SARDAR MUHAMMAD, J.---The appeal is directed against the order dated 21st February, 1977 passed by Mr. Muhammad Amir Malik. Sessions Judge, Jhelum, whereby the learned Sessions Judge convicted the appellants Muhammad Khalid and Master Fazal Dad under section 302/34, P.P.C. For committing the murders of Muhammad Rafiq; Muham--mad Latif and Muhammad Nazir, real brothers, and sentenced each of them to death and a fine of Rs. 1,000 in default whereof to suffer 2 years' R, I., on each, count. The learned Sessions Judge has sent up Murder Reference No. 83/77 for confirmation of the death sentence and the State has filed appeal against Muhammad Akbar, Hashmat Khan, Parvez-Akhtar and Liaquat Hasan. The learned trial Court has also made reference under section 341, Cr. P. C. Regarding Fazal Dad appellant. As the Murder Reference, Criminal Appeal, the State Appeal and the reference under section 341, Cr. P. C. Arise out of the same judg--ment, they are being disposed of by one judgment.
2. The occurrence in this case .Had taken place at 10-00 p.m. During the night between the 29th and 30th of May, 1974 in the area of Chak No. 97 (Mogla). F. I. R. Exh. P.D/1 was drafted by Mirza Muham--mad Iqbal, Moharrir A. S. I. (Rtd.) Police Station, Duman (P.W. 6), it was based 94 statement Exh, P. D of Muhammad Rafiq deceased, recorded by Ababeel Khanzada, A. S. I. P. W. 15, Police Station Chakwal at Civil Hospital, Chakwal. Since Muhammad Rafiq died later on as a result of injuries received by him during this occurrence, his statement Exh. D. B. Was produced in evidence as dying declaration.
3. The prosecution case, according to Exh. P.D., statement of Muhammad Rafiq deceased, on the basis of which F. I. R. Exh. P.D./1 was prepared, is that the deceased Muhammad Rafiq was employed in the Army and was on leave, during the days of occurrence. Muhammad10 Bashir P. W.
12, his brother was also serving in the Army and during the days of occurrence he was posted at Rawalpindi. He had abducted Mst. Mahmuda Anwari, daughter of Muhammad Akbar (acquitted accused) resident of Bakra Mandi, Rawalpindi. Muhammad Akbar (acquitted. Accused) had arranged mailas (Jirgas) at village Mogla and had requested the complainants to return his daughter Mst. Mahmuda Anwari. The complainants stated that the girl is not with them, she will be returned, if she comes to them.
4. On the night of occurrence Muhammad Rafiq deceased was sleeping in his courtyard alongwith his real brothers Muhammad Latif and Muhammad Nazir (both deceased), Mst. Inayat Bibi, his mother and Mst. Huseena Begum, his sister-in-law (brother's wife), while Muhammad Bashir P. W.
Who was apprehensive of his life, slept on the roof of the house. At about 10-00 p. m. When it was moonlit, Muhammad Akbar respondent, the father of Mst.Mahmuda Anwari, armed with a revolver, Fazal Dad Appellant, his sister's son armed with a revolver, appellant Khalid Budmuash of Samanabad, Rawalpindi armed with a revolver and rifle, Hashmat Ali respondent, brother-in-law of Muhammad Akbar respondent, armed with a revolver, a young person of wheatish colour and normal height, whose name was not given, armed with a revolver and normal(absconder) armed with a rifle and Chhura, entered the courtyard of Muhammad Rafiq deceased which was without a door. They woke up all the three deceased, namely Muhammad Rafiq, Muhammad Latif and Muhammad Nazir. The mother and sister-in-law of Muham--mad Rafiq deceased also got up. .
The accused asked them, the where-- abouts of Mst. Mahmuda Anwari. When the deceased expressed ignorance, the accused put cloth around the necks of each of the three deceased and, started to go out of the village. The mother and sister-- in-law of the deceased raised alarm. When the accused had taken the three deceased a short distance away from the village they found Muhammad Anwar P. W. Passing: The accused took him also into custody and started towards the south; When they went about a furlong, Muhammad Bashir P.W.
12. Accompanied by other villagers followed them. Hearing their voices, the accused named above, made all the three deceased stand and started firing. Fazal Dad appellant and Muhammad Akbar (respondent accused) fired at Muhammad Rafiq deceased which hit him on his left flank, right buttock and in the chest.
Muhammad Nazir and Muhammad Latif deceased, brothers of Muham--mad Rafiq deceased were also fired at by the accused. Ghani-ur---Rehman accused bad also inflicted injuries on the throat of Muhammad Latif deceased with the Chhura. When the villagers came near, the accused left the three deceased in. Injured condition and ran away. M6hammad Rafiq deceased and his two brothers Muhammad Latif and Muhammad Nazir were removed to Civil Hospital, Chakwal on 4 truck. Because of fear, no body proceeded to the Police Station to lodge the report.
5. All the three injured Muhammad Rafiq, Muhammad Latif and Muhammad Nazir were medically examined by Dr. Asghar Hameed Qureshi, P. W. 13 vide medico-legal reports Exh. P.S., P.R. And P.T.
