' ABDUL SAMI KHAN, J.---Ghulam Hussain alias Ghulam Hassan appellant was convicted under section 302(b), P.P.C. By the learned Additional Sessions Judge, Dera Ghazi Khan vide judgment dated 19-12-2006 in case F.I.R. No,69 of 2006, dated 9-4-2006 registered at Police Station Kala, District Dera Ghazi Khan in respect of offences under sections 302/337-A(i)/337-A(ii)/337-L(2), P.P.C. And was sentenced to death whereas Noor Muhammad and Allah Wasaya appellants were also convicted for an offence under section 302/34, P.P.C. And were sentenced to life imprisonment each. All the appellants were also ordered to pay an amount of Rs, 100,000 each as compensation under section 337-A, Cr.P.C. To the legal heirs of Murid Hussain deceased in default of payment to undergo simple imprisonment for six months each. All the appellants were also convicted under section 337-A(i)/34, P.P.C. For inflicting injuries on the person of Ijaz Ahmad (P.W.7) and sentenced rigorous imprisonment for two years each with Daman of Rs,5,000 each. All the appellants were also convicted under ection 337-L(2)/34, P.P.C. For inflicting injuries on the person of Farooq Ahmad victim (P.W.8) and were sentenced to rigorous imprisonment for two years each with Daman of Rs,5,000 each. All the sentences awarded to the appellants were ordered by the learned trial court to run concurrently and benefit under section 382-B, Cr.P.C. Was extended in their favour. The appellants have preferred the instant appeal against their convictions and sentences whereas Ejaz Ahmed complainant has preferred Criminal Revision No,65 of 2007 for enhancement of sentences passed against Noor Muhammad and Allah Wasaya appellants from life imprisonment to death.
We propose to decide both these matters along with Murder Reference No,305 of 2007 sent by the learned trial court under section 374, Cr.P.C for the confirmation of death sentence awarded to Ghulam Hussain alias Ghulam Hassan through this judgment.
2. The prosecution story set forth in the F.I.R. Is that at about 3-00 p.m. On 9-4-2006 the complainant was standing in front of his house with Farooq Ahmad and Ejaz Hussain. At that time Ghulam Hassan armed with hatchet Noor Muhammad, armed with iron 'rod and Allah Wasaya also armed with iron rod came at the spot. Ghulam Hussain raised lalkara to take revenge of insult of his brother Noor Muhammad. Ghulam Hassan inflicted hatchet blow which landed at left side of complainant's head upon which blood started oozing. Second blow from the reverse side of the hatchet was inflicted which too sustained by the complainant on left side of his head. Farooq Ahmad and Ejaz Hussain nephew of the complainant came forward to rescue the complainant upon which Noor Muhammad gave repeated blows of iron rod to Ejaz Hussain which he sustained on left side as well as back of his head and at his back. Allah Wasaya inflicted iron blow which landed on front side of head of Farooq Ahmad and the second blow hit him at left arm. Upon the hue and cry raised by the complainant party Ghulam Akbar resident of the locality attracted at the spot and witnessed the occurrence. Noor Muhammad also inflicted repeated blows of iron rod which the complainant sustained on left shoulder, right shin and left arm. Many people gathered at the spot upon which Ghulam Hassan, Noor Muhammad and Allah Wasaya escaped towards North from the place of occurrence. The motive behind the occurrence, stated by the complainant, was an altercation which took place between nephew of the complainant namely Farooq Ahmad and Noor Muhammad appellant. The accused nourished grudge in their mind and injured the complainant and his nephews. Upon the statement of the complainant formal F.I.R. Was registered against the appellants. The investigation was conducted by Inayat Ullah, SI (P.W.11)..He prepared injuries statement of Murid Hussain, Exh.P.D/1, injury statement of Ijaz Hussain, Exh.P.E/2 and injury statement of Farooq Ahmad Exh.P.F/2, visited the place of occurrence, inspected the same and prepared rough site-plan Exh.P.P., collected blood-stained earth from the spot, secured it into sealed parcel and took it into possession vide Exh.PH. Prepared rough site-plan, 'recorded statements under section 161, Cr.P.C. Of the witnesses, on 20-4-2006 arrested the appellants, on 24- 4-2006 recovered the weapons of offence from the appellant Ghulam Hussain, i,e, hatchet (P-7), took it into possession vide recovery memo Exh.PJ, Iron rod (P-8) from Noor Muhammad, took it into possession recovery memo Ex.P.K., Iron rod (P-9) from Allah Wasaya took it into possession vide recovery memo Exh.PL and on 29-4-2006 he prepared incomplete challan and sent the same to court. On 3-11-2006 the appellants were charge-sheeted under sections 302/337-A(i)/337-L(2)134, P.P.C.
