' IJAZ AHMAD CHAUDHRY, J.---We, through this consolidated judgment, propose to decide Murder Reference No,409 of 2001 sent by the learned trial Court under section 374, Cr.P.C. Seeking confirmation of death sentence awarded to the Muhammad Bakhsh convict-appellant along with Criminal Appeal No,225-J of 2001 filed by Muhammad Khan alias Muhammad Bakhsh alias Mummi, Abdul Sattar and Muhammad Aslam appellants against their conviction and sentence, Criminal Appeal No,1174 of 2001, filed by Falak Sher appellant against his conviction and sentence and Criminal Appeal No,1183 of 2001 filed by Sher Muhammad alias Shera appellant-complainant against the acquittal of Falak Sher, Mazhar and Sarfraz from the changes under sections 302/324, P.P.C., jointly as all these matters have arisen from the judgment, dated 21-6-2001 delivered by the learned Additional Sessions Judge, Sargodha, whereby all the appellants in both the appeals were convicted and sentenced as under:- Muhammad Bakhsh under section 302(b), P.P.C.---, Sentenced to death as Ta'zir for committing intentional murder of Umer Hayat deceased along with direction for payment of Rs,2,00,000 under section 544-A, Cr.P.C. By way of compensation to the heirs of the deceased.
Muhammad Aslam, Abdul Sattar under section 302(b), P.P.C.--Imprisonment of life with direction for payment of Rs,50,000 each as compensation under section 544-A, Cr.P.C. To the heirs of Umer Hayat deceased or in default of payment thereof to further undergo R.I. For six months. Benefit of section 382B, Cr.P.C. Was also extended to both of them.
Falak Sher, Mazhar under sec tion 337-A(ii), P.P.C.-Two years' imprisonment as Ta'zir and Arsh equivalent to 5% of Diyat amount.
' However, through the same judgment, co-accused namely Sarfraz and Atta Muhammad were acquitted of the charges by extending them the benefit of doubt.
2. Concisely the facts of the prosecution case set up in the F.I.R. (Exh.PK) got lodged by Mst. Jannat Bibi complainant (P.W.6) are that she was resident of Chak No,143/NB, District Sargodha and was married with Umer Hayat, deceased about 24 years ago and out of the wedlock, two sons and a daughter were born who were alive. On 13-9-1998 she along with Umer Hayat deceased her husband, Shera son of Manik (P.W.7) were going to their home from Sillanwali on a cycle and when at about 6-15 p.m., they reached on metalled Sobhaga Road outlet Lealianwala within, the area of Chak No,144/145-NB, suddenly from behind the `sarkandas' the accused persons namely Muhammad Bakhsh alias Mummi, Falak Sher, Mazhar, Sattar, Sarfraz and Atta Muhammad armed with Sotas, while Muhammad Aslam armed with hatchet long with two unknown persons came in their front who had hidden themselves behind the `Sarkandas' and raised a lalkara' that they had come and would not let them alive. Muhammad Bakhsh alias Mummi accused-appellant gave Sota blow to Umer Hayat deceased hitting on the right side of front of his forehead. Shera (P.W.7) came forward whereupon Falak Sher accused-appellant gave him Sota blow, which hit him on the back of his head. Then Aslam accused-appellant inflicted hatchet blow to Umer Hayat deceased from the wrong side which hit him on the right side in front of his forehead. Shera (P.W.7) stepped forward and Mazhar accused-appellant gave Sota blow to him hitting on the right of his head.
Thereafter Sattar accused-appellant gave Sota blow to Umer Hayat hitting him on the nose and Sarfraz acquitted accused then gave Sota blow to Umer Hayat hitting him on the left cheek.
