ABAID ULLAH KHAN, J.-By this judgment of the 27th February, 1980, the learned Additional Sessions Judge, Lahore, convicted Muhammad Sarwar (30 years), Muhammad Anwar (27 years) and Muhammad Afzal (16 years), sons of Muhammad Hussain, residents of village Jallo Morr, Police Station Manawan, district Lahore, under section 302 read with section 34 of the Pakistan Penal Code for committing double murder of Muhammad Siddiq Ali (45/50 years), and his son, Ashfaq (25 years), in furtherance of their common intention on the 24th September, 1918, at 1-00 p.m., at the dera of Muhammad Siddiq Ali deceased, situate on G. T. Road in village Attoki Awan which is 2 miles distant from Police Station Manawan and sentenced Muhammad Sarwar and Muhammad Anwar to death and a fine of Rs. 2,000 or in default of payment thereof to six months' rigorous imprisonment and Muhammad Afzal to imprisonment for life and a fine of Rs. 2,000 or in case of default to pay the same to six months' rigorous imprisonment on each of the two counts. Half of the amount of fine if realized was directed to be paid to the heirs, of the deceased. The convicts have preferred this appeal and murder reference (No. 143 of 1978) for confirmation of death sentence awarded to Muhammad Sarwar and Muhammad Anwar is also before us. This judgment will dispose of both the appeal and the murder reference.
2. The circumstances motivating the appellants to commit murder, as alleged by the prosecution, are these. On the 24th September, 1978, at about noon, that is, an hour before the occurrence, Shahzad, a lad of 11/12 years of age and a student of 7th class, son of Muhammad Siddiq Ali deceased and brother of Ashfaq deceased, had a quarrel with Arshad, brother of the appellants, a boy of his age, at Jallo Morr. Shahzad informed his brother, Ashfaq deceased, of the quarrel. Ashfaq slapped Arshad twice and the latter went home. Learning the incident the appellants became infuriated and proceeded to the dera of the deceased where they despatched them to death.
3. Ashfaq, deceased and Shahzad came to their dera where their father, Muhammad Siddiq Ali deceased, their uncle, Muhammad Bashir (P. W. 7), Muhammad Ismail (P. W. 8). And one Barkat were present. At about 1-00 p.m., Muhammad Sarwar appellant armed with a dagger, Muhammad Anwar appellant equipped with a knife and Muhammad Afzal appellant carrying a chhuri came over there raising lalkaras that they would avenge the beating given to their brother. Muhammad Siddiq Ali deceased was lying on a cot in the verandah and Ashfaq deceased was sitting beside him on a chair at that moment. The appellants pounced upon them. Muhammad Sarwar administered dagger blows in the right flank and on the right hip of Muhammad Siddiq Ali deceased. Muhammad Anwar inflicted injury with knife on the right side of his chest and Muhammad Afzal struck chhuri on his left shoulder. In process of rising Muhammad Siddiq Ali fell down on the ground. When Ashfaq deceased made an attempt to rescue his father, Muhammad Sarwar gave a dagger blow in his left flank and Muhammad Anwar injured his left arm with the knife. The assailants threatened Muhammad Bashir (P. W. 7) and his companions when they tried to intervene and thereafter fled away towards Jallo Morr.
4. Muhammad Siddiq Ali was rushed in the car of Malik Muzaffar to Mayo Hospital, Lahore. Ashfaq was carried over there in a rickshaw. Muhammad Bashir (P. W. 7) repaired to police station Manawan where be lodged within half an hour of the occurrence the first information report Exh. P.
N. Which was taken down by Muhammad Anwar, Moharrir Assistant Sub-Inspector of Police, P. W. 13, at 1-30 p.m.
5. Case in the first instance was registered under section 307 read with section 34 of the Pakistan Penal Code against the appellants. After the death of Muhammad Siddiq Ali at 4-45 p.m. That day in the hospital the offence the appellants were alleged to have committed was altered from under section 307 to under section 302 of the Pakistan Penal Code. Ashfaq remained unconscious till he expired on the 27th September, 1978, at 6-15 a.m., in the hospital.
