Sarmad Jalal Osmany, J.--Criminal Appeal No, 206/2001 impugns the judgment of the Learned Lahore High Court, Bahawalpur Bench, Bahawalpur passed in Criminal Appeal No, 90/1996 whereby Respondents/Accused Muhammad Tayyab, Muhammad. Anwar, Muhammad Ishaq, Muhammad Umar, Tanvir Ahmed, Muhammad Saeed and Abdul Waheed were acquitted of the charge against them under Section 302(b) PPC read with Section 34 PPC for the murder of Deceased Abdul Malik.
Criminal Appeal No, 207/2001 impugns the same judgment of the Learned Lahore High Court whereby Appellant Muhammad Khan's conviction under Section 302(b) PPC was upheld and sentence of death confirmed. Consequently, these Appeals are being disposed of together. It may be noted that in the leave granting order notices were only issued to Respondents Muhammad Tayyab, Muhammad Anwar, Muhammad Ishaque and Muhammad Umar.
2. Briefly stated the case of the Prosecution is that on the day of occurrence viz 28.8.1994 at 7.00 a.m. Deceased Abdul Malik along with his mother Mst. Jannat Bibi had to go to Police Station Shahar Fareed for investigation of a case which they had got registered against Appellant Muhammad Khan. However, due to fear of the Accused Party they did not board the Wagon from the Adda (Stand) and went to Basti Azeem in Chak No, 3/Fordwah to do so. Meanwhile, Muhammad Ali, Muhammad Yasin, Ghulam Rasool came on their motorcycle who had links with the Accused Party and on seeing them returned to inform Accused Muhammad Tayyab about their presence. Shortly thereafter Muhammad Tayyab armed with a hatchet and his son Muhammad Afzal came on a motorcycle. He raised a lalkara that they would teach a lesson to the Deceased for getting a criminal case registered against them on which Muhammad Tayyab gave a hatchet blow on the back of the Deceased's head. Meanwhile Respondents Muhammad Ishaq, Muhammad Umar, Tanvir Ahmad, Muhammad Saeed and Abdul Waheed armed with sotas (sticks) along with Muhammad Anwar armed with a sabbal (iron rod) reached there on a tractor trolley driven by Appellant Muhammad Khan. The Deceased and Complainant Mst. Jannat Bibi ran towards Basti Azeem to save their lives and raised a hue and cry on which Muhammad Sharif, Muhammad Hanif, Noor Hassan, Mst. Shamim and Muhammad Hanif had gathered there. All the Respondents chased the Deceased and his mother. Muhammad Anwar gave a blow with his sabbal on the 'forehead of the Deceased whereas Muhammad Tayyab gave a second hatchet blow on the back of his head. Muhammad Ishaq gave a stick blow on the right hand and Muhammad Umar on his shoulder when the Deceased fell down on the ground upon which he was further given blows by Muhammad Tanvir, Abdul Waheed and Muhammad Saeed. When Complainant Jannat Bibi tried to rescue her son she was belaboured by Respondents Abdul Waheed, Muhammad Saeed and Muhammad Tanvir with sticks. So also when PWs Muhammad Sharif, Muhammad Hanif and Noor Hassan tried to apprehend the Respondents, they were given similar treatment. Than all the Respondents asked Appellant Muhammad Khan to run over the Deceased with his tractor which he did after removing the trolley from the same. The PWs however, succeeded in apprehending Muhammad Anwar, Muhammad Afzal and Muhammad Tayyab with their weapons while rest of the accused decamped from the scene leaving behind the tractor trolley and motorcycle at the spot.
3. Sheikh Khizar Hayat, Learned ASC appearing for the Appellant/Complainant in Criminal Appeal No, 206/2001 has firstly submitted that the role of Muhammad Tayyab is that of inflicting two hatchet blows on the back of the Deceased's head which is fully corroborated by the medical report. He was apprehended at the spot and hence there can be no doubt of his presence at the place of incident. Learned ASC has referred to the medical report according to which the injury numbers 1 to 3 viz an abrasion measuring 8cm x 7 cm on the left side of the forehead, a lacerated wound measuring 6 cm x 1 cm on the right side of the skull where the bone was fractured and brain was damaged and a lacerated wound measuring 5 cm x 1 cm on the left side of skull damaging the brain and membrane were the causes of death. Per Learned ASC the evidence available on the record i,e, the statement of the PWS before the Learned Trial Court if placed in juxtaposition with the statement of Respondent Muhammad Tayyab under Section 342 PPC renders the latter implausible according to which the Deceased had opened the attack on Muhammad Khan who was driving a tractor and who in order to save himself swerved towards one side when the Deceased came in front and fell down on some bricks and resultantly died.
