KHIZAR HAYAT, J.-Farzand Ali (30), Mukhtar (35) and Riaz (35) were convicted by Additional Sessions Judge, Sahiwal, under sections 302/34 and 449/34, P. P. C. Each and sentenced to life imprisonment and a fine of Rs. 5,000 each and in default of payment of fine to undergo further rigorous imprisonment of two years under each count vide order dated 22-12-1979. It was further directed that both the sentences awarded to each of them shall run concurrently and half of the fine if realised shall, be paid to the legal heirs of the deceased. The fourth accused namely Razzaq alias Ghulla was given benefit of doubt and acquitted.
2. All the three convicts have filed joint appeal (Cr. Appeal No. 38/80) against their conviction and sentence. On 24-1-1980, at the preliminary hearing of appeal a learned Judge of this Court while exercising his revisional jurisdiction issued a suo motu notice to the appellants to show cause why their conviction under section 302/34, P. P. C. If maintained, should not be enhanced to death.
Besides suo motu Criminal Revision No. 57/80, Muhammad Ali complainant also filed a revision petition (Crl. Revision No. 365/80) praying that the sentence of the appellants be enhanced to death and also the retrial of the acquitted accused namely gazzaq alias Ghulla be ordered. We propose to dispose of all the aforesaid three matters by this single judgment.
3. The incident had taken place on 29-8-76 at 5 a. m. In village 3/14-L District Sahiwal in the haveli of the complainant Muhammad All (P. W. 6) at a distance of 21 miles from Police Station, Kassowal, wherein complainant's brother Shabbir Ahmad was murdered. He reported the occurrence to Ali Ahmad Shah, A. S. I. (P. W. 12) (formerly S. I., S. H. O. Kassowal), the same day at 70.0 p. m. In Chak No. 116/12-L, who recorded his statement Exh. P. A. Amir Zaman Head Constable (P. W.' 9) drew up the formal F. I. R. Exh. PA/1 on the basis of Exh. P. A.
4. Briefly stated facts' of the case as gleaned from the report Exh. P. A. Are, that in August, 1976, the Boys Primary School of Chak No. 3/14-L was lying closed due to summer vacation. And its outer gate was locked. Mukhtar appellant broke open the lock and started tethering his cattle inside the school premises. The residents of the village resented this and an announcement from the loudspeaker of the village mosque was made that no one should tether his cattle in the school premises. Despite this Mukhtar did not stop tethering his cattle there.
5. On the fateful day i.e. 19-8-76 at about 3 p. m. Mubarik Ali (P. W. 8) a cousin of Shabbir Ahmad deceased quarrelled with Mukhtar appellant saying as to why he was still tethering his cattle in the school. Faqir Muhammad (brother of Mubarik Ali P. W.) and Shaukat Ali (P. W. 4) intervened and saved the situation. It was taken by the appellants as insulting for them. Mubarik Ali then came to the haveli of the complainant, at a distance of about 2J acres from school, and sat with Muhammad Ali (P. W. 6), Shabbir Ahmad (deceased), Wali Muhammad (P. W. 7), and Faqir Muhammad (P. W. Not examined) for gossip. At about 5 p. m. All the appellants, namely Farzand armed with 'barchhi', Mukhtar armed with 'gandhala' and Riaz armed with 'takwa' and the acquitted accused Razzaq alias Ghulla armed With 'lathi' made sudden appearance in the haveli, obviously to take revenge from Mubarik Ali P. W. Farzand and Mukhtar appellants raised lalkara that Mubarik Ali be caught hold of and should not be spared for he had insulted them. As the assailants advanced towards Mubarik Ali P. W. Shabbir Ahmad (deceased) rushed forward to save Mubarik Ali whereupon Farzand gave him spear blow which pierced the right side of his neck. Mukhtar gave a "gandhala" blow which landed on little below his right clavicle bone and Riaz gave. a 'takwa' blow on his right palm. As a result of these injuries Shabbir Ahmad fell down and died at the spot. During the occurrence, Razzaq alias Ghulla (acquitted accused) kept raising lalkara to the effect that if any body came forward, he would not be spared. Mubarik Ali P. W., however, caused injuries to Mukhtar appellant, with a stick, in retaliation. The occurrence was witnessed by Wali Muhammad (P. W. 7), Mubarik Ali (P. W: 8), Faqir Muhammad (not produced) beside the complainant Muhammad Ali (P. W. 6).
