1999 PLP 3305 (MLD)

(3) An abrasion 1 c.m. x 12 c.m. on left side of fore-head 2/1-2 c.m away from injury No. 2. (4) A stab wound 3 c.m. x 2 c.m. opening with clean cut margin 6 c.m. on superlateral on right side of the umblicus. Its depth was to be assessed on dissection. (5) A stab wound 4 c.m x 2 c.m opening size with clear cut margin 9 c.m on left side of umblicus. Its depth was also to be assessed on dissection. (6) A stab wound 2 c. m. x 1 /2 c. m. going deep upto subcutaneous fact when pulpated by finger. 16 c.m from umblicus on superlateral position on left side. (7) A stab wound 6 c.m. x 2 c.m going deep with clean margins on back of left side of the body. (8) A cut 1/1-2 c.m x 1/2 c.m on inner side of a root of left little finger Wound was skin deep. (9) A contusion mark 8 c.m. x 4 c.m on front and middle of right thigh. (10) A small amount of whitish discharge was present on tip of penis. On dissection he found no mark of ligature on neck. There was depressed fracture of skull of 2 c.m x 1/2 c.m corresponding to injury No.

2. There was linear fracture (opening of suture line between left frontal and left temporal bones) 8 c.m. in length which was corresponding to injury No.

1. About 30 M.L. of blood was present in cranial cavity on left side on opening of skull. Wound of injury No. 4 had got subcutaneous. All abdomen muscles, peritoneum, ascending colon, longitudinally 3 c.m. x 1 c.m cut on the under surface of the liver. Mesentary of the area with its vessels was also cut. Wound of injury No. 3 was so deep that it had cut all the layers of abdomen walls with 3 cuts at small intestines at different portions with all the mesentoric vessels which were bleeding. Wound of injury No. 7 was so seep that it cut all the layers of abdomen walls with cutting of left renal vessels and 2 c.m. x 1/2 c.m: sized cut in left kidney on its middle level at the level of left renal vessels. Peritonial cavity was full of blood. In the opinion of the Doctor injuries Nos. 1, 2, 3, 9 were caused with blunt weapon while injuries Nos. 4, 5, 6, 7 and 8 were caused with sharp edged weapon. The cause of death was due to head injury and severe bleeding leading into shock death. All the injuries were caused ante-mortem. The time between injuries and death was instantaneous and that between death and post-mortem examination was about 24 to 30 hours.

8. To prove the prosecution case they produced seven witnesses The break up of the prosecution evidence is as follows:-- Muhammad Azam complainant (P. W.1), Muhammad Aslam eye witness (P. W.2), Faiz Bakhsh Patwari (P. W.3), Dr. Muhammad Younas (P. W.4), Muhammad Rafique A S I Moharrir (P. W.5), Muhammad Rafique Constable (P. W.6) and Bashir Hussain S. I. (P. W.7). Riaz Ahmad an eye witness was given up while the reports of the chemical examiner and serologist were tendered in evidence. The accused Abdul Kareem and Muhammad Ramzan were examined under section 342 Cr. P. C and in answer to question No. 8 Abdul Kareem accused has made the following statement:-- "On 24-2-1989, I had lodged a criminal case against deceased Khuda Bakhsh at Police Station Shah Jamal under section 452, P. P. C. vide F. I. R. No. 28/89. Co-accused Muhammad Ramzan was the witness in that case. Khuda Bakhsh deceased was tied by both of us in our house. Deceased was an influential Zamindar and because of his fear we shifted from Chabhakpur to Shah Jamal town. Since the day we shifted, as stated above, Mst. Maqsood, my sister, also accompanied me and was residing in my house. I and my sister Mst. Maqsood used to live in Shah Jamal, but our relations were residing in village Chabhakpur. On the day of incident, a boy came at my shop and informed that an individual was present inside my house. I rushed upto the spot. I found that the door of the house was closed from inside but without any chain. I saw deceased Khuda Bakhsh committing Zina with my sister. On seeing this spactacle suddenly I went into rage under grave and sudden provocation and lost control over my nervous. I caught hold of Khuda Bakhsh from his hair and dashed his head against the wooden frame of the door. He fell on the ground but scuffled and caught hold of my legs pulling me down on the ground. There was fight between deceased Khuda Bakhsh and myself in the room. I was lying under him during the fight. Suddenly I could lay hand on a Chhuri lying nearby at Pathari (cooking place). I apprehended danger to my life as well and inflicted injuries on the person of the deceased for the reasons above. I gave blows on Khuda Bakhsh's flank and abdomen. My sister, in the meanwhile, found an opportunity and escaped from crime spot. Since' then, she is untraceable. I myself went to the police station alongwith the weapon of the offence. The incident was not witnessed by any one. Co-accused Muhammad Ramzan was also not present at the time of incident. Since the complainant party is quite influential, therefore, they have changed the place of incident and had also roped in the co -accused." He has also opted to produce defence evidence and to appear as his own witness on oath as required under section 340(2), Cr.P.C. While Muhammad Ramzan accused in answer to question No. 8 has stated as follows:-- "I am innocent. Since I was a P. W. against Khuda Bakhsh in a criminal case under section 452, P. P. C., I have been implicated in this false case though I am innocent. " And denied his presence at the spot.

9. Abdul Kareem accused in his defence has produced Mukhtar Hussain D. W.1 a Head Constable of Police Station Shah Jamal and has proved F. I. R. No. 28/89 dated 24-2-1989 under section 452, P. P. C. Exh. D C registered at the said police station on his statement. He has also appeared as his own witness and made a statement on oath and he has been subjected to cross-examination. Muhammad Ramzan accused declined to appear in the witness box and made a statement as required under section 340(2), Cr. P. C.

