SARDAR MUHAMMAD, J.-Appellants Maqbul, aged 22 years and Muhammad Boota, aged 24 years, have filed Criminal Appeal No. 211 of 1979, against the order, dated 20-1-1979 of Additional Sessions Judge-II, Sahiwal, whereby the learned Additional Sessions Judge .Con--victed the appellants under section 302/34, P. P. C., for having com--mitted the murder of Irshad Khan deceased and sentenced each of them to imprisonment for life and a fine of Rs. 5,000 in default of payment of fine to undergo further R. I. For two years. Both the appellants have also been convicted under section 307/34, P. P. C. For murderous assault on Muhammad Akram P. W. And sentenced to ten years' R. I. And to pay a fine of Rs. 1,000 each, in default whereof to undergo further R. I. For one year.
Both the sentences have been ordered to run con--currently. The learned Additional Sessions Judge, vide the same order acquitted co-accused Rashid Khan and Muhammad Ali. The complainant filed Criminal Revision No. 176 of 1979 for enhancement of sentences of the appellants Maqbul and Muhammad Boota, which was admitted qua Maqbul appellant and notice for enhancement of sentence was directed to be issued to him. Notice for enhancement of compensation amount was also issued. The complainant has also filed Criminal Revision No. 675 of 1979 for setting aside the acquittal of Rashid Khan and Muhammad Ali. As all the matters arise from the same judgment, they are being disposed of by the single judgment.
2. Dr. M. A. Rauf Bhatti, Medical Officer, D. H. Q. Hospital, Sahiwal (P. W. 1) medically examined Irshad Khan (deceased) at 3 p.m. On 9-2-1976. Muhammad Akram P. W. Was also examined by the doctor on the same day. After examining both the injured, the doctor sent Ruqqa (Exh. P. C.) to S. H. O., Police Station 'A' Division, Sahiwal, about Irshad Khan deceased having been admitted in the hospital. Muhammad Anwar, A. S. I. (not produced during trial) reached the hospital at 11-30 p.m.
After obtaining opinion (Exh. P. D/1) on the application (Exh. P. D.) about the fitness of Irshad Khan to make a statement, he recorded statement (Exh. P. H.) of Irshad Khan (deceased) at 11-30 p.m. On the same day and sent the same for registration of case to Police Station Arifwala. Formal F. I. R.
(Exh. P. H/1) was registered at Police Station Arifwala on 10-2-1976 at 1-30 a.m., which was recorded by Muhammad Yousaf, A. S. I. (P. W. 3).
Irshad Khan (deceased) in his statement (Exh. P. H.) stated that he .Had participated in the auction of State land held three years ago in Chak No. 145/E. B. And that although Rashid Khan purchased the land by giving the highest bid but he had raised the bid by entering into competition, as a result of which Rashid Khan had become inimical and for that reason many a time he had tried to create trouble but he had advised his brothers to avoid as Rashid Khan was a mischievous and goonda type person. He has stated that today at 8-30 a.m. (on the day of occurrence) he was present in the mosque of the Chak in connection with Qul ceremony of a deceased relation where many other persons were also present. At that time his brother Muhammad Akram P. W. Was tying his cattle outside the mosque. Rashid Khan, armed with a Lathi, his son Maqbul Khan (appellant), and Muhammad Boota (appellant) both armed with knifes and Muhammad Ali, empty-handed, appeared there. Muhammad Ali caught his brother from throat while Muhammad Boota appellant gave him knife blow on his back. He came running and tried to save his brother but Rashid Khan gave two Lathi blows on his left hand and buttocks. Maqbul Khan gave him two knife blows on the back. In the meantime, Gammu Khan, Salabat Khan and Lal Khan P. Ws. Reached the spot and saw the occurrence. Some other persons also came out from the mosque. The accused then ran away.
3. Muhammad Munawar, A. S. I. Was not produced, as according to Muhammad Ashraf, A. S. I. (P. W.
11), who was entrusted with the warrants of arrest of Muhammad Munawar, the brother of Muhammad Munawar had stated that he had gone ton, Qatar after retirement and was not likely to return in the near future.