6. Ali Ahmad Shah A. S. 1. (P. W. 12) having recorded the statement of the complainant (Exh. P. A.), forwarded the same to the Police Station through Khurshid Masih a Razakar for the registration of the formal F.
1. R. And himself repaired to the spot. He reached the spot at about 8.30 p. m. And took up the investigation. He prepared the injury statement Exh. P. K. And inquest report Exh. P. L. Of the deceased and despatched the dead body for post-mortem examination under the escort of Zafar Iqbal Constable (P. W. 1). He inspected the spot and collected blood-stained earth, sealed it into a parcel and took it into possession through memo. Exh. P. C.
7. On 20-8-1976, War Iqbal Constable produced before him, the last worn clothes, Bunyan P-5, Chaddar P-6 of the deceased which were seized vide Exh. PJ.
8. On 27-8-1976, he got prepared the site-plan in duplicate Exh. PM and Exh. P M/1 from one Shaukat Ali, Draftsman (not examined as reportedly , had gone abroad). On the same day he arrested all the appellants on being produced before him by Noor Muhammad Lambardar. Farzand Ali while in Police custody led to the recovery of blood-stained barchhi P-1 from underneath an iron box lying in his house which was taken .Into possession through Memo. Exh. PD. Its sketch is Exh.-PD/1.
Likewise, Mukhtar got recovered blood-stained gandhala P-2 lying behind a paid in his residential kotha and was seized through memo. Exh. PE. Its sketch is Exh. PE/I. Riaz also got recovered blood- stained takwa P-3 from underneath a cot lying in his house in the same fashion and it was seized through memo. Exh. PF. Its sketch is Exh. PF/1. Razzaq (acquitted accused) also got recovered lathi P-4 from his residential kotha which was taken into possession through memo. Exh. PG. As Mukhtar had certain injuries on his person, therefore, he was got medically examined vide his injury statement Exh.' PN. All the aforesaid recoveries were attested by Mubarik Ali (P. W. 8) and his brother Faqir Muhammad P. W. (not produced) besides the Investigating Officer.
9. The blood-stained earth, Barchhi P-1; Gandhala P-2 and Takwa P-3 were found to be stained with blood of human origin vide Chemical Examiner's report Exh. PO and Seriologist's report Exh. PB.
After completion of the investigation all the accused were challaned to Court.
10. Dr. Kbalid Mahmood (P. W. 10) performed the autopsy on the dead body of Shabbir Ahmad on 20-8-76 at 8 a. m. And noticed following injuries thereon vide medico-legal report Exb. PI
(1) An incised wound2 --x -- ' x going deep on the front and lower part of right side of neck, just above and over the right clavicle medial end.
(2) An incised wound 3' x 1/4' x skin deep on the front and lower part of neck, oblique in direction and joining the injury No. 1.
(3) An incised wound 2-1/4" x 3/4" x muscle deep on the front and upper part of right chest 1' from the right clavicle corresponding cut on the vest, which was encircled and initialled by me.
(4) An incised wound 1-1/4' x 1/4' x muscle deep on the palmer surface of left. Hand, just close to the left wrist, 2' from the root of left thumb.
In the opinion of the doctor, the death had occurred due to shock and haemorrhage resulting from injury No. 1 which was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and caused by sharp-edged weapon. The time that elapsed between the injuries and death was immediate, while between death and post-mortem examination was within 18 hours. During the cross-examination he stated that injuries Nos. 1, 2 and 3 were possibly caused with one weapon but these injuries could not be caused by Gandhala P-2.
11. Dr. Riaz Ahmad (P. W. 9) examined Mukhtar appellant at 7.10 a. m. On 23-6-1976 and observed the following injuries on his person; vide medico-legal report Exh: PH
(1) A septic abrasion 1/2" x 1/3" surrounded by swelling of 4' x 3" on the back of the upper part of left forearm.
(2) A healed abrasion 1/3' x 1 /4' just below and lateral to the tip of olecranon process of left elbow joint.
(3) An interrupted healed abrasion 7' x 1/2' lying obliquely on the upper part of the back of left chest.
All the three injuries were found simple caused by a blunt weapon within 3 t9 4 days. Exh. PH/1 is the diagram. Showing the location of the injuries, .