Thereupon Umer Hayat deceased fell down. Afterwards, Atta Muhammad acquitted accused gave two Sota blows simultaneously to him while he was lying which hit Umer. Hayat deceased on his left eye and left leg. Then Muhammad Bakhsh, Falak Sher, Mazher, Sattar, Sarfraz and Atta Muhammad gave Sota blow in chorus to Shera injured (P.W.7) hitting him on the left side of his head right side of forehead, on his both' arms, little finger of right hand and right leg whereupon Shera injured (P.W.7) also fell down. Then all the accused along with two unknown accused gave blows to Shera injured (P.W.7) on his back, waist and thigh incessantly Umer Hayat deceased and Sher injured (P. W.7) became unconscious. The complainant came forward and the accused threatened her with dire consequences. She raised hue and cry which attracted Ahmad Bakhsh and Lal Khan P.Ws. Who were coming behind and they also witnessed the occurrence. The accused ran away while raising `lalkara' and threatening the P.Ws.
3. The motive behind the occurrence was stated to be that at about 8-00 a.m. Muhammad Bakhsh and Falak Sher had a scuffle with Umer Hayat deceased and Shera injured (P.W.7) and due to that grudge all the accused had injured seriously. Umer Hayat deceased and Shera injured (P.W.7) by forming themselves into an unlawful assembly Umer Hayat, however, subsequently succumbed to his injuries as soon as he was brought in the hospital.
4. The investigation of this case was conducted by Muhammad Ameer S.-I. (P.W.10) and during the investigation, dead body of the deceased was inspected; injury statement and inquest report were prepared, statements of the witnesses under section 161, Cr.P.C. Were recorded, the place of occurrence was inspected, blood-stained earth was secured, rough site-plan of the place of occurrence was prepared, the dead body of the deceased was sent to the mortuary for autopsy: the last-worn clothes of the deceased were received, a formal site plan of the place of occurrence was got prepared; the appellants were arrested by him, recovery of weapons was effected from the possession of the appellants and after completion of the investigation report under section 173, Cr.P.C. Was submitted in the Court.
5. At the commencement of the trial the learned trial Court framed a charge against the appellants and the acquittal accused on 1-12-2000 to which they pleaded not guilty and claimed a trial.
6. The prosecution in order to prove their guilt produced as many as 12 witnesses. The ocular account of the incident in question was furnished by Mst. Jannat Bibi complainant (P.W.6) Sher Muhammad alias Shera injured (P.W.7) and Ahmad Bakhsh alias Ahmad Khan (P.W.8) who also deposed about the motive while the medical evidence was provided by Dr. Munawar Ali (P,W.1) and Dr. Ghulam Hussain Faizi Muhammad Ameer, S.I. (P. W.10) had stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature.
7. In their statements recorded under section 342, Cr.P.C. The appellants and the acquitted accused had denied the allegations levelled against them by the prosecution and professed their innocence. However, the appellants or the co-accused had, not opted to make statements under section 340(2), Cr.P.C. On oath, but they produced Major Adil Qudoos Khan D.W. I and Muhammad Bakhsh MHC (D.W.2) in their defence.
8. The learned trial Court, after hearing the arguments of the learned counsel for the parties, had passed the impugned judgment of conviction and sentence against the appellants as detailed in para. 1 ante. Hence, all these matters before this Court.
9. The learned counsel for the appellants at the very outset has not challenged the conviction and sentence of Falak Sher appellant on merits and only prays for grant of time to deposit the Arsh amount as according to him he had already undergone the sentence of imprisonment. However, as regards Muhammad Bakhsh alias Muhammad Khan, Abdul Sattar and Muhammad Aslam appellants, it is contended that charge of Qatl-i-Amd was not proved against the three appellants as they were attributed single injury each on the person of the deceased and Muhammad Bakhsh alias Muhammad Khan and Abdul ' Sattar appellants were only alleged to be armed with Sotas, which is not a lethal weapon while Muhammad Aslam appellant though was alleged to be armed with hatchet, yet he had used its blunt side only and as such they could- only be convicted under section 315; P.P.C. ; that motive was not proved and the P.Ws. Had made dishonest improvements and that the appellants were falsely implicated in the present case. In the alternative, it is contended that the case of Muhammad Bakhsh alias Muhammad Khan appellant was not distinguishable from the case of Muhammad Aslam and Abdul Sattar appellant and the death sentence awarded to him may be converted to life imprisonment as well.
