2005 PLP 1866 (MLD)

SH. HAKIM ALI, J.

Conviction recorded and sentence. passed by learned Additional Sessions Judge, Bahawalpur on 28-11-2002, upon the appellants, namely Muhammad Momin and Muhammad Mohsin sons of Ahmad Bakhsh under section 302(c) of the P.P.C., to the extent of fourteen years' R.I., each and payment of Rs.25,000 by each accused to be paid to each legal heir of Muhammad Ramzan deceased, as provided under section 544-A of the Cr.P.C. and in default of the payment of aforesaid amount, each accused to suffer further six months' simple imprisonment, have been challenged through the instant criminal appeal.

2. While narrating the occurrence, Muhammad Iqbal son of Allah Diwaya, Caste Kanju, resident of Basti Ghalwan, Mauza Mandhal, Tehsil Ahmadpur East, stated to Ali Akbar, A.S.-I., that he was resident of the aforementioned Basti. On W-1i-2001 at about 2-00 a.m. (in the night), his brother, namely Muhammad Ramzan alias Kaloo by stating that he was going to participate in a marriage function, which was being celebrated in the house of his near neighbour Muhammad Iqbal Bloch, had proceeded to attend that ceremony. It was also recited by the informant that he had waited for sufficient time for his return but as he had not returned, so he left his house to search out his whereabouts along with Khadim Hussain son of Allah Bachaya. It was further detailed by the aforesaid informant that when they reached near the house of Mst. Razia wife of Muhammad Jamil, they had overheard hue and cry of his brother. They, therefore, entered into the house and witnessed that Muhammad Momin (armed with iron rod) and Muhammad Mohsin (holding bamboo stick) sons of Ahmad Bakhsh, Caste Ghalloo, brothers of Mst. Razia's husband, were inflicting injuries to his brother Muhammad Ramzan alias Kaloo. Due to their giving of blows, upper and lower parts of the legs of Muhammad Ramzan were fractured and injuries were also caused on the remaining parts of the body of his brother, who had thereafter fell down on the ground in an unconscious position. The informant and his companion had tried to restrain the aforesaid accused but the above noted accused threatened them to deal them with the same treatment. Muhammad Momin and Muhammad Mohsin accused had inflicted these injuries with the intention to kill Muhammad Ramzan alias Kaloo. Other men of the village had also assembled at the place of occurrence. Accused had told that they were to handle Mst. Razia in the same manner but she had slipped away from the place of incident. Describing the motive for this occurrence, it was stated by the informant that accused had suspected of illicit relations of Muhammad Ramzan with Mst. Razia wife of Muhammad Jamil. So, he had given the account of this occurrence to Ali Akbar, A.S.-I., who had reached at the spot. The aforesaid report which was written by Ali Akbar, A.S.-I., upon the statement of informant, was received into evidence during the trial of the case as Exh.PA while formal F.I.R., which was entered into the prescribed register by P.W.9 Hakim Ali S.I/SHO was brought into the evidence as Exh. PA/1.

3. Investigation was conducted by the police wherein both these above-noted accused, namely Muhammad Momin and Muhammad Mohsin were found guilty and were, therefore, sent up to face the trial under section 302(b) of the P.P.C. because of the death of Muhammad Ramzan, victim.

