On dissection of the thorax and abdomen the doctor found walls, pleurae, left lung peritoneum, diaphragm, small and large intestines, liver and blood vessels injured. In the opinion of doctor both the injuries were ante mortem. grievous and fatal and individually sufficient to cause death in ordinary course of nature. Probable time between injuries and death was 1-1/2 hours and between death and post mortem about 3/4 hours.

6. On the same day at 5-00 p.m. this very doctor medically examined Mst. Rehana Bibi (P.W.8) and observed an incised sharp edged wound 2.5 cm x 1 cm x muscle deep on the base of right thumb outer aspect. In the opinion of the doctor duration of injury was within three hours and was declared as Ghayer Jaiffah Badiha.

7. Shaukat Ali, Sub-Inspector (P.W.11) conducted investigation of this case. After receiving information (Exh.PC) of the occurrence through the complainant and sending same to the police station, he proceeded to the spot and conducted formal investigation. He got conducted autopsy on the dead body. He arrested Muhammad Mansha, appellant and Muhammad Ansar co-accused on 19-6-2005. Muhammad Mansha made disclosure and then led to the recovery of Chhuri (P.7) which was taken into possession. He got declared Muhammad Sarwar proclaimed offender and submitted challan against the arrested accused.

8. At trial the accused were charge sheeted to which they pleaded not guilty and claimed trial. In order to prove its case the prosecution produced as many as 11 witnesses out of which Sail Ullah and Mst. Rehana Kauser provided ocular account. Dr. Muhammad Safdar Sheikh and Dr. Hafiz Muhammad Akram Gondal P.Ws. 4 and 6 provided medical evidence and Shaukat Ali, Sub Inspector proved investigation. At close of prosecution case the accused were examined under section 342, Cr.P.C. They denied and dismissed the prosecution evidence. To a question as to why this case against you and whey the P.Ws. have deposed against you, the appellant replied as under:-- "On 7-6-2005, a quarrel took place between Mst. Rehana Kauser and my brother Ansar. My brother gave beating to Rehana Kauser. She immediately contacted her brothers for the purpose of taking revenge from our family. The brothers of Rehana Kouser arrived in our house in aggressive mode. We made them to sit in the room to have a cool talk to settle down the dispute of the spouses. They were also served cold drinks by me. After sitting in the room, we started conciliation. In the meanwhile, Mudassar Iqbal deceased along with his two brothers went to the courtyard of the house and they remained there for some time. They returned back. Mudassar, the deceased threatened my brother Ansar Mehmood that he has made the life of his sister miserable and they would commit his murder and pieces of the dead body would be thrown in the river. Simultaneously, the deceased and other relatives dragged Anser accused outside in the courtyard and vaned beating him. I rushed to save my brother. They also started heating me. Then in order to save myself and my brother Ansar Mahmood, I took a kitchen knife lying nearby and used the same in our self-defence. As a result of the same, Mudassar Iqbal sustained injuries. Rehana Kauser was not present at that time and the females were present at the roof top for the purpose of preparing food for the guests. I have acted in the self-defence and not committed any offence." The appellant also produced Muhammad Azam, D.W.1 in support of his plea. The court also examined Muhammad Nawaz, D.S.P. as C.W.1. At the conclusion of trial, Muhammad Mansha appellant was convicted and sentenced whereas his co-accused were acquitted as noted above.