10. On the contrary, the learned counsel for the complainant and the State have maintained in unison that Muhammad Khan alias Mummi appellant had initiated the occurrence by causing injury on the vital part of the body of the deceased; that in the motive incident Muhammad Bakhsh alias Muhammad Bakhsh alias Mummi and Falak Sher appellants from the one side while Umer Hayat deceased and Shera injured. (P.W.7) from the other side had participated, so they had motive to commit murder of the deceased that it was a preplanned incident and the appellant does not deserve for any leniency in the shape of reduction in the quantum of sentence. The learned counsel for the appellant does not press Criminal Appeal No, 1183 of 2001 filed against the acquittal of respondents- accused under section 302, P.P.C., under the circumstances, which will be discussed in the operative part of the judgment.
11. We have heard the learned counsel for the parties and perused the record with due care and caution.
12. The occurrence in the present case had taken place at 6-15 p.m. On 13-9-1998 within the area of Chak No, 144/145, 9.00 k.m. Towards North/West from Police Station Sillanwali District Sargodha and the F.I.R. (Exh.P.K.) was recorded by Muhammad Ameer., S'.I. (P.W.10) on the statement of Mst. Jannat Bibi complainant (P.W.6) widow of Umer Hayat deceased on 13-9-1998 at 10-30 p.m. At the police station under sections 302/324/148/ 149/337-A(ii), P.P.C. On the same night both the injured. Umer Hayat (deceased) and Shera (P.W.7) were taken to the hospital by Laal, brother of Shera injured (P.W.7) and nephew of Umer Hayat (deceased). Then Dr. Munawar Ali (P.W.l) had medically examined Umer Hayat deceased at 7-15 p.m. And Shera injured (P.W.7) at 7-45 p.m. The police station was at a distance of 9.00 k.m. From the place of occurrence and time must have been consumed in taken both the injured to the hospital for medical examination by the witnesses as claimed by them as both Umer Hayat deceased and Shera injured (P.W.7) were injured seriously having received 7/10 injuries respectively on the vital parts. In such circumstances the first priority of the complainant party was to save the lives of the injured P.Ws. By taking them to the hospital, which was quite natural and it cannot be said that F.I.R. was got registered. As such it is found that the F.I.R. Was not registered with inordinate delay in which names of the accused were duly mentioned with their roles.
13. To prove the medical evidence the prosecution had produced P.W.l Dr. Munawar Ali, who medically examined Umer Hayat deceased when he was in injured condition on 13-9-1998 at 7-15 p.m. And the doctor had observed 7 injuries on his person. Injuries Nos.l to 3 were caused on the forehead and on the tip "of the nose while injury No,4 was on the left eye and the remaining injuries Nos.5 to 7 were on the left cheek, back of chest and lower abdominal region, lumber. Region and both buttocks and also on the right lower leg. According to the doctor condition of Umer Hayat deceased was serious whereupon he was referred to D.H.Q. Hospital and he died on the same day.
Similarly, Shera injured (P.W.7) was also medically examined at 7-45 p.m. The same night and P.W.l observed 10 injuries on his body, which were kept under observation. All the injuries on the person of both Umer Hayat deceased and Shera injured (P.W.7) were caused by blunt edged weapon and duration of the injuries had been mentioned as fresh. So possibility of taking place of the incident at 6-15 p.m. In the day light could not be ruled out and the medical evidence is not found in contradiction with the ocular account regarding receipt of injuries and receiving the injuries by the injured and the deceased with blunt edged weapon.
14. To prove the ocular account the prosecution had produced Mst. Jannat Bibi complainant (P.W.6), Sher Muhammad alias Shera injured (P.W.7) and Ahmad Bakhsh alias Ahmad Khan (P.W.8).
