' KHAWAJA MUHAMMAD SHARIF, J.--- The appellants Muhammad Riaz and Muhammad Nawaz, along with their father Muhammad Anwar, were tried by the learned Additional Sessions Judge, Burewala, in lieu of case F.I.R. No,188 registered at Police Station Sahuka on 19-9-1994 for offences under sections 302/109/34, P.P.C. Vide judgment, dated 4-12-2000, the learned trial Judge, while acquitting Muhammad Anwar, convicted and sentenced both the appellants for offences under section 302(b)/34, P.P.C. To death each plus payment of Rs,50,000 as compensation by each of the appellants-convicts to the legal heirs of the deceased, in default whereof they were to undergo six months' R.I. Each.
2. Aggrieved by their above noted conviction and sentence, both the convicts have filed the instant appeal, while the learned trial Court has also made a reference bearing Murder Reference No,76 of 2001, seeking confirmation or otherwise of the death sentence. We propose to decide both these matters through this single judgment.
3. The facts of the case, in brief, as narrated by Muhammad Aslam complainant/P.W., are that on 19-9-1994 at about 1-30 p.m., on his return from his official duty in the Agriculture Department Gagoo, his brother Muhammad Ashraf along with Muhammad Hanif went on bicycle to Adda Jamlera for the purchase of provisions, soon whereafter the complainant along with Nawab on their way to Adda Jamlera on a motorcycle for purchasing pesticides reached near the land of Nawaz Ahmadyar, they saw on the road that Muhammad Riaz and Nawaz, accused-appellants, both while armed with hatchets, were pulling down his brother Muhammad Ashraf from the cycle.
When Muhammad Hanif was restraining the appellants from doing so, Muhammad Ashraf left his bicycle and entered the house of aforesaid Ahmadyar and bolted the room from inside. The appellants followed Muhammad Ashraf, broke the bolt of the door with their hatchets and caused multiple injuries with their hatchets on the neck, head and chin of Muhammad Ashraf, as a result whereof he died at the spot. The occurrence was witnessed by the aforesaid P.Ws. The accused fled away from the scene of occurrence along with their weapons.
4. As to the motive, it was alleged those 3-1/2 years earlier to the occurrence, the accused had suspicion of illicit intimacy between the deceased and their sister Mst. Naziran. Noor Hassan, brother of the accused, had murdered her. The accused had committed the murder of the deceased Ashraf on the abetment and instigation of Muhammad Anwar.
5. After registration of F.I.R. Exh.P.B. On the statement of Muhammad Aslam/complainant, Anwar Ali, S.-I./P.W.7, went to the spot. He collected blood-stained earth from the spot through memo. Exh.P.C.
Prepared inquest report Exh.P.H. And injury statement Exh.P.J. Rough sketch Exh.P.K. And got the post-mortem examination of the deceased. After post-mortem examination, he took into possession the last-worn clothes of the deceased, all blood-stained, consisting of shirt P.1, Vest P.2 and Shalwar P.3 vide memo. Exh.P.A. He also recorded the statement of the P.Ws. Under section 161, Cr.P.C. He got prepared the site plans of the place of occurrence.
6. The investigation was taken over by Muhammad Ashfaq, S.-I./ S.H.O., on 5-10-1994. On 11-10-1994, Muhammad Nawaz accused, led to the recovery of blood-stained hatchet P.9 from his residential house, which was taken into possession vide memo. Exh.P.G. On the same day, the aforesaid accused got recovered his blood-stained clothes shirt P.6 and Shalwar P.7 from an iron box lying his residential room which were taken into possession vide memo. Exh.P.D. On the same date, Riaz accused led to the recovery of blood-stained hatchet P.8 from an iron box lying in his residential room, which was taken into possession through memo. Exh.P.F. The last-worn blood-stained clothes shirt P.4 and Shalwar P.5 were taken into possession through memo. Exh.P.D. The Investigating Officer prepared the rough site plan (Exh.P.G./1) of places of recoveries from the said accused. The Investigating Officer also recorded the statements of the P.Ws. Under section 161, Cr.P.C. In that behalf. On 10-7-1995 the cycle P.10 was produced by Muhammad Aslam complainant before the Muhammad Latif, S.-I., who took the same into possession vide memo. Exh.P.N. He also recorded the statements of the P.Ws. Under section 161. Cr.P.C. In this regard. After completion of investigation, the accused were sent to face trial.
7. To prove its version at the trial, the prosecution produced 13 witnesses in all. After tendering the reports of Chemical Examiner Exhs.P.N., P.P. P.Q and that of the Serologist Exhs.P.R., P.S. And P.T. In evidence, the prosecution closed its case. Thereafter the accused in their statements under section 342, Cr.P.C. Pleaded their innocence, false implication due to enmity between the parties and plantation of fake and false recoveries upon them.