Respectively. Dr. Asghar Hameed Qureshi sent ruqqa Exh. P.U. To the Station House Officer, P. S. Chakwal informing him about serious condition of Muhammad Rafiq. Muhammad Latif and Muhammad Nazir and for necessary action, on the receipt of which Ababeel Khanzada, ASI P. W; 15 reached the Civil Hospital. In fact the doctor had sent ruqqa Exh.. P.U. Before the conclusion of medical exami--nation of all the three deceased. The A. S. I. After making entry in the daily diary register at Police Station Chakwal, proceeded to the hos--pital. He made query vide application Exh. P.D/2.From the doctor if Muhammad Rafiq was fit to make a statement and after receiving reply Exh. P.D./3 in the affirmative, he recorded statement Exh. P.D. Of Muhammad Rafiq in the presence of the doctor. The doctor also signed Exh, P. D. Fazal Dad, Sub-Inspector/S. H. O., P. S. Duman reached the hospital at about 9-45 a. m. On the information sent to him by the Moharrir, Police Station Chakwal vide Exh. P. V. He sought the opinion of the doctor whether. Muhammad Latif and Muhammad Nazir were fit to make a statement. The doctor, vide Exh. P. V./l opined that they are fit to make a statement. Fazal Dad, Sub-Inspector then recorded the statement of Muhammad Latif Exh: P. E. E. And that of Muhammad Nazir Exh. P. F. F. He proceeded to the spot but he was transferred with immediate effect and so he handed over the investigation to Akhtar Hussain, A. S. I., P.W. 25.
6. Akhtar Hussain, A. S. I. After taking up the investigation; inspected the spot and took into possession blood-stained earth from three places vide memo. Exh. P.K, P.L. And P.M. He took into possession five -32 bore empties Exh. P. 8/1-5 and one .32 bore missed cartridge P. 9 vide memo.
Exh. P. N. One crime empty of 7 m.m. (P. 10) was also take4 into possession vide memo. Exh. P. Q.
From the spot.
7. On the 31st May, 1974 Mirza Muhammad Iqbal, Moharrir A. S. I. Police Station Duman on receipt of information about the death of Muhammad Nazir and Muhammad Latif, reached the Civil Hospital; Chakwal. He prepared the inquest reports Exh. P. F. And Exh. P.G. Respectively of the dead bodies of Muhammad Nazir and Muhammad Latif, and sent the same for post-mortem examination.
8. Mirza Muhammad Iqbal, A.S.I. (P. W. 25), as Moharrir had received three sealed parcels of blood- stained earth, one parcel of crime empties of '32 bore and the other of crime empties of 7 m.m. He kept the same in the Malkhana and sent these parcels to the office of the Chemical Examiner and Director, Forensic Science Laboratory, through Muhammad Aslam, Foot Constable. Later a parcel of revolver was also deposited with him. He sent the same also to the office of the Director, Forensic Science Laboratory, Lahore.
9. Liaquat and Parvez accused were arrested on 29th July 1974 by Nadar Ali, A.S. L He also formally arrested Inayat co-accused as be was on bail.
10. Muhammad Khalid appellant was arrested by Nasarullah Khan, A.S.I., Police Station Sarai Alamgir as a suspect under section 54 of the Code of Criminal Procedure. During interrogation on the same night he made disclosure about the present occurrence and so the A.S.I. Inform--ed the Jhelum Police and banded him over to Muhammad Siddiq, A. S. I. Of Jhelum Police.
11. On 28th June, 1974, Muhammad Khalid appellant while in Police custody led to the recovery of pistol P. 7 from the bushes at a distance of 1J furlongs from the place of occurrence, which was taken into possession vide memo. Exh. P.J. The recovery memo Exh. P.J. Was prepared by Muhammad Sharif. Sub-Inspector and attested by Rabnawaz P. W. 11 and Muhammad Ajaib P. W. 9.
The other accused were also arrested but no recovery was effected at the instance of any other accused, including Fazal Dad appellant and Muhammad Akbar, Hashmat Khan, Parvez Akhtar and Liaquat Hasan respondents. Ghani-ur-Rehman accused could not be arrested, he was declared proclaimed offender. After completion of investigations the challan was put in Court.
12. At the trial, the prosecution examined in all vventy-five wit. Nesses, Muhammad Bashir P. W. 12, Muhammad Anwar P. W. 22 and Bagh Ali P. W. 23 were examined as eye-witnesses. The statement Exh. P. D. Of Muhammad Rafiq deceased made before Ababeel Khanzada, A.S.I. P. W.
15. Statement Exh: P. E. E. Of Muhammad Latif deceased and Exh. P. F. F. Of Muhammad Nazir deceased which were made by them before Fazal Dad Sub-inspector, were also tendered in evidence as dying declarations.