P.W.6 Mst. Jannat Bibi was widow of Umer Hayat deceased while Sher Muhammad alias Shera was nephew of Umer Hayat deceased and Ahriiad Bakhsh (P.W.8) is brother of P.W.7. Laal given up P.W. was also brother of P.W.7. So all the eye-witnesses including Laal (given up P.W.) were closely related inter se and with the deceased. However, it has been repeatedly held by this Court and the august Supreme Court of Pakistan that mere relationship of the witnesses inter se and with the deceased is not sufficient to term them as interested witnesses unless it is found that there was any previous enmity or ill-will between the parties and the witnesses had a motive to falsely implicate the accused in a criminal case. In the present case admittedly, there was no previous enmity ill-will or grudge between the appellants and the complainant party except for the incident which according to the contents of the F.I.R. had taken place in the morning at 8-00 a.m. In which from the side of the appellants Muhammad Khan alias Muhammad Bakhsh appellant No,l in Criminal Appeal No,225-J of 2001 and Falak Sher appellant in Criminal Appeal No, 1174 of 2001 had participated on behalf of the accused and Umer Hayat deceased and Shera injured (P.W.7) had taken part on behalf of the complainant party. In such circumstances, the witnesses cannot be termed as interested witnesses. Mst. Jannat Bibi (P.W.6) had explained her presence with her husband at the spot. Their house was situated four Squares away from the place of occurrence and accompanying of the complainant after returning from Sillanwali with the deceased being her husband was possible and quite natural. Even otherwise the possibility of presence of the witnesses at the place of incident cannot be ruled out as Shera injured (P.W.7) was seriously injured along with Umer Hayat deceased and they were immediately taken to the hospital where they wpre medically examined at 7-15 p.m. And injuries were declared as fresh. So taking of the injured and the deceased to hospital immediately after receiving injuries certificates that it was not unwitnessed occurrence it has come on the record that the injured were removed and taken to hospital by their close relative Laal (given up P.W.). In such circumstances, we find that the presence of the eye-witnesses at the spot had been established through the documentary evidence. However, we are not ready to accept the version of Ahmad Bakhsh (P.W.8) for his presence at the spot. He was resident of 8/9 miles away from the place of occurrence, but failed to give any sufficient reasons for his presence at the spot. Even if statement of P.W.8 is taken out of consideration, the prosecution is still left with the evidence of P.W.6 and P.W.7. Both the eye- witnesses remained consistent regarding time, place of incident and the manner in which the incident had taken place. They were also made consistent statement that Muhammad Bakhsh alias Muhammad Khan appellant was armed with Sota, co-convict Muhammad Aslam was armed with hatchet and Abdul Sattar with Sota. The fist blow as given by Muhammad Bakhsh alias Muhammad Khan alias Mummi appellant hitting on the right front side of the front of forehead of the deceased. Muhammad Aslam appellant also gave injures on the right side of the head of Umer Hayat deceased from the blunt side of the hatchet. Similarly, Abdul Sattar appellant caused Sota blow to Umer Hayat hitting on his nose. The injuries had been correctly noted down by the Medical Officer on the same locale while examining both Umer Hayat deceased and Shera injured (P.W.7) at the time of their medical examination. Even otherwise, both the eye-witnesses had made consistent statements regarding the details of the incident and they were not inimical towards the appellant or had any reason to falsely implicate the appellants in the present case. They were subjected to lengthy cross-examination but except for the minor discrepancies in their statement the defence had not been able to shatter their confidence sufficient for discarding their evidence.
We have noticed that the injuries on the person of the Shera injured (P.W.7) had caused fractures and he remained admitted in the hospital for about more than one month. He was seriously injured and X-ray report also confirmed that he had received fracture as well due to the injuries received by him in the incident. The said injuries cannot be declared as self- suffered and presence of Shera injured (P.W.7) at the spot was further stamped by receiving of injuries by him. The presence of Shera injured (P.W.7) at the spot cannot be ruled out and mere minor contradictions are not sufficient to discard his evidence. In such circumstances we have no hesitation in holding the ocular account was independent and trustworthy.