10. With the assistance of the learned counsel for the appellants I have gone through the entire evidence recorded during the course of trial and also have perused the appended document which are pertinent and relevant for a just decision in the instant case.

11. The learned counsel for the State besides controverting the arguments of the learned defence counsel has supported the judgment and prayed that the conviction and sentences awarded to the appellants be maintained as the medical evidence corroborated by the recovery evidence proves the veracity of the eye witnesses beyond reasonable doubt. From this point onwards the learned counsel for the complainant arguing the case for enhancement of sentence has emphasised that the motive in this case is established and strengthened by the statement of the accused. I am afraid this argument is neither tangible nor plausible as the prosecution has to stand on its own legs and prove its case beyond reasonable doubt. Statement of accused cannot be accepted piece meal neither it can be used to corroborate the prosecution case. Thus, it is very clear that in the present circumstances the motive does not stand proved beyond doubt. As far as the fact that whether the occurrence was committed by one person or two persons the learned counsel has argued that since the body of the deceased carried nine injuries which were caused by two different types of weapons clearly indicates that two persons had individually and independently used their weapons freely against the deceased and thus, participation of both the appellants is proved beyond doubt. For reasons, I am of the view that it is not a case where capital sentence can be awarded. Therefore, the revision petition is dismissed as having no force in limine.

12. The learned counsel for the appellants has emphasised that the defence version put forward by Abdul Kareem appellant is plausible, cogent and should be accepted in toto and that the sentence awarded to Abdul Kareem appellant does not commensurate with the offence committed and it is severe. That the case of Muhammad Ramzan appellant is distinguishable, he has been involved as he was witness 5n the case F. I. R. No. 28/89 lodged by Abdul Kareem appellant and that lie is innocent.

13. The ocular account and evidence of recovery of weapons is supported by Muhammad Azam P. W.1 son of the deceased and Muhammad Aslam P. W.2 nephew of the deceased. The admitted facts are that the deceased lived in Chah Kumharwala while the accused were residents of Mauza Chabakpur and both are separated by three squares distance. Further that Mauza Shah Jamal where the accused runs a shop is at a distance of about 3 1/2 k.m. from Chah Kumharwala. The eye-witnesses though related to the deceased yet have no reason to falsely implicate the appellants and that their evidence is also corroborated by the medical evidence even the weapons recovered were found stained with human blood. The version of the appellant Abdul Kareem indicates that the alleged occurrence took place at night time and that also in his house where Mst. Maqsood also resided with him where he alone committed the murder. When both versions are put in juxta position and tested on the anvil of evidence and circumstances the version of the accused reeks with infirmities and improbabilities and the surrounding circumstances do not lend it depth, and veracity. There is no evidence to show that the said occurrence ever took place as narrated by the accused. Till his statement in Court the accused had never raised this objection before any Investigating Officer or Court that the venue and time of occurrence had been changed. According to the doctor who performed the autopsy on 14-12-1989 at 11.00 A. M the death of the deceased was instant while the duration between death and post-mortem was 24 to 30 hours which commensurates with time of occurrence the eye-witnesses have narrated and does not lend any support to the version of the accused. To strengthen his stance he has produced Mukhtar Hussain D. W.1 to prove that he had lodged F. I. R. No. 28/89 on 24-2-1989 under section 452, P. P. C. against the deceased for having trespassed into his house and that he was caught red handed at the place of occurrence and indeed if the deceased was there he should have been done to death on that night but that did not happen and is a circumstance against the accused. Be that as it may, this case was investigated and in spite of the fact that the deceased accused was shown to have been caught at the spot yet this allegation was found incorrect and the case was reported for cancellation. Furthermore, the blood-stained earth has been collected from near the shop of Azhar Abbas mechanic and not from the house of Abdul Kareem. If the occurrence had taken place as the accused states then the deceased was on a wintry night in bed with a woman he liked enjoying having sexual pleasure, when he was taken unaware by the accused and done to death. This circumstance is again negated by the medical evidence because all the clothes were clad on the dead body when autopsy was conducted. All clothes were stained with blood and the clothes bore cut marks corresponding to the seat of injury and thus it is discernible that the deceased was clad in accordance with the season and was not in a state as the accused says. The whitish material on tip of the penis of the deceased was never analysed positively to be semen and thus in absence of any expert report it cannot be said to be that which the defence wants to be believed. Thus the only logical conclusion inferable which is corroborated by medical evidence, recovery evidence, ocular -evidence and the surrounding circumstances is that on the day of occurrence as the shop of Abdul Kareem appellant is near to the shop of Azhar Abbas mechanic both the appellants finding the deceased standing alone unarmed made an attack on him and caused his death there and then on account of the suspicion they carried in their minds.

14. Since the plea of the accused/appellants is not established nor has been accepted as discussed above. Thus believing the prosecution evidence adduced before the learned trial Court the case against the appellants is held to be proved beyond reasonable doubt. Therefore, there is no force in the appeal which is C hereby dismissed. The conviction and the sentences awarded to both the appellants are maintained. However, the benefit of section 382-B, Cr. P.C. which was not awarded to the appellants by the learned trial Court is extended to them through this judgment. The learned trial Court had inadvertently ordered the appellants to suffer 1/1-2 years imprisonment for making default in payment of compensation which is reduced to six months as provided by law.

15. The sentence of Muhammad Ramzan appellant was suspended by this Court vide order dated 20-1-1997. It is directed that he shall be taken into custody at once to serve out the remaining term of sentence. H.B.T./A-309/L Appeal dismissed.