6. Malik Abbas Khan, Sub-Inspector of Police and Station House Officer, Police Station Manawan, P.
W. 14, arrested Muhammad Anwar appellant on the 24th September, 1978, and his co-accused, Muhammad Sarwar and Muhammad Afzal, on the 26th September, 1978. Muhammad Afzal appellant was found to be in injured condition at the time of his arrest. He was got medically examined.
7. On the 28th September; 1978, Muhammad Sarwar appellant while in police custody, led to the recovery of blood-stained dagger, Exh. P. 7, from the nawar of a bed lying in his residential room and it was taken possession of by Malik Abbas Khan (P. W. 14) after having been made into a sealed parcel vide memorandum, Exh. P. E. He also got recovered from underneath the same bed blood-stained bushshirt, Exh. P. 11, and pantaloon, Exh. P. 12, which were wrapped into a sealed cover and taken possession of by Malik Abbas Khan vide memorandum, Exh. Ph. Soon thereafter Muhammad Anwar led to the recovery of blood--stained shirt, Exh. P. 9, and loin cloth, Exh. P. 10, placed over a heap of chaff lying in his kotha and took out the blood-stained knife, Exh. P. 8, from under that heap of chaff. The knife Exh. P. 8 was covered into a sealed packet, shirt, Exh. P. 9, and loin cloth Exh. P. 10, were made into a separate sealed parcel and they were taken possession of Malik Abbas Khan vide memoranda, Exhs. P. F. And P. G. Respectively. Muhammad Afzal appellant followed with the recovery of the blood-stained chhuri, Exh. P. 13, which he had place underneath that very heap of chat and Malik Abbas Khan seized it after making it into a sealed cover vide memorandum, Exh. P. J. The above-mentioned memoranda were attested by Inayat Ali (P. W. 4).
Malik Abbas Khan (P. W. 14) and one Ismail son of Khushi Muhammad who was not produced by the prosecution as he was stated to have been won over by the appellants.
8. The dagger, Exh. P. 7, knife Exh. P. 8, chhuri, Exh. P. 13, shirt Exh. P. 9, loincloth Exh. P. 10, bushshirt, Exh.
P. 11, and pantaloon, Exh. P. 12, were all found to be stained with blood vide report of the Chemical Examiner, Exh. P. U., and the Serologist vide his report. Exh. P. V. Determined the origin of blood to be human.
9. Doctor Ijaz Ahmad, Casualty Medical Officer, Mayo Hospital, Lahore P. W. 15, examined Muhammad Siddiq Ali deceased, when he had been brought to Mayo Hospital in injured condition, on the 24th September, 1981, at 1-00 p.m. And found the following injuries on his person, ---
(1) Incised linear wound 2 cm x 1/2 cm in the abdomen with intestines protruding through it. Blood was oozing through the wound.
(2) Stab linear incised wound 3 cm x 1/2 cm in the chest with blood flowing through the wound.
Depth not probed.
(3) Stab wound in the leg 5 cm x 1/2 cm. Bone visible through the wound. Blood was flowing freely.
The injuries had been caused with a sharp-edged weapon within a few hours and were grievous in nature. He was breathless. His pulse rate was hundred per minute. He was dyspnoe and his condition was unsatisfactory. Exh. P. W. 15/A is the copy of medico-legal examination report.
10. He examined Ashfaq deceased the same day at 1-45 p.m., and noticed the following injuries on his person:-
(1) Incised wound lacerated 2 -- cm x 1 cm bleeding profusely on the right arm 1/2 cm from the elbow joint on the lateral side. . (2) Incised wound in the abdomen 3/2 cm x I cm bleeding profusely, flaps retracted, the flesh was protruding through the wound.
The injuries had been the result of application of sharp-edged weapon and were of a few hours' duration. His condition was as unsatisfactory as that of the father.