13. Muhammad Bashir P. W. 12 has stated that he was employed in the Pakistan Army and was posted at Rawalpindi in 1974. He was living in the rented house of Muhammad Akbar (respondent accused) in Bakar Mandi, Rawalpindi. Muhammad -Akbar was living in another house, one house away from the house occupied by Bashir. He has stated that he developed visiting terms with Muhammad Akbar accused and cultivated illicit connections with his daughter Mst. Mahmuda Anwari. Ghani-ur-Rehman (absconder) who was running a Kabab shop near the rented house, was also after Mst. Mahmuda Anwari, and had learned about his relations with Mst. Mabmuda Anwari., According to him he proceeded on 2-month leave in May, 1974 and started residing in his village. During vacation he went to Rawalpindi and met Mst. Mahmuda Anwari. As agreed between them, Mst. Mahmuda Anwari eloped with him and after spending two days at Rawalpindi she came with him to his village Mogla. Muhammad Akbar, Hashmat (respon--dent accused), Muhammad Khalid and Fazal Dad appellants and Ghani-ur-Rehman (absconder) came to their village and asked for the return of Mst. Mahmuda Anwari. They had convened a Jirga but they were told by Muhammad Bashir P. W. 12, and his father that Mst. Mahmuda Anwari is not with them and in case she comes; she will be returned. These persons visited again on the following day and in the Jirga held on that day, the three deceased brothers of Muhammad Bashir, P. W. 12, and other people of the village also participated. According to him he entered into Nikah with Mst. Mahmuda Anwari on 29th May, 1974. After the Nikah Mst. Mahmuda was taken by Ajaib P. W. 9 and Muhammad Khan father of the three deceased to Jhelum to get her statement recorded. He has further stated that on the same day at about 10. p.m. When it was moonlit he was sleeping on the roof of his house. His deceased brothers Mubammad Rafiq, Muhammad Latif and Muhammad Nazir, Mst. Inayat Bibi his mother and Mst. Huseena his wife were sleeping in the courtyard which is without a gate. Appellant Muhammad Khalid armed with a pistol and rifle, Hashmat and Muhammad Akbar respon--dents armed with pistols, Ghani-ur-Rehman accused (absconder) armed with a rifle and chhura and one unknown person who was later arrested and whose name was known as Inayat, armed with a pistol, came into the house, hearing their voices be got up. The accused above-named asked from his brothers whereabouts of Mst. Mahmuda Anwari. When they replied that they do not know, the accused put clothes around the necks of the three deceased and went out with the. They did not listen to the entreaties of Mst. Safia wife of Muhammad Bashir P. W. 12 and Mst. Inayat his mother.
When the accused had gone out of the house alongwith the three deceased, his mother, his wife and he himself raised alarm which attracted Bagh Ali and Rabnawaz P. Ws. Whom he told the occurrence. Bagh Ali, Rabnawaz P. Ws. And he started after the accused. There was commotion and alarm in the village. When these people had gone 21 furlongs out of the village, the three deceased were shot at by the accused. Muhammad Rafiq deceased was fired at by Muhammad Khalid, Fazal Dad appellants and Muhammad Akbar (acquit--ted accused). He fell down. Then all the accused named above fired at Muhammad Nazir and Muhammad Latif deceased, who also fell down, thereafter the accused ran away. At that time Muhammad Anwar P. W. 22, who is also a witness to the occurrence was standing at a distance of 20 yards. When the accused went away, Muhammad Bashir P. W. 12 accompanied by other persons went where Muhammad Rafiq, Muhammad Latif and Muhammad Nazir were lying injured. They were alive and in senses. With the help of others he transported them by arranging a truck to Chakwal Hospital. The doctor advised him that the three injured should be shifted to Jehlum as their condition was serious. When he returned with the truck the A. S. I. Of Chakwal Police had reached the Hospital and had recorded the statement of Muhammad Rafiq deceased. He placed the three injured in a truck and started for Jhelum. Latif and Nazir expired on the way. Their dead bodies were brought back to Chakwal Hospital while Muhammad Rafiq deceased who was employed in the Army Medical Corpse was got admitted in the Combined Military Hospital, Jehlum by him, where he also expired on 31st May, 1974.
14. He has further stated that P. W. Muhammad Anwar, Bagh Ali, Rabnawaz, Sahib Khan, Samundar Khan and Mehdi Khan of his village were present when the Jirga was arranged by the accused.
According to him, he had stayed for one year in Bakar Mandi, Rawalpindi in the rented house where his relatives had been visiting him. He has stated that Hashmat respondent is maternal uncle of Mst. Mahmuda Anwari, Fazal Dad appellant is a relative of Muhammad Akbar respondent, father of Mst. Mahmuda, Muhammad Khalid appellant is their friend He has also mentioned in his statement that he had learnt after the registration of this case that Muhammad Akbar respondent had also reported against him for having abducted his daughter Mst. Mahmuda. P. W. 22 Muhammad Anwar and P. W. 23 Bagh Ali have corroborated the statement of Muhammad Bashir P. W.
