SARDAR MUHAMMAD, J.----Appellant Muhammad Ameen (30), Muhammad Yaseen (25) sons of Muhammad Shafi (acquitted cc-accused) have filed this appeal against the order dated 11th February, 1980 passed by Malik Akhtar Hussain, Sessions Judge, Sargodha whereby he convicted both the appellants under section 3244, P. P. C. For causing injuries to Liaqat Ali P.W. 10, and sentenced each of them to undergo one year's R. I. And a fine of Rs. 1,000, in default where of to suffer three month' R. I. Appellant Muhammad Ameen, has also been convicted under section 302, P. P. C. For causing the death of Muhammad Aslam deceased and sentenced to death. The learned Sessions Judge acquitted Muhammad Yasin appellant under section 302, P. P. C. Vide the same judgment, Muhammad Shafi father of the appellants has been acquitted. The appellants have filed appeal against the conviction and sentences and the learned Sessions Judge has sent up Murder Reference for confirmation of the death sentence and the complainant has also filed Criminal Revision No, 350/80 praying for setting aside the acquittal of Muhammad Yaseen under section 302, P. P. C. And Muhammad Shafi under sections 302, 324/34, P. P. C. All the matters are being disposed of by the same judgment.
2. The occurrence took place on 26th August, 1979 after maghrab prayer in the Chowk of the Chak No. 129 Janobi (southern) at a distance of seven miles from the Police Station Sillanwali, District Sargodha. F. I. R. Exh. P. D. Was lodged by Muhammad Akram P. W. 8, real brother of Muhammad Aslam deceased at P. S. Sillanwali on the same day at 11-30 p. m. Which was recorded by Atta Muhammad S. L/S. H. O. P. W. 13.
3. Atta Muhammad S. L/S. H. O. P. W. 13 after recording F. I. R. Exh. P. D. Reached the spot. After preparing injury statement Exh. P. L. And inquest report Exh. P. M. In respect of the dead body of Muhammad Aslam despatched the same for post-mortem examination which was performed by Dr. Muhammad Firdous Shah P. W. 5 on 27th August, 1979. He also collected the blood-stained earth 'from two places i.e. Where Liaqat P. W. Was injured and where Muhammad Aslam was murdered, and took the same into possession vide Memo. Exhs. P. G. And P.F. Respectively. The appellant, and their co-accused Muhammad Shafi were arrested on 29th August. 1979. On 2nd September, 1979 Muhammad Amin appellant led to the recovery of blood-stained hatchet P. 5, his own clothes, chaddar P. 6, shirt P. 7 and patka P. 8, all blood-stained from heap of fuel-wood lying in his haveli which were taken into possession vide Memo. Exh. P. H., On the same day Muhammad Yaseen appellant led to the recovery of blood-stained hatchet P. 9, his own blood-stained clothes, chaddar P. 10, kurta P. II and patka P. 12 from underneath the heap of a fuelwood lying in his haveli..
The same were taken into possession vide Memo. Exh. P. K. Acquitted accused Muhammad Shafi had also led to the recovery of khoond P. 4 from his haveli on the same day which was taken into possession vide Memo. Exh. P. J. All these Memos. Were attested by Bashir Ahmad P. W. 11, Atta Muhammad S. I. P. W. 13 and Ali Ahmad P. W. (not produced). Blood-stained hatchets were sent to the office of Chemical Examiner and Serologist. The report of Serologist is Exh. P. R. According to which both hatchets were found to have been stained with human blood. Clothes recovered at the instance of both appellants were not sent for examination. After completion of necessary investigation the challan was submitted to Court against the appellants and their father Muhammad Shafi but Ali Muhammad and Aziz Ahmad accused named as conspirators were not challaned. They were found innocent and got discharged.
4. According to the F. I. R. Exh. P. D, prosecution case briefly is that on 26th August, 1979 after maghrab prayer time Muhammad Akram P. W. 8 after hearing noise came out of his house and saw Muhammad Ameen and Muhammad Yaseen appellants armed with hatchets abusing his brother Liaqat Ali P. W.
10. When Liaqat Ali returned the abuses, Muhammad Ameen appellant gave a hatchet blow on the left side of his neck, Muhammad Yasin appellant caused injury on his right shoulder with the hatchet. He fell down. The appellants gave him more injuries. On the noise raised by Muhammad Akram complainant, Bashir Ahmad P. W. 11, Muhammad Aslam deceased and given up P. Ws Muhammad Ramzan and Ali Ahmad reached the spot and saw the occurrence they intervened and saved Liaqat Ali from the appellants. It is stated that it was moonlight at that time.
During the period Muhammad Shafi (acquitted accused) father of the appellants armed with a khoond came there and took away both the appellants to his haveli. They sat down on a thara (raised platform) in front of the haveli. Muhammad Aslam deceased went to complain. No sooner he mounted the thara, Muhammad Shafi (acquitted accused) after giving lalkara that he should be murdered, took the deceased into his clasp. Muhammad Amin appellant gave injury with his hatchet on the head of Muhammad Adam, Muhammad Yaseen appellant gave injury on the right arm of Muhammad Aslam. He fell down and died as a result of the injuries at the spot. This occurrence was seen by Muhammad Akram complainant P. W. 8, Bashir Ahmad P. W. 11 and given up P. Ws. Muhammad Ramzan and Ali Ahmad. The appellants thereafter went inside their haveli.
