1994 PLP 2062 (MLD)

MIAN ABDUL KHALIQ, J.

Khurshid Alam alias Bau son of l3ashir Ahmad, aged 20/22 years was tried by the learned Additional Sessions Judge, Bahawalpur for the murder of Din Muhammad and Abdul Aziz and vide his impugned judgment dated 28-6-1992 he was convicted and sentenced on two counts under section 302, P.P.C. to death on each count. The appellant has filed appeal against his conviction and sentence and a reference has been placed before us under section 374, Cr.P.C. Both shall be disposed of by this judgment.

2. The prosecution case as unfolded in F.I.R. Exh. PD recorded on 15-15-1991 at police station Hasilpur under section 302, P.P.C. on the complaint of P.W.2 Muhammad Yousuf and recorded by P W.13 Muhamad complaint Ramzan, S,H.O/Inspector is to the effect that the complainant originally hailed from chid( No.150/Murad and since 2 years earlier he and his deceased brother Abdul Aziz were living in the Ehatas in Gharib Mohallah, Hasilpur. His house and shop was in Ward No.12 whereas Ehata and shop of his deceased brother were in Ward No.11. In front of Ehata of his deceased brother Abdul Aziz there was an Ehata of Din Muhammad Chowkidar deceased, who had also constructed a residential Kotha and in the same street there was a house of appellant Khurshid Alam, who quite often used to obtain grocery from his deceased brother on credit. On the previous day ai Maghrabwela P.W.2 Muhammad Yousuf complainant alongwith his son P.W.8 Muhammad Javaid and Din Muhammad Chowkidar deceased were present at the shop of Abdul Aziz deceased when Khurshid Alam appellant came there to obtain more articles, who was asked by his deceased brother to pay the previous outstanding amount and then he would be given the credit, whereupon the appellant was infuriated and he left hurling threats and saying that he would teach him a lesson for not giving him articles on credit. The appellant was also abused by deceased Abdul Aziz and deceased Din Muhammad Chowkidar. This complainant and his son slept in the Ehata whereas Abdul Aziz slept in front of his shop and Din Muhammad Chowkidar deceased slept in front of his Kotha. At about 5.00 a.m. suddenly hues and cries were heard, whereupon complainant Muhammad Yousuf (P.W.2) and his son Muhammad Javaid (P.W.8) rushed to the spot and P.W.5 Faiz Ahmad, a neighbour also reached there and witnessed that the appellant armed with a Tesha was inflicting injuries on the neck of Din Muhammad Chowkidar. The P.Ws. tried to apprehend him, but Khurshid Alam appellant ran and inflicted an injury with his iron Tesha on the neck of Abdul Aziz deceased, who was sleeping on a cot in front of his shop and fled away by scalling over the wall of the adjacent Ehata Both the injured succumbed to their injuries at the spot. Hence this case.

3. P.W.13 Muhammad Raruzan, S.H.O. after recording formal F.I.R. Exh.PD reached the spot, prepared injury statements, inquest reports Exits. PB, PN, PC and PM of Abdul Aziz and Din Muhammad deceased respectively and despatched the dead bodies to the mortuary. He collected blood-stained earth from near the dead bodies of Abdul Aziz and Din Muhammad Chowkidar vide memos. Exhs.PE and PF respectively, He secured cot P.7 alongwith the bedding P8 pertaining to Abdul Aziz vide memo. Exh.PG and the cot P9 of Din Muhammad Chowkidar deceased vide memo. Exh.PH. He Cured purse of the appellant P10, his National Identity Card P11, coloured photo P12 and photos of an unknown person P13/1-3 and two other unknown photos Exh.P14/1-2 and currency notes of Rs.65 P15/1-14 vide memo. Exh.PJ. He arrested the appellant on 15-5-1991, who made a disclosure and on 18-5-1991 led to the recovery of blood-stained Tesha P16 from his residential house which was secured by P.W.13 vide memo. Exh.PK and made it into a sealed parcel. After completion of the investigation he challaned the appellant

4. The prosecution examined 14 P.Ws. in all to substantiate its P.W.1 Dr. Abdul Ghafoor on 15-5-1991 at 12-00 noon conducted autopsy a the dead body of Abdul Aziz deceased and found the following injury on his person:

"An incised wound 8 c.m. x 3 c.m. x cutting the trachea oesophagus and neurvascular bundle almost completely divided on front of neck below the thyroid cartilage." He opined that the injury was ante-mortem caused by sharp-edged weapon This injury had cut trachea oesophagus and neurovascular bundle which caused extensive bleeding and haemorrhage and shock. Probabale time that elapsed between injury and death was within minutes and between death and post mortem within 12 hours. P.W.11 Dr. Amjad All on 15-5-1991 at 3-00 p.m. conducted autopsy on the dead body of Din Muhammad Chowkidar deceased and found the following injuries on his person:

(1) An incised wound on right clavical, middle part cutting clavical and right angle, was 10 c.m. x 5 c.m. x bone deep. (2) Four incised wounds on right side of neck close to the mid line anteriorly in an area of 10 c.m. x 10 c.m. set transversely, one above other each was 5 c.m. x 2 c.m. x going deep. (3) Two incised wounds on left side of neck close to mid line set transversely one above the other, each was 5 c.m. x 2 c.m. x going deep. (4) An incised wound on right side of neck close to angle of mendible set horizontally was 5 c.m. x 3 c.m. x going deep. In the opinion of the Doctor the injuries were ante-mortem, caused by sharp edged weapon. They cut major vessels and spinal cord and led to severe haemorrhage collectively and individually and haemorrhage shock They were sufficient to cause death in the ordinary course et life. Probable time that elapsed between injuries and death was within few minutes, and between death and post-mortem was 9 hours.

5. P.W.2 Muhammad Yousuf complainant and P.W.8 Muhammad Javaid stated the motive behind the occurrence, while P.W.2 Muhammad Yousuf P.W.5 Faiz Ahmad and P.W.8 Muhammad Javaid stated the ocular account

6. P.W.9 Mukhtar Ahmad, P.W.10 Muhammad Sarwar and PW.13 Muhammad Ramzan S.H.O. had witnessed the recovery of blood-stained low P16 from underneath an iron Paiti at the instance of the appellant from his house, which was secured vide memo. Exh.PK.

7. The appellant when examined under section 342, Cr.P.C. denied the prosecution evidence against him and the recovery of blood-stained Tesha P

16. In answer to a question `Why this case against you and why the P.Ws. have deposed against you?' he replied that it was a blind murder. Deceased Abdul Aziz and P.W. Muhammad Yousuf earlier to the murder were compelling his mother to sell her house to them which she refused. He had been involved in this case falsely in order to pressurise him and his mother. He neither produced evidence in defence nor made statement on oath as envisaged under section 340(2), Cr.P.C.

8. The learned trial Court after evaluating the evidence on record convicted and sentenced the appellant vide the impugned judgment.

9. We have heard the learned counsel for the appellant, the learned Assistant Advocate-General as well as the learned counsel for the complainant. It was vehemently urged before us by the learned counsel for the appellant that the case against the appellant is false, there is no motive for the appellant to commit double murder and the ocular account is in conflict with the medical evidence. P.W.2 complainant Muhammad Yousuf is brother of deceased Abdul Aziz and P.W.8 Muhammad Javaid is nephew of the deceased and son of P.W.2 The recovery has been planted and it was a blind murder and the F.I.R. was lodged after preliminary investigations.

10. P.W.2 Muhammad Yousuf lodged F.I.R. Exh.PD at the police station, wherein he stated the motive behind the occurrence i.e. the appellant had reached the shop of deceased Abdul Aziz at Maghrabwela, a day earlier to the present occurrence in his presence and that of P.W.8 Muhammad Javaid and Din Muhammad Chowkidar deceased and demanded the articles on credit and on refusal of Abdul Aziz deceased, the appellant was infuriated and threatened to teach him a lesson, on which deceased Abdul Aziz and deceased Din Muhammad Chowkidar had abused him. P.W.2 Muhammad Yousuf and P.W.8 Muhammad Javaid have stated about the motive behind the occurrence before the trial Court.