4. During the trial, prosecution produced as many as eleven witnesses. Muhammad Iqbal, informant, the eye-witness of the occurrence, appeared into witness-box as P.W.I. Khadim Hussain was brought into the witness-box by the prosecution as P.W.2. Muhammad Ramzan, was cited as a witness of recovery of the handle (Hathi) of hand-pump (P-1) from Muhammad Momin and bamboo stick (P-2) from Muhammad Mohsin through recovery memos. of 16-11-2001 i.e. Exh.PB and Exh.PC, so, he was produced as P.W.3. Shakeel Ahmad, draughtsman had appeared as P.W.4, who had prepared the sketch of place of occurrence which was received into evidence as Exh.PD and Exh.PD/1. Peer Bakhsh, A.S.-I., who was Head Constable on 10-11-2001, had entered as P. W .5. In his presence, Liaquat Ali constable had produced the last-worn clothes of Muhammad Ramzan, deceased, P-3 to P-5 (which were found blood-stained), and were taken into possession by the Investigating Officer through memo Exh.PE. P.W.6 was Dr. Muhammad Akram Dahir who had medically examined the victim and had issued MLC (Exh.PF). After the death of aforesaid victim, he had also conducted post-mortem examination (Exh.PG). Liaqat Ali, constable, who had brought the dead body to Mubarakpur Hospital and after post-mortem examination, had delivered the last-worn clothes of the deceased to the Investigating Officer, was examined as P.W.7. Ali Akbar, S.-I. had entered into the witness-box as P.W.8, as he had partially investigated the case. Hakim Ali, S.-I. had also appeared as P. W.9, who had conducted the remaining part of investigation after Ali Akbar, A.S.-I., P.W.B. Tahir Mahmood, P.W.10, a constable, had received one sealed parcel, containing blood-stained earth and had deposited the said parcel with the office of Chemical Examiner. P.W.11 Muhammad, Moharrir Head Constable had received one sealed parcel of blood stained earth from the Investigation Officer and had handed it over to Tahir Mahmood, constable for depositing the same in the officee of Chemical Examiner. After tendering into evidence, the report of Chemical Examiner (Exh.PM) and the report of Serologist Exh.PN, prosecution case was closed. Statements of accused persons were recorded under section 342 of the Cr.P.C. by the learned Additional Sessions Judge. No defence was produced by the accused persons. So, the case was decided by the learned Additional Sessions Judge through the dispute judgment as mentioned above.

5. At the very outset learned counsel appearing on behalf of the appellants have prayed that they would appeal for reduction of sentence and not for the conversion of conviction into acquittal. Addressing their case for lesser sentence purposes, the learned counsel for the appellants have stated that the time and place of occurrence is admitted. During the night and particularly at the odd hours of about 2-00 a.m. in the night, the presence of deceased Muhammad Ramzan in the house of Mst. Razia with whom, according to the prosecution own version, there was a great suspicion of illicit relations of the deceased with the aforesaid lady, the infliction of blows and the consequence of death, was itself a sufficient and mitigating ground for awarding of minor punishment. They have referred to 1998 PCr.LJ 1110 (Muhammad Ishaque alias Baig v. The State), PLD 1987 Lahore 312 (Muhammad Sharif v. The State), 1994 SCMR 80 (Munir Ahmad v. The State), 1999 MLD 76 (Munawwar alias Shabboo v. The State) and a decision, passed by my learned brother Muhammad Akhtar Shabbir, J. on 1-3-2001 in Criminal Appeal No.132-2000/BWP (Muhammad Ramzan v. The State). Augmenting to their reasoning, it has also been stated by the learned counsel that the appellants, if were to be convicted upon their statements under section 342 of the Cr.P.C. then their statements were to be accepted in totality. Pick and choose was not to be made in the statements of the accused. It was the duty of the prosecution to prove its case, although the appellants might have admitted the occurrence. P.W.1 had admitted that house of Mst. Razia was towards South while the venue of marriage function was the place towards East. The deceased who had proceeded to the house of Mst. Razia in those odd hours of the night was not un purposeful. The witnesses had in fact reached after the occurrence had already been committed. Therefore, the plea of accused that Mst. Razia had ran away from the place of occurrence and the deceased had to bear all the consequences was not unreasonable.