11. Doctor Imtiaz Ahmad Bhatti, Medical Officer, Police Surgeon's Office, Lahore, P. W. 12, performed autopsy on the dead body of Muhammad Siddiq Ali, on the 25th September, 1976, at 11-45 a.m., and found the following external injuries thereon,-
(1) Stab wound 3 -- cm x 1 -- cm x depth not probed below and outer to right nipple.
(2) Stab wound 3 cm x 1 cm xdepth not probed over right side of abdomen at 10 o'clock position at a distat;ce of 25 ctrl from the centre of umbilicus.
(3) Stab wound, 3 -- cm x 1 cm x bone deep over front on left shoulder.
(4) An incised wound 3 -- cm X 1 cm x bone deep over front of left shoulder.
(5) Subcutaneous tissue deep cut 1/2 cm 1/3 cm over back left lower chest:
(6) Venesection wound over outer left wrist.
(7) Venesection wound over inner left ankle.
On internal examination fifth right intercostal space was found penetrated through and through and right sixth rib was found cut through and through corresponding to injury No 2. Ascending colon was found penetrated corresponding to this injury. Right dome of the diaphragm was found cut and right lobe of liver was found penetrated deeply corresponding to injury No 1. Peritoneum was found injured and about one litre of blood was drained out from abdominal cavity.
All the injuries were ante-mortem and had been caused with sharp--edged weapon. Injuries Nos. 6 and 7 were operation wounds. Injuries Nos. 1 and 2 were sufficient to cause death through shock and haemor--rhage. Probable time between infliction of injuries and occurrence of death was estimated by the Medical Officer to be three hours and between death and post-mortem examination about 19 hours. Exh. P. S. Is the copy of the post-mortem examination report and Exh. P.
S. / I is sketch showing the location of injuries.
12. Doctor Imtiaz Ahmad Bhatti, P. W. 12, performed post-mortem examination on the dead body of Ashfaq deceased on the 26th September, 1978, at 1-15 p. m. And noticed the following external injuries thereon -
(1) Stitched incised wound 11 cm in length over right axilla.
(2) Stitched incised wound 7J cm in length over right lower outer chest.
(3) Stab wound 1 cm x 1/4 cm x depth not probed over right lower front abdomen.
(4) Stitched incised wound 7 cm in length over back of right elbow and upper right forearm.
(5) Stitched incised (labatoromy) wound 22 cm in length over right side of abdomen close to midline.
6. Stitched incised wound 8 cm in length over right side of mid abdomen joining at an angle with injury No. 5 thus making the shape of Y'.
(7) Venesection wound over right ankle.
(8) Abrasion 3 cm x -- cm x over front left knee.
Eigth intercostal space and suprolateral aspect of right lobe of the liver were found penetrated corresponding to injury No. 2. Abdomem was full of blood and about one litre of blood was drained out.
All the injuries were ante-mortem. Injuries Nos. 1 to 7 had been caused with some sharp-edged weapon while injury No. 8 had resulted from contact with blunt object. Injuries Nos. 3, 5, 6 and 7 were surgical wounds. Injury No. 2 was sufficient to cause death in the ordinary course of nature through shock and haemorrhage. Probable time that elapsed between causing of injuries and occurrence of death was given by the Medical Officer as 41 hours and between death and post- mortem examina--tion about 7 hours. Exhibit P. T. Is the copy of the post-mortem examination report and Exh. PT/1 is the copy of the diagrammatic sketch-indicating locale of injuries.
13. Doctor Imtiaz Ahmad Bhatti, P. W. 12 examined Muhammad Afzal appellant on the 26th September, 1978 at 11.40 a. m., and found the following injuries on his person:-
(1) Scabbed abrasion 2 -- cm x 1 J cm over left cheek.
(2) Laceration 1 cm x -- cm over left parieto-temporal area of head.
The injuries were simple in nature, had been caused with some blunt weapon or object about 48 hours before examination. Exhibit P. W. 12/1 is the copy of the medico-legal examination report and P. W. 12/2 is the sketch of the injuries.