3. To prove its case the prosecution examined as many as 11 witnesses. The ocular account in this case has been furnished by Ejaz Hussain (P.W.7) and Farooq Ahmad (P.W.8). Both of them also stated about the motive. Dr. Khalil-ur-Rehman Khan (P.W.6) and Dr. Saeed Ahmad (P. W.10) had furnished the medical evidence in this case. While conducting medical examination on the injured Murid Hussain on 7-4-2006 Dr. Khalil-ur-Rehman Lund (P.W.6) examined the following injuries:-- EXTERNAL INJURIES.
(i) Lacerated wound 3cm x 2 cm bone deep, bone was also exposed situated at the left side of skull. 7cm above the left ear the injury was KUO advised Ex-Ray.
(ii) Lacerated wound 2 cm x 1/2 cm skin deep situated on the mid of the scull 6cm right to the injury No, 1 and 8cm above the left eye brow.
(iii) Abrasion 3 cm x 1 cm situated on the top of the left shoulder.
(iv) Lacerated wound 3cm x 1/2 cm muscle deep situated on the front of the left leg. 19cm below the knee advised Ex-ray (KUO).
(v) Bruise 14cm x 2 cm situated on the right side of the back 4cm below the left shoulder.
'Probable time elapsed between injuries and examination was three to hours. Injury Nos.1 and 4 were KUO. Injury No,2 was declared Shujjah-e-Khafifa and injury Nos.3 and 5 were declared as 227- L(2), P.P.C. The injured was referred to DHQ Hospital, Dera Ghazi Khan for further investigation and treatment.
5. The appellants in their statements under section 342, Cr.P.C. Refuted all the allegations levelled against them and professed their innocence. The appellants did not opt to appear as their own witness under section 340(2), Cr.P.C. And also did not produce any evidence in their defence. In response to a question that why this case against you and why P. Ws. Deposed against you Ghulam Hussain alias Ghulam Hassan appellant replied as under- I have been falsely implicated in this case. Real facts are that on the fateful day my brother Allah Wasaya co-accused was coming back from Qasba Kala after labouring and was going to his home at Chah Kamalwala when he reached near the houses of P. Ws. Murid Hussain deceased, Ijaz Hussain and Farooq Ahmad P. Ws. Armed with Sotas were already standing at thoroughfare.
They stopped Allah Wasaya co-accused and said to him that he and Noor Muhammad accused insulted Farooq Ahmad P. W. On that morning and they would take revenge of that Murid Hussain gave sota blow on the person of Allah Wasaya accused. To rescue himself Allah Wasaya accused caught hold Murid Hussain deceased in his arms in that position. Farooq Ahmad and Ijaz Hussain P. W. Gave sota blows but the same were mistakenly inflicted on the body of Murid Hussain and resultantly he was injured. Ijaz Hussain and Murid Hussain also gave sotas blows on the person of Allah Wasaya accused in result of .Which his arm was fractured from two points. I and Noor Muhammad co-accused were reaping burseen crop nearby the place of occurrence. We went there and rescued Allah Wasaya accused. I, Noor Muhammad and Allah Wasaya co-accused had gone to police station to report the crime Police did not record the statement of Allah Wasaya accused as narrated by him which is Exh.D.D. Police also got medically examined Allah Wasaya accused after preparation of his injury statement Mark-DA and MO issued his MLC Exh.D.A. The complainant party was aggressor, police suppressed the injuries on the person of Allah Wasaya accused and did not register his case with connivance of complainant party. All the P. Ws. Are inter se related and interested, hence they, deposed falsely against me to save themselves and to involve us in this case falsely."
6. After conclusion of the trial the appellants had been convicted and sentenced by the learned trial court as mentioned and-detailed above. Hence, this appeals, criminal revision and Murder Reference before this Court.
7. Learned counsel for the appellants in support of this appeal contends that the story narrated in the F.I.R. Is totally false and fabricated. Mureed Hussain deceased did not receive any injury at the hands of the appellants. The appellants are real brothers and three persons from one family were involved in this case which shows that the complainant had spread the net wide to entangle maximum persons from the appellants' side. The complainant and P. Ws. Including the deceased inflicted injuries on the body of Allah Wasaya appellant and during occurrence mistakenly deceased Mureed Hussain received two Sota blows on his head. The injury statement prepared by the Investigating Officer does not bear the names of the appellants. P. Ws. Made material improvements in order to bring their statements in line with the medical evidence. If the P. Ws. Have received injuries they should have produced their blood-stained clothes to the Investigating Officer and he should have sent the same to the laboratory but this has not been done in this case. There are material contradictions in ocular account and medical evidence. In the complaint Exh.PA it is not mentioned by the complainant that accused intended to commit murder of Mureed Hussain deceased. The statement of P.W.6 was recorded on 22-11-2006 whereas the statements of P.W.7 and P.W.8= was recorded on 25-11-2006. The occurrence took place on 74-2006 and the statements of P. Ws. Were recorded by the Investigating Officer with an unexplained delay which is fatal to the Prosecution case. During trial P.W.7 and P.W.8 deliberately improved upon their statements and stated about blows from the reverse side of hatchet while the word reverse side is not mentioned in the statement under section 161, Cr.P.C. Which was duly confronted during trial.