12. At the trial 12 witnesses were examined in all in support of its case by the prosecution.
Muhammad Ali (P. W. 6), Wali Muhammad (P. W. 7), Mubarik Ali (P. W. 81 have furnished eye-witness account; Shaukat Ali (P. W. 4) deposed about the "motive". Mubarik Ali (P. W. 8) besides giving the motive and eye account also deposed about the recovery of weapon of offence made at the instance of the appellants. Ali Ahmad Shah A. S. 1. (P. W. 12) gave versions details of the investigation conducted by him.
13. All the accused when examined under section 342, Cr. P. C. Denied their participation in the occurrence, except Mukhtar, who pleaded self-- defence. When asked to explain his injuries he replied that he was injured by Shabbir Ahmad deceased and Liaqat outside the compound "why the school at about 3 p. m. The day of occurrence. In reply to question why the case against you", he replied:- "I have been falsely implicated. As a matter of fact Shabbir deceased and Liaqat assaulted me with dangs and I injured Shabbir deceased in self-defence with a 'takwa'. There was only one occurrence and none of the P. Ws. Was present."
No evidence was produced in defence.
14. The learned trial Judge in the ultimate analysis of the evidence rejected the defence version but accepted the prosecution case as he believed the "ocular testimony" besides the "motive", the "medical evidence" and the "incriminating recoveries" from the appellants. Additionally the learned trial Court took note of the fact that the appellants remained absent from their residence till their arrest on 22-8-1976 and remarked that the absence of the appellants spoke of their "guilty conscience" and eventually convicted the appellants and acquitted Razzaq alias Ghulla by way of "abundant caution".
15. Learned counsel for the appellants argued that the F. i. R. In this case is not a genuine document because it was drawn up at the spot after prolonged deliberations and consultations; that the appellants had no "motive" whatsoever to initiate attack on the complainant party, rather the boot was on the other leg because Mukhtar appellant in utter disregard to the wishes of the whole village continued tethering his cattle in the school premises particularly to the displeasure of the complainant party; that the medical evidence contradicts the ocular testimony and lastly that the prosecu--tion witnesses did not speak the "whole truth" and should not therefore be believed rather the defence version which is equally probable should be accepted in its entirety.
16. On the other band, learned counsel for the State as well as for the complainant, jointly urged that the appellants made a pre-planned, pre--meditated and dastardly attack at the deceased after having trespassed into his haveli in furtherance of their common intention. They emphasised that not only their conviction be maintained but their sentence should also be enhanced to death to meet the requirements of this case. As for Abdul Razzaq (acquitted accused) is concerned, they, however, conceded that his re-trial might not be ordered.
17. We have carefully considered the submissions made by the learned counsel at the bar and also perused the record with their assistance.
18. First of all we would like to dispose of the objection regarding F.
1. R. Raised by the learned counsel for the appellants. According to the com--plainant, Muhammad Ali P. W. 6 he repaired to the Police Station Kassowal for making report of the occurrence, leaving dead body of Shabbir deceased in the care of Arts Muhammad and Ali Muhammad. When he reached Adda Kassowal just at a distance of few yards from the Police Station Kassowal, he learnt that the `Thanedar' bad gone to Chak No. 116/12-L. He therefore instead of going inside the Police Station, hired a cycle from there and went after the 'thanedar' to the said chak and allegedly lodged the report Exh. PA with him there. He further stated that he left for the spot in the company of 'Thanedar' and they passed in front of the police station. It is common knowledge that a Moharrir or his assistant remains in attendance at a police station round the clock, therefore, it is not understandable as to why the complainant did not enter the police station which was only a few yards away and reported the matter there and instead went to Chak No. 116/12-L. It shows that either the complainant wanted to consult and seek advice of the 'Thanedar' before the registration of F.
1. R. Or the story of going to Chak No. 166/12-L had been introduced to explain the delay. The statement of Wali Muhammad P.
W. An eye-witness in this case has con--firmed our view as he candidly admitted that the complainant's statement was recorded at the spot which means that deliberations must have preceded the recording of report Exh. PA. The precise assertion made by Wali Muhammad P. W. Is as under: "I had returned to spot before arrival of the Police- the 'Thanedar' recorded our statements. He also recorded the statement of Muhammad Ali P. W. Myself and Muhammad Ali signed wherever the 'Thanedar' asked us to do so."