6. Learned counsel for the informant states that the appellants are not entitled for the grant of reduced sentence. Both the witnesses P.W.1 and P.W.2, Muhammad Iqbal, informant and Khadim Hussain, respectively had clearly stated that the appellants had caused the death of deceased, to which the report of post-mortem is a corroborative evidence. The statements of convicts under section 342 of the Cr.P.C. are to be considered a confession. Therefore, both the appellants must have been handed down the judgment of death sentence. The appellants had not been able to prove the presence of Mst. Razia at the time of occurrence and the deceased was wearing the clothes when was murdered. To kill a person upon the plea of `Ghairat', no licence can be given to a convict for it. As the convicts had taken the law in their own hands, therefore, they were to be hanged, rather than granted lesser punishment. He has referred to PLD 2001 SC 96 (Muhammad Akram Khan v. State) and 2000 SCMR 1827 (Muhammad Yaqub v. State).

7. The arguments addressed by the learned counsel and the perusal of record had brought me to conclude that the odd hours of 2-00 a.m. in the night and presence of the deceased in the house of accused are admitted facts and versions of both the parties, prosecution a well as the defence. The prosecution has failed to explain as to how the deceased had reached into the house and with what reasoning? Finding in the house and at the above noted time would be creative of an impression in a prudent man that the intruder was a person, who wanted to commit an offence, may be of house trespass with theft,. dacoity or robbery or the commission of illicit intercourse with the suspected woman. The contents of F.I.R. are itself a witness and are in corroboration to the plea of the defence. In the F.I.R. the narration that Mst. Razia had fled away from that place; otherwise she was to be met with the same treatment as given to the deceased, this statement of the prosecution and from the mouth of informant is res gestea, which is the statement immediately after the occurrence, rather at the time and in the continuity of the occurrence. It gives an impression that the real state of affairs and true story was being narrated at that time. No chance of consultation or premeditation was there to concoct or cook up the story at that moment, because, according; to the informant, they had heard the hue and cry and had seen the infliction of blows to the deceased. So the possibility cannot be ruled out that the accused had seen the deceased with their sister-in-law in an objectionable position. It is not necessary that there must have been the removal of all the clothes from the body of the victim for commission of illicit course to consider the deceased to be in an objectionable position. It was the duty of the prosecution to prove as to how the deceased had reached into the house of the accused. As the prosecution has failed, so the version and statement of accused Muhammad Momin, recorded under section 342 of the Cr.P.C., if has to be accepted, then it has to be believed in toto for his or for his companion's conviction. I cannot select the portion injurious to the interest of accused and to use that part which gives out an impression for the conviction and to leave the other, which gives the accused a right of release. In such a case, it would be injustice and undue leaning towards prosecution, having a biased mind towards accused. Distinction had to be kept in mind that it is not the statement of a prosecution witness but is that of an accused to which the rule of sifting of grain from the chaff cannot be applied. If an accused has given an eye-witness account of the occurrence then it has to be accepted in its entirety as it is because of the failure of the prosecution to prove its case. If his participation and actions are to be believed true, then those facts are to be accepted with cohesion or to be rejected as a whole. If the incriminating part of the statement is accepted, it would be granting an assistance to the prosecution, who has failed to prove its case whose deity was to establish its own case independently through its evidence.

8. The use of iron rod which is stated to be of hand pump gives out the real picture that there was not a premeditated commission of offence but was the consequence of instantaneous and spontaneous some provocating acts of the deceased, which may be an outraging of modesty of a woman or the impious deed of the commission of illicit intercourse with their lady. In these cases and circumstances, the appellants/convicts can be granted a relief by reduction of sentence. Therefore, I consider it a fit case to award the convicts a lesser punishment. So, by maintaining the conviction of the appellant, their sentences are reduced from fourteen years' R.I. to seven years' R.I. of each accused. Whereas the sentence of payment of Rs.25,000 by each convict-appellant to be paid to the legal heirs of the deceased Muhammad Ramzan, as provided under section 544-A of the Cr.P.C., or in default whereof the appellants to further undergo six months S.-I. shall remain intact. However, the convicts-appellants are also extended the benefit of section 382-13, Cr.P.C. The appeal stands disposed of accordingly. N.H.Q./M-1188/L Sentence reduced.