Weapons allegedly used by the appellants during the occurrence were planted upon the appellants by the police. However, the same were not stained with blood. Moreover the weapons used during the occurrence are conventional and not deadly weapons which the villagers used to carry with them all times. There is violation of section 103, Cr.P.C. Even otheiwise the prosecution has failed to produce any proof of ownership of the appellants regarding place of recovery.
8. On the other hand, learned Deputy Prosecutor-General assisted by the learned counsel for the complainant controverted the arguments of the learned counsel for the appellants by submitting that the appellants were named in the F.I.R. Which was got recorded by Mureed Hussain deceased before his death and it should be treated as dying declaration. The case was properly investigated by the Investigating Officer and the appellants were found guilty during the investigation. There is no contradiction between the medical evidence as well as ocular account. The eye-witnesses also received injuries during the occurrence, hence their presence cannot be denied at the place of occurrence. They are natural witnesses and only the statement of two P. Ws. Is sufficient to connect the appellants with the commission of offence. The presence of the appellants at the spot is an admitted fact. Even otherwise defence has admitted the occurrence. Recoveries of weapon of offence have been effected from the appellants. It was a daylight occurrence, the parties are known to each other and there is no chance of mistaken identity. The prosecution witnesses remained consistent on each and every pint at the time of adducing evidence. The motive is proved in all respect. The defence version is contradictory.
9. We have heard the learned counsel for the parties at length, and have given anxious consideration to their arguments and have also scanned the record with their able assistance.
10. The occurrence in this case took place on 7-4-2006 at 3-00 p.m. And the matter was brought to the notice of the police on the same day vide Rapat No,12, dated 7-4-2006 and the F.I.R. Was lodged on 9-4-2006 at 10-35 a.m. Which contains all the necessary details of the incident.
Moreover, all the injured in this case were medically examined at 5-30 p.m., therefore, we are in agreement with the learned counsel for the complainant that there is no conscious or deliberate delay in reporting the matter to the police. The matter was reported to the police A with sufficient promptitude.
11. Before proceeding with our discussion we shall oblige to mention here that happening of occurrence, presence and participation of the appellants and injured witnesses are admitted from both the versions, advanced by the prosecution as well as defence. Now we would like to first venture the stance advanced by the prosecution. To prove the ocular account of this case the prosecution had examined Ijaz Hussain (P.W.7) and Farooq Ahmad (P.W.8). Both the eye-witnesses have received injuries with the hands of the appellants, they were also medically examined, thus, their presence at the spot is a question which needs no explanation. It was a daylight occurrence both the parties were known to each other being residents of the same locality, therefore, mistaken identity of the appellants and substitution of real culprits is also not a subject-matter of our discussion. Although both the eye-witnesses are inter se related to each other and with the deceased as well yet, law is quite settled that mere relationship would not discard the testimony of the witnesses when otherwise the facts and circumstances of the case and other supportive pieces of evidence strongly corroborate their statements in a case of murder. Reliance is placed on the cases of Mulla Riaz Ahmad v. The State (2002 SCM R 626) and Ijaz Ahmad v. The State (2009 SCM R 99). While appearing in the witness box both the eyewitnesses had sufficiently explained the mode and manner of taking place of occurrence, the accusation made in the F.I.R., the weapons used in the incident, the attribution assigned upon each and every appellants and the locale of injuries sustained by them as well as the deceased in this case. They were subject to lengthy cross- examination by the defence counsel but they remained consistent on all material points and their credibility could not be shattered. Their trustworthy evidence not only gained and inspired, the confidence of the learned trial Court but we too have believed their truthfulness. The minor discrepancies into their statement are not ready enough to lend a hand to the defence plea taken in this case. Thus, we are confident in concluding that the prosecution has amply proved the ocular account in this case.
12. Conversely the defence has also brought its stance on the record of this case at the time of recording statements under section 342, Cr.P.C. By the appellants. Now we shall like to discuss here the defence plea taken in this case. All the appellants had unanimously stated in their statements under section 342, Cr.P.C. That it was Allah Wasaya appellant who was stopped by the deceased and injured victim for taking revenge of insult of Farooq Ahmad P.W. Allah Wasaya was caught hold by Mureed Hussain whereas Farooq Ahmad and Ejaz eye-witnesses gave Sota blows to him and some Sota blows mistakenly inflicted on the head of Mureed Huussain and he lost his life afterward.
The appellants had tried to prove the defence plea from the MLR of Allah Wasaya appellant but the difference of time between the MLR of Allah Wasaya and the injured P.Ws. As well as deceased itself disprove the defence plea. Moreover the manner and mode carved by the appellants do not appeal to a prudent mind that the eye-witnesses themselves inflicted Sota blows to a person of their own side. By taking such a feeble stance the appellants could not be wriggle out of their liabilities. If this is not enough, according to the defence plea if the Ghulam Hussain alias Ghulam Hassan and Noor Muhammad were reaping burseen crop near the place of occurrence then why the complainant party did not attack upon them and only waylaid Allah Wasaya appellant to cause injury to him: The defence plea had not only disbelieved by the police during the investigation of this case but the same had also been disbelieved by the learned trial Court on the eve of dismissal of private complainant instituted by the appellants' party. Admittedly neither the appellants moved any application against the police nor had they challenged the dismissal order of their private complaint which shows the falsity of defence plea of the appellants to save their skin. Thus, we are not ready E to believe the defence plea taken by the appellants in this case.
13. If both the pleas are put in juxtaposition it is clear that the motive stand, proved. So far as the medical evidence is 'concerned the medico-legal certificates of the injured victims/eye-witnesses and the Post-mortem Examination report of the deceased Mureed Hussain provide sufficient support to the ocular account. Both the doctors, i,e, Dr. Khalil-ur-Rehman Khan '(P.W.6) and Dr. Saeed Ahmad (P.W.10) had appeared in the witness-box and sufficiently explained each and every injury sustained by the deceased and the eye-witnesses. Thus, we are of the considered view that the medical evidence provide sufficient support to the ocular account in this case.
14. During the investigation of this case recoveries were effected from the appellants. Ghulam.
Muhammad (P.W.9) and Inayat Ullah, Investigating Officer (P.W.11) appeared in the witness box and confidently stated about the proceedings of recoveries. Violation of section 103, Cr.P.C. Does not have any vital effect upon the prosecution's case because in such like cases no one from the public G would come forward to voluntarily join the proceedings of recovery and becoming a witness of recovery against the culprits of criminal mind. Reliance is placed on the cases of Muhammad Ahmad v. The. State and others (1997 SCM R 89) and Afzaal Ahmed v. The State (2003 SCM R 573). Thus, the ocular account has found ample support from the recovery.
15. Now adverting to the question of quantum of sentences of the appellants, we have noted some peculiar features in this case, i,e, the complainant had suppressed the injuries sustained by Allah Wasaya appellant in the occurrence and the complainant had also suppressed his role and that of his. P. Ws. After assessing and evaluating the evidence and record available in this case we have come to the conclusion that it was a free fight between the parties wherein persons from both the sides had received injuries at 'the hands of their rivals. The fight was a result of sudden flare-up and no element of premeditation is found in this case. Therefore, we shall deem it appropriate that while maintaining the conviction of Ghulam Hussain alias Ghulam Hassan appellant under section 302(b), P.P.C., his sentence is altered from death to Imprisonment for Life. So far as the sentences passed against Noor Muhammad and Allah Wasaya appellants are concerned, keeping in view the peculiar circumstances of this case they are acquitted of the charge under section 302/34, P.P.C.
As they had not caused any injury to the deceased and had caused injuries to the eye-witnesses, therefore, we consider the same to be simple injuries as the doctor had not specifically declared these injuries and we convict and sentence them for the period already undergone by them during pendency of trial and this appeal. Rest of the convictions, i,e, payment of compensation amounting to Rs,1,00,000 by Ghulam Hussain alias Ghulam Hassan appellant to the heirs of deceased and payment of Daman Rs,5,000 each by all the appellants against the injuries sustained by both the eye-witnesses are maintained. The benefit of section 382-B, Cr.P.C. Is extended in favour of the appellants. The learned trial Court is directed to recover the amount of Daman from the appellants and hand over the same to the injured P. Ws. They are on bail, then discharge their sureties.
16. As a sequel of our discussion made above this appeal is disposed of with the modification made above. Criminal Revision No,65 of 2007 is dismissed whereas the Murder Reference No,305 of 2007 is answered in the negative. The death sentence passed against Ghulam Hussain alias Ghulam Hassan appellant is not confirmed.