On application (Exh. P. 1S.) submitted by Muhammad Munawar, A. S. I., to the Assistant Commissioner, Mr. Muhammad Tariq, M. I. C., (P. W. 10), recorded the dying declaration (Exh. P. R.) of Irshad Khan at 2-50 p.m. On 14-2-1976. In this statement Irshad Khan stated that two years ago they had participated in the auction of State land in Chak No. 145/E. B. His brother Nazir, Talib Khan, brother of Rashid had also participated in the bid and that Rashid Khan (acquitted accused) gave the bid of Rs. 110 and the auction ended. Thereafter, Rashid abused them, When they returned to the village, his son Bula, Boota son of Taj Khan started teasing them. The annoyance increased and on the day of occurrence when they were putting off their shoes before entering into the mosque to participate in the Qul ceremony of their Khala (mother's sister) and his brother Muhammad Akram was bringing out the cart from his Ihata, Boota, Bula and Rashid came on horses and started horses dance in front of their doors. When his brother told them to stop as their cattle are getting scared, they started abusing him. He ran towards him and slapped his brother that he should not enter into dispute as that this is the day of Qul ceremony of their Khala and entreated Bula, Rashid and Boota with folded hands excuse---When they reached near the mosque, all the three started abusing him. Bula came from behind and gave a knife blow on his back and he fell down. Rashid gave a dang blow. Boota gave a knife injury to Akram P. W., Mandi Khan gave fist blows. Some person from the mosque came out. Out of them Gammu, Salabat and Lal Khan P. W. Were the first to come out. They rescued him and his brother. Whereafter, he was removed on a charpoy to the city.
4. Abdul Hamid, A. S. I. (P. W. 12) on receiving information of the occurrence on 10-2-1976 went to the spot, wherefrom he went to D. H. Q. Hospital, Sahiwal on 11-2-1976 and recorded the statement of Irshad Khan under section 161, Cr. P. C. Rashid Khan (acquitted accused) and Muhammad Boota appellant were arrested on 8-2-1976, appellant Maqbul alias Bula, was arrested on 19.2-1976. On 22-2-1976, he led to the recovery of blood--stained knife (P. 1) from an Almirah of his house, which was taken into possession vide memo Exh. P. I/1. The same day appellant Boota led to the recovery of blood-stained knife (P. 2) from a heap of wheat lying in his Kotha, which was taken into possession vide memo. Exh. P. I. Rashid Khan also led to the recovery of Dang (P. 3), which was not blood-stained. Muhammad Ali was also arrested. On 27-2-1976, having received information about the death of Irshad Khan, he reached hospital and after preparing inquest report (Exh. P. V.), despatched the dead body for post-mortem examination, which was conducted by Dr. M. A. Rauf Bhatti (P. W. 1). After necessary investigation, the challan was put to Court.
5. At the trial, the prosecution in all examined 12 witnesses. Salabat Khan and Lal Khan P. Ws. Were given up as having been won over while Nazir P. W. Was given up as unnecessary. The report of the Chemical Examiner (Exh. P. X.) and that of the Serologist (Exh. P. Y.) were tendered in evidence, according to which knives of Maqbul and Boota were found stained with human blood.
6. Dr. M. A. Rauf Bhatti (P. W. 1) who had medically examined Irshad Khan on 9-2-1976 had observed two stab wounds on the upper part of right chest and on the back of upper part of right chest. He had also noted an abrasion on the right forearm and complaints of loss of movements and sensation in the lower limbs.
At the time of post-mortem examination, which was conducted by him on 27-2-1976, he noted two freshly healed wounds on the back and upper part of right chest 1--" from midline and the other 1f' from injury No.1. The spinal cord was found partially cut on the right side and posteriorly under injury. No.1. The membranes of the cord were also cut under injury No. 1. According to him, the death was due to shock and haemorrhage in the spinal canal leading to compression of the spinal cord consequent upon injury No.1, which was sufficient to cause death in the ordinary course of nature.
According to him both the injuries were caused by a sharp pointed weapon.