14. The appellants practically admitted the facts constituting the motive. According to them Shahzad, son of Muhammad Siddique deceased, had made a complaint to his father and brother, Ashfaq deceased, that he had been beaten by their brother, Arshad, whereupon Ashfaq deceased had gone to school and mercilessly thrashed Arshad. They disowned recoveries of the weapons of offence and articles of clothings at their instance. Though Muhammad Anwar and Muhammad Afzal, appellants, denied point blank their participation in the commis--sion of crime yet Muhammad Sarwar appellant took up the plea of acting in the exercise of right of private defence for causing fatal injuries to the deceased. To narrate the version of the occurrence in his own words what he stated during his examination under section 342 of the Criminal Procedure Code is reproduced verbatim below : - "My brothers Anwar and Afzal have nothing to do with this occur--rence. On 24th September, 1978, I, during recess, left Bata Shoe Company at 12-30 p. m. And went home to take my meals. Arshad complained to me that he had been beaten by Ishfaq mercilessly. After taking my meals 1 thought it proper to make a complaint to Siddiq Ali deceased about the conduct of Ishfaq I went to the dera of Siddiq Ali. I, in polite manner, complained that it was not proper for Ishfaq to maltreat my younger brother. On this Siddiq Ali who was a goonda type person flew into rage and started abusing me and remarked that I was only a `dhobi' while he was a person of high caste and a person from low caste. At this I retaliated by abusing Siddiq Ali deceased. Siddiq Ali picked up his licensed pistol from his car which was lying there. And he wanted to fire at me. I in order to save myself caused two, three injuries with my knife to Siddiq All. At this Siddiq fell down but Ishfaq came there from the nearby room and picked up the pistol of his father and tried to fire at me upon which I could not do anything except to cause injuries to Ishfaq with my knife. I gave two injuries to Ishfaq in order to save my life. If I bad not acted in self--defence, I would have been killed by Siddiq Ali and his son Ishfaq as both of them were of a goonda type. Anwar and Afzal, my brothers and co-accused, were not present there at the place of occurrence and have been falsely implicated in this case. I caused injuries with my knife and did not possess any dagger as the prosecution case."
He asserted that Muhammad Bashir (P. W. 7) and Muhammad Ismail (P. W. 8) were not present at the time and place of occurrence and that being closely related to the deceased they had chosen to become false witnesses to support the prosecution case. He produced certified copies of certain first information reports and complaints to show that Inayat Ali (P. W. 4) and Muhammad Ismail (P.
W. 8) bore hostility towards him. He also examined Muhammad Arif, Naib-Reader, Office of Deputy Superintendent of Police, Saddar, Lahore, D. W. 2, to prove certain entries of the daily and special reports which are of little assistance to him. Abdul Khaliq, Attendance Clerk, Servis Industries Limited, Gulberg, D. W. 1, was produced to depose to the attendance, absence and leave of Muhammad Bashir (P. W. 7) who was an employee of the Servis Industries.
15. The learned trial Judge held the motive to have been established and believed the recoveries of the weapons and articles of wearing apparels to have taken place at the behest of the appellants.
He accepted the presence of Muhammad Bashir (P. W. 7) and Muhammad Ismail (P. W. 8) at the spot at the time of occurrence, considered their testimony to be reliable and consequently found the appellants responsible for and guilty of the commission of the murder of the deceased. He rejected the plea of Muhammad Sarwar appellant of acting in the exercise of right or private defence.
16. In view of his young age and of the fact that he might have acted under the influence of his elder brothers and also the injury caused by him being not fatal Muhammad Afzal was given lesser penalty of imprisonment for life though normal punishment of death was imposed upon his co- accused.