15. We have noticed that during the cross-examination it was brought on the record by the defence that the deceased remained involved in 47 other criminal cases and Shera injured (P.W.7) was also involved in 7 criminal cases. However, it is not brought on the record that they were ever convicted in any criminal case. Mere involvement of a person in a criminal case does not provide any licence to the other person to murder him. The learned trial Court had rightly relied upon the statements of the eye-witnesses. Even we have perused the F.I.R's. Of cases registered against both Umer Hayat deceased and Shera injured (P.W.7), which were only regarding theft and under the Arms Ordinance, but they were not involved in cases of murders or dacoity etc. As such they were not desperate and hardened criminals being not involved in fighting with the other persons. So we have not option except in accept the statements of these eye-witnesses, who had attributed specific roles to the three appellants namely Muhammad Khan alias Muhammad Bakhsh alias Mummi, Abdul Sattar and Muhammad Aslam of causing injures on the forehead, nose of the deceased and according to Dr. Ghulam Hussain Faizi, (P.W.Ll) there was fracture of left ulna with internal fixation, fractures of lower end of right redious with internal fixation as well as there was fracture of index bone, 5th metal corpal bone and proximal praline of little finger with internal fixation of the right hand. According to Dr. Munawar Ali (P.W.l) injuries Nos,4 to 7 were sufficient to cause death of the deceased in ordinary course of nature. Even otherwise, the appellants had gathered and were waiting for the deceased as_ well as Shera injured (P.W.7) at the place of incident while they were returning to their places of residence. The appellants had taken part in the incident by sharing common intention and by waiting for the deceased. We don't find any force in the arguments of the learned counsel for the appellant that conviction under section 315, P.P. C. Will meet the ends of justice as only Dandas and the hatchet from the blunt side were used and Danda is not a lethal ' weapon. The intention of the accused is to be gathered from the act committed by him. In the present case the target of the three appellants was head of the deceased and according to the doctor the injuries attributed to the three appellants were sufficient I to cause death in the ordinary course of nature. As such we do not find any force in the argument of the learned counsel that it was not a case of Qatl-i-Amd.
16. The motive in the present case had been mentioned that some fight had taken place between Umer Hayat deceased and Shera injured (P.W.7) on the one side and Muhammad Khan alias Muhammad Bakhsh alias Mummi and Falak Sher appellants on the side at 8-00 a.m. And all the accused due to this reason had committed the murder according to the complainant as alleged in the F.I.R. The same motive has been narrated by the P.Ws. While appearing in the Court and only that the place of incident was near the school was added by them. We do not find that mere mentioning of word 'school' where the said incident had taken place was a dishonest improvement. Even otherwise, during the cross-examination Mst. Jannat Bibi complainant (P.W.6) had stated that the said incident had taken place iii the morning on the same day and in the said incident Falak Sher appellant had received injury which caused fracture and she also admitted that regarding the said incident no case was registered till the present incident of murder. So. She had fully explained about the motive which was incorporated in the F.I.R. Even otherwise, Shera injured (P.W.7) was one of the participants in the incident, who fully supported the motive and he successfully faced the test of cross- examination in this regard. The J complainant had explained about not producing the documentary evidence as the case was still not registered and possibility of taking revenge by the appellants themselves instead of approaching the police cannot be ruled out. So we find that the motive has been proved against the appellants beyond any shadow of doubt.
17. The recovery of the weapons of offence, from the appellants in the presence of Ahmad Bakhsh, alias Ahmad Khan (P.W.8) was inconsequential as the said weapons were not sent to the office of Chemical Examiner or the Serologist to ascertain that there were stained with human blood and it cannot be said that these weapons were allegedly used in the occurrence'. It is settled law that mere nonrecovery of weapon of offence or nonproving of the same at the trial is not sufficient to exonerate the accused from the commission of crime, if the ocular account of unimpeachable character is available on the record.