7. Statement (Exh. P. H.) of Irshad Khan (deceased) recorded by Muhammad Munawar, A. S. I. And statement (Exh. P. R.) recorded by Mr. Muhammad Tariq M. I. C., P. W., were tendered in evidence as dying declarations.
8. Muhammad Akram, real brother of the deceased and injured P. W. Appeared as P. W.
6. He stated that on the day of occurrence at 8-30 a.m. He was tying his cattle in front of his Ihata when acquitted accused Rashid Khan armed with a Dang, Muhammad Ali, empty-handed, while appellants Maqbul and Boota armed with knives came there. Muhammad Ali caught hold of his collar and Boota gave him a stab blow at his back. On his alarm, Irshad Khan (deceased) reached the spot. Gammu Khan, Salabat and Lal also reached there. When Irshad Khan (deceased) attempted to rescue him, acquitted accused Rashid Khan gave him a Dang blow while Maqbul Khan appellant twice stabbed in his back, as a result of which Irshad Khan fell down. He has also stated about the fact of their having taken part in the auction of State land where because of competition with Rashid the auction price was raised, as a result of which Rashid Khan bore grudge against them. Gammu Khan (P. W. 7) corroborated the state--ment of Muhammad Akram (P. W.
6). In cross-examination he has admitted that he had contested for Lambardari against Talib Khan, brother of Rashid Khan, acquitted accused and that Talib Khan had succeeded. He has also admitted that Begum Bibi, daughter of his uncle Rode Khan, was the mother of Irshad Khan's mother, Mst. Inayatan. Muhammad Shah (P. W. 5) has testified the recoveries of blood-stained knives (P. 1 'and P. 2), at the pointing out of the appellants. His statement finds corroboration from the evidence of Abdul 13amid, A. S. 1. (P. W. 12).
9. Appellant Maqbul in his statement under section 342, Cr. P. C. Denied to have participated in the occurrence. He has also denied to have led to the recovery of blood-stained knife (P. 1). In answer to the question why the case against him and why the P. Ws. Have deposed against him, he has stated that "I have been falsely implicated in this case because of enmity with the P. Ws."
Appellant Muhammad Boota also pleaded innocence. He has denied to have led to the recovery of blood-stained knife (P. 2). In answer to a question as to why this case against him and why the P.
Ws. Have. Deposed against him, he has stated :- ---I used to pass on a horse-back from near the house of the deceased. The deceased and his brother Muhammad Akram P. W. Objected too it. On the day of occurrence I again passed from the same place and was objected to by Muhammad Akram P. W. And 3/4 other persons. I told them that it was my normal way for going to my land. They caught me and beat me. They squeezed my testicles. Many persons from the nearby mosque, where `qul khwani' was being held, came there and rescued me. T became unconscious. I do not know how the deceased received the injuries.--- He also produced defence and examined Dr. Mushtaq Ahmad as D. W. 1, who has, inter alia, stated that Irshad Khan (deceased) and Akram Khan (P. W.) were brought to Civil Hospital'. Arifwala on 9- 2-1976 in an injured condition and he had provided them first aid and had also X-rayed them arid as he did not find any injury on the lungs or any fracture, he did not agree to the demand of the relatives of the injured to declare the injuries grievous, as a result of which the relatives of the two patients were annoyed and so they took way the injured persons from the hospital. He has stated that he had made entries in the register also regarding their having come to the hospital. In cross- examination, he admitted that no medico-legal reports were prepared in respect of both the injured persons.
10. Learned counsel for the appellants have, inter alia, contended that there is delay in lodging the F. I. R. Learned counsel has laid stress on the fact that in spite of the fact that the injured persons were taken to Civil Hospital, Arifwala firstly, which was near Police Station. Arifwala, and in spite of that no report was made to the police at that time and that the statement of Irshad Khan was recorded for the first time at 11-30 p.m. At Sahiwal in spite of the fact that the occurrence had taken place at 8.30 a.m. And the deceased and injured P. W. Alongwith their relatives had passed through Arifwala. It is contended that the two statements, Exh. P. H., on the basis of which F.