12. Muhammad Anwar P. W. 22 has stated that he had seen appellants Muhammad Khalid and Fazal Dad and respondents Muhammad Akbar, Hashmat and Ghani-ur-Rehman (absconder) when they had come to his village in connection with the search and return of Mst. Mahmuda. He has stated that he was present on both the occasions when Jirga was held. He has further stated that he has been visiting Muhammad Bashir P. W. 12 in Bakar Mandi, Rawalpindi and that he bad seen Muhammad Akbar and Hashmat respondents, Muhammad Khalid and Fazal Dad appellants and Ghani-ur--- Rehman (absconder): He has corroborated the narration of the actual occurrence given by Muhammad Bashir P. W.
12. Similarly, Bagh Ali P. W. 23 has stated that he bad seen Fazal Dad and Khalid appellants, Muhammad Akbar and Hashmat respondents and Ghani-ur-Rehman accused (absconder) when they had held Jirga in his village twice in connection with the search and recovery of Mst. Mahmuda Anwari. He has corroborated the account of the occurrence given by Muhammad Bashir P. W. 12 in detail. Muhammad Anwar P. W. 22 has also stated that he was caught hold of by Muhamniad Khalid and Fazal. Dad appellants, Muhammad Akbar and Hashmat respondents, Ghani-ur-Rehman (absconder) and one unknown person who later was found to be Inayat, while they were taking with them the three deceased, namely Muhammad Rafiq, Muhammad Latif and Muhammad Nazir, with clothes around their necks, when he was passing out of village abadi. When they, according to him, reached the land of Muhammad Anwar son of Jahan Khan, appellant Khalid asked his co-accused as to where the taxis were parked, to which Muhammad Akbar respondent replied that the taxis had been deputed to wait for them in a Jhangi (group of trees) near Adda Jheek. He has further stated that when they had covered a short distance, he beseeched them that as he had nothing to do with the abduction of Mst. Mahmuda Anwari, he should be spared. The accused then let him off. He has stated that when he was at a distance of 20 yards towards East from the accused, Muhammad Bashir, Rabnawaz and Bagh Ali P.
Ws. Raised lalkaras. They were followed by other people of the village, hearing their voices the accused threw a ring around the three deceased and started firing. Muhammad Khalid and Fazal Dad appellants and Muhammad Akbar respondent fired their pistols at Muhammad Rafiq deceased hitting him on front and back, who fell down. Thereafter all the six persons named above fired at Muhammad Nazir and Muhammad Latif deceased who also fell down. Ghani-ur-Rehman (absconder) also gave two chhura blows on the throat of Muhammad Latif deceased, He has corroborated Muhammad Bashir's statement regarding other details also.
15. Muhammad Khan P. W. 10, father of the three deceased has corroborated the statement of Muhammad Bashir P. W. 12 regarding the motive of the occurrence. Muhammad Khan has stated that his son Bashir had brought Mst. Mahmuda Anwari to their house in village Mogla. Nikah of Muhammad Bashir was performed with Mst. Mahmuda Anwari, daughter of Muhammad Akbar respondent on 29th May, 1974 and that after the Nikah he along with Muhammad Ajaib P. W. 9 had taken Mst. Mahmuda Anwari to Jhelum for getting her statement recorded under section 164 of the Code of Criminal Procedure, but the statement could not be recorded on that day. He left Mst.
Mahmuda Anwari in the custody of Muhammad Ajaib P. W. 9 and himself went to Sargodha. He has stated that Muhammad Akbar and Hashmat respondents, Ghani-ur-Rehman (absconder) and Muhammad Khalid and Fazal Dad appellants had approached him and hiss one for the return of Mst. Mahmuda Anwari. They had also arranged Mailas (Jirgas) in which the other P. Ws. Had also participated. He has stated that even though Mst. Mahmuda Anwari was with them yet he put the accused persons off, saying that if Mahmuda Anwari comes to their house, she will be returned.
16. The evidence of motive also finds corroboration from the fact that Muhammad Akbar respondent, father of Mst. Mahmuda Anwari had got a case registered against Muhammad Bashir P. W. 12.
17. The evidence of recovery of empty cartridges from the spot and of recovery of revolver from Muhammad Khalid appellant has also been led.
18. Dr. Asghar Hamid Qureshi P. W. 13 who had examined Muhammad Latif deceased in injured condition and had issued medico-legal report Exh. P. R.; conducted the post-mortem examination on the dead body of Muhammad Latif on 31st May, 1974. He noted eleven injuries on the dead body of the deceased, recovered a bullet from the dead body. The details of injuries has been given in the judgment of the learned trial Court. According to his opinion the death was due to injury to both lungs, liver, stomach, spleen causing bleeding and shock. Injuries Nos. 1 and 2 were fatal individually as well collectively and they were sufficient to cause death in the ordinary course of nature. Injuries Nos. 1, 2, 3, 5, 6, 7 and 8 were found to have been caused by fire-arm weapons, injuries Nos. 10 and 11 by sharp-edged weapon and injuries Nos.4 and 9 by blunt weapon.
