' M.A. SHAHID SIDDIQUI, J.---Muhammad Saleem, Muhammad Yaqoob, Muhammad Nawaz and Rehmat Ali appellants and one Mehmood alias Mehboob (since acquitted) were tried under sections 302/324/148/149, P.P.C. On two counts for committing Qatl-i-Amd of Muhammad Salem and Meraj Din brother and father of Muhammad Yasin complainant P.W.12 and also for mounting murderous assault on the lives of Saien Ditta (given up P.W.) and Ghulam Sarwar P.W.13 in case F.I.R.
No,282 of 1999. Police Station Nishatabad District, Faisalabad in the prosecution of the common object of an unlawful assembly which they had found on 24-5-1999 at about 9-00 p.m. In front of the shop of Saien Ditta in Chak No,203 R.B. Mananwala. The learned trial Court vide judgment dated 31-1-2002 convicted the appellants under sections 302(b), read with section 34, P.P.C. (on two counts) and sentenced them to death with the direction to pay Rs,25,000 each as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default of payment thereof to undergo R.I. For four months. The appellants were also convicted under sections 324/337-A(i)/ 337- L(ii) read with section 34, P.P.C. And for these offences they were sentenced to seven years' R.I. And a fine of Rs,5,000 each and in default of payment of fine to undergo 2 months' R.I. Each. Mehmood alias Mehboob co-accused was however, acquitted. There is also a reference (Murder Reference'
No,99 of 2002) made by the learned trial Court seeking confirmation of death sentence awarded to the appellants, which we propose to dispose of through this consolidated judgment.
2. The occurrence took place on 24-5-1999 at about 9-00 p.m. According to the F.I.R. Muhammad Yasin complainant P.W.12, his brother Muhammad Saleem (deceased), father Meraj Din (deceased), Saien Ditta (given up P.W.) and Ghulam Sawar P.W. 13 were sitting on the wooden plank (Phatta) in front of the shop of Saien Ditta at the relevant time and talking to each other when all of a sudden the appellants and Mehmood alias Mehboob (since acquitted) came out of the nearby Haveli of Muhammad Nawaz appellant, hurling abuses. Allegedly Rehmat Ali gave hatchet blow which landed on the head of Muhammad Saleem (deceased), Muhammad Yaqoob gave blows with iron sua on the waist and right buttock of Muhammad Saleem (deceased). Saien Ditta (given up P.W.) received an injury on his chest with an iron sua at the hands of Mehmood alias Mehboob (since acquitted). Muhammad Saleem appellant gave a Chhurri blow underneath the right armpit of Meraj. Muhammad Nawaz gave hatchet blow on the left arm of Ghulam Sarwar P.W.13. As per F.I.R. The occurrence was also witnessed by Sabir Hussain son of Saien Ditta (given up P.W.) and Abdul Lateef son of Faqeer Muhammad P.W.14. All the injured persons were removed to Allied Hospital, Faisalabad. Muhammad Saleem had died on the way. Muhammad Yasin complainant was on his way to the police station when he met Muhammad Khalid, Inspector/S.H.O.
Police Station Nishatabad P.W.15 at the morb of Medical College, Sargodha road at 10-15 p.m. And made statement Exh.P.T.
3. The motive for the offence as per F.I.R. Was that a day prior to the occurrence on 23-5-1999 a quarrel had taken place between Muhammad Arif son of Meraj Din deceased and Muhammad Nawaz etc.
4. Muhammad Khalid, Inspector/ S.H.O. P.W.15 immediately went to the Allied Hospital, Faisalabad.
He prepared the injury statement and inquest reports before handing over the dead bodies to Shaukat Ali, Constable for post-mortem examination. He then went to the spot and collected the blood-stained earth from two places. On 17-6-1999 he recovered iron sooas Exh.P.5 and P.6 at the instance of Mehmood alias Mehboob and Muhammad Yaqub accused. After completing the investigation he submitted the challan.
5. On 16-2-2001 the learned trial Court formally charge-sheeted the accused who pleaded not guilty and claimed trial.
6. The prosecution produced sixteen witnesses in support of its case against, the appellants.
Muhammad Yasin P.W.12, Ghulam Sarwar P.W.13 and Abdul Latif P.W.14 furnished ocular account of the occurrence. They also deposed about the fight which had taken place on 23-5-1999 between Asif son of Meraj Din deceased and accused Nawaz and others. Dr. Muhammad Ishaq P.W.13 and Dr. Muhammad Nasir. P.W.7 provided the medical evidence. Dr. Muhammad Ishaq P.W.13 had conducted the autopsy on the dead body of Muhammad Saleem son of Meraj Din on 25-5-1999 and had found the following injuries:--
(i) Cut incised wound measuring 4 c.m. x 1 c.m. Into skull deep on left side of head. 10 c.m. Away from the midline and 7 c.m. Above and behind the penny of left ear.