1. R. Exh. P. H./ 1 was recorded and Exh. P. R., which was recorded by a Magistrate, made by the deceased Irshad Khan, do not tally with each other and that there is lot of difference in the two statements and as such no reliance can be placed on these statements. It is also contended that no reliance can be placed on the statements of Muhammad Akram (P. W. 6) and Gammu Khan (P. W. 7), as Muhammad Akram is real brother of the deceased while Gammu Khan is not only related to the deceased but also inimical to the appellants. It is contended that the evidence of motive is riot worth reliance. It is argued that even if the occurrence is admitted to have taken place, it was a sudden affair and as such no intention to commit murder can be gathered against any of the appellants, that no case for application of section 34, P. P. C. Is made out and that the statement of Muhammad Boota appellant under section 342, Cr. P. C. Finds corroboration from the evidence on record. Lastly, it is contended that in any case, no case for enhancement of sentence is made out against Maqbul appellant.
With regard to Criminal Revision No. 675 of 1979, learned counsel has contended that no case for retrial is made out as Muhammad Ali, respondent, was not stated to have been armed with any weapon while Dang said to have been recovered at the instance of Rashid Khan was not found blood--stained and that the learned trial Court has for sufficient reasons found the participation of these respondents doubtful in the occurrence.
11. Learned counsel for the State/complainant have defended the judgment of the trial Court. It is contended that the appellants were annoyed with the deceased and his brother Muhammad Akram P. W. As they had raised the price of the State land in the auction by entering into competition in the bid, that the occurrence was the result of premeditation and the day was specially chosen by the appellants for commission of this occurrence. It is argued that explanation for not getting the medico-legal reports from Dr. Mushtaq Ahmad (D. W. 1) of Civil Hospital, Arifwala, has been given by Muhammad Akram (P. W. 6), who has stated that when they reached Civil Hospital, Arifwala, they found the accused party there and feeling apprehension of any foul play at the hands of the doctor in league with the accused party, they proceeded to D. H. Q. Hospital, Sahiwal. It is vehemently argued that the fact that the statement (Exh. P. H.) of Irshad Khan deceased was recorded by Muhammad Munawar, A. S. I. Of Police Station `A' Division, Sahiwal, who had reached the hospital on the informa--tion sent by the doctor, Mr. M. A. Rauf Bhatti (P. W. 1), and not on any approach made by the complainant party, shows that the complainant party were concerned more about the treatment of the injured persons than running for registration of case and that having not gone to police station while passing through Arifwala was obviously for the reason of their anxiety to take the injured persons to some hospital at the earliest for medical help.
With regard to the argument advanced by the learned counsel for the appellants that the two statements made by the deceased do not tally with each other, it is pointed out that there is no difference insofar as the participation and parts played by the accused in the occurrence is concerned, nor regarding the motive and that the differences on ancillary matters between the two statements is not such as to discard both the state--ments. It is contended that there is no reason to disbelieve Muhammad Akram. P. W. 6, who is an injured witness, his presence on the spot cannot be disputed. Merely his being a brother of the deceased, is no ground to discard his evidence. With regard to the statement of Gammu Khan (P. W. 7), it is submitted that his presence on the spot was natural as it is not the case of any of the parties that Qul ceremony was not being held in the mosque and so the participation of Gammu P. W., who apart from being from Berathari of the deceased is also distantly related to him, in the Qul ceremony was not beyond expectations.
His admission in cross-examination that he had lost Lambardari case against Talib Khan, does not minimise the value of his statement, as a corroborative evidence.
It is contended that Maqbul appellant had repeated the injury which showed the venom with which he had attacked the deceased and so clear inference can be drawn that he had every intention to commit murder and as such he is liable to normal penalty of death.
With regard to Criminal Revision No. 675 of 1979, learned counsel for the complainant has contended that both the respondents are named by the deceased in both of his statements and that the injured P. W. Has also deposed against them. It is further argued that the evidence of motive against Rashid Khan respondent is sufficient to corroborate the eye-witness account furnished against them.
12. We have considered the arguments of the learned counsel for the parties. The occurrence had admittedly taken place at 8-30 a. m. And the first statement of the deceased was recorded at 11-30 p.m. On the same day at Sahiwal. Muhammad Akram P. W. 6 and the deceased, who was then alive, had passed through Arifwala but had not gone to the police station, nor sent anybody.
