M. BURHANUDDIN KHAN, J.-Facts giving rise to these appeals, which we propose to dispose of by this judgment, are that on 8-10-1975, at deegarwela, Sardar Muhammad complainant alongwith Pathana P. W. Was going from Basti Wazirabad to Mumtazabad when on way, Allah Yar, P. W. Also joined them. On reaching Basti Allah Abad they saw Muhammad Shafi and Muhammad Nawaz, deceased sons of Jiwan coming on bicycles from Multan side. As soon as the two deceased reached in front of the hotel of Din Muhammad, Asuiq, accused, armed with a hatchet, Ahmad, Ghulam Hussain and Khadim, accused, armed with sticks, seeing the two deceased immediately attacked them. Ashiq; accused, gave hatchet blow on the head of Muhammad Shafi, deceased.
Khadim Husain and Ghulam Husain inflicted stick blows to Ashiq accused Jana and Shafi accused inflicted shah ahni blows to Muhammad Nawaz deceased while Ahmad accused struck him with stick, The P. Ws. Tried to intervene and rescue the deceased but they were also threatened by the accused. Therefore, they did not make any efforts to rescue the deceased, and remained standing at some distance. After decling blows to the two deceased the accused decamped. Sardar Muhammad, complainant alongwith Pathana and Allah Yar P. Ws. Left for the police station Mumtazabad where Sardar Muhammad lodged the F.
1. R. At 7.30 p. m, on 8-10-1975 and a case under sections 302/149 and 148, P. P. C. Was registered against the accused vide F. I. R. Exh. P. R.
2. All the six accused were then put on trial before the Additional Sessions Judge, Multan on two counts under section 302 read with sections 149 and 148 P. P. C. The learned Additional Sessions Judge held all the accused guilty under section 148 for being armed with deadly weapons, having formed an unlawful assembly and rioting, and sentenced them to undergo one year R.
1. Each. He also held all the six accused guilty under section 302 read with section 149 P. P. C. And sentenced Ashiq, Jana and Muhammad Shafi to death on each count subject to confirmation of their sentence by the High Court. Ghulam Hussain, Ahmad and Khadim accused were sentenced to imprisonment for life each on each count. In addition to this, all the accused were fined Rs. 2,000 each or in default to suffer further R. I. For one year each. The fine, if recovered, was ordered to be paid to the heirs of the two deceased.
3. All the accused preferred appeals before the Lahore High Court and the learned Judges in their judgment dated 4-10-1978 held that involvement of Ashiq son of Gehna, Shafi son of Amira and Jan Muham5od alias Jana son of Amir Bakhsh, in the commission of murder of the two deceased-- is established by the ocular evidence as well as the recoveries of blood stained weapons, and further corroborated by the medical evidence but the High Court, however, altered their sentence of death to imprisonment for life plus the fine imposed by the trial Judge. The remaining three accused namely Khadim son of Muhammad Khan, Ahmad son of Rahim bakhsh and Ghulam Hussain son of Dina were acquitted.
3. Motive for the commission of offence is that father of Jiwan deceased had abducted Mst.
Wassoo mother of Ashiq and Shafi accused one and a half month before the occurrence. She was restored through Panchayst 15 days before the occurrence but again one night prior to the occurrence the eloped with somebody, and the accused suspected the father of the deceased for this elopement.
4. Prosecution examined Dr. Asheeq Muhammad, P. W. 1 who conducted the post-mortem examination of Shafi and Nawaz, the two deceased. The doctor found the following injuries on Muhammad Shafi decease,
(i) An incised wound 2' x 1/2' bone deep and bone was cut on the left side of the head at the temporal area 1" above the left ear on opening the skull, there was haemorrhage underneath and fracture of, the left parietal and temporal bones.
(ii) A contused wound 2' x 3" into cartilage cut on the loft ear at the targes.
(iii) A lacerated wound 1/2 x 1/4" skin deep on the left eye brew,
(iv) An incised wound 3' x 1' bone deep, the pariotim cut on the right side of the head 3' above right ear.
(v) A contusion mark 3' x 1' on the left side of the neck 1--- Slow the left ear.