The same doctor performed the post-mortem examination on dead body of Muhammad Nazir deceased on the same day and noted six injuries on his person. According to his opinion the death was due to bleeding and shock from ruptured kidneys, stomach, mesentry and pancereas. Injuries Nos. 1, 3 and 4 were thus fatal individually as well as collectively and they were sufficient to cause death in the ordinary course of nature. Other injuries were simple. All the injuries were opined to have been caused by fire-arm weapons. Before the post-mortem examination he bad medically examined Muhammad Nazir deceased and issued medicol-legal report Exh. P.S. He also stated that he had sent Ruqqa Exh. P.U. To the Station House Officer. Police Station Chakwal regarding the con--dition of the three deceased. He has stated that he had given opinion Exh. P.D/3. Regarding the fitness of Muhammad Rafiq deceased to make a statement and he had signed the statement Exh. P.D. Which according to him was recorded in his presence. He also stated that Muhammad Rafiq deceased remained conscious during the statement, and he signed in his presence.
Dr. Major Mazhar Hussain P.W. 7 performed the post-mortem exami--nation on the dead body of Muhammad Rafiq deceased. He noted five injuries on his person Injuries Nos. I to 4 were found to have been caused by fire-arm weapons while injury No. 5 was the result of leprotomy performed by the doctor before the death of the deceased. According to him the cause of death was due to shock and haemorrhage caused by fire-arm injuries collectively. His post-mortem report is Exh. P H.
20. The plea of the appellants and respondents before the learned trial Court was that they have been involved falsely because of inimical relations with the P. Ws. Which developed because of the abduction of Mst. Mahmuda Anwari by Muhammad Bashir P. W. Appellant Fazal Dad about whom reference under section 341, Cr. P.C. Has been made, denied participation in the occurrence by signs and uttering words, Taubah-Taubah.
21. Learned counsel for the appellants and respondents have inter alia argued that the evidence of dying declaration of Muhammad Rafiq (deceased) should be discarded for the reason that in view of his condition, it is impossible to believe that he would have been able to make such a detailed statement. It has been argued that the injuries received by him were such that he would have bled so prefusely that the question of his remaining in conscience after one or two hours, was impos-- sible. Learned counsel have referred to the cross-examination of Dr. Major Mazhar Hussain P. W. 7 wherein he has stated that within one hour of the receipt of injuries Rafiq deceased must have gone unconscious, and he must have been in shock within few minutes of the receipt of injuries. It is argued that the dying declarations of Latif and Nazir Exh. P. E. E. And Exh. P. F. F. Respectively are not worth reliance because they are almost copies of the statement of Muhammad Rafiq deceased. It is further stated that the learned trial Court also discarded these two dying declarations. Learned counsel for the appellants and respondents have contended that Muhammad Bashir F. W. 12 could not have been present for the reasons that if he was available to the appellants, respondents and other accused, they would not have apared him. It is contended that it is impossible to believe that the accused would not have searched the house and would have felt contented about the non-- presence of Muhammad Bashir P. W. 12 merely on the information supplied to them by the three deceased or the mother or wife of Muhammad Bashir P. W.
12. It is also argued that even if this fact is ignored, the presence of Muhammad Bashir P. W. 12 near about the occurrence would be more difficult to believe because in that case he would have been within their reach. It is further argued that bad Muhammad Bashir P. W. Witnessed the occurrence and had he taken his three injured brothers to Chakwal Hospital, he would have lodged the first information report himself, or he would have gone to his own police station or at least sent somebody for registration of the case.
22. With regard to the evidence of the other witnesses, it is argued that it was a night occurrence, the P. Ws. Had no ostensible contacts with the appellants and the respondents and as such they could not have identified the appellants and the respondents. Their presence at the spot also contested.
23. With regard to respondents Liaquat and Parvez, it is argued that there is no eye-witness account against them that the witnesses who have been produced against them had appeared before the Police after many weeks of the occurrence and there is no allegation that they had either entered into conspiracy with the appellants or` the other co-accused or provided any other assistance except that the appellants, respondents and the other accused ha d hired their taxis.
24. Learned counsel for the State has controverted the arguments advanced by the learned counsel for the appellants and respondents. It is argued that the motive is proved, that the evidence of the P. Ws. Is confi--dence expiring and finds support from the dying declaration Exh. P.
L of Muhammad Rafiq deceased. He has argued that the 'learned trial Court while believing the prosecution evidence against the respondents has trot given sound reasons to pass the orders of acquittal.
25. Before we take up enunciation and appreciation of the arguments of the learned counsel for the appellants and the State we think it necessary to dispose of the reference made by the learned trial Court under sec--tion 341 of the Code of Criminal Procedure regarding Fazal Dad 2'ppel--lant.
The learned Sessions Judge after convicting him has also passed the sentence as mentioned in paragraph No. 1 above. The provisions of sec--tion 341, Cr. P. C. May be quoted for ready reference "If the accused, though not insane, cannot be made to understand the proceedings, the Court may proceed with the trial ; and, in the case of a Court other than a High Court, or if such trial results in a conviction, the proceedings shall be forwarded to the High Court with a report of the circumstances of the case, and the High Court shall pass thereon such order as if it thinks fit."