Apparently, there seems to be force in the contention of the learned counsel for the appellants that in spite of the fact that they had passed through Arifwala town where the police station is situated, they had not lodged the F. I. R and that it was not done for the reason that they wanted to consult somebody. The fact of the deceased and Muhammad Akram P. W. Having gone to Arifwala Civil Hospital also stands proved. On a careful examination of the contentions, we find that the delay what--soever was not for any reason of getting someone's advise or consultation. Had that been the case, the complainant would have sent someone of them from Sahiwal to Police Station Arifwala for lodging the F. I. R. Or someone of them would have approached some police officer in Sahiwal. The police officer who had recorded the statement of the deceased, on the basis of which F. I. R. Was later recorded, was sent for by the doctor. There is no allegation that the police officer who had recorded the statement of Irshad Khan was either related or friendly to the deceased or the complainant party. Sufficient explanation of not having got medico-legal certificates from the doctor incharge of Civil Hospital, Arifwala, has been given by -Muhammad Akram (P. W. 6) while making statement in the Court. The statement of Dr. Mushtaq Ahmad (D. W. 1) that he did not find any injury grievous even on X-ray, stands belied by the evidence of Dr. M. A. Rauf Bhatti (P. W. 1), who had conducted the post-mortem examination of Irshad Khan, who found both spinal cord and membranes of the cord cut at the time of post-mortem examination. This difference lends support to the fears expressed by Muhammad Akram P. W. That the doctor Incharge of Arifwala Hospital may not be fair and just to them as the accused party was having in the hospital. In the circumstances; we are inclined to hold that the delay whatsoever in lodging the F. I. R. Was not mala fide and has not affected the case in any material way. The difference pointed out between the two dying declarations of the deceased is also not material for the reason that the statement (Exh. P. H.) stands corroborated by the statement of Muhammad Akram, injured P. W. And Gammu Khan (P. W. 7). In the second dying declaration (Exh. P. R.) made before the Magistrate, the names of the appellants and the parts played by them are also stated. Although there is some difference in the description but the statement has not been made under influence or instructions of anybody because had that been the case the two eye-witnesses would have followed the narration given by the deceased in his second statement. We find force in the argument of the learned counsel for the State/Complainant that presence of Muhammad Akram P. W., who was injured in the occurrence, cannot be denied and that his statement cannot be ruled out merely on the ground that he is brother of the deceased. Even if the statement of Gammu Khan (P. W. 7) is not fully relied upon as a matter of abundant caution because of his having previous dispute with the relations of the appellant Maqbul, the eye-witness account furnished by the deceased in his two statements corroborated by Muhammad Akram P. W. Finds sufficient corroboration from the recovery of blood-stained knives at the pointing out of the appellants. We do not find any good reason to discard the statement of Muhammad Shafi (P. W. 5), who had witnessed the recoveries. The medical evidence also fully corroborates the eye-witness account regarding injuries having been inflicted by the two appellants.
13. We have considered the plea taken by appellant Muhammad Boota in his statement under section 342, Cr. P. C. In juxta-position with the prosecution case. We do not find anything in support of the plea advanced by Muhammad Boota appellant. The statement in fact is complete denial. He has not explained as to how the deceased or Muhammad Akram P. W. Received the injuries. His statement that he had become unconscious when Muhammad Akram P. W. And 3/4 other persons had squeezed his testicles, would mean to say that his testicles were squeezed with such a force that they must have swollen to result in unconsciousness. Had that been his clinical position, he would certainly have got himself medically examined while no such thing has either been produced or claimed. He has not even mentioned the presence of Irshad Khan deceased. In these circumstances, we do not find any substance in the plea taken by him.