Comp--lainant removed the dead body of Muhammad Aslam to the Chowk and proceeded to the Police Station where he lodged F. I. R. Exh. P. D.
It is also mentioned in the F. I. R. That the three accused, namely, Muhammad Ameen, Muhammad Yaseen and their father Muhammad Shafi have murdered Muhammad Aslam deceased and injured Liaqat Ali at the instance and in conspiracy with Ali Muhammad and Aziz Ahmad.
According to the F. I. R. The motive for the occurrence was that Muhammad Ameen appellant had married daughter of one Muhammad Ismail of Chak No. 113 Janobi. 4/5 years before the occurrence and a khalazad of the deceased and the complainant was married to a son of said Muhammad Ismail, who was living happily with her in-laws but wife of Muhammad Ameen appellant had left his house and was living with her parents. Muhammad Ameen appellant and others sus--pected that Muhammad Aslam deceased was responsible for this. It is stated in the F.
I. R. That because of this grievance, the appellants and their father attacked and killed Muhammad Aslam deceased and caused injuries to Liaqat Ali. Muhammad Akram P. W. 8 has also stated in the F. I. R. That Liaqat P. W. 10 was first removed to Civil Hospital, Sillanwali but as the doctor was on leave, he was removed by his companions to Civil Hospital, Sargodha.
5. At the trial, the prosecution in all produced 12 P. Ws. Dr. Muhammad Ferdaus Shah P. W. 5 who had performed post-mortem examination found the following injuries on the dead body of the deceased :- ---(1)--- An incised wound 2" x 1" bone deep on the right side of the skull cutting the midline with depressed and multiple fractures of the underlying bones.
(2)An incision 5 cm x -- cm x skin deep of the right fore-arm frontal part.--- According to him, the deceased died as a result of haemorrhage both external and shock due to injury No. 1. With regard to injury No. 2 he has admitted that he had not noted the injury at the first instance in the post-mortem report nor in the copies sent by him to the office of the Medical Superintendent. He has admitted that he had incor--porated this injury later on. However, he has stated that he had noted this injury at the time of post-mortem but had forgotten to write the same. Dr. Muhammad Aftab P. W. 9 who medically examined Liaqat Ali P. W. 10 at 5 a. m. On 27th August, 1978 in D. H. Q. Hospital, Sargodha, found three stab wounds, two incised wounds, three abrasions and complains of pain on the left side of chest. All the injuries were found to be simple.
Injuries which were kept under observation were also declared simple.
6. Muhammad Akram P. W. 8, Liaqat Ali P.W. 10 and Bashir Ahmad P. W. 11 have been examined for eye-witness account. The evidence of motive has also been furnished by Muhammad Akram P. W.
8 and Liaqat Ali P. W.
10. Bashir Ahmad P. W. 11 has also stated regarding recovery of blood-stained hatchets and clothes at the instance of appellants which is corroborated by Atta Muhammad S. L/S. H. O. P. W.
13. Muhammad Akram P. W. 8 and Liaqat Ali P. W. 10 are real brothers of the deceased.
Bashir Ahmad P. W. 11 is maternal uncle of the deceased. Muhammad Akram P. W. 8 in his statement before the Court has corroborated the F. I. R. Exh. P. D. Which was lodged by him. His testimony finds corroboration almost on all counts from the statement of Bashir Ahmad P. W. 11.
Liaqat Ali P. W. In cross--examination has admitted that he did not see his deceased brother Muhammad Aslam being injured by the accused. He has, however, corroborated the statements of the other two witnesses in so far as infliction of injuries on him by the two appellants is concerned.
7. The appellants in their statements under section 342, Cr. P. C have denied the allegations. They have denied that blood-stained clothes were recovered at their instance. In answer to the question, ---Why this case against you?" both of them have stated, "due to enmity". The did not produce any defence. Muhammad Ameen appellant, however, produced Exh. D. E., certified copy of the suit filed by Mst. Safia, his wife, against him.
During cross-examination, Muhammad Akram P. W. 8 denied the suggestion that Aslam deceased after learning about injuries to Liaqat Ali P. W. 10, picked up a hatchet and went to the haveli of the accused to avenge the injuries to Liaqat where supporters of the accused had already gathered round them and that when deceased Aslam hurled his hatchet, somebody out of the gathering in the melee in defence of the accused gave him blow with a hatchet landing on the back side of his head. Liaqat P. W. 10 also denied the suggestion that on the day of occurrence younger brothers of the accused were playing in the village Chowk with other boys at about Khufia-wela and feeling suspicion that he had been taunted by them, gave them slaps and was abusing them when the accused came there and grappled with him. From these