There is no dispute regarding the fact that whatever disability the appellant developed, was after the occurrence and some time during the trial or some days before that. There is no evidence nor the plea, that on the day of occurrence or even during the days of occurrence the appellant was suffering from any such disease, therefore, we are not to decide whether with such state of health he could have committed the offence or could have formed common intention of having committed the offence. The evidence, therefore, regarding his participation in the offence will be assessed as in the case of others.
26. The requirement for application of section 341 of the Code of Criminal Procedure, is, that during the trial the accused, though not insane, was incapable of understanding the proceedings, or that be could not be made to understand the proceedings.
27. We have scrutinized the record to ascertain as to in what manner Fazal Dad appellant participated in the occurrence, and whether he digit not understand the proceedings, and as such not properly defended ? And whether any opportunity was provided to him to note his plea and record his statement,by methods known to law for recording the statement of a deaf and dumb person and making him understand the proceedings. The order of the learned Sessions Judge dated 22nd November, 1976, which is on the file, shows that the appearance of Fazal Dad appellant was exempted because of his illness, on the application made under section 540-A of the Code of Criminal Procedure. It is mentioned therein that Ch. Muhammad Anwar, Advocate who was counsel of Fazal Dad appellant, would be appearing during proceedings in his place and defend him.
Again, order dated 19th February, 1977 of the learned Sessions Judge shows that Fazal Dad appellant was produced in the Court on 19th December, 1977. The learned trial Court has recorded the proceedings qua Fazal Dad appellant as under : "He is a case of hemiplegia and his right side of the body is affected. He cannot speak except disjointed one or two words and hears at a very loud pitch. Right side of his neck is swollen and very stiff. After examining him and putting questions to him, I am convinced that he cannot understand the proceedings. I specifically put the question to him by calling his co-accused Akbar near him by poin--tation if he had fired at anybody, to which he replied Taubah Taubah and 'touched his left ear."
Later, after conviction and sentence the appellant engaged a counsel who has filed the present appeal on his behalf.
28. A reference under section 341, Cr. P. C. Had been submitted in the case reported in Emperor v.
Nagansanmyin (1) where the case of a deaf and mute person by birth is reported who was challaned under section 379, P. P. C. He could neither speak nor hear. The trial was conducted with the, help of interpreter who was the father of the accused. The statement was recorded by making signs and getting the answers as such and on the basis of such a trial sentence was passed under section 379, P. P. C.
29. In the case reported in AIR 1951 Trav.-Co. 125, where reference under section 341, Cr. P. C. Had been made by a Magistrate after conviction and sentence of the accused, it was observed that from the record it appeared that the accused had engaged a pleader to defend himself and he was defended. He had also executed Wakalat--nama in favour of the pleader though the signatures on the Wakalatnama were not legible. It was found that the accused was not incapable of attending to his business and considering that the accused had sufficient intelligence to understand, the conviction and sentence passed on him was upheld. An observation was also made that section 341 does not provide for passing a sentence on the accused, in spite of that it was not considered proper and necessary to interfere with the judgment of the lower Court, having felt satisfied that the accused had committed the offence.
In the present case also learned trial Court has passed sentence as well after recording conviction.
30. In Muhammad A slam v. The Crown (PLD 1954 Lah. 569) two brothers were tried for murder, and causing injuries to the P. Ws. In the case of Muhammad Hussain accused who was deaf and dumb, reference was made under section 341, Cr. P. C. Questions were put to him and the answers were recorded by the committing Magistrate with the help of the co-accused Muhammad Aslam, his brother. The judgment was delivered by my learned brother Shabir Ahmad, J (as he then was).
It was observed "If I were to accept the record made by the committing Magistrate of the statement of Muhammad Hussain, it would appear that Muhammad Hussain was not only not insane but could be made to understand the proceedings, which will make section 341 of the Code of Criminal Procedure inapplicable to his case."
After appreciation of the evidence the accused was sentenced. In the present case also it is apparent from the order dated 19th February, 1977 that Fazal Dad was not only not insane but could be, made to understand the proceedings.
31. In The State v. Muhammad Ismail Khan (PLD 1963 Lah. 139), reference under section 341 of the Code of Criminal Procedure was made by the trial Court regarding Muhammad Ismail Khan accused who was stated to be deaf and dumb. The learned Sessions Judge had remarked; "At the trial the accused pleaded not guilty through Khushal Khan, his father, the interpreter, who had performed, his duties as such to my entire satisfaction, till the termination of the proceedings". It was, held that as such the accused could be made to Understand the proceedings and was in fact made to understand the proceedings through .The interpreter, provisions of section 341, Cr. P. C. Did not apply. The case was remanded), for passing the sentence.
32. In Crown v. Unknown deaf and dumb (PLD 1952 Lab. 362) a reference under section 341, Cr. P. C.
Had been made regarding unknown deaf and dumb' accused after passing the conviction. The learned Magistrate had recorded that when questioned by the Court the accused shook his head to indicate that he was not guilty of the offence with which he was charged and made gestures suggesting admission of his previous conviction. An order was passed that the case be sent back to the Magistrate for passing the order of sentence because there was observation that the accused was capable of understanding the purport of the evidence against him.
33. The matter had also come up before the Supreme Court in Alam Khan v. The State (PLD 1964 SC 801). On a reference made by the learned Sessions Judge under section 341 of the Code of Criminal Procedure regarding a deaf and dumb accused after conviction, the High Court passed the sentence of 14 years' R. I. It was observed :- "that the Sessions Court while forwarding a case to the High Court under section 341, Cr. P. C. Should also record a finding as to whether the accused though deaf and dumb mute had sufficient intelligence of knowing, that he was doing what was 'wrong and contrary to law .....................--- It was also observed that:- "What a deaf and dumb person is convicted and a reference is made under section 341, Cr. P. C., the High Court should first satisfy itself if there had been a fair trial and if the accused had sufficient intelligence to understand the criminal character of his act, and then it would proceed to pass such sentence as the circumstances of the case would require."
34. We have examined the case of Fazal Dad appellant in the light of the above judicial pronouncements. It may be clarified that in all the authorities cited above the accused/appellants were considered deaf and dumb not only at the time of trial but also at the time of commission of the offence therefore, those cases stood on a more different plank, f or the reason that this had also to be determined whether deaf and dumb persons could form intentions of committing the offences by themselves or common intention with other accused ? In the present case there is no such problem. Fazal Dad appellant was neither deaf nor dumb nor incapable of understanding when the occurrence took place. The dis--ability, whatsoever, was developed after the challan had been submitted to Court and the appellant was awaiting trial. From the record also it appears as mentioned in the preceding paragraphs where it is noted that the appellant was duly represented by a counsel engaged by him. On the day when the statements of other accused were recorded, he was also produced in Court. The utterance of words Taubah-Taubah, in answer to the question, and touching his ears is a most categorical denial that any accused would like to make or assert.
He not only by words but by signs also made his position clear, by understanding the allegations.
35. Want of speech and bearing do not imply want of capacity either in the understanding or memory but only a difficulty in the means of communicating knowledge. It is not observed that Fazal Dad appel--lant was absolutely deaf. All that was found was that he could hear at a very loud pitch. It could also not be said that he was mute or dumb because it is recorded that he uttered the words Taubah-Taubah. In the circumstances we are of the view that there was no necessity of filing any reference under section 341 of the Code of Criminal Procedure. The accused was not incapable of understanding nor was he incapable of making his statement. His plea of not having participated in the occurrence is also noted in the order-sheet dated 19th February, 1577. WP have therefore, decided to dispose of the case alongwith his co-appellants and the respondents against whom State appeal has been filed, on merits.
36: We have considered the arguments of the learned counsel for the appellants and respondents.
In this case there is no difficulty to conclude that appellants Fazal Dad and Muhammad Khalid and respon--dents Muhammad Akbar and Hashmat Khan had a motive. The fact of illicit relations of Mst. Mahmuda Anwari with Muhammad Bashir P. W. 12 and her abduction has been admitted by Hashmat Khan respondent, and the registration of the case regarding abduction against Muhammad Bashir P. W. 12 has been admitted by Muhammad Akbar respondent. It may be of interest to mention here that Hashmat Khan respondent is the brother of wife of Muhammad Akbar respondent ; Fazal Dad is their relative, and Khalid appellant is their friend. There is no evidence of recovery of any incriminating articles. The revolver recovered from Muhammad Khalid appellant is of no use, as according to the opinion of the Director, Forensic Science Laboratory crime empties marked C: 1 to .C: 3 were not found to have been fired from the revolver. No weapon of offence was recovered from other persons.
37. We do not find much force in the contention of the learned counsel for the appellants and respondents that the dying declaration Exh. P. D. Made by Muhammad Rafiq deceased should not be acted upon for; the reason that in view of his condition be might not have been in a position to make the statement. We have no reason to discard the evidence of Dr. Asghar Hamid Qureshi (P.
W. 13) who has stated that he had given the opinion in writing that Muhammad Rafiq was in con-- science and that he had signed the statement Exh. P. D. And had remained present throughout the period the statement was being made by Muhammad Rafiq deceased and recorded by Ababeel A.
S. I. P. W.
15. We have also no reason to doubt the integrity of Ababeel A. S. I. P. W. 15 who recorded the statement, the case did not pertain to his Police Station. , He had only come to the hospital and had recorded the state--ment of Muhammad Rafiq deceased as he got an emergency call from the doctor, there is nothing on record to show any bias of the A. S. I. Or the doctor against the appellants or any relationship or association whatsoever, with the deceased or Bashir Ahmad P. W.
12.
38.' Learned counsel for the appellants laid much stress on the statement made in cross- examination by Dr. Major Mazhar Hussain who performed the post-mortem examination on the dead body of Muhammad Rafiq deceased. We are not inclined to give any weight to his opinion as he had neither examined the deceased Muhammad Rafiq nor seen him alive after he had received injuries. We find further support from the statement of Prof. Ali Ajwad Jaffery, Professor of Medicine, Mayo Hospital, Lahore, recorded on 5th July, .1980 in this Court wherein it has been stated that :- "I cannot categorically state as to whether or not Muhammad Rafiq was capable of making statement on 30th May, 1974 at about 10 a.m. Same is my answer in respect of Muhammad Nazir and Muhammad Latif. The person who first medically examines an injured person, is the best judge to state as to whether the injured is fit to make statement or not."
The statement of Muhammad Rafiq deceased would become more independent if the contention of the learned counsel for the appellants and respondents is accepted that Muhammad Bashir P.
W. 12 was not present even in the hospital with his injured brothers, that would mean that Muhammad Rafiq deceased had not the facility of having been advised by anybody, though we do not rule out the presence of Muhammad. Bashir P. W. 12 at the time of occurrence. However, we find force in the arguments of the learned counsel for the appellants and the respondents that statements Exh. P. E. E. And Exh. P. F. F. Of Muhammad Latif and Muhammad Nazir respectively should not be' relied upon as they were recorded just in line with the statement of Muhammad Rafiq deceased. The learned trial Court has ruled out this evidence. We have gone through his judgment and we find that the same has been done for good reasons.
39. So far as the contention of the learned counsel for the appellants and the respondents regarding the presence of Muhammad Bashir P. W. 12, we do not feel inclined to agree with the arguments of the learned counsel. It is in evidence that a day before the occurrence Muhammad Bashir had entered into marriage with Mst. Mahmuda Anwari ; it is also in evidence that Mst.
Mahmuda Anwari was taken to Jhelum for recording her statement by Muhammad Khan P. W. 10, father of the three deceased and Muhammad Bashir P. W. 12, and Ajaib P. W.
9. It is also in evidence that Muhammad Akbar and Hashmat Khan respondents had snatched Mst. Mahmuda Anwari from Ajaib Khan while he was in a bus on way back to village Mogla. This evidence is indicative of the fact that Muhammad Bashir P. W. 12 was positively present in village Mogla on 29th when the marriage took place and the fact that he had not accompanied Mst. Mahmuda also lends support to the idea that he must be present in his village. His not accompanying Mst. Mahmuda Anwari is obviously for the reason that he might have felt insecure to travel with Mst. Mahmuda Anwari so that he may not be identified and caught. There is no suggestion that the appellants or respondents Hashmat Khan and Muhammad Akbar had any enmity with P. W. 22 Muhammad Anwar and P. W. 23 Bagh Ali. Statements of both these witnesses ring true and corroborate statement Exh. P. D. Of Muhammad Rafiq deceased. No doubt both of them belong to the village of the deceased but that by itself cannot be a reason to have come forward and lay a false blame of three murders without any substance or truth. We are, as such not inclined to rule out their evidence.
40. After a careful appraisal and appreciation of the evidence and consideration of arguments of the learned counsel for the appellants and respondents we are convinced that the prosecution has been able to prove the case against appellants Muhammad Khalid and Master Fazal Dad and respondents Muhammad Akbar and Hashmat Khan in the appeal filed by the State, beyond reasonable doubt.
41. So far as Liaquat and Parvez respondents in the State appeal are concerned, we do not find any plausible and reliable evidence against them. There is no allegation that they went beyond a particular point. The prosecution witnesses produced against them were examined after quite a long time of the occurrence. Even in their statements, it is not mentioned that the accused who had hired their taxis had told them as to where they were being carried. In the circumstances, we do no find any force in the State appeal filed against them. The State appeal against Liaquat and Parvez respondents is, therefore, dismissed.
42. The State appeal filed against Muhammad Akbar and Hashmat Khan respondents is accepted, as the case against them of having committed the murders of Muhammad Rafiq, Muhammad Latif and Muhammad Nazir deceased with common intention inter se and with appellants Muhammad Khalid and Fazal Dad, is proved. Both of them are held guilty under section 302/34, P. P. C., for having committed the murders of the three deceased. They are convicted and sentenced to death on each count. They shall be hanged by the neck till they are dead. Each of the two is also sentenced to pay a fine of Rs. 10,000 in default of payment of which to suffer one year's R. I. On each count Whole of the fine, if recovered, shall be paid as compensation to the heirs of all the three deceased. They are on bail. They shall be arrested and sent to jail to undergo the sentence.
43. We do not find any force in the argument of the learned counsel for the appellants that in view of the fact that the appellants are in jail since long, sentence of death should not be confirmed and instead the death sentence may be commuted to imprisonment for life as according to the learned counsel confirmation of death sentence at this stage will amount to two punishments. We do not find any force in this contention. The appellants have been convicted for the murders of three innocent unfortunate persons. There is no mitigating factor.. Their appeal is rejected and the death sentence awarded to the appellants on each, of the three counts is confirmed. Appellant Fazal Dad who is on bail shall be arrested and lodged in Jail to undergo the sentence. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.