17. The learned counsel for the appellants conceded that the motive set up by the prosecution stood proved by the very admissions of the appellants. However, he disputed the presence of the eye--witnesses, namely. Muhammad Bashir (P. W. 7) and Muhammad Ismail (P. W. 8), at the spot when the occurrence took place. He contended that the first information report had been registered after lapse of considerable length of time and not just half an hour after the occurrence as had been made to appear by the police. Elaborating his argument he pointed out that Muhammad Bashir had been called through a tele--phonic message from Servis Industries Limited Gulberg, Lahore, where he had been working, after the occurrence and that he had lodged the report without having seen the occurrence. Nevertheless, the evidence of Abdul Khaliq (D. W. 1) and the perusal of the attendance register (copy Exh. D. G,) produced by him indicate that Muhammad Bashir was marked absent on the 24th September, 1978, and on leave from the 25th September to 5th October, 1978. From the 25th to the 28th September, 1978, he was marked absent in the first instance and there--after his absence was converted into leave when the leave application sent by him on the 24th September, 1978, after his brother and nephew had been murdered, was sanctioned. It does not show that he was pre--sent in the factory on the 24th September, 1978. In these circumstances it would not be legitimate to draw the inference that he was working in the factory when the occurrence took place.
18. The argument of the learned counsel that had Muhammad 8ashir been present on the spot at the time of occurrence he would have accompanied his injured brother and nephew to Mayo Hospital instead of going to the police station to report the incident can be accepted only with a grain of salt. It was rather natural that having seen the occurrence he should report the matter to the police with the least possible delay than go with the injured to the hospital when there were other people, including relatives, to attend upon them.
19. The objection of the learned counsel against not making report of the occurrence at police post Batapur, which was nearer than police station Manawan is too specious to render the first infor-- mation report made at police station Manawan to be incredible. Even the public at large is aware of the fact that the information lodged at the police post is passed on to the police station to which it is attached where formal first information report is registered and it is the Station House Officer of the police station who handles the investigation of serious offences. Therefore, it was not unusual or unnatural that Muhammad Bashir thought it wise to go to the police station instead of making any approach to the police post.
20. The contention of the learned counsel that since specific roles played by each of the accused did not find mention in the inquest report pertaining to the death of Muhammad Saddiq Ali prepared by Malik Abbas Khan, P. W. 14, it should be presumed that the first infor--mation report had been drawn up after his submission of the inquest report and return from the hospital is difficult to be accepted at face value because it is not necessary that all the details given in the first information report should be reproduced in the inquest report. The circumstances leading to the death of deceased need to be stated in brief in the inquest report.
21. To show existence of enmity between the recovery witness, Inayat Ali (P. W. 4), and the eye- witness, Muhammad Ismail (P. W. 8), on the one hand and the appellants on the other the learned counsel pointed out that Muhammad Sarwar appellant was a prosecution witness to a murder case registered on the 13th June, 1975, vide first informa--tion report No. 100, copy Exh. D. E., at police station Manawan, in which Inayat Ali's brother, Farmaish Ali, and Muhammad Ismail wife's brother, Muhammad Rafique, were accused and that in the counter-complaint case copy Exh. D. B., initiated at the instance of Malik Muhammad Tufail against Muhammad Sarwar and others. Inayat Ali was cited as one of the prosecution witnesses. He also stressed the point that the appellants and Muhammad Rafique belonged to rival labour unions. He argued that Muhammad Ismail bad come forward to depose against the appellants just to wreak vengeance upon them for their established animosity with his brother-in-law, Muhammad Rafique. Muhammad Ismail lives hardly half a mile from the place of occurrence and being a member of the brotherhood of the deceased the possiblity of his presence at the dera of the deceased during day time when the occurrence took place could not be ruled out. Muhammad Bashir, being closely related to the deceased, could visit their dera at any time he liked. Therefore, his presence cannot be considered as unusual. As already noticed he did not attend his factory on the day of occur--rence. He had no personal enmity with 'the appellants and no motive either falsely to enrope them in this case. The incident was promptly reported to the police and the first information report was registered with the minimum delay. The names of the eye-witness were cited and the specific parts played by the appellants were set out in the report. The occurrence took place in broad daylight. The appellants being already known to the eye-witnesses there could be no question of mistaking their identity. In these circumstances fairly consistent evidence of the eye-witnesses describing the attack launched by the appellants and the injuries inflicted by them upon the deceased cannot be lightly brushed aside. Their testimony finds corroboration from the recoveries of the human blood-stained weapons of offence and articles of clothings at the instance of the appellants from their house.