(vi) Two contusion marks 1--- x ----- and 3' x ----- on the (torn and top of the left shoulder.
In the opinion of the Doctor the cause of death was shock and haemorrage due to the fracture of skull bones and base of the skull i. e. Middle carinalforsee, caused by injury (h and (iv). It was sufficient to cause the death in the ordinary course of nature. Injuries (i) and (iv) were caused by sharp edged weapons while others were by blunt weapon. He also proved the Post mortem report bearing his signature Exh. P. A. 1.
Dr. Asheeq Muhammad, P. W. 1 also conducted post mortem examina--tion of Muhammad Nawaz son of Jewan (deceased) and found the following injuries on the dead body of Nawaz:
(i) A lacerated wound 2' x 3' bone deep on the right side of the forehead 1/2'above the right eyebrow.
(ii) A contused wound 1/2' x 1/2' into bone deep on the left side of the forehead 1.1/4" above the left eye brew. In the space of injury (i) and (ii) there were depression of the frontal bone and parietal bone. On opening the skull there was depressed fracture of the frontal bone Left parital right temporal and right parital bone. Membrane and brain was damaged underneath.
(iii) A contused wound 1' x 1/4" bone deep on the left side of the Skull 3--- above the left ear,
(iv) A lacerated wound 1.1/4--- and 1/2' bone deep on the left side of the head 2.1/2' above the left year 1.1/2' behind the injury (iii).
(v) Three contused wounds 1' x 1/4' each. In the area of 2.1/2' x 2' on the back of the left shoulder.
(vi) A contused wound 1.1/2' x 1' on the back of the left fore arm 3' below the left elbow joint.
(vii) A contusion mark 5' x 2' on the back of the right chest at the lower part 10th, 11th and 12th ribs were fractures underneath.
On opening of the abdomen the liver was found ruptured on the posterior side. The right lung was ruptured at the lower part and the right chest was full of blood.
Cause of death, in the opinion of the doctor, was shock and haemorrhage and due to injuries Nos.
(i), (ii) and (vii) which are sufficient to cause death in the ordinary course of nature. He proved the post mortem report bearing his signatures Exh. P. B. 1.
5. Prosecution examined Sardar Muhammad, P. W.
8. According to his version of the occurrence, he and Pathana, P. W. Were proceeding to Mumtazabad to settle accounts with Rashid, milk-seller.
Allah Yar also met them on their way and when they reached near basti Allahabad, Muhammad Shafi and Muhammad Nawaz came aross them on bicycles. When they reached in front of the hotel of Ghulam Hussain and Din Muhammad, Ahmad, Ashiq, Jana, Shafi, Khadim and Ghulam Hussain, accused, after challenging the deceased, attacked them. Ashiq, who was armed with a hatchet, inflicted blows to Muhammad Shafi, deceased on his head who fell down whereupon Khadim and Ghulam Husain inflicted lathi blows to the fallen Shafi. Jana accused, who was armed with chah ahni dealt blows on the head of Nawaz, deceased while Muhammad Shafi, accused inflicted also chah ahni blows to Nawaz deceased and Ahmad, accused inflicted stick blows to Muhammad Nawaz (deceased). The witness further stated that he attempted to rescue the deceased but he was also threatened with dire consequences. Sardar Muhammad, P. W. 8 also furnished motive for the crime and stated that Jiwan, father of the two deceased, had abducted Mst. Wasso, mother of Ashiq and Muhammad Shafi, accused one and a half months prior to the occurrence but she was returned on the intervention of the elders of the village, but one night prior to the occurrence she again eloped with somebody and due to this the accused murdered the two deceased.
6. Pathana P. W. 9 was also examined at the trial and he supported the version given by Sardar Muhammad, P. W.
8. He further stated that be bad joined the investigation and the Investigating Officer, in his presence, took the blood-stained earth from the spot where the two deceased had fallen after sustaining the injuries and the same was sealed into parcel vide Exh. P, C. Blood-stained earth was also taken from the spot were the dead bodies were lying in the house of Ashiq accused fide Memo Exh. P. H. Two bicycles P. 10 and P. 11 were also taken into possession as per Memo. Exh. P.
