1. SHAH NAWAZ KHAN, J-(1) Muhammad Feroze son of Muhammad Khan, (2) Muhammad Feroze son of Sarwar Khan, (3) Muhammad Khan son of Sarwar Khan, (4) Sadiq Hussain son of Ghulam Hussain and (5) Sahib Khan son of Maula Bakhsh, challaned for the murder of Muhammad Sharif, deceased, were put on trial in the Court of Additional Sessions Judge, Sargodha.
2. The charge against the aforementioned 5 accused persons was that on 3-9-1975 at about 9-30 a.m. Muhammad Sharif, deceased, was grazing his cattle near village Padrar when the accused persons emerged from a Bajra crop, Muhammad Khan and Sadiq Hussain accused were armed with Chhuris while Sahib Khan was empty-handed. Sahib Khan caught hold of Muhammad Sharif, deceased. Muhammad Sharif was attacked by the aforesaid persons. Accused Feroze Khan son of Muhammad Khan and Feroze Khan son of Sarwar Khan, both of whom were also armed with Chhuris, also attacked the deceased. The deceased fell down on the ground, The occurrence was witnessed by Ghulam Muhammad and Karam Elahi P. Ws. Who were at that time going on their way from village Padrar to village Munara. Muhammad Khan was also mentioned to be an eye-witness of the occurrence, but he was not produced at the trial.
3. Muhammad Khan son of Sarwar Khan (accused) is the brother of Feroze (accused) sop, of Sarwar Khan. Sadiq Hussain accused is their sister's son. Wife of aforementioned Feroze accused is sister of Sahib Khan accused, and wife of a brother of Feroze (accused) son of Muhammad Khan is daughter of Muhammad Khan accused. The F. I. R. Was lodged in Police Station, Katha Saghral at 11-00 a.m. The scene of occurrence is about 16 miles away from the said Police Station. The motive for the offence was that about 5 years prior to the occurrence, Muhammad Sharif, deceased, had murdered Noor Elahi real brother of Feroze Khan and Muhammad Khan accused sons of Sarwar Khan. He alongwith four others were challaned, but they were acquitted about 3 or 4 years back to the occurrence.
4. At the conclusion of the trial, the learned trial Judge found that the prosecution case against Muhammad Feroze son of Muhammad Khan, Sahib Khan and Muhammad Khan accused was doubtful. He, therefore, gave them the benefit of doubt and acquitted them of the charges leveled against them. So far as Muhammad Feroze son of Sarwar Khan and Sadiq Hussain accused are concerned, the trial Judge held that the prosecution has successfully brought home the guilt to these two accused persons. He, therefore, convicted them under section 302/34, P. P. C. For very valid reasons, the trial Court did not impose the maximum penalty as provided by law on these two persons, and adopting a lenient course, he sentenced both of them under section 302/34, P. P. C. To undergo life imprisonment and to pay a fine of Rs. 3,000 or in default of payment of fine to undergo R. I. For two years. It was ordered that the fine if realised shall be paid to the heirs of the accused by way of compensation.
5. The two convicts went on appeal to the High Court, wherein they challenged and assailed the finding of the lower Courts on the grounds that the evidence on record did not justify the conviction of the appellants---petitioners and that the recovery of the blood-stained weapons of offence from the appellants-petitioners was of no evidentiary value.
6. Revision petition was also filed by Ghulam Muhammad i.e. Criminal Revision No. 12 of 1978, to the effect that the sentence of the petitioners --appellants be enhanced and the acquitted accused be also convicted, but that criminal revision petition was dismissed by the High Court in limine.
7. The High Court after hearing the appeal came to the conclusion that after going through the entire evidence and keeping in view the fact that ocular evidence finds support from the recovery of Chhuris and the medical evidence, the appellants had been rightly convicted. The High Court observed that the evidence pertaining to the recovery of Chhuris at the instance of the two accused-appellants has been approved and that the medical evidence recorded in this case leaves no room for doubt that the deceased was killed by sharp-edged weapons. The nature and number of the injuries found on the dead body of the deceased showed that the assailants were more than one, and as the occurrence had taken place in broad daylight, therefore, the question of substitution or mistaken identity did not arise. In the result, the appeal was dismissed and the conviction and sentence of the two accused---appellants was maintained.
8. The said two petitioners have now moved this Court through the present petition. We have heard the learned counsel for the petitioners. We have also carefully examined the case record.
