1988 PLP 1774 (MLD)

MUHAMMAD MUNIR KHAN, J.‑‑This Criminal Appeal No. 95 of 1986 and connected Murder Reference No. 1 of 1987 arise from the judgment of learned Sessions Judge, Bahawalpur whereby he on 27‑70‑1986 convicted Ghulam Haider (27) and Muhammad Afzal (22), appellants under section 302/34, P.P.C. for the murder of Ghulam Qadir‑(45) and sentenced them to death and a fine of Rs.5,000 each, in default there of one year R.1. each with the direction that the fine if recovered be paid to the legal heirs of the deceased as compensation: We propose to dispose of them through single judgment.

2. The occurrence took place on 26‑1‑1986 at 7‑00 p.m. in a field within the area of village Sangar Wahin, 15 k.m. from Police Station Ahmadpur East. F.I.R. Exh. P.C. was lodged by Ghulam Nabi P.W.6, brother of the deceased on the same day at 9‑15 p.m. and was recorded by Khadim Hussain, Inspector, P.W.9.

3. Muhammad Afzal appellant is son of maternal‑cousin of father of Ghulam Haider appellant. Ghulam Haider appellant is the real nephew of the deceased. Muhammad Afzal appellant is brother‑in‑law of the deceased. The background of the occurrence alleged was that two days before the occurrence Ghulam Haider and Muhammad Afzal appellants came to the house of Ghulam Qadir deceased. Ghulam Nabi complainant was present there. Ghulam Haider appellant asked the deceased for the hand of his daughter Mst. Faiz Mai for him. Muhammad Afzal appellant supported the demand of Ghulam Haider. Ghulam Qadir deceased refused to marry his daughter with Ghulam Haider and turned the appellants out of his house. On this the appellants threatened to take revenge of their insult and disgrace.

4. As for the main occurrence, it has been stated that at the eventful time ,Ghulam Nabi complainant, P.W.6, Abdul Azir, P.W.7, son of the deceased and Zulfiqar (not produced) were watering their lands near the place of occurrence. The alarm raised by Ghulam Qadir deceased attracted them to the spot. They saw the appellant giving injuries with their hatchets to the deceased. When they tried to go near the appellants: threatened them with dire consequences and ran away taking their weapons with them. Ghulam Qadir succumbed to the injuries within 5 minutes.

5. On 17‑1‑1986 Dr, .Shabbir Ahmad P.W. 8 conducted post‑mortem examination on the dead body of Ghulam Qadir. He found following injuries:‑‑ (1) An incised wound over centre of top of skull 8 x 3 x 2 c.m. skull bone was fractured. (2) An incised wound over right side of skull 2 x 2 x 1 c.m. (3) An incised wound over left side of face from pinna of left ear to angle of mouth. 13x 13 x 3 c.m. Manbible bone was fractured. (4) An incised wound over right eye-brow 3 x 2 x 2 c.m. (5) An incised wound over right side of face 3 x 2 x 2 c.m. (6) An incised wound over left side of neck transversely 8 x 2 x 2 c.m. (7) An incised wound over left side of neck below the angle of mandible, 5 c.m. above injury No. 6, extending from space below the left ear to the left side of thyroid cartilage, measuring 14 x 2 x 5 c.m. Major vessels of left side of neck and left side of body of 3rd cervical vertebra was cut. (8) An incised wound over left shoulder 10 x 4 x 1 c.m. (9) An incised wound over left lower fore‑arm 8 x 3 x 2 c.m. (10) An incised wound over right thumb 7 x 2 x 5 c.m. Thumb is almost amputated. (11) An incised wound over right middle finger 2 x 1 x 1 c.m. on palmer side, middle phalanx. Bone of the finger is cut and fractured. (12) An incised wound over mid scapular region 4 x 1 x 1 c.m. (13) An incised wound over back in centre 7 c.m. below injury No. 12, measuring 9 x 2 x 1 c.m. (14) An incised wound over left thigh in front 5 c.m. above the left knee measuring about 7 x 2 x 2 c.m. (15) An incised wound over left buttock 7 x 2 x 2 c.m. (16) An abrasion over right knee joint covered with sand. Injuries Nos.1 to 15 were caused by sharp‑edged weapon and injury No. 16 by blunt weapon all the injuries were ante‑mortem in nature." On internal examination, he found fracture of skull below in3ury No.

1. There was fracture of left mandible bone below injury No.

3. Cut fracture of 3rd cervical vertebrae below injury No. 7 membranes and outer portion of brain matter was cut below injury No.

1. In his opinion, the cause of death was haemorrhage and shock. Injury 1ro. 7 was sufficient to cause death in the ordinary course of nature. Injuries Nos. 1 to, 15 were caused by sharp‑edged weapon. Injury No. 16 was result of blunt weapon. All the injuries were ante‑mortem. Probable time between injury and death was about 1 to 5 minutes and between death and post‑mortem was 13 to 16 hours.