8. Learned counsel for the appellants submits that there are material contradictions in the statements of the eye-witnesses which have been produced before the trial Court; that admittedly, Muhammad Aslam complainant/P.W. Is real brother of the deceased and Nawab P.W. Is brother- in-law of Muhammad Aslam, that according to Muhammad Aslam, he attended his duty at 7-30 a.m. And was returning to home when the occurrence took place, while Nawab P.W. Stated during the cross-examination that Aslam did not go to duty on the day of occurrence; that according to P.W.4, cycle belonging to the deceased was taken into possession by the Investigating Officer on the same day, while according to the Investigating Officer, the same was produced before him after about ten months of the occurrence; that during trial, the eye-witnesses made improvements regarding injuries caused on the person of the deceased; that there was a long-standing enmity between the parties. Learned counsel submits that eye-witnesses have admitted that Mst. Naziran, sister of the appellants, was abducted 3-1/2 years prior to the occurrence by Muhammad Ashraf and he remained in jail in connection with that case for 1-1/2 years. Learned counsel submits that as stated Mst. Naziran was murdered by her own brother, so there was no question that the appellants could have committed the murder of the Ashraf deceased; that this shows that the appellants have been falsely involved in this case; that Ahmadyar, in whose land the occurrence took place, was not produced by the prosecution; that the recoveries of hatchet and blood-stained clothes are planted ones, as it is not possible that the accused person would have kept the blood- stained clothes for twenty days; that no independent witness has been produced; that the story of purchasing pesticides by Aslam is not believable; that the appellants has been behind the bars for the last eleven years; that on the basis of same evidence, father of the appellants Muhammad Anwar has been acquitted; that both the appellants are real brothers and the possibility of their false implication cannot be ruled out; that the injuries on the person of the deceased could have been caused by one and the same person. Learned counsel submits that Muhammad Nawaz appellant was less than eighteen years of age at the time of occurrence, so he, being a minor, death sentence is not called for.
9. On the other hand, learned counsel for the State submits that it was a broad-daylight occurrence; that both the parties were known to each other, so there was no question of mistaken identification; that the F.I.R. Was lodged with promptitude; that both the appellants, while armed with hatchets, committed the murder of the deceased and all these factors support the judgment of the trial Court.
10. We have heard the learned counsel for the parties at length and have gone through the record of the case.
11. There were three accused in this case. One Muhammad Anwar, who is father of the appellants, has been acquitted by the trial Court. The occurrence took place on 19-9-1994 at 2-00 p.m. The matter was reported to the police at 10-30 p.m. The distance between the police station and the place of occurrence is 19 kilometers. The specific role of the appellants, who were armed with deadly weapons, including the presence of the eye-witnesses, has been given in the FIR. The postmortem examination was conducted on 20-9-1994 at 1-00 p.m. By Dr. Sajjad Ahmad/P.W.6, who found injuries Nos.6 and 8 to have been caused by a blunt weapon and the remaining injuries by sharp-edged weapon. The duration between injuries and death was 1/2 to 1 hour, while between death and post-mortem examination it was 20 to 22 hours. According to his opinion, injury No,1 and the other injuries collectively were sufficient to cause death in the ordinary course of nature. So the ocular account is fully corroborated by the medical evidence. The sister of both the appellants was abducted by Muhammad Ashraf deceased and a case was registered against his mother and other relatives. Muhammad Ashraf remained in jail for about 1-1/2 years and thereafter, Mst.
Naziran sister of the deceased, was murdered by her own brother. The appellants had the motive to kill Muhammad Ashraf, as he had abducted their sister. Both the appellants on the day of occurrence, while armed with hatchets, caused injuries on the vital parts of the body of the deceased, which resulted into his death. After their arrest, on 11-10-1994, they led to the recovery of the blood-stained hatchets. They also led to the recovery of blood-stained clothes and according to the reports of the Chemical Examiner (Exhs.P.N. P.P. And P.Q.) and that the reports of the Serologist (Exhs.P.R., P.S. And P.T.), the hatchets and clothes were stained with human blood. As far as recovery of bicycle is concerned, the same cannot be relied upon, as it was recovered after months of the occurrence. It was broad-daylight occurrence. Parties were known to each other. As far as contention of the learned counsel for the appellants that Muhammad Nawaz was less than eighteen years of age at the time of occurrence. No documentary evidence was produced by him before the trial Court. We have gone through the Sam Slip which shows that on the day of occurrence, his age was 20/21 years, while that of Riaz was 23/24 years. As far as family honour is concerned, we are not going to accept this ground at this stage that it was a matter of family honour. They never saw their sister on the day of occurrence or prior to the occurrence in illicit relationship with the deceased, as she had already died 3-1/2 years prior to the occurrence. So there is no question of action or reaction of the accused which he chooses to do on such occasion.
There is no mitigating circumstance in favor of the appellants.
12. Resultantly, this appeal is dismissed. The Murder Reference is answered in the affirmative. The death sentence is confirmed.