14. For the foregoing reasons, we are inclined to hold that the prosecution has been able to prove the participation of the appellants in the occurrence beyond any reasonable shadow of doubt. This brings us to the contention raised by the learned counsel for the appellants as to what offence each one of them has committed. The prosecution evidence is consistent .4 on the fact that when Boota appellant had given injury to Muhammad Akram P. W., Irshad Khan deceased was not present there. This is the case of Muhammad Akram P. W. 6, who was inflicted injury by Muhammad Boota appellant. No injury was repeated to Muhammad Akram P. W. There is no allegation that after the arrival of Irshad Khan deceased, Muhammad Boota appellant played any further part. He neither inflicted any injury to Irshad Khan deceased nor attempted. There is no allegation of his having even raised a lalkara to cause any harm to Irshad Khan deceased. He is not directly connected with the evidence of motive. In the g circumstances, we feel that Muhammad Boota appellant cannot be held liable for the commission of murder of Irshad Khan in any manner. His participation in the occurrence insofar as infliction of injuries to Irshad Khan deceased is not proved beyond reasonable shadow of doubt. He is, therefore, acquitted of the charge of murdering Irshad Khan deceased. As observed above, his participation in the occurrence otherwise stands proved. The allegation of infliction of injury by knife by him to Muhammad Akram P. W. By way of murderous assault stands proved. His conviction under section 307/34, P. P. C. Is, therefore, maintained. However, keeping in view that he remained in custody during trial, the sentence of ten years' R.
1. Is reduced to five years' R. I. The sentence of fine is, however, maintained, which on recovery shall be paid as compensation to Muhammad Akram P. W. 6.
So far as Maqbul appellant is concerned, we do not find any force in the contentions of the learned counsel for the appellants that it was a sudden affair and that no case under section 302, P. P. C. Is made out. The motive for the occurrence was the strained relations of the father of Maqbul appellant and ill-will because of the deceased having participated in the bid of State land and having raised the price of land by entering into competition with father of Maqbul appellant while giving bids. Nobody on the side of the appellants was injured. The weapon which he was carrying and the way he bad used it also speaks of his intention and preparation. There is no evidence that the occurrence had been ignited because of anything having been done or said by any of the P.
Ws. Including the deceased. There is nothing on record to infer that the occurrence was the result of a sudden affair. No doubt is left in our mind that tip;: prosecution has been able to prove the case against Maqbul appellant of having joined with common intention in the commission of murderous assault of Muhammad Akram P. W. And having committed the murder of Irshad Khan deceased. The conviction of Maqbul appellant under section 307/34, P. P. C. For murderous assault on Muhammad Akram P. W. And under section 302, P. P. C. For having committed the murder of Irshad Khan is, therefore, maintained. He has been sentenced to imprisonment for life under section 302, P. P. C. He was served a notice for enhancement of sentence in the private criminal revision (Cr. R. 176 of 1979) filed by the complainant for offence under section 302, P. P. C. He was 19 years of age at the time of commission of offence. Six years have already passed since the registration of the case. He has already undergone slightly less than three years' R. I. Since after his conviction and sentence by the trial Court. The deceased died about 18 days C after the occurrence. In the circumstances, as a matter of abundant caution we do not feel inclined to enhance the sentence of the appellant from life imprisonment to death. We feel that an order for payment of compensation in the sum of Rs. 10,000 by the appellant to the heirs of the deceased in addition to the sentence of imprisonment for life and sentence of fine of Rs. 5,000 will squarely meet the ends of justice in this case. The fine of Rs. 5,000 when recovered shall also be paid as compensation to the heirs of the deceased. The Collector concerned is directed to take steps for its realization and payment. The notice for 'enhancement of sentence from life imprisonment to death stands vacated. His sentence under section 307/34, P. P. C. Is reduced from ten years to five years'
R. I. As the sentence of his co-appellant has been reduced to that extent. The sentence of fine is, however, maintained. Both the sentences under sections 302; P. P. C. And 307/34, P. P. C. Shall run concurrently.
We have considered the arguments of the learned counsel for the complainant in Criminal Revision No. 675 of 1979, filed against the acquittal of Rashid Khan and Muhammad Ali, respondents, in the light of the observations and findings of the learned trial Court. On appraisal of evidence we do not find anything capricious in the conclusions arrived at by the learned trial Court. No case for interference by way of ordering retrial of the respondents is made out. The revision petition, therefore, stands dismissed. 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.