9. Learned counsel for the appellant states that this is a case in which occurrence took place in the house of the appellant. The deceased along with witnesses came to their house on their own. The occurrence took place at 1-00 p.m. in the broad-daylight and no reason for the appellant to kill the deceased was in existence. P.W.8 while appearing in Court has admitted that the deceased and the other witnesses came to their house and remained there for more than two hours when the matter was suddenly flared up and resulted in the occurrence in which the deceased later on died. Learned counsel states that both the parties are closely related. The only motive assigned by the prosecution was a dispute of Ansar Mahmood, co-accused, with his wife who was sister of the deceased. It is contended that even according to prosecution case the matter suddenly flared up and in the same only Chhuri was used which is usually available in the kitchen of the house. Only two injuries were inflicted on the person of the deceased. Learned counsel states that so far as injury on the person of Rehana P.W. is concerned that is self-suffered injury. The occurrence took place at 1-30 p.m. and Mst. Rehana was medically examined at 5-00 p.m. The doctor observed an incised wound and described the injury to have been inflicted within three hours. It is further contended that the doctor who prepared medical report has admitted that the injury could have been inflicted by friendly hand or could have been caused while working in the kitchen. The injury was simple in nature and as such does not lead to inference that the injured was present at the place of occurrence and received injury in the same occurrence. Learned counsel also contends that the appellant has taken a specific stance from the very beginning and later on C.W.1 appeared in Court and admitted that the version taken by the appellant was found correct during investigation. Learned counsel states that while disbelieving the eye-witnesses the learned trial Court has acquitted other three accused. Even Ansar Mahmood was acquitted who was assigned specific injury with the dagger on the flank of the deceased. It is contended that the eye-witnesses are not believed by the learned trial Court qua Ansar accused and he is acquitted, the appellant also deserves same relief. In the alternative learned counsel has contended that the sentence is too harsh. In the given circumstances there was no reason for the appellant to kill the deceased. Even according to the prosecution case apparently occurrence took place at spur of moment in heat of passion and as such there was no intention to kill him. therefore, the appellant was not liable to be convicted under section 302(b), P.P.C. rather he .can, at the most he convicted under section 302(c), P.P.C. Learned counsel has placed reliance on the case reported in Muhammad Ashraf v. The State (2007 YLR 493). Further states that as the motive part has not been properly proved, so the appellant is entitled at least to leniency in the matter of sentence. Lastly it is contended that the recovery has got no value in this case as the appellant has himself admitted the occurrence.

10. On the other hand learned Deputy Prosecutor-General assisted by learned counsel for the complainant, states that the occurrence was result of preplanned murder. Even in the defence version the intention to kill was developed at the spur of moment and thereafter the appellant went to his kitchen, picked up a knife and then killed the deceased. Even his own version clearly indicates that he developed intention to kill the deceased and normal penalty in such like cases is death. He further states that the witnesses are worth reliance. Presence of injury on the person of Mst. Rehana P.W.8 fully established his presence at the place of occurrence; that recovery of knife which was found to be stained with human blood fully corroborates the ocular account. Learned law officer contends that the witnesses are worth reliance, so the statement of accused has got no value. Even otherwise, if the accused has to bring his case under general exception then he has to prove the same. He has not bothered to entered the witness box under section 340(2) of Cr.P.C. Learned Law Officer further submits that opinion of police has got no value in absence of the material available on record in favour of the appellant. As such the appellant is not entitled to any leniency. Even otherwise, the defence version is not worth reliance because no injury on the person of any other inmate of the house was found. So no ground of self-defence is available in the whole prosecution case. It is contended that the story of self-defence was later on concocted just to save the other accused. The learned trial Court has rightly convicted and sentenced the appellant.