Inayat Ali (P. W. 4) does not live far away from the place where the recoveries took place. The mere fact that he belongs to opposite camp of labour union is no ground to discard his testimony. The Investigating Officer is not shown to have carried out investigation dishonestly. He has no interest in any party. Therefore, the genuineness of recoveries borne out by Inayat Ali and Malik Abbas Khan cannot be doubted.
22. The learned counsel submitted that being recess time a large number of workers were out in the compound of the nearby Bata Shoe Company as well as on the road side and some of them must have seen the occurrence but none of them, who could be said to be independent was produced by the prosecution. He maintained that failure of the prosecution to produce such an independent witness rendered the biased testimony of interested witnesses like Muhammad Bashir and Muhammad Ismail to be untrustworthy. No such inference can be drawn in the circumstances of the case. Muhammad Bashir who promptly reported the matter to the police might not have con--sidered it expedient to waste time in ascertaining the name and description of a specific employee of the factory who was supposed to have witnessed the occurrence especially when he was himself sure that he and his companions bad seen the occurrence. Non-mentioning of any of the employees of the factory in the first information report or his non-production by the prosecution would hardly affect the value of the evidence of the eye-witnesses in the case.
23. Lastly the learned counsel put forth the proposition that that defence version when placed in juxtaposition with the prosecution version was more probable to be believed. It is unimaginable that Muhammad Siddiq Ali and Ashfaq did not fire the pistol, when they had full opportunity to do so, at Muhammad Sarwar appellant and allowed him to cause them fatal injuries with impunity. In the natural---course of events he would not have dared to go near the deceased when he had seen them pointing the pistol towards him. The story of acting in self-defence he has concocted cannot be believed.
24. The explanation given by Muhammad Afzal appellant for presence of injuries on his person that he had received them while cutting branches of acacia tree has been partly belied by Doctor Imtiaz Ahmad Bhatti, P. W. 12, who examined him. When asked the doctor stated that injury on his left cheek could have been caused while climbing a tree' but the injury on the left parieto-temporal area of the head could not have been caused that away. It seems that during the resistence which the deceased might have offered Muhammad Afzal received these injuries which mark his presence at the time of occurrence. It may be remarked in passing that according to the doctor Muhammad Afzal was not less than seventeen years of age.
25. Muhammad Anwar appellant, who was a police constable and posted to guard Power House, Mughalpura, was, as confirmed by Farman Ali Head Constable, incharge of police guard, Power House, Mughalpura, P. W. 1, absent from duty on the 23rd and 24th September, 1978. Farman Ali (P.
W. 1) had reported his absence to the higher authorities and had mentioned this fact in the diary maintained in the police lines, Lahore. In these circumstances his plea of alibi is hardly acceptable.
26. The deceased were not old and feeble bodies persons. They could have managed to offer better resistence if Muhammad Sarwar alone had attacked them. The nature and number of injuries and the parts of the bodies on which they were given without corresponding harm having been suffered by the appellants leave no room for doubt that there were more than one assailant.
The admission of Muhammad Sarwar, existence of injuries on the person of Muhammad Afzal and absence of Muhammad Anwar from duty at the time of occurrence as also recoveries of human blood-stained weapons of offence and article of clothings go a long way to confirm the authenticity of the ocular evidence that it was the appellants who did the job of despatching the deceased to death. They acted in concert and came well-prepared armed with lathi weapons to do away with the deceased. They have been rightly held guilty and convicted of murdering the deceased in furtherance of their common' intention. The cold-blooded and grisly manner in which they committed murder does not entitle the condemned prisoners to the concession of lesser penalty as prayed for by their learned counsel. Muhammad Afzal has already been shown indulgence in matter of punishment in view of his young age. There is no room for interference with the judgment recorded by the learned trial Judge. We maintain the appellant's conviction and sentences passed upon them. We dismiss their appeal and confirm the death sentence awarded to Muhammad Sarwar and Muhammad Anwar appellants on both counts.