ABAIDULLAH KHAN, J.---Arif Hussain, son of Asghar Ali, aged 19/20 years, shopkeeper, his uterine brother, Muhammad Ashraf son of Abdul Haq, aged 40 years, labourer, and his father's brother's sort, Abid Hussain, son of Fazal Elahi, aged 20 years, shopkeeper, Syed by caste, residents of village Ibbenwali, police station Sadar Wazirabad, District Gujranwala, have preferred this appeal against the judg--ment of the learned Sessions Judge, Gujranwala dated the 2nd of June, 1979, whereby they were convicted under section 302/34 of the Pakistan Penal Code for committing the murder of their co-villager, Ibrar Hussain Shah, aged 22 years, who was not related to them, on the Ilth of July, 1978, at 4-00 p. m. Within the abadi of village Ibbenwali, which is II miles away from police station Sadar W2zir--abad, and each of them was sentenced to suffer death and pay a fine of Rs. 5,000 or in default of payment thereof to undergo rigorous imprisonment for two years. Asghar Ali Shah son of Lai Shah, aged 60 years, retired patwari, father of Arif Hussain, step-father of Muhammad Ashraf, and uncle of Abid Hussain, who was tried along with the appellants on the same charge, was acquitted by the learned trial Judge. Murder Reference No. 230 of 1079 for confirmation of the appellant's death sentence is also before us. Sube Shah father of the deceased and complainant, P. W: 4, has filed revision petition (No. 743 of 1979) against the acquittal of Asghar Shah and for securing an order directing the appellants to pay compensation tN the heirs of the deceased which the learned trial Court had failed to pass. This judg--ment will dispose of the appellants' appeal, murder reference and the complainant's revision petition.
2. The motive behind the murder of the deceased, alleged by the prosecution and relied upon by the learned trial Court, was that 2 -- years fore the occurrence the deceased had injured Muhammad Ashraf appellant with a chhuri and a case under section 324 of the Pakistan Penal Code had been set up against him. The dispute was compromis--ed and the case against the deceased ended in his acquittal about 3 months before the occurrence. Despite the compromise the appellants retained grudge against the deceased and as a result thereof did away with him.
3. The occurrence, as set out in the First Information Report, Exh. P. C., took place in the following manner. On the 11th of July, 1978. At 4-00 p. m., when the deceased, who was employed as a school teacher in district Rawalpindi and was enjoying summer vacations in the village, on his way back home after grazing she-buffalo, reached the bank of the dried up pond in front of the western gate of the haveli of cattle of Asghar Ali Shah acquitted accused, the latter raised a lalkara that the deceased should be killed. The deceased raised alarm hearing which his father, Sube Shah (P. W.
4), and his brother, Mukhtar Ahmad (P. W. 5), rushed out of their nearby haveli of cattle and saw Arif Hussain, Muhammad Ashraf, and Abid Hussain, appellants, respectively armed with a dagger, a chhuri and a knife, coming out of the southern gate of their haveli. Out of their fear Ibrar Hussain went down the dried pond. The appellants and their acquitted co-accused followed him.
Muhammad Ashraf appellant clasped the deceased from behind, Arif Hussain struck dagger in the belly of the deceased and Abid Hussain administered indiscriminate knife blows on his chest, throat and head. The deceased fell down on his face on the ground. Thereafter Muhammad Ashraf appellant inflicted blows on his back and buttocks. Asghar Ali Shah kept on exhorting the appellants to finish the deceased. Sube Shah (P. W. 4), Mukhtar Ahmad (P. W. 5) and Ghulam Muhammad (P. W. 3), who witnessed the attack launched by the appellant upon the deceased, proceeded to save the deceased but the appellants and their acquitted co-accused carried the deceased in injured condition into their haveli and placing him in the compound themselves made good their escape through the eastern gate. Sube Shah (P. W. 4), with the assistance of Mukhtar Ahmad (P. W. 5), and Ghulam Muhammad (P. W. 3), removed the deceased to his own haveli. The deceased succumbed to the injuries soon there--after. On his way to police post Gakkhar to report the matter, Sube Shah (P. W. 4) came across Nazir Ahmad, Assistant Sub Inspector of Police and incharge of police post Gakkhar, P. W. 10, who took down at 16.00 p. m., the former's statement, Exh.
P. C., which constitutes the First Information Report. Nazir Ahmad sent Exh. P. C. Through Muhammad Iqbal constable to Police Station Sadar Wazirabad where on its basis formal F. I. R., Exh.
P. C./1, was registered by Mushtaq Ahmad, Muharrir Head Constable, P. W. 8, at 7.15 p. m., that very day.
4. Nazir Ahmad (P. W. 10) went to the spot, prepared injury statement of the deceased, Exh. P. N., and inquest report in respect of his death Exh. P. O. He collected blood-stained earth from the spot situate in the dried up pond before the haveli of the appellants, made it into a sealed parcel and took it in his possession vide memorandum, Exh. P. D. He also collected blood-stained pieces of bricks and cement plaster from inside the haveli of the appellant, covered them into a sealed packet which he took in his possession vide memorandum, Exh. P. E. These memoranda were attested by, besides Nazir Ahmad (P. W. 10), Sube Shah (P. W. 4), and Muhammad Anwar.
5. Muhammad Ashraf appellant was arrested by Muhammad Ashraf, Sub-Inspector of Police and Station House Officer, Police Station Sadar Wazirabad, P. W. 11, Arif Hussain, Abid Hussain, appellants, and Asghar Ali Shah acquitted accused were arrested by Abdur Rashid Rana, Inspector of Police, P.
W. 9, on the 18th of July, 1978.
6. While in police custody Arif Hussain appellant led to the recovery of allegedly blood-stained dagger, Exh. P. 5, and his blood--stained shalwar, Exh. P. 3, and shirt, Exh. P. 4, from his baithak on the 25th of July, 1978. Muhammad Ashraf (P. W. 11), who supervised the recovery operation, took the dagger, Exh. P. 5, and the wearing ap--parels, shalwar, Exh. P. 3, and shirt, Exh.
4. In his possession after having made them into sealed parcels vide memoranda, Exhs. P. E. And P. H. Soon afterwards Muhammad Ashraf appellant got recovered blood-stained churri, Exh. P. 8, and his blood-stained shalwar, Exh. P. 6, and shirt, Exh. P.
7. From a room in his haveli. These articles like those which were recovered at the instance of Arif Hussain appellant were covered into sealed packets and were taken possession of by Muhammad Ashraf (P. W. 11) vide memoranda, Exhs. P. It. And P. J. Abid Hussain appellant followed by getting recovered the blood-stained flick knife. Exh. P. 11, and his blood-stained chadar, Exh. P. 9, and shirt, Exh. P. 10, from a room of his residential house. The knife and the articles of clothings were sealed into separate parcels which were seized by Muhammad Ashraf (P. W. 11) vide memoranda, Exhs. P. M. And P. L. Mukhtar Ahmad (P. W. 5) and Muhammad Anwar were the attesting witnesses of the aforementioned recovery memoranda.
7. The dagger, Exh P. 5, recovered at the instance of Arif Hussain appellant, the flick knife, Exh. P. 11, chadar, Exh. P. 9, and shirt, Exh. P. 10, got recovered by Abid Hussain, were not found by the Chemical Examiner, vide his report, Exh. P. P. (pages 11 and 12 of the paper book), to be stained with blood. However, the chhuri, exh. P. 8, shalwar, Exh. P. 6, and shirt, Exh P. 7, recovered at the instance of Muhammad Ashraf appellant as also the shalwar, Exh. P. 3, and shirt, Exh. P. 4, whose recovery Arif Hussain got effected, were found to be stained with human blood as per report of the Serologist, Exh. P. Q. (Pages 12 and 13 of the paper book). Earth and pieces of bricks and cement collected from the spot and the haveli of the appellants were found by the Serologist to be stained with human blood.
8. [Medical Evidence].
9. The appellants and their acquitted co-accused denied their participation in the commission of alleged crime. They said that were not even present at the spot at the time of occurrence. The appellants disowned recoveries of weapons of offence and articles of their clothing. According to them they had been falsely implicated in the case due to enmity. Muhammad Ashraf appellant stated that the deceased had illicit relation with his wife, that at the time of occurrence he had not been present in his house and his brother-in-law had been residing in the haveli of Asghar Ali, acquitted co-accused, and that he might have caused injuries to the deceased when he happened to see him prosecuting illicit liaison with his wife. The appellants did not choose to produce any evidence in defence.
10. As already mentioned because of causing of chhuri injuries by the deceased to Muhammad Ashraf appellant the former had been challaned for commission of offence punishable under section 324 of the Pakistan Penal Code. The trial of the case lingered on for about two years and the parties compounded the dispute just about three months before the occurrence. As has been brought out in cross--examination of Sube Shah (P. W. 4) his relations with the appellents' family even before the deceased bad assaulted Muhammad Ashraf appellant bad been far from amicable. Sure Shah (P. W. 4) appeared as a prosecution witness in a corruption case against Asghar Ali Shah, the acquitted accused. His interest vis-a-vis that of Asghar Ali Shah in consolidation of holdings proceedings was adversely affected. Seen in the background of such strained relations between the parties the compromise that took place to end the criminal case pending against the deceased does not seem to have worked to extinguish for ever the ill-feelings that they had developed for each other. Therefore, it is not unreasonable to imagine that the appellants might have thought of avenging what they had suffered at the hands of the deceased.
Hence it is permissible to rely upon the motive as has been done by the, learned trial Judge.
11. Ghulam Muhammad (P. W. 3), Sube Shah (P. W. 4) and Mukhtar Ahmad (P. W. 5) are the eye- witnesses to the occurrence. They supported the prosecution version of the incident in the witness box. The learned trial Judge treated Ghulam Muhammad (P. W. 3) to be an indepen--dent witness.
He accepted the ocular evidence adduced by the prosecution to be reliable and considered recoveries of incriminating articles and medical evidence describing the injuries on the deceased as sufficient corroboration of the ocular evidence. Taking into account the motive which he thought the prosecution had succeeded to establish, he formed the view that the charge had been brought home to the appellants beyond any shadow of doubt. Consequently he convicted and sentenced them as indicated in the beginning of this judgment. However, he entertained doubt regarding the complicity of Asghar Ali Shah who had been ascribed the role of raising only lalkara. Giving him benefit of doubt be acquitted him.
12. The learned counsel for the appellants contended that the learned trial Judge was not right in treating Ghulam Muhammad (P. W. 3) as an independent witness inasmuch as according to his own admission he bad an old grievance against Asghar Ali Shah, the acquitted accused, whom be blamed for having him falsely implicated in $ murder case. His feelings against Asghar Ali Shah and the appellants could not be described other--wise than hostile and his interest against the appellants could not be but adverse. The other two eye-witnesses, Sube Shah (P. W. 4) and Mukhtar Ahmad (P. W. 5), are the father and brother of the deceased. Hence the ocular evidence is of interested nature. It must find corroboration from independent and unimpeachable source before it can be used for holding the appellants guilty of causing the death of the deceased.
13. The learned counsel took exception to the finding of the learned trial Judge that the recovery evidence furnished corroboration to the ocular evidence in respect of the three appellants. The learned counsel pointed out that the dagger, Exh. P. 5, which Arif Hussain appellant got recovered the knife, Exh. P. 11, chadar, Exh. P. 9, and shirt, Exh. P. 10, recovered at the instance of Abid Hussain, were not found to be stained with blood and therefore, the recovery of these articles was not of any consequence. It means that the ocular evidence against Abid Hussain is not corroborated and corroboration in the case of Arif Hussain appellant is restricted to the recovery of his human blood- stained clothes, shalwar, Exh. P. 3, and shirt, Exh. P.
4. Ocular testimony against Muhammad Ashraf appellant is fully supported by the recovery of human blood-stained chhuri, Exh. P. 8, human blood-stained shalwar, Exh. P. 6, and shirt, Exh. P. 7, at his behest from his haveli.
14. Referring to the rule laid down in Saeed v. State (PLD 1974 Lab. 184) the learned counsel challenged the authenticity of the recoveries of the weapons of offence and wearing apparels of the appellants as no independent witness had been produced by the prosecution to bear them out and the only person from the public who was brought into the witness box to bear witness to the recoveries, namely, Mukhtar Ahmad (P. W. 5), was no other than the brother of the deceased and an eye-witness to the occurrence. However, the investigating officer Muhammad Ashraf (P. W. 11), who supervised the recovery operation, was not shown to bear any hostility towards the appellants or to have any motive for falsely implicating them. There is no reason to disbelieve his evidence touching the recoveries of the weapons of offence and clothes of the appellants. As laid down in Mumtazudin v. State (PLD 1969 SC 114), Islamul Haq v. State (1974 P Cr. L J 6) and Khaqan v. State (PLJ 1975 Cr. C (Lab.) 102) the recoveries can be proved by the evidence of the investigating officer who is as competent a witness as any other member of the public. We do not see any justification for discarding the evidence of the investigating officer regarding recoveries in question.
Accordingly the genuineness of the recoveries can be accepted at face value.
15. The learned counsel tried to utilize the presence of blood in the appellants' haveli to endorse the truth of statement of Muhammad Ashraf appellant that the deceased might have been caused fatal injuries by his brother-in-law when he happened to see him having illicit liaison with his wife.
The explanation given by Muhammad Ashraf appellant appears to be obviously incorrect. The appellants already had been involved in criminal litigation with the deceased for more than a year for the latter's commission of murderous assault upon Muhammad Ashraf and the case had ended in compromise about three months before the present occurrence. It is inconceivable that in such circumstances they would have allowed the deceased to carry on with Muhammad Ashraf's Wife.
The statement made by Ghulam Muhammad (P. W. 3) in answer to the question put to him whether he knew that the occurrence had taken place because the deceased had illicit relations with the wife of Muhammad Ashraf appellant is no more than hearsay. He had no personal and first--hand knowledge of the existence of any illicit intimacy. His evidence on this point does not prove anything positive in this behalf.
16. The learned counsel submitted that the specific place of occur--rence was not mentioned in the inquest report by the investigating officer who simply described against the column of place of occurrence as village Ibbenwali Kalan and further that no reference to trail of blood from the point to the haveli was made anywhere by the investigating officer. From these facts he tried to induce us to conclude that no injury had been caused to the deceased in the dried up pond as alleged by the prosecution and that the entire occurrence took place inside the haveli of the appellants. In view of the overwhelming evidence of the eye-witnesses and the inves--tigating officer coupled with the fact that human blood-stained earth was collected from dried up pond it is difficult to concede the learned counsel's assertion. Mere absence of details of the place of occurrence or of mention of any trail of blood in the inquest report would not shift the place of occurrence from the pond to the haveli. It is possible that physical removal of the deceased in injured condition from the pond to the haveli might not have left any trail of blood which might have been absorbed by the wearing apparels of the appellants.
17. The learned counsel doubted the correctness of the timing of the occurrence given by the prosecution on the basis of the stomach contents of the deceased found on autopsy of his dead body. Eight ounces of digested fluid diet was noticed in the stomach of the deceased. The learned counsel, proceeding op the assumption that the deceased took lunch at mid-day, maintained that if occurrence had taken place at 4.00 p.m., the food in his stomach would have been in solid rather than fluid condition and would not have been fully digested. He expressed the view that the occurrence had taken place before the deceased had taken mid-day meal and that the prosecution used the intervening time in manufacturing false story and implicating the appellants without any fault of theirs. It is not visible from the record as to when the deceased took food before the occurrence and as to what he actually ate. It is possible that he might have taken meal in the morning as is the usual practice in the villages. No inference with regard to timing of the occurrence can be drawn from the stomach contents of the deceased.
18. Referring to the statement of Ghulam Muhammad (P. W. 3) that he had not seen any buffalo in or outside the dried up pond at the time of occurrence the learned counsel maintained that this fact falsified the case set up by the prosecution that the deceased had been on way back to the village after grazing the she-buffalo when he had been attacked by the appellants. Ghulam Muhammad's failure to see any buffalo is not so significant a fact as to cause any doubt on the authenticity of the occur--rence which is otherwise being proved by ocular as well as corroborative evidence.
19. In view of corroborative evidence of the ocular testimony against Arif Hussain and Muhammad Ashraf, appellants, discussed above, they can be safely held to be responsible for causing fatal injuries to the de--ceased. However for lack of any corroboration of ocular evidence against Abid Hussain appellant, it is highly unsafe to hold him guilty of com--mission of murder of the deceased. The learned counsel for the appellants, referring to the statement of Doctor Imtiaz Ali Cheema (P. W. 1) that the injuries upon the deceased caused with sharp-edged weapon could be caused by one and the same weapon, maintained that only one person could have been the assailant of the deceased. However, the same Medical Officer further stated in his statement that these injuries could be caused by more than one kind of sharp-edged weapon. The deceased was a young man of 20 years and a glance at the injuries found on him would leave no room for doubt that it would not have been possible for a single person, much less for Arif Hussain or Muhammad Ashraf acting alone to have attacked and injured him its such a brutal fashion. Such a job would have been performed by at least two persons. It is both Arif Hussain and Muhammad Ashraf who could, and who did, overpower and injure the deceased. They acted in concert under a pre- planned scheme sharing common intention of killing the deceased. They are both guilty of com-- mitting the murder of the deceased. Their conviction under sections 302/34 of the Pakistan Penal'
Code recorded by the learned trial Judge is maintained.
20. There remains the question of determination of sentence to be imposed upon Arif Hussain and Muhammad Ashraf. Learned counsel canvassed for awarding of lesser penalty on the ground that they acted under the influence of their elder, Asghar Ali Shah, that they suspected the deceased to be immorally connected with Muhammad Ashraf's wife and that immediate cause of their action was shrouded in mystery. The learned trial Court did not accept the prosecution version of the case that Asghar Ali Shah had exhorted the appellants or had actually participated in supervising or carrying out the attack upon the deceased. Arif Hussain and Muhammad Ashraf were both majors. Arif Hussain being about 20 years of age and Muhammad Ashraf about 40 years old at the time of occurrence.
They could very well have the sense of acting on their own and could not be said to be of immature understanding so as to be unaware of the consequences of the deeds and to be blindly acting under the influence of their elders. Therefore, they cannot get any concession on F this account. The rule enunciated in Gurdev Singh v. Crown (AIR 1949 Lah. 58) and Sher Hassan v. State (PLD 1959 SC (Pak.) 480) whose facts are clearly distinguishable from those of the instant case, is inapplicable for granting concession of lesser penalty to them.
21. The existence of illicit connection between the deceased and the wife of Muhammad Ashraf appellant seems to have been put forth as a rule. As discussed above it is devoid of truth. There is no reliable material on the record to indicate that the deceased was carrying on with Muhammad Ashraf's wife or that at the particular moment of occurrence he was having any affair or sexual intercourse with her.
22. There is no doubt that the relations between the parties had been otherwise than happy. The long-standing acrimonious dispute arising out of the action of the deceased had ended about three months before the occurrence, the after effects of which were to be responsible for motivating at least two of the appellants, namely, Arif Hussain and Muhammad Ashraf, to wreak vengeance upon the deceased. The mere facts that no immediate cause of the attack is available does not lessen the gravity of the offence committed by them.
23. In view of the above there does not exist any extenuating circumstance calling for a departure from awarding the normal punishment on the capital charge to Arif Hussain and Muhammad Ashraf appellants. The death sentence awarded to them by the learned trial Judge is confirmed.
Their sentence of fine is maintained. Their appeal is dismissed.
24. Asghar Ali Shah 'has been attributed the role of raising lalkara and exhorting the appellants to kill the deceased. In view of his age of 60 years it looks rather highly improbable that he would have been instru--mental in inducing or exhorting the appellants to involve themselves in the operation of killing the deceased when the previous dispute had ended just about three months back. He seems to have been roped in as is generally done in the rural society to prevent him to render assistance to the appellants in the prosecution of their case. We would not like to disturb his acquittal recorded by the learned trial Court. The complainant's revision petition to that extent is dismissed.
25. Under section 544-A of the Code of Criminal Procedure the learned trial Court was bound, unless for reasons to be recorded it was to direct otherwise, to order the convicts to pay compensation to the heirs of the deceased. The learned trial Court did not make any order directing the appellants to pay compensation to the heirs of the deceased nor did it give any reasons for not doing so. To secure compliance with the aforesaid provisions of law we partly accept the complainant's revision petition (No. 743 of 1979) and order that the amount of fine imposed upon the appellants, Arif Hussain and Muhammad Ashraf, by the learned trial Court, if recovered, shall be paid to the heirs of the deceased.
26. The appeal of Abid Hussain appellant is accepted, his conviction and sentence are set aside and he is acquitted. He shall be set at liberty forthwith if his detention is not required in connection with any other case.