9. It is proved on record that P. W. Ghulam Muhammad is the cousin and brother-in-law of the deceased. The factum of enmity is admitted by him. Karam Elahi P. W. 9 has also admitted his relationship with the deceased. His mother Mst. Noor Bhari was the real cousin of the father of Muhammad Sharif, deceased. It was contended on behalf of the petitioners that the two eye- witnesses are not only very closely related t the deceased, but they have also admitted their previous enmity with the accused. In these circumstances, their statements should have been corroborated by strong and independent circumstantial evidence. He con--tended that in the instant case the accused were arrested on 7-9-1975, while the blood-stained Chhuris were recovered from them and at their instance on 14-9-1975, and during this period they remained in Police custody, therefore, such recovery should not be given any value in the eye of law. Whatever the reasons were but the Police Officer who was in charge of the investigation was transferred and another person took over and he made the aforesaid recovery. Exh. P. F. Is the recovery memo which shows that Feroze Khan son of Sarwar Khan in custody led the Police party and the witnesses to a place near his Rihaishi Dhoke. At a distance of about 50 yards from there he removed some stones and took out the blood-stained knife (Chhuri) which was taken into possession by the Sub- Inspector and was sealed in a parcel. The recovery witnesses are Karam Elahi son of Fateh Muhammad Awan, and Muhammad Amir son of Muhammad Sharif Awan. This Chhuri was later sent to the Chemical. Examiner and onward to the Serologist, who found that it was stained with human blood. Sadiq Hussain accused-appellant while in custody also led the Police party and the witnesses to a place about 100 yards away from his residential Dhoke and in the uninhabited hillock he took out the Chhuri, which was stained with blood and which he had buried under the stones. That Chhuri was also taken into possession vide memo Exh. P. G. By the Sub-Inspector and was sealed in a parcel. Later that Chhuri was also found to be stained with human blood by the Serologist.
10. Out of the two recovery witnesses besides the Sub-Inspector Karam Elahi son of Fateh Muhammad was produced as P. W. 7, and he stated that he had joined the investigation on 14-9-1975 and that Muhammad Feroze and Sadiq Hussain accused were in the custody of the Police. In his presence the Police first interrogated Sadiq Hussain accused who offered to lead to the recovery of blood- stained Chhuri from a hillock near Dhoke Lala in the area of village Padrar. He then led the Sub- Inspector to the hillock and pointed out a place where he had bidden the Chhuri Exh. P.
2. He then produced that Chhuri before the Sub-Inspector in his presence which was taken into possession vide memo Exh. P. G. And was sealed in a parcel. Karam Elahi P. W. Is the attesting witness of this recovery memo. Then Muhammad Feroze accused-petitioner was interrogated by the Sub- Inspector, who also made a disclosure that he could lead to the recovery of a blood--stained Chhuri from the hillock at some distance from the first hillock. He then in custody pointed out that place where under the stones the Chhuri P-1 was lying hidden. He then produced the same before the Sub-Inspector which he took into possession vide recovery memo Exh. P. F. And sealed it in a parcel. This witness also attested the said recovery memo. In cross-examination, he admitted that there was several retired officials in his village besides a few Lambardars, none of whom joined the investigation of this case. He was cross-examined at sufficient length but nothing useful was dug out from his mouth in support of the defence version.
11. The High Court accepted the findings of the trial Judge and concurred with his decision. On a question of fact whether the recovery of the two Chhuris Exh. P. 1 and Exh. P. 2 had been made by the Sub-Inspector. Both. The Courts have agreed with each other. About the statements of the two eye-witnesses, although related to the deceased but both the Courts haw come to a concurrent finding that they are truthful witnesses and that they have been supported by the evidence of recovery and medical evidence. On this score this Court may not be in a position to interfere. The contention of the learned counsel for the petitioners that the occurrence had, in fact, taken place earlier at night time did not find any support from the medical evidence because Dr. Muhammad Raees, P. W. 1, who performed post--mortem examination on the dead body of the deceased has stated that the time between the death of Muhammad Sharif, deceased, and post-mortem examination (on his dead body) was about 8 hours and that his death was instantaneous. This would show that the occurrence did take place at the time as mentioned by the prosecution witnesses.
12. We find no substance in this petition and the trial Judge has already conceded leniency in favour of the petitioners in the matter of punishment awarded to the two accused this petition is, therefore, dismissed.