4. Per Learned ASC in so far as the role of Respondent Anwar who caused a sabbal blow on the front side of the Deceased's hand is concerned, it is also corroborated by the medical report i,e, Injury No, 1 which is an abrasion on the left side of the forehead along with laceration found in the middle of the abrasion. However, although the brain had been fractured but the membrane was intact. This is further corroborated by recovery of a Sabbal at the behest of Respondent Muhammad Anwar which was not blood stained. Learned ASC has explained that a safa (piece of cloth) was upon the head of the Deceased, which prevented the blood penetrating through it which could have stained the Sabbal. However, the safa was found to be blood stained. As to Muhammad Ishaq and Umar, they had caused injuries over the arm and shoulder of the Deceased with their sticks which are again corroborated by the medical report and recoveries of such sticks from them. Per Learned ASC in so far as Muhammad Ishaq and Umar are concerned they had the common intention which was shared along with Muhammad Tayyab and Anwar to do away with the Deceased and hence are equally responsible for his death. Therefore the Learned Trial Court correctly convicted Muhammad Tayyab and Anwar to death and Umar and Ishaq to life. As regards the learned High Court's reasoning that there was no injury by any sharp weapon found on the Deceased's body; a sabbal is an iron rod for digging earth and hence it can very well be used as a blunt weapon to cause the injury as attributed to Anwar. Similarly as the Deceased was wearing a safa on his head even if it was used from the sharp side by Tayyab as per eye-witness account, it could only result in a laceration and not an incised wound. In any event per Learned ASC even if there are minor discrepancies between the ocular account and the medical evidence the former should prevail. In support of this contention he has relied upon Muhammad Hanif u. State (PLD 1993 S.C. 895). Learned ASC has also submitted that Learned High Court's reasoning as to the innocence of Ishaq on the ground that no injury was, found on the arm of the Deceased is again faulty as it is against the medical record. He has again pressed the plea of common intention in so far as Ishaq is concerned. So also findings of the Learned High Court with regard to Umar's blow' are also against the medical record and the ocular account. He has relied upon Muhammad Sharif v. Muhammad Javed (PLD 1976 S.C. 452). He has, therefore, prayed that the judgment of the Learned Trial Court be restored viz-a-viz the acquitted Accused i,e, they be given life imprisonment etc.
5. Syed Rafaqat Hussain Shah, Learned ASC appearing for the Respondents No, 1 to 4 has contrarily submitted that Muhammad Tayyab was an old man of 70 years at the time of occurrence hence it is not possible that he could have chased a 45 years old robust man and gave him hatchet blows.
Secondly, per Learned ASC had Muhammad Ishaq been guilty he would have ran away from the spot. Consequently his version per his statement under Section 342 Cr.P.C. is to be believed i,e, that he arrived on his motorcycle after the occurrence had taken place. Learned ASC has further submitted that the ocular version does not match the medical account in so far as injuries attributed to Muhammad Tayyab with his axe are concerned as then there would have been incised wounds on the Deceased's head whereas the Doctor who conducted the postmortem of the Deceased found that such injuries were given by a hard and blunt weapon. Again in so far as the case of Anwar is concerned he is stated to have hit the Deceased with a Sabbal, which is an iron rod and is used for digging earth. Consequently it is impossible that the injuries attributed to Anwar were from an iron rod as it was not stained with human blood and further that as per medical report brain matter was damaged and membrane was intact which would not have been the case if the injuries were caused by an iron rod. In so far as Umar is concerned, Learned ASC has submitted that he has been attributed Injury No, 5 on the right side of Deceased's chest which is only an abrasion and could be the result of dragging and not delivered with a stick as stated.
Further this is corroborated by the medical account as according to the Doctor it could be the result of dragging or falling on the ground as observed by the High Court. He has also fully supported the impugned judgment to the effect that allegation against Respondents Tanvir Ahmad, Muhammad Saeed and Abdul Waheed is of a general nature of having caused blows with their sotas (sticks) but the same is falsified by the medical report as the Doctor has admitted in his cross-examination that Injuries No, 5, 6 & 7 can be the result of dragging or caused from wheels of any vehicle. Learned ASC has therefore prayed that Criminal Appeal No, 206/2001 be dismissed.