6. The appellants were arrested by Khadim Hussain Inspector, P.W. 9 on 27‑1‑1986. At the time of arrest Muhammad Afzal was wearing blood‑stained shirt Exh. P. 7 and Shalwar Exh. P.8, which were taken into possession vide memo. Exh. P.E. attested by Ghulam Nabi P.W. 6 and Abdul Aziz P.W.7. Ghulam Haider appellant was wearing blood‑stained shirt Exh. P.9 and Shalwar Exh. P.10 which were taken into possession vide memo. Exh. P.F. attested by the same witnesses. On the same day Ghulam Haider appellant led to the recovery of blood‑stained hatchet Exh. P.4 from his house which was taken into possession vide memo. Exh. P.G. attested by the same witnesses. On the same day Muhammad Afzal appellant led to the recovery of blood‑stained hatchet Exh. P. 5 from his house which was taken into possession vide memo. Exh. P.H. attested by the same witnesses. The memoranda were prepared by Khadim Hussain Inspector P.W.9. The Serologist Report Exh. P.Q. shows that the blood‑stained clothes Exh. P.7 to Exh. P.10 and blood‑stained hatchets Exhs. P. 4 and P.5 were stained with human blood.

7. To prove its case, prosecution produced 9 witnesses Ghulam Nabi P.W.6 End Abdul Aziz P.W.7 have given the ocular account of the occurrence. They supported the prosecution version of the main occurrence in material particulars. Ghulam Nabi P.W. supported the alleged motive for the murder of the deceased. Ghulam Nabi, Abdul Aziz P.Ws. and Khadim Hussain, Inspector, P.W. 9, supported the recoveries of the blood‑stained clothes of the appellants and blood‑ A stained hatchets Exhs. P. 4 and P. 5 from them. Dr. Shabbir Ahmad P.W.,8 has proved the post‑mortem examination report of the deceased. Serologist report Exh. P.Q. shows that the clothes as well as the weapons of offence were stained with human blood. The rest of the evidence is more or less of formal nature.

8. When examined under section 342, Cr.P.C. the appellants denied all the incriminating circumstances. They raised the plea of false implication due to enmity. They refused to give evidence on oath in disproof 4 the charges against them. They did not produce any evidence in defence.

9. Believing the motive, ocular evidence, medical evidence and the incriminating recoveries, the trial Court has convicted and sentenced the appellants as stated above.

10. Learned counsel for the appellants has not challenged the conviction oft the appellants under section 302/34, P.P.C. He requested for reduction in sentence on the grounds that it was not known as to who had caused the fatal injury to the deceased and that the deceased had not only refused to give hand of his daughter to Ghulam Haider who was closely related to him but had also turned them out of his house disgracefully. So, the deceased was killed under provocation learned counsel for the State has fully supported the sentence awarded by the trial Court.

11. Although the learned counsel for the appellants has not challenged the conviction under section 302, P.P.C., yet we have reviewed the entire evidence that has been produced by the prosecution, the statements made by the appellants under section 342, Cr.P.C., and the circumstances appearing in the case, carefully. On our independent assessment of the evidence and the circumstances of the case, we feel that no exception can be taken to the conviction of the appellants and as such, the learned counsel for the appellants has rightly not challenged the same. The occurrence took place at 7‑00 p.m. on 26‑1‑1986 and the F.I.R. lodged at 9‑15 p.m. on the same day. There is nothing in evidence to show that the F.I.R. was not recorded. at the time and place as it purports. It was not suggested to the complainant and the Investigating Officer that the F.I.R. was recorded after preliminary investigation. The F.I.R. contains the names of the appellants, the names of the eye‑witnesses, the weapons carried by the appellants and the part played by them in the occurrence. No doubt, Ghulam Nabi P.W.6 and Abdul Aziz P.W. 7 being brother and son of the deceased respectively are related witnesses but their statements cannot be rejected on the sole ground of this relationship. They have no enmity against the appellants to involve them falsely in the case. The appellants are also closely related to them. They have given plausible cause of their presence near the spot at the time of occurrence. They have successfully faced the test of cross‑examination. Their statements are in consonance with probabilities and materially fit in with the circumstances of the case. We do not see any infirmity in their evidence. The learned counsel has not criticised their statements and rightly so. It seems to us that the two eye‑witnesses are absolutely dependable. Recovery of blood‑stained clothes of the appellants and blood stained hatchets from them supported by Ghulam Nabi P.W. 6 and Abdul Aziz P.W. 7 whom we have already declared worthy of credence, fully connects the appellants with the murder of the deceased. The motive was seriously questioned in cross‑examination of Ghulam Nabi P.W.

6. For all these reasons, we are convinced that the appellants have rightly been convicted under section 302/34, P.P.C. for the murder of Ghulam Qadir.

12. This brings us to the question of sentence. We have carefully considered this question in the light of the arguments of the learned counsel for the appellants. The appellants had caused as many as 16 injuries on various parts including vital parts of the body of the deceased such as head, face and neck. Skull bone, left mandible bone and cervical vertebrae were fractured and outer portion of brain matter was also cut. It was a pre-planned murder. Both the appellants had caused injuries with their hatchets on the person of the deceased. In this view of the matter, the submission that it was not known as to who had caused fatal injury No. 7 becomes wholly immaterial, even for the purpose of sentence. In our society, the demand of hand of girl by a person for himself is looked upon by relations and in particular the parents of the girl with great disapproval and resentment. So, there was nothing wrong in the deceased in turning the appellants out of his house when Ghulam Haider demanded the hand of his daughter for himself from him. So, it cannot be said that the appellants had killed the deceased under provocation. The submission, made by the learned counsel do not constitute any valid mitigating/extenuating circumstance for lesser penalty. In pursuance of the above discussion, the appeal is dismissed in toto. The sentence of death warded to appellants by the trial Court is confirmed. M.Y.H./G‑171/L Death sentences confirmed.