(ii) An abrasion 5 c.m. x 1.5 c.m. On the left forehead. 2 c.m. Away from the midline and 2 c.m. From the above left eye brow.
(iii) Stab wound measuring 1 c.m. x 0.5 c.m. Into 1 c.m. On the back of right chest.
0.5 c.m. From the back midline and 23 c.m. Below root of the neck.
(iv) A stab wound measuring 1 c.Rn. x 0.5 c.m. x 4 c.m. On the right glautial regons at centre of lines making four quarterante of the nuk regions.
' He found that all the layres of skull were cut however skull was not fractured. The chest showed stabbing in the area of Injury No,3 and the right chest cavity was full of blood. He opined that the death was due to injuries Nos.1 to 3 which led to severe head injury and haemorrhage shock respectively and that injury No,1 was caused with a sharp-edged weapon arid Injury No,3 was caused with a pointed and blunt weapon. On the same day he had conducted the post-mortem examination of Meraj Din deceased and found only one injury the description of which is as under:-
(i) A stab wound measuring 2.5 c.m. x 1.5 c.m. Chest cavity deep on the right side. Of the chest. 9 c.m. Below the apex of right exilla and 10 c.m. Outside the right nipple.
' On dissection the right chest cavity was found full of blood. Right plura and lungs were also injured. The doctor opined that cause of death of Meraj Din deceased was due to injury No,1 leading to the haemorrhage shock and it was sufficient to cause death in the ordinary course of nature.
The time between injury and death was a few minutes and between the death and post-mortem examination was 24 hours.
7. P.W.7 Dr. Muhammad Nasir had medically examined Meraj Din and Saien Ditta on 24-5-1999 and Ghulam Sarwar on 25-5-1999. He had found one inside wound on right upper chest of Meraj Din, one incised wound on the left chest of Saien Ditta and three wounds caused with blunt weapon found on the person of Ghulam Sarwar.
8. Muhammad Khalid, Inspector P.W.15 and Zulfiqar Ali, A.S.-I. P.W.6 stated about the various steps they took during the investigation of the case. Statements of the remaining witnesses were more or less of formal nature.
9. Captain Saif Ullah Malik P.W.16 the then A.S.P., Head Quarters, Faisalabad stated that the investigation of the case was entrusted to him under the orders of the Faisalabad. He deposed that he had visited the spot and also recorded the statements of the P.Ws. Under section 161, Cr.P.C. He had found all the five accused nominated in the F.I.R. Guilty. He maintained that Muhammad Khalid, Inspector had made the weapons recovered from all the accused but some of the recoveries had been suppressed by the said Investigating Officer with mala fide intentions, and that he had made a report him to S.S.P., Faisalabad to initiate departmental proceedings against him.
10. The accused in their statements under section 342, Cr.P.C. Denied and controverted the allegations. Muhammad Nawaz and Rehmat Ali accused pleaded that Muhammad Saleem; Muhammad Yaqub and Mehmood alias Mehboob co-accused were their enemies as such they could not be expected to have joined hands with them.. Similarly Muhammad Saleem and Muhammad Yaqub appellants also denied to have joined hands with Muhammad Nawaz and Rehmat Ullah accused. The accused declined to make statements under section 340(2), Cr.P.C.
And produce any witness in their defence. However, Muhammad Yaqub and Muhammad Saleem relied upon the F.I.R. No,106/98 (Exh.DG) and Muhammad Nawaz submitted photostat copies of complaint mark-A, postal receipt Exh.DB, copy of plaint mark-C, postal receipts Exh.DE and DF and photostat copy of complaint mark-D, newspaper clippings mark-E and F.
11. At the conclusions of the trial the learned trial Court found the prosecution's case against all the appellants to have been proved beyond reasonable doubt and thus the appellants were convicted and sentenced by it as mentioned and detailed in the opening paragraph of this judgment.
12. Learned counsel for the appellants while assailing the conviction and sentence inter alia argued that the prosecution has failed to prove the motive for the offence that the occurrence took place during night and no independent witness has come forward to support the prosecution's case; that the prosecution has involved two sets of accused which had been inimical towards each other for the last so many years; that Muhammad Afzal had got registered a case against Rehmat Ali and Muhammad Saleem and two others namely Muhammad Aslam and Ali Muhammad vide F.I.R.
No,98 of 1987 dated 14-4-1987, copy of which has been placed on the file as Exh.DG, as such Muhammad Saleem and Muhammad Yaqub appellants cannot be expected to have joined hands with Muhammad Nawaz; that the allegation against Muhammad Salem appellant is not supported by medical evidence; that no recovery was effected from him. Malik Tariq Malhi, Advocate learned counsel for Muhammad Nawaz appellant added that the injury ascribed to Muhammad Nawaz appellant is in conflict with the medical evidence; that he had allegedly caused only one injury to Ghulam Sarwar P.W.13 on his left arm with a hatchet but according to the doctor the injury found on the left arm of Ghulam Sarwar P.W.13 was caused with blunt weapon. He further argued that the weapon allegedly used by Muhammad Nawaz appellant was not recovered by the police during the investigation of the case and the improvements made by the P.Ws. In their statements at the trial regarding the injury attributed to Muhammad Nawaz appellant has made the participation of Muhammad Nawaz appellant in the occurrence doubtful.