1. Blood-stained clothes of Ashiq accused chola P. 12 and dhoti P. 13 were taken into possession per Memo. Exh. P. J. Similarly blood-stained chola P. 14 and chadder P. 15 of Jana accused were also taken into possession by the Investigating Officer vide Memo. Exh. P. K. And the same were sealed into parcel.
7. Allah Yar. P. W. 10 corroborated the testimony of the two eye--witnesses named above, and furnished ocular account regarding the assault on the two deceased. He also joined the investigation and in his presence the blood-stained earth and other articles, mentioned earlier, were taken into possession and he signed the Recovery Memo. As attesting witness.
8. Zia Ahmad Bukhari, P. W. 11, Inspector Police, Renala Khurd investi--gated the case and recorded the F. I. R. Exh. P. R. And statement of Sardar, P. W. He then went to the spot, and recovered blood- stained earth where the dead bodies were lying as also from the spot where the occurrence had taken place vide Memo. Exh. P. G. And sealed them into parcel. He also pre--pared inquest report of Muhammad Sbafi Exh. P. O. And his injury statement Exh. P. Q.
1. He also prepared inquest report and injury statement Exh. P. C. And Exh. P. Q. I regarding . Muhammad Nawaz deceased and sent the dead bodies to mortuary for postmortem examination. On 8-10-1975 he took into possession two bicycles P. 10 and P. 11 of the deceased from the house of Ashiq where the dead bodies were then lying and prepared Memo. Exh. P.1. He arrested Jana and Ashiq accused on 9-10-1975 both in blood-stained clothes. He took into possession chola P. 12 and dhoti P. 13 of Ashiq and chola P. 14 and chadder P. 15 of Jana and sealed them into parcel vide Memo. Exh. P. K. He arrested Khadim on 10-10-1975 and according to this witnesses, the accused led him to the recovery of blood-stained chah ahni P. 16 from his residential kotha. The same was taken into possession vide Memo. Exh. P. L.
And sealed into a parcel. He also prepared a sketch of the place of recovery Exh. P. L.
1. Ashiq, accused, he further stated, led him to the recovery of Kulhari P. 17 from his residential kotha. It was also blood-stained and sealed into parcel vide Memo. Exh. P. M. Sketch of place of recovery Exh. P.
M. 1 was also prepared by the witness. He also prepared the sketches of the chah ahni and the Kulhari ride Memos. Exh. P. L. 2 and P. M.
2. These articles were sent to the Chemical Examiner, Lahore. Muhammad Shafi, Ahmad and Ghulam Husain accused were arrested on 19-10-1975.
Muhammad Shafi, while in custody, on 21-10-1975 led to the recovery of chah ahni P. 18 from his kotha which the Investigating Officer took into possession vide Memo. Exh. P. N. Sketch of place of recovery is Exh. P. N.
1. Sketck Exh. P. N. 2 was also prepared by him. Site plan of the source of occurrence and of the place of recovery of dead bodies were prepared by Patwari Ghulam Ahmad and the same are Exh. P. D. P. D. I and P. D. 2 and the marginal notes to red ink were also recorded by him.
9. Statements of accused were recorded. On being asked Ashiq son of Gehna (accused) aged 29 years denied that Muhammad Shafi son of Amir Bakhsh (accused) is his brother from mother side, Khadim Husain is his uncle, Ghulam Hussain is his cousin while Ahmad belongs to his brotherhood, but be admitted that Jana accused is his brother-in-law. Regarding abduction of Mst. Wasso, he said, she was not his mother and he was not aware of her abduction. Regarding the main occurrence he denied his complicity and also denied the recovery of blood-stained chola P. 12 and dhoti P. 13 as also the recovery of blood-stained earth from his house where the dead bodies were lying. He also denied recovery of blood-stained hatchet P. 17 from his house, and stated in the end that he was falsely implicated due to the reason that females of the complainant family used to come to his field for work. Sardar Muhammad, complainant suspected that he had developed illicit relations with them and two months prior to the occurrence he had quarrelled with Sardar Muhammad, P. W. (complainant).
