ASLAM RIAZ HUSSAIN, J.-Muhammad Aslam and Mumtaz petitioners seek Leave to Appeal against the judgment of a Division Bench of the Lahore High Court, dismissing the petitioners' appeal in a murder case,
2. The facts giving rise to the petition, briefly, are that Aslam and Mumtaz petitioners were tried for the murder of Fateh Muhammad, by Additional Sessions Judge, Sargodha, who vide his judgment dated 27-5-1980, convicted them under section 302. P. P. C. And sentenced each one of them to imprisonment for life and a fine of Rs. 10,000 each, or in default of payment of fine, to undergo further for 2 years' R.
1. Each. The High Court dismissed their criminal appeal vide the impugned judgment.
3. The occurrence took place at about 12 of noon on 31-5-1978 in the area of Village Laliani District Sargodha. The F. I. R. Was lodged by Muhammad Asghar (P.' W. 7) the son of Fateh Muhammad deceased, at Police Station, Kot Moman at 1-30 p.m. On the same day. 1t was recorded by Masud Aziz S.I./S.H.O. (P. W. 10). According to the F. I. R. On the fateful day Muhammad Aslam (P. W. 7) was sitting at his dera in Village Laliani which is situated in his land at a distance of 2 miles from the village-abadi of Laliani, along with his sister Mst. Bashiran and Lal son of Qasim while his father Fateh Muhammad (deceased) was taking a round of the land on his bicycle. After having taken the round he started towards the village Laliani on the said cycle and had hardly covered a distance of one acre from the dera when the two accused-petitioners, Muhammad Aslam armed with a hatchet and Mumtaz with a dang, challenged him that they had come to avenge the murder of their brother and started showering blows with their respective weapons on the deceased. Asghar and Lal P. Ws. Were attracted by the noise and ran towards the spot but the assailants had done their job before they reached there and ran away from the spot carrying their weapons. Fateh Muhammad died at the spot.
The motive for the occurrence instated to be that 2 --th years prior to the occurrence Mushtaq Ahmad, a brother of Aslam and Mumtaz petitioners was murdered, for which Fateh Muhammad (deceased) and his son Muhammad Afzal were sent up for trial. Afzal was convicted and sentenced to death but Fateh Muhammad was acquitted by the trial Court and returned to his village only a month prior to the occurrence. According to the prosecution the accused petitioners had murdered him to avenge the murder of their brother Mushtaq. It may be mentioned that the parties are closely related to each other. Their relationship may be described as follows : Mst.
Zubaida, the mother of-the two accused and Mst. Sardar Bibi the mother of Asghar P. W. 7 (who is also the widow of Fateh Muhammad deceased) are real. Sisters, inter se.
After recording the F. I. R. Masud Aziz S.I./S.H.O. (P. W. 10) went to the spot ; prepared the inquest/injury report and sent the dead body for post--mortem examination. He recovered the bicycle (P. 6) and shoes (P. 7/1-2) of the deceased. The accused were arrested after about five days i.e. On 5-6-1978. Aslam accused led to the recovery of his hatchet (P. 4) (which was not found to be stained with blood by the Chemical Examiner on examination). Mumtaz accused led to the recovery of his blood-stained dang (p, 5). It was subsequently, on examination by the Chemical Expert, found to be stained with human blood. The recovery witnesses of the hatchet and the dang are Muhammad Aslam (P. W. 4) and Masud Aziz S.I./S.H.O. (P. W. 10). The doctor after post-mortem examination found numerous injuries on the body of the deceased. The number of the injuries as given in his statement is 15, but three of them i.e. Injuries Nos.4, 10 and 12 have been described as "multiple contusions/contused wounds" According to the petitioners' counsel the total number of injuries would be about 25. According to the post-mortem report the stomach of the deceased contained 4 oz. Of liquid food, the bladder contained 5 oz. Of urine and the small as well as the large intestines contained faecal matter.
4. At the trial the prosecution relied on the testimony of Muhammad Asghar (P. W. 7), Lal (P. W. 8), the recovery of the blood-stained dang from Mumtaz petitioner, the medical evidence and the evidence of motive.
The accused denied their guilt and pleaded innocent.
5. The trial Court believed the prosecution evidence and convicted both the petitioners and, as already mentioned, the High Court rejected their appeal.