18. As a result of the above discussion, we find that the prosecution had succeeded in proving the case against Muhammad Khan alias Muhammad Bakhsh, Muhammad Aslam and Abdul Sattar appellants. Hence, their conviction under section 302(b)/34, P.P.C. Is maintained. As far as the question of quantum of sentence is concerned, Muhammad Aslam and Abdul Sattar appellants have already been sentenced to life imprisonment which is also maintained. However, Muhammad Bakhsh alias Muhammad Khan appellant was sentenced, to death. The circumstances, show that Muhammad Khan alias Muhammad Bakhsh appellant along with accused was sitting ambush and on the coming of the deceased and Shera injured (P.W.7), they came out while armed with Sotas and other weapons etc. And it was Muhammad Khan alias Muhammad Bakhsh appellant who had imitated the incident while giving Sota blow on the right side of the front of forehead of Umer Hayat deceased which proved fatal. Moreover, Muhammad Bakhsh alias Muhammad Khan appellant was also one of the accused who was present at the time of incident of motive which had taken place at 8-00 a.m. In such circumstances, we find that Muhampiad Bakhsh alias Muhammad Khan appellant does not deserve for any leniency in the quantum of sentence. Abdul Sattar appellant had been awarded lesser punishment on the ground that he was not participant of the incident of the motive and Muhammad Aslam appellant was less than of 18 years. These were distinguishable features in the awarding the lesser sentence to both of them. Even otherwise, neither the State nor the complainant party had filed any revision petition for enhancement of sentence against Muhammad Aslam .And Abdul Sattar appellants. On the other hand, Muhammad Khan alias Muhammad Bakhsh appellant who had initiated attack has been rightly sentenced to death and the same is maintained. Resultantly, Criminal Appeal No,225-J of 2001 filed by Muhammad Khan alias Muhammad Bakhsh, Muhammad Aslam and Abdul Sattar appellants is hereby dismissed.
19. So far as Criminal Appeal No, 1174 of 2001 filed by Falak Sher appellant is concerned, Falak Sher appellant has already suffered whole sentence of imprisonment. He had caused injury on the head of Shera injured who appeared as (P.W.7) and fully implicated Falak Sher appellant. The motive was also attributed to Falak Sher appellant along with Muhammad Khan alias Muhammad Bakhsh appellant. The presence of Shera (P.W.7) at the spot was not doubtful. So the prosecution had also succeeded in proving the case against Falak Sher appellant, we find that the learned counsel was quite right in not Challenging conviction and sentence of the appellant Falak Sher awarded by the learned trial Court, which is maintained and Criminal Appeal No, 1174 of 2001 is dismissed. It has been brought to the notice of this Court, that Falak Sher appellant has already undergone the sentence of imprisonment during the pendency of this appeal and only the Arsh was left to be paid when the operation of his sentence was suspended and he was released on bail. In such a situation Falak Sher appellant is granted three months time to deposit the amount of Arsh equal to 5 % of the Diyat amount before the learned trial Court failing which he will be proceeded in accordance with law. On realization the said amount will be disbursed to Shera injured (P.W.7).
20. Now we take up Criminal Appeal No, 1183 of 2001 filed by the injured Sher Muhammad alias Shera against Falak Sher and Mazhar for their acquittal from the charge under section 302(b)/34, P.P.C. The notice was issued by this Court to them. Mazher respondent-accused had not filed any appeal against his conviction, who has already been released from jail after serving out the whole sentence while Falak Sher respondent/accused had also been bail out by this Court during the pendency of these matters and he had been granted three months time to deposit the Arsh amount. In such a situation, the learned counsel for the appellant keeping in view the case-law declared by the august Supreme Court of Pakistan in Abdul Haq v. Muhammad Amin alias Munna and others 2004 SCM R 810 has opted not to press Criminal Appeal No, 1183 of 2001 on merit, which is dismissed accordingly.
21. Murder Reference No,409 of 2001, seeking confirmation of death sentence of Muhammad Khan alias Muhammad Bakhsh alias Mummi appellant is replied in affirmative and the death sentence is hereby confirmed.