10. In his statement. Jana son of Ameer Bakhsh (accused) admitted his relationship with Ashiq and further stated that Muhammad Shafi accused is not the brother of Ashiq from-mother side and Khadim Hussain is not uncle of Ashiq nor Ghulam Hussain his cousin nor Ahmad from his brotherhood. He denied the commission of the offence of double murder and stated that he had been falsely implicated. The other accused also denied their complicity in the offence.
11. In the leave granting order of this Court leave to appeal was granted in Criminal Petition Nos. 492 and 493 and non bailable warrants were issued against Khadim, Ahmad and Ghulam Hussain.
Leave was refused in Cr. P. 494 seeking enhancement of the sentence awarded to Ashiq, Jana and Shafi. Leave was granted in Criminal Petition No. 507 against the conviction and 'sentence of Jana, Muhammad Shafi and Ashiq. Leave was granted on the ground that the High Court accepted the ocular testimony of Allah Yar, P. W. 10 who was dubbed an independent witness having no relationship with the deceased which could impel him to depose against the accused persons and the learned Judges were confident that the mere fact that Sardar Muhammad and Pathana are related to the deceased, does not make them either `interested' or inimical to the appellants; and there is no reason to disbelieve their testimony especially when it is corroborated by the statement of Allah Yar, P. W. 10.
12. We have gone through the evidence particularly of the eye-witnesses and find that Sardar Muhammad, P. W.
8. Is a real uncle of the two deceased. He has admitted this fact but his statement regarding the actual occurrence, witnessed by him, cannot be discredited by any cogent reason. His presence has been admitted by Allah Yar, P. W. 10 who himself is an ocular witness of the occurrence and he has stated that on the day of occurrence be met Sardar Muhammad and Pathana while they were going towards Multan City at deegarwela when Nawaz and Shafi came on bicycles from the opposite direc--tion and when they reached the hotel of Din Muhammad the accused attacked them. Ashiq was armed with a hatchet while Ghulam Hussain and Khadim were armed with sticks. Jana was armed with chah ahni. Shafi accused had also a chah ahni while Ahmad was armed with stick and out of them Ashiq was the first who inflicted hatchet blow on the head of Shafi, deceased. Jana inflicted chah ahni blows on the head of Nawaz deceased. Then Shafi, accused inflicted blows with chah ahni to Nawaz while he had fallen on the ground. In his cross-examination we find nothing to discredit his testimony. He is neither related nor connected with the complainant party. , Therefore, we hold that the statement of Sardar Muhammad finds ample support from the testimony of Allah Yar, P. W.
10. Pathana's statement is also consistent with the statements of the two eye-witnesses namely Sardar Muhammad and Allah Yar and his presence is also mentioned by Allah Yar on the spot at the crucial time.
13 Reference may also be made to the medical evidence which supports the ocular testimony. Both the deceased had various types of injuries caused with blunt as well as heavy sharp edged weapons. The trial court as well as the learned Judges of the High Court relied on the testimony of the eye--witnesses and in their judgment it was observed by the High Court : "The prosecution case primarily depends on the ocular testimony of Sardar Muhammad, P. W. 8, real paternal uncle of the deceased, Pathana, P. W. 9 the husband of the sister of Sardar Muhammad, P. W. 8 or the phupha of the two deceased. The learned counsel for the appellants contended that the witnesses are closely related to the deceased and their testimony should be viewed with some amount of caution. Allah Yar, P. W. 10 is, however, a Choukidar of Basti Wazirabad.
He appears to be an independent witness and has no relationship whatsoever with the deceased which could impel him to depose falsely. He is not alleged to be inimical with the appellants which could provide motive to falsely implicate them. We are, however, confident that the mere fact that Sardar Muhammad and Pathana P. Ws. Are related to the deceased does not make them either interested or inimical to the appellants and there is no reason to disbelieve their testimony especially when it is corroborated by the statement of Allah Yar, P. W. 10 who is totally unconnected and dis--interested witness."