6. Mian Asif Mumtaz, Learned Deputy Prosecutor General, Punjab has adopted the arguments of Sheikh Khizar Hayat Learned ASC appearing for the Appellant. In so far as common intention is concerned, he has relied upon- Zahid Imran v. State (PLD 2006 S.C. 109) and Muhammad Yaqoob v. The State (PLD 2001 S.C. 378).
7. Qari Abdur Rashid, Learned ASC appearing for the Appellant Muhammad Khan in Cr. Appeal No, 207/2001 has submitted that the role given in the F.I.R. to this Appellant is that after the Deceased had fallen down on the ground he had trampled him with his tractor.' However, this version if kept in juxtaposition with the Appellant's statement (he had adopted the statement of Muhammad Tayyab) under Section 342 Cr.P.C. is not probable. According to said statement the Deceased had attacked him and Respondent Muhammad Ishaq who were on the tractor when the Appellant swerved and the Deceased came against it and dashed on some bricks lying in that area and died. Hence there was no pre-mediation on his part at all. Consequently, in the alternative Learned ASC has submitted that life imprisonment should be given to Appellant Muhammad Khan which would serve the ends of justice as the incident took place due to a sudden flare up and fight between the parties. His next submission was that all the witnesses are interested and belong to the same caste viz Arain whereas the Accused party belong to Joiya caste. Hence, strict corroboration is required in so far as the eye-witness account is concerned which is not forthcoming from the medical record. He has finally submitted that if the ocular version is to be believed it is quite clear that Appellant Muhammad Khan trampled the dead body of the deceased hence he should be punished under Section 297 PPC for which the maximum sentence is two years R.I.
8. Learned Deputy Prosecutor General Punjab on the other hand has totally supported the impugned judgment in so far as Appellant Muhammad Khan is concerned. He has submitted that his statement under Section 342 Cr.P.C. cannot be believed if put in juxtaposition with the prosecution version since the latter has brought home the guilt of this Appellant beyond any reasonable doubt. For this proposition he has cited Elahi Bakhsh v. State (2005 SCM R 810)
Muhammad Naeem v. State (PLJ 2005 S.C. 159), Zulfiqar Ali v. State (2008 SCM R 796) and Muhammad Yapob v. The State (PLD 2001 S.C. 378).
9. We have heard all the Learned ASCs as well as Learned Deputy Prosecutor General, Punjab and perused the record with their assistance. It would be seen that in so far as the incident itself is concerned, the same is not denied by the Defence but not in the manner in which it has stated to have taken place by the Prosecution. Similarly, it has not been denied by the PWs that there had been a long standing enmity between the parities and litigation was going on. Consequently, we propose to examine the case keeping in view the afore stated facts which are admitted. In this regard it would be seen that Deceased Abdul Malik, as opined by the Doctor who carried out his postmortem received 8 injuries. Injury No, 1 is an abrasion measuring 8 cm x 7 cm on the left side of the forehead whereas there was a lacerated wound measuring 5 cm x 1 cm in the middle of such abrasion. The bone had been fractured but the brain and membrane was intact. Injury No, 2 was a lacerated wound measuring 6 cm x 1 cm on the right side of the occipital region of the scalp, the bones were fractured and broken in three pieces and the membrane ruptured and brain was damaged. Hair was absent in an area of 8 cm x 5 cm over and around the wound. Injury No, 3 was a lacerated wound measuring 5 cm x 1 cm on the left side, of the occipital region of the scalp and bone was fractured in two pieces, the brain was damaged and membrane ruptured. Injury No, 4 was on the upper half of right fore-arm which was swollen, and small blisters were found whereas outer layer of skin was ruptured. Injury No 5 was an abrasion measuring 18 cm x 14 cm on back of the chest and there was a bruise measuring 3 cm x 4 cm 2 cm below the abrasion. Injury No 6 was an abrasion measuring 14 cm x 8 cm again on the chest below Injury No 5. Injury No 7 again was an abrasion measuring 52 cm x 14 cm extending from the right buttock to the right thigh below the right knee joint. Finally injury 8 was a bruise measuring 6 cm x 5 cm on the right upper arm. No fracture was seen.