11. The ocular account was furnished on record by the statements of P.Ws. Muhammad Yousuf, P.W.5 Faiz Ahmad and P.W.$ Muhammad Javaid. They have unanimously stated that they after hearing hue and cry reached the spot and witnessed the appellant giving Tesha blows on the neck of Din Muhammad Chowkidar deceased, they tried to apprehend him and the appellant while running away also inflicted Tesha blow on the neck of Abdul wiz deceased, who was sleeping on a cot and escaped after scaling over the Wall of the adjacent Ehata. P.W.2 Muhammad Yousuf, P.W.5 Faiz Ahmad and P.W.8 Muhammad Javaid had reached the spot after hearing hue and cry of deceased Din Muhammad Chowkidar when he was giving Tesha blows on his neck. P.W.2 Muhammad Yousuf complainant stated before the trial Court that the appellant gave 2/3 blows to deceased Din Muhammad Chowkidar when he alongwith other P.Ws. arrived at the spot and while running away the appellant inflicted one Tesha blow on the neck of deceased Abdul Aziz. P.W. Faiz Ahmad and P.W.8 Muhammad Javaid had also stated that within their view the appellant gave 2/3 Tesha blows to Din Muhammad deceased. The medical account furnished on record by the statements of P.W.1 Dr. Abdul Ghafoor and P.W.11 Dr. Amjad All corroborated the ocular account stated by the eye_ witnesses i.e. P.W.2 Muhammad Yousuf, P.W.5 Faiz Ahmad and P.W.8 Muhammad Javaid. P.W.1 Dr. Abdul Ghafoor during cross-examination stated that the injury on deceased Abdul Aziz could be caused with hatchet, or Toka or Tesha. P.W.11 Dr. Amjad All stated during cross-examination that the injuries on the person of Din Muhammad Chowkidar deceased could have been caused in every position and even when he was lying, and the deceased would have been in a position to cry or shout after suffering first injury. The ocular account is in consonance with the medical account.

12. The appellant while in police custody led the recovery of blood-stained Tesha P16 from underneath the iron Paiti of his house which was secured by P.W.13' Muhammad Ramzan, S.H.O./Inspector vide memo. Exh.PK attested by P.W.9 Mukhtar Ahmad and P.W.12 Asghar All Sub-Engineer. The report of the Chemical Examiner Exh.PP and that of the Serologist Exh.PQ respectively are positive. P.W.13 Muhammad Ramzan, S.H.O. had secured purse P10, National Identity Card P11, a coloured photo P12, three photos of an unknown person P13/1-13 and two other unknown photos P14/1-2 and the currency notes P15/1-14 vide memo. Exh.PJ from the spot attested by P.W.5 Faiz Ahmad and P.W.8 Muhammad Javaid. The same were left behind by the appellant while running away from the spot. The appellant during examination under section 342, Cr.P.C. stated that articles P10 to P15/1-14 belonged to him, but the said articles as well as recovery of Tesha P6 had been planted upon him. P.W.9 Mukhtar Ahmad is the neighbour, whereas P.W.10 was elected twice as Councillor who had refuted the suggestion that he was a stock witness and stated that he had not appeared as witness earlier. The recovery aspect is proved on record.

13. F.I.R. Exh.PD was recorded at 6-30 p.m. on 15-5-1991 at Police Station Hasilpur situated at a distance of 1-1/2 kilometres and the occurrence took place on the night between 14/15-5-1991. Exh.PD contains the motive behind the occurrence, the names of the witnesses, the name of the appellant, the weapon carried by him as well as the manner in which the occurrence took place. Both the deceased were injured by the appellant who succumbed to their injuries at the spot and thereafter P.W.2 Muhammad Yousuf left for the police station to lodge the report. In the circumstances we hold that the F.I.R. was lodged with promptitude.

14. P.W.2 Muhammad Yousuf complainant is brother of the deceased and P.W.8 Muhammad Javaid is nephew of the deceased and son of P.W.2 Muhammad Yousuf, who had gone to the house of the deceased and they talked till late in the night about the marriage of son of the deceased and thereafter P.W2 Muhammad Yousuf and P.W.8 Muhammad Javaid slept in the house of the deceased, and deceased Abdul Aziz slept on a cot in front of his shop. P.W.5 Faiz Ahmad is the neighbour and they have stated the probable cause of their being present near the place of occurrence. They heard cries of Din Muhammad Chowkidar deceased and reached the spot. The statements made by P.W.2 and P.W.8 cannot be thrown away or brushed aside on account of their relationship with the deceased. Their statements are corroborated by the statement of P.W.5 Faiz Ahmad, who is neighbour and an independent witness. They have no animus against the appellant as well as have no motive to falsely involve him in the present case. The appellant was previously known to them and the occurrence took place at dawn time in the morning.

15. The motive behind the occurrence stands proved on record. The ocular account is in consonance with the medical evidence and is also corroborated by recovery aspect of the case. The charge against the appellant stands proved beyond doubt.

16. We were surprised by the arguments advanced by the learned Assistant Advocate-General, who tried to support the case of the appellant for the reasons best known to him. The appellant is a desperate person and no' mitigating circumstance appears for lesser penalty in his favour. The appellant at the time of his arrest assaulted P.W.13 Muhammad Ramzan S.H.O. and a constable with an axe and a separate case was registered against him.

17. Pursuant to the above discussion, the appeal filed by the appellant is dismissed and the death sentence on two counts is confirmed. N.1-LQ1K-142X Appeal dismissed.