Both Muhammad Ali and Wali Muhammad P. Ws. Do not appear to have signed the inquest report or any other paper and therefore it cannot be said that he has confused signing of the F. I. R. With certain other papers. In these circumstances we are inclined to the view that F. I. R. In all probability, appeared to have been prepared after preliminary inquiry at the spot. But we do not agree with the learned counsel for the appellants that on this score alone the case deserves to be thrown out. We are alive to certain pronouncements made by the superior Courts wherein serious notice of prepar--ing of F. I. R. After preliminary investigation at the spot was taken and having the subsequent investigation held as dishonest, threw away the prosecution's whole case. We also deprecate this practice with all the vehemence but it is equally well known that each criminal case has distinct and different facts and therefore to be adjudged on its own merits and circumstances.
The truth of the allegation in such cases where report was lodged by the Police after having made some investigation at the spot would in our opinion, depend o-n other concomitant circumstances of each and individual case and as such no inflexible rule of uniform application can be laid down in this regard. In the instant case, the occurrence has not been denied by the appellants and, therefore, the effect of preparing the F.
1. R. At the spot would not entail the rejection of prosecution case outright rather it would call for careful and cautious scrutiny instead of readily accepting the prosecu--tion version.
19. It is common ground that the complainant party objected to tether--ing of animal by Mukhtar appellant in the school premises. It is stated in the F. I. R. That despite an announcement at loudspeaker of the village mosque, prohibiting tethering of animals in the school premises Mukhtar appellant ignored the announcement and continued tethering his animals there. On the fateful day, at about 3 p. m. Mubarik Ali P. W. While returning from his lands, which adjoins the school building picked up a verbal quarrel with Mukhtar over this issue but the matter was appeased due to the intervention of Shaukat Ali P. W. 4 and Faqir Muhammad (not produced). It is surprising that at the trial Mubarik Ali P. W. Improved this part of the story by saying that during the aforesaid quarrel, he (Mubarik Ali) also dealt 2/3 stick blows to Mukhtar appellant. It is worth noting that Shaukat Ali (P. W. 4) who allegedly arrived there and made peace between them did not support this improved version. This improvement appears to have been introduced with two-fold purpose.
Firstly, to make the earlier incident between Mubarik Ali P. W. And Mukhtar appellant, look graver and capable of instigating the appellants party to take revenge and secondly; the injuries found on the person of Mukhtar appellant be explained so as to wriggle out of their earlier stand wherein these injuries were admitted to have been caused to Mukhtar appellant during the occurrence in the haveli of Muhammad Ali complainant. This shift was made on receiving better legal advice at the trial, obviously to forestall prospective plea of self-defence by Mukhtar appellant. For the foregoing reasons, we hold that in the earlier incident Mubarik Ali P. W. And Mukhtar appellant had a verbal quarrel only, but it would not necessarily mean that in s6qual to a verb quarrel, being an insignificant incident a murder would not be committed. Different human beings are constituted differently and so they react differently in a given situation. May be that a person altogether ignores a verbal quarrel or exchange of abuses but the other might take it deep to his heart most seriously and think of wreaking vengeance. We are of the- view that Mukhtar after being reprimanded by Mubarik Ali P. W. For tethering his animal in the school would have taken Farzand Ali appellant to Mubarik Ali P. W. With a view to stop him from making future objections to the tethering or use of the school premises for their animals, by them. We think that it constitutes sufficient annoyance to a villager,, who is asked by the other to stop using a particular place for tethering his animals, specially when the objector has no title or claim over such land. So then use of school premises, was a real bone of contention between the parties, and served as motive.
20. Before dealing with the ocular account we would like to dispose of the evidence of "abscondence" used against the appellants by the learned trial Court and had remarked that the absence of the appellants from their houses from 19-8-76 to 22-8-1976 "speak of their guilty conscience". The learned trial Court has based this observation only on the statement of the investigating Officer P. W. 12 who stated that he searched for the appellants on 19th as well as on 20th August, 1976, but they were not available in the village. There is no other evidence on record to warrant an inference of abscondence. No doubt that conduct of a person in absconding after the commission of a crime can be taken as a circumstantial piece of evidence A against him to show that he was concerned in the offence, but before such an inference is drawn, it is the bounden duty of the prosecution to prove the abscondence as a matter of fact. "Abscondence" is not a mere term of art, but is a legal term which under the statute has to be proved by the prosecu--tion like any other fact. Firstly; the prosecution have to show that the summons or warrants were issued against the accused and they could not be served due to his avoiding the service deliberately.