10. Keeping these injuries in view, we would now examine the ocular account according to which Respondent Muhammad Tayyab is stated to have caused Injuries No, 2 & 3 with the sharp side of his axe whereas Respondent Muhammad Anwar is stated to have caused Injury No, 1 with his sabbal (iron rod). According to the opinion of the Doctor Injuries No, 2 and 3 were caused by a hard and blunt substance. Consequently had they been caused by Muhammad Tayyab who used the sharp side of his axe the same would have been incised which is not the case. In so far as Injury No, 1 is concerned, it has been argued by Syed Rafaqat Hussain Shah, learned ASC that this tool is for digging earth, one side of which is blunt and the other flattered. Consequently again since Injury No, 1 was caused by a hard and blunt substance it could not have been caused by a Sabbal by Muhammad Anwar. However, we do not agree with this proposition since the injury itself i,e, No, 1, as opined by the Doctor, is a lacerated wound measuring 5 cm x:1 cm on the left side of the forehead caused by a blunt weapon in which event the sabbal, if used as weapon of offence could very will have caused such injury from the blunt side. Respondent Muhammad Ishaq was allegedly armed with a sota (stick) who injured the right wrist of the Deceased but there is no corresponding injury at such place. On the other hand there as blisters which were not on the right wrist but on the right arm which could not have been caused by a stick. Respondent Muhammad Umar was alleged to have caused an injury with a sota on the left arm of the Deceased but there is no such corresponding injury as opined by the doctor. So also against Respondents Tanvir Ahmad, Muhammad Saeed and Abdul Waheed there are general allegations that they had caused sota blows to the Deceased which are similarly falsified by the medical evidence because a blow given by a stick should result in a bruise and if hit with full force perhaps a laceration but not an abrasion which consists of the remaining injuries certified by the Doctor on the body of the Deceased. The dictionary meaning of the word abrasion would denote the process of scraping or wearing down by friction or a graze." In our opinion, as stated by the Doctor himself in his cross-examination, such abrasions which correspond to Injuries No, 5, 6 A & 7 could be caused when the body of the Deceased was dragged on the ground with force.
11. As stated above, the incident itself is not denied by the Defence. However, the Accused have given their version of it in their examination under Section 342 Cr.P.C. In this regard, per Respondent Muhammad Tayyab he was not even present at the scene but was going on his motorcycle when after the occurrence he reached there and was apprehended by the PWs. According to him Convict/Appellant Muhammad Khan and Respondent Muhammad Ishaq were on their way to Marry Shauq Shah on the tractor via the place of occurrence leading through Basti Azim when they came across Mst. Jannat Bibi, Noor Hassan, Sharif Hanif and Deceased Abdul Malik who restrained them. The Deceased who was armed with a sofa (stick) gave its blow to Muhammad Ishaq who was sitting on the mudguard of the tractor who fell down. Appellant Muhammad Khan in his defence diverted the tractor towards Basti Azim when the Deceased came in front of the same and as a result fell down on some bricks lying in the area due to which he received injuries and died there. In the meantime inhabitants of the area along with the PWs apprehended Ishaq and Muhammad Khan at the spot. During this process Mst. Jannat Bibi and other PWs also received some injuries. After his arrival along with accused Muhammad Afzal his son, they were also apprehended by the PWs who handed them over to the police. Then the other Co-accused reached the spot when they learnt about the incident and they were also apprehended and in this process the PWs also received injuries. Convict/Appellant Muhammad Khan and Accused Ishaq were also apprehended at the spot but their arrest had been intentionally omitted in order to conceal the true facts. All the accused adopted the statement of Respondent/accused Muhammad Tayyab.
12. The aforesaid statement when kept in juxtaposition with the Prosecution case particularly the medical evidence reveals that perhaps the truth lies in the middle of these two conflicting versions and both the parties have not been candid before the Learned Trial Court. In this view of the matter, we are of the opinion that the defence version is to be believed to the extent that an altercation was going on between the deceased and Muhammad Khan and Muhammad Ishaque when the remaining accused arrived there. The PWs have exaggerated the event in order to falsely implicate maximum number of accused who are all near relations. Muhammad Khan was driving the Tractor, and although the incident may not be a pre-meditated one, the injuries on the deceased's body reveals that he was done to death mercilessly as it bore multiple abrasions and his head was crushed, and broken into pieces. In our opinion the abrasions could only be caused by dragging of the deceased's body on the ground with a Tractor. This coupled with the fact that the deceased's body was found entangled in the rear wheels of the Tractor only establishes that Muhammad Khan was the perpetuator of the crime. The upshot of the above discussion is that both the Appeals are dismissed.