13. The learned Additional Prosecutor General and Mr. Abdul Hameed Awan, Advocate learned counsel for the complainant have supported the impugned judgment mainly on the ground that the occurrence took place at about 9-00 p.m. In front of the shops in which two persons lost their lives and two persons had sustained injuries; that it was not an unseen occurrence, therefore, it was reported immediately after the occurrence; that the P.Ws. Are no doubt related to the deceased but their testimony could not be discarded because they had absolutely no motive to falsely implicate the appellants.
14. We have made reappraisal of the entire material brought on the record. According to the prosecution a quarrel had taken place between Muhammad Asif son of Meraj Din deceased and Muhammad Nawaz appellant etc. To prove the motive the prosecution should have produced Muhammad Asif in the witnesses box. The learned Additional Prosecutor General has failed to give any reason for the failure of the prosecution to produce Muhammad Asif in the witnesses box. Thus the prosecution has failed to prove the motive for the offence. The ocular account of the occurrence has been furnished by Muhammad Yasin P.W.12, Ghulam Sarwar P.W.13 and Abdul Latif P.W.14. Muhammad Yasin P.W.12 is no doubt the son of Meraj Din deceased and real brother of Muhammad Saleem deceased but there is no relationship between Abdul Latif and Ghulam Sarwar P.Ws. They are residents of the same chak and they have given reasonable explanation of their being present at the spot. Their names were reflected in the F.I.R. Which was promptly lodged. There is nothing on the record to show that these two witnesses had any ill will or motive to falsely implicate the appellants. The case of Muhammad Nawaz appellant is distinguishable from the case of the remaining appellants to some extent. He has not caused any injury to any deceased person. His father Afzal had got a case registered against Muhammad Saleem, Muhammad Yaqub and Rehmat Ali appellants vide F.I.R. ' Exh.DG. The incident reported in the said F.I.R. Had taken place on 11-4-1983. Possibility of compromise having arrived at between the father of Muhammad Nawaz appellant and the remaining appellants cannot be ruled out but as a measure of abandoned care and caution we do not fully incline to deprive Muhammad Nawaz appellant from the said reported incident. He is alleged to have caused a hatchet blow on the left arm of Ghulam Sarwar P.W.13 but the medical evidence shows that Ghulam Sarwar had not sustained any injury with sharp-edged weapon. The improvements made by the P.Ws. In this regard appears to be wilful. The statements of the P.iWs. To the extent of the remaining appellants appear are to be consistent which is fully" supported by the medical evidence. In these circumstances we are of the considered view that the prosecution has succeeded in establishing its case against Muhammad Saleem, Muhammad Yaqub and Rehmat Ali appellants and we are fully inclined to give benefit of doubt to Muhammad Nawaz appellant.
15. As a sequel to the above discussion we accept this appeal to the extent of Muhammad Nawaz, appellant only. His conviction and sentence is set aside. He stands acquitted. He shall be set at liberty if not required in any other case.
16. The appeal of the remaining appellants namely Muhammad Saleem, Muhammad Yaqoob and Rehmat Ali is dismissed. Their conviction under section 302(b), read with section 34, P.P.C. Is maintained on .Both counts. As regards the quantum of punishments we have noticed that Muhammad Saleem, appellant had given a Chhurri blow underneath the armpit of Miraj Din, deceased which proved fatal, therefore, he has been rightly awarded normal penalty of death.
Accordingly we confirm the death sentence awarded to him by the learned trial Court. However, his sentence on the charge pertaining to the murder of Muhammad Saleem, deceased is altered to rigorous imprisonment for life. He shall pay Rs, 1,00,000 as compensation to the legal heirs of Muhammad Saleem, deceased or in default of payment thereof to undergo further simple imprisonment for six months. Injuries Nos.l and 3 which proved fatal to Muhammad Saleem, deceased have been attributed to Rehmat Ali and Muhammad Yaqoob, appellants respectively.
We feel that death sentence to both these appellants would be somewhat harsh and sentence of rigorous imprisonment for life to these appellants for committing murder of Muhammad Saleem is altered to rigorous imprisonment for life. The death sentence awarded to these appellants is not confirmed. They shall, however, pay Rs, 1,00,000 each to the legal heirs of both the deceased or in default of payment thereof to undergo further simple imprisonment for six months.
17. All the sentences shall run concurrently with benefit of section 382-B, Cr.P.C. Murder Reference No,99 of 2002 is answered affirmative to the extent of Muhammad Saleem, appellant and negative to the extent of Muhammad Yaqoob, Muhammad Nawaz and Rehmat Ali, appellants.