The learned Judges further held : "The involvement of Ashiq, Shafi and Jan Muhammad appellants in the commission of the offence- of murder of the two deceased is borne out by the ocular evidence as well as the recovery of blood-stained weapons and further corroborated by medical evidence."
Coming to the question of sentence the learned High Court held that it was a case where family honour was involved and the accused appellants namely Ashiq, Shafi and Jan Muhammad in order to revenge the insult caused to their family by Jiwan the father of Muhammad Shafi and Muhammad Nawaz deceased and under the circumstance the attack with the intention to vindicate the family honour will warrant lesser penalty. Reliance was placed also on the reported case Muhammad Sharif v. State (PLD 1971 Lah.708) wherein it was held that where the immediate cause for the commission of the offence is not known, the maximum punishment should not be imposed. In Niaz Muhammad v. State (PLD 1976 Lah.788) it was held where the circumstances preceding the murder are shrouded in mystery, the maximum punishment of death was not called for.
14. We also find that the incident of abduction of Mst. Wassoo by the father of the two deceased has been mentioned in the first instance when Sardar Muhammad, P. W. 8 lodged a report in the police station. In his report Exh. P. E. He stated that bout one and a half month before, his brother Jiwan father of the two deceased had abducted Mst. Wasso widow of Amir Baloch and she was restored to the house of her husband through the intervention of the Panchayat but she was again abducted during night preceding the occur--rence. Though in his statement before the trial Judge he has tried to conceal the second elopement or abduction of Mst. Wasso by Jiwan while stating so he said "Jiwan had abducted the mother of Ashiq and Shafi, accused before one and a half month of the occurrence but she was restored through the Panchayat 15 days before the occurrence, but one night prior to the occurrence she had again eloped with somebody and that she might have gone of her own accord". Thus by this improvement in his version as recorded in the F. I. R. Be tried to make the case of the accused appellants of deliberate or un-provoked murder or to exclude any mitigating circumstance. We, therefore, find that the penalty of imprisonment for life plus fine imposed meets the ends of justice and no interference is called for to enhance the sentence to that of death of these appellants.
15. As regards the case of Ghulam Hussain, son of Dina in Criminal Appeal 224/1980 the contention of the learned counsel for Sardar Muhammad, complainant, is that the evidence produced before the learned Additional Sessions Judge was that of Pathana and Allah Yar and other incriminating articles recovered from the accused connecting them with the commission of the offence; and that the trial Judge relying on the evidence produced imposed sentence of death on Ashiq. Jan Muhammad and Shafi and life imprisonment upon the respondent alongwith Khadim Hussain and Ahmad in the connected appeal ; and that the judgment of the learned Additional Sessions Judge is perfectly in accordance with law and facts of the case and no exception can be taken to the sentence awarded by him. Dealing with the case of Khadim the learned Judges of the Lahore High Court have given him the benefit of doubt. It was observed that Zia Ahmad, P. W. 11 conceded during the investigation no person appeared other than the three eye-witnesses, to depose against Ahmad, Khadim and Ghulam Hussain accused. He also admitted that witnesses appearing on behalf of the said three accused, stated before him that these three persons were innocent and have been falsely involved. This fact was reported by the Investigating Officer to the S. U. P. But they were included in the list of accused at the instance of Sardar Muhammad, complainant. In the statement of Zia Ahmad, P. W. 11 we observe the following facts in cross-examination "I had recorded in the Exh. D. E. That the defence witnesses told that Khadim, Ahmad and Ghulam Hussain are innocent. I interrogated more than fifty persons and the D. S. P. Interrogated more than 100 persons."
At this stage the learned counsel for the accused wanted the witness to refresh his memory as regards the Zimnis but this was not allowed by the Court on the ground that the question about the Zimnis is barred under section 172, Cr. P. C. And the learned Judges of the High Court found also that there was a reasonable doubt regarding the involvement of Ghulam Hussain and the same finding would also be available to the other two accused respondent namely Khadim Husain son of Muhammad Khan and Ahmad, son of Raheem Bakhsh. Therefore, this appeal also fails.'
As a result of above discussion we dismiss all the three matters which do not call for any interference.