6. The learned counsel for the petitioners contended before us, firstly, that it is evident from the version given by the two witnesses at the trial that they were not present at the spot. In support of this contention he argued that they were admittedly at a distance of about 280 ft. From the spot.
Their attention was attracted to the scene of occurrence on hearing the lalkara raised by the accused/petitioners and according to their own version they had run towards the spot to rescue the deceased. He pointed out further that according to the version of the eye-witnesses they had travelled only about 160/170 ft. (as calculated by the learned counsel for the petitioner) when the accused ran away having completed the job. He argued that during this short period the two accused could not possibly have inflicted such a large number of injuries on the deceased. This contention does not impress us. We are of the view that two persons who had come armed, with determination to kill another, could easily inflict the number of injuries found on the body of the deceased during the short span of time referred to by the learned counsel.
The counsel then argued that since faecal matter was found in the bowels of the deceased, it is evident that he had not yet eased himself. From this, he wanted us to conclude that the occurrence had not taken place at 12 noon as alleged, but very early in the morning. This plea is misconceived because the quantity of faecal matter in the colon has not been mentioned and it is al medical fact, that if a person has taken breakfast (or morning meal), then, even if he has evacuated himself in morning, some faecal matter could be found in his small and large intestines by 12 noon, firstly because an evacuation hardly ever empties the colon completely and secondly because by noon time the morning meal would have travelled down into the small intestine.
He contended next that Lal (P. W. 8) could not be possibly present at the dera of the deceased at the relevant time. The counsel pointed out that Lal P. W. Has explained his presence at the spot by saying that on the day, of occurrence he had gone to visit one Sardara at his dera and while returning from there he had stopped, in the way at the dera of Fateh Muhammad deceased in order to meet him. The counsel also pointed out that Lal P. W. Had denied the suggestion that the dera of Fateh Muhammad deceased does not fall on the way while returning from the dera of Sardara to his own dera. But Ghulam Yasin Patwari (P. W. 9) had contradicted him by saying that while coming from the dera of Sardara to the dera of Lal P. W. Or to the village-abadi, the dera of Fateh Muhammad deceased does not fall in the way. It might be true that the dera of the deceased does not fall directly in the way as stated by the Patwari but the prosecution has not brought out the exact distance that Lal P. W. Had to travel in order to visit Fateh Muhammad (deceased) at his dera. It is common knowledge that villagers are quite likely to go a little out of the way to meet a friend. We, therefore, find no force in this contention either.
5. The learned counsel for the petitioners contended next that the Courts below had wrongly relied on the recovery of the blood-stained dang at the instance of Mumtaz petitioner because the recovery witness Muhammad Aslam (P. W. 4) had contradicted the second recovery witness (i.e. Masud Aziz, S. H. O. P. W. 10) as to the place where he had joined the Police for investiga--tion purposes.
Having gone through the relevant portions of the evidence of the recovery witnesses we find that the difference in their testimony is not significant because it has arisen mainly because Muhammad Aslam (P. W. 4) has given a more detailed description as to the place where he had joined the investiga--tion and as to how he proceeded and reached the dera of Ghulam Ali Bhakkar, whereas Masud Aziz S. H. O. (P. W. 10) has contended himself merely by say--ing that Muhammad Aslam (P. W. 4) had joined him at the dera of Ghulam Ali, without giving details which seemed to him to be unnecessary. In any case, even if the recovery of dang and the hatchet is left out of consideration, there is sufficient material on the record by way of evidence of the eye-- witnesses, supported by the motive and the medical evidence (which shows that two weapons, one sharp-edged and one blunt, were used in the commission of the crime) to sustain conviction of the petitioners.
Having carefully considered the evidence on record we do not think it a fit case for grant of Leave to the petitioners, which is consequently refused.
6. The learned counsel for the petitioner in Cr. P. 106/81 submitted that the age of the accused and the fact that it could not be stated as to whose injuries proved to be fatal were not a good ground for grant of awarding lesser penalty to the convicts. However, considering the facts and circum-- stances of this case we feel that the Courts below were justified in awarding lesser penalty to the accused. This petition, has therefore no force and is also dismissed.
7. It may be mentioned that the accused (petitioners in C. P. No. 85/81) filed a belated application that they should be given the benefit of sec--tion 382-B, Cr. P. C. But considering the severity of the attack and the number of injuries caused by them to the deceased and the fact that they have already been dealt with leniently, we do not consider it a fit case for granting the relief prayed for by them.