Then, if the Court feels satisfied that the accused had concealed himself to avoid service of summons or warrants then action under sections 87 and 88, Cr. P. C. Could be taken against him, and after the proclamation has been obtained then an accused can legally be said to have "absconded". In the instant case, we are constrained to remark that no such evidence has been either procured or produced at the trial and the learned trial Court was not right in considering the arrest of the appellants after 4 days of the occurrence as "abscondence" In these circumstances, belated arrest of the appellants did not constitute a circumstance to mean, in the words of the learned Judge, "spoke of their guilty conscience ".
21. For the sake of convenience and better appreciation, the other two objections raised by the learned counsel namely; that the evidence of the witnesses, who did not speak the "whole truth" should be discarded, and that the medical evidence contradicts the ocular testimony, are being discussed together. We agree with the learned counsel that the prosecution witnesses have made slight departure at the trial from their earlier version given before the police as discussed in para. 18 of this judgment. On close scrutiny of the evidence on record we are of the view that this Court is under heavy duty to "sift the grain out of the chaff", as has been laid down in Tawaib Khan and others v. The State PLD 1970 SC 13,to find out that under what circumstances the occurrence had taken place; that who among the appellants participated therein and that what offence, if any, has been committed ? Looking at the evidence from this standpoint we have no hesitation in expressing that the witnesses in this case have not spoken the "whole truth" so they fall under the category of those witnesses, who are "neither wholly reliable nor wholly unreliable", yet they can be relied upon to the extent their evidence is corroborated in material particulars through independent and unimpeachable source. For this purpose we advert to the medical evidence. It would be seen that Shabbir Ahmad deceased suffered four incised wounds in all. Out of them three are `skin deep' or `muscle deep', including an injury on palmer. Surface of left hand. The remaining three injuries namely, 1, 2 and 3 appear to be in one straight line and all situate close to each other i. e. To' say .That injury No. 1 (fatal injury) is on the right side of the neck just above, the right clavicle; the second injury which is 'skin deep' adjoins injury No. 1 and the third one also 'muscle deep' is seated on the right side of the chest 1" from right clavicle. Dr. Khalid Mahmood (P. W. 10) who performed post--mortem examination on the dead body of the deceased, during his cross-- examination stated that injury No. 1 was caused by a pointed sharp-edged weapon because the injury was "deep going". He further stated that injury No. 2 might have been caused when the weapon was being pulled out of injury No. 1, and that there was possibility of injury No. 3 having been caused with the same weapon. He categorically refuted the infliction of injuries Nos. I and 2 with gandhala P-2 which, according to the prosecution, was wielded by Mukhtar appellant during the occurrence.
22. All the eye-witnesses are unanimous that injury No. I was caused by Farzand appellant with a 'barchhi', injury No. 3 by Mukhtar appellant with "gandhala" and injury No. 4 by Riaz appellant with 'takwa', but the medical evidence supported the infliction of injury No. 1 with 'barchhi' and ruled out the possibility of injury No. 3 to have been caused with 'gandhala'. The above discussion makes it crystal clear that none of the injuries suffered by the deceased was caused with a Gandhala therefore the inevitable conclusion would be that Mukhtar appellant though present at the spot and suffered a few abrasions during the occurrence, did not cause any injury to the deceased.
Likewise we are of the view that injury No. 4 (muscle deep) on palmer surface of the deceased is too small to suggest that it was inflicted by Riaz appellant with a Takwa rather the circumstances warrant an inference that it was suffered in an attempt, to ward off the spear blow. Participation of Riaz and Mukhtar has therefore not been proved beyond reasonable doubt due to medical evidence being in glaring conflict with ocular testimony. But at the same time medical evidence provided the desired corroboration about the participation of Farzand Ali appellant in the occurrence as the fatal injury on the neck of the deceased is proved to have been inflicted with a spear.