11. We have heard the learned counsel for the parties and have also gone through the record.

12. Admittedly, the occurrence took place at 1-30 p.m. in the bright day light. Both the parties are closely related. The deceased Hafiz Mudassar was brother of Mst. Rehana Kausar, wife of Ansar, co-accused. The main allegation against Mansha appellant was that of causing injury with a chhuri on the chest of the deceased; Ansar, the acquitted accused was also assigned the same role of causing injury with dagger on the flank of deceased. The injury on the thumb of Mst. Rehana Kausar P.W. was assigned to Mansha appellant. During investigation, two co-accused of appellant Mst. Shazia and Sarwar were found innocent. They faced the trial and were acquitted along with Ansar Mehmood co-accused by the trial Court. The appeal against their acquittal was later on dismissed. So the matter before us is in respect of Mansha appellant alone. The prosecution case is that there was some quarrel between Ansar, acquitted accused and his wife Mst. Rehana Kausar and for that she called her brothers on phone upon which her brothers Hafiz Mudassar (deceased), Saifullah, (complainant), Sami Ullah and her cousin Ghulam Sarwar came to the house of the appellant. It is the prosecution case that Mst. Rehana Kausar was already present in the same house. The complainant appeared as P.W.7 whereas Mst. Rehana Kausar and Sami Ullah appeared as P.Ws. 8 and 9 and all these witnesses supported the version of the F.I.R. They all admitted that the occurrence took place at a spur of moment in which the appellant and his co-accused gave chhuri blows to the deceased and when sister of the deceased tried to intervene, even she was given sharp edged weapon injury on her thumb. The occurrence took place at 1-30 p.m. The deceased was immediately shifted to the hospital at Wazirabad where he was medically examined and was referred to the Hospital at Gujranwala and he died on the way. In medico legal report, the doctor observed two sharp edged weapon injuries one on his chest and the other on his flank. So the medical evidence corroborate the ocular account the weapon, recovered from the appellant, kind of injury and seat of injury and even time of occurrence is established in prosecution case. Mst. Rehana Kausar P.W. was inmate of the same house, where occurrence took place. She was wife of Ansar co-accused and the sister of the deceased. She was medically examined by the doctor at Gujranwala at 5-00 p.m. The doctor observed that injury on her right thumb was muscle deep. The duration of the injury was described as within three hours. The occurrence statedly took place at 1-30 p.m. i.e. 3 and a half hours prior to medical legal examination. Needless to mention here that opinion of doctor regarding time between injury and the medical examination is always tentative in nature. Even otherwise there is nothing on record to indicate that her injury was self-suffered. The injury was on the outer side of the thumb. She was the inmate of the same house and rather she was the one who called the deceased and the witnesses at the place of occurrence. So her presence at the place of occurrence is but natural. It is the prosecution case that the deceased and the witnesses came to the house of the appellant as there was some dispute between Ansar acquitted accused and his wife Mst. Rehana Kausar, P.W. of this case, so in such circumstances, presence of this witness cannot be said to be unnatural. So this is a case in which the presence of witnesses, time of occurrence, kind of weapon and the involvement of the appellant is well established through natural and reliable evidence. The appellant got recovered a chhuri which was later on found to be stained with human blood. So even the recovery of crime weapon corroborates the ocular account. The motive part of the occurrence is duly mentioned in F.I.R. and even the defence has admitted that the deceased came; to their house at the instigation of Mst. Rehana Kausar and the occurrence started at the spur of moment. The appellant has taken a specific stance that he killed the deceased alone in the occurrence which started at a spur of moment and he used knife while picking the same from the kitchen of his house. This is not a case of premeditated murder and even the appellant has taken the plea of self-defence and has tried to bring his case under general exception. The appellant has produced D.W.1. Muhammad Azhar in support of his version who during cross-examination, admitted that at the time of occurrence, the deceased or the complainant were not having any kind of weapon admitted that it was the appellant who gave injuries with the knife on the person of deceased. DSP, Muhammad Nawaz appeared as C.W.1 and admitted that in his investigation, it was the appellant who was found involved in giving the injuries to the deceased. So, this is a case in which the involvement of the appellant for killing the deceased is fully established but the only difference is that the appellant has taken the stance that he acted in self-defence. We have observed that in whole evidence, it has come on record that the deceased complainant and the witnesses were not equipped with any weapon. They came to the house of the appellant to patch up the matter between husband and wife. The deceased come to the house of the appellant without having any kind of weapon or plan and remained in the house for two hours when suddenly the occurrence started. The defence version of the case is that the deceased was given two injuries with the knife by the appellant. Both the injuries were sufficient to cause death so no reason for causing second injury to the deceased is available in defence version. As stated above the deceased or the witnesses were not armed at the time of occurrence, so there was no reason for the appellant to kill the deceased. He gave two grievous injuries on the vital part of the body of the deceased which were found sufficient by the doctor to have caused death. So considering this aspect of the case, we do not think that there was any right to the appellant to kill the deceased. Presence of Mst. Rehana Kausar is well established from the presence of injury on her person and even otherwise, she is most natural witness being inmate of the house and wife of brother of the appellant. So we think in the given circumstances, the prosecution has established the case against the appellant beyond the reasonable doubt. The appellant has rightly been convicted by the learned trial Court under section 302(b), P.P.C.

13. All the witnesses have admitted that occurrence started at a spur of moment. Both the parties were sitting together and proceedings of reconciliation were in progress when suddenly, the matter flared up and the appellant gave injuries to the deceased with the chhuri and he died in consequences thereof. Ansar co-accused was also assigned the same role as that of the appellant and he was acquitted by the trial Court and even his appeal against acquittal was dismissed. So keeping in view these peculiar circumstances of the case and while considering that the occurrence was result of sudden flare up, we think the appellant deserves some leniency in his sentence. So accordingly his conviction under section 302(b), P.P.C. is upheld whereas sentence is converted to life imprisonment. Since the occurrence was result of sudden flare up, so compensation of Rs.25,000 will meet the end of justice and in default of said compensation, the appellant will have to undergo one month S.I. With this modification in the sentence, the Criminal Appeal No.1897 of 2006 is dismissed.

14. Since sentence of death has been converted to life imprisonment so there is no question of confirmation of the same. Murder Reference No.101 of 2007 is answered in negative accordingly. HBT/M-353/L Sentence reduced.