23. The defence plea raised by Mukhtar appellant is neither probable nor believable and the same has been rightly rejected by the learned trial Court. It has been established that occurrence took place in the Haveli of Muhammad Ali complainant wherefrom blood-stained earth was collected.
Mukhtar appellant did not produce any evidence in support of his plea that the occurrence had taken place near the school. It appears that this plea was not raised during the investigation even and that is why no suggestion was put to the Investigating Officer in this regard. The claim of Mukhtar appellant that he was attacked by Shabbir deceased and his relative Liaqat with sticks and that he alone in exercise of his right of self-defence caused injuries to the deceased does not sound true, firstly; because if two armed persons had surprised Mukhtar when he was all alone then he must have received many more and extensive injuries than the three small abrasions found on his person, secondly; the medical evidence completely belied his version that he wielded a takwa and caused all the injuries, found on the person of the deceased, with it because the doctor's opinion that injury No. I was caused with a sharp-pointed weapon and that the injuries Nos. 2 and 3 were also possible with the same weapon, sharply runs counter to the stand of Mukhtar appellant.
Medical evidence clearly indicates that all the injuries can be possibly caused with a spear but not with a takwa. For these reasons we uphold the finding of the lower Court, rejecting the defence version.
24. In our estimation, Mukhtar and Mubarik Ali P. W. Quarrelled over the tethering of animal in the school. Mukhtar thought that Mubarik Ali P. W. Having no right to stop him from using the school premises, has insulted him by doing so. He went in the company of Farzand to the Haveli of Muhammad Ali complainant where besides Mubarik Ali P. W., Shabbir Ahmad deceased was also present, and protested against conduct of Mubarik Ali. It seems that they made show. Of force in order to deter the other party from raising an objection in future, on their .Using school premises.
During this protest the feelings appear to have gone high. Shabbir Ahmad asked the appellants to go out of their Dera using strong language, as Mubarik Ali was his visitor, and deserved to be respected at his place, whereupon Farzand appellant dealt a `barchhi' blow to him and during the scuffle Mukhtar also received 3 simple abrasions at the hand of Mubarik Ali P. W. In these circumstances we think that it was Farzand alone who acted at the spur of the moment in the heat of passions and caused a single blow to the deceased. It is not believable that if the three appellants armed with sharp-edged and dangerous weapons had gone to the Haveli of Muhammad Ali complainant, with an avowed purpose to take revenge from M ubarik Ali P. W., he would have escaped unhurt. It is equally improbable that the three appellants attacked Shabbir Ahmad deceased with intent to kill him, yet two of them (Mukhtar, Riaz) rest content by giving a superficial injury each to the deceased. We are constrained to hold that the facts and circumstances of the case do not disclose the commission of an offence under section 449/34, P. P.
C. Because its essential gradient of house trespass in order to commit offence punishable with death has not been proved. Also the participation of Mukhtar and Riaz appellants in the occurrence as observed earlier has not been proved beyond any reasonable doubt. The result is that we allow benefit B of doubt to both Mukhtar and Riaz appellants and acquit them. However the presence and participation of Farzand appellant has been established. The ocular evidence stands corroborated by the medical evidence and also the evidence of recovery of spear Exh. P I found to have been stained with human blood. It may be mentioned that recovery of spear Exh. P I has not been challenged before us. Even otherwise we did not come across any legal defect in this piece of evidence preventing its use against Farzand appellant. He gave a blow in front of the neck of the deceased. Causing injury on the neck of the deceased with a formidable weapon like spear, leaves us in no manner C of doubt that Farzand appellant intended to cause the death of Shabbir Ahmad deceased, therefore, we hold him guilty of murder under section 302, P. P. C., but we refrain from passing the extreme penalty of death sentence upon him, because; there did not exist any previous vendetta between the parties and the attack as held earlier was not premeditated and pre-planned. The situation flared up abruptly, wherein he used the spear but only once. The sentence of life imprisonment awarded to him by the trial D Court as being adequate and proper in the circumstances of this case is maintained.
Consequently the appeal qua him stands dismissed. Convictions and sentences of Mukhtar and Riaz appellants are hereby set aside and they are acquitted of all the charges.' They be released forthwith if not wanted in any other case. Crl. Revision No. 365/80 fails automatically and the suo motu Notice for enhancement in Criminal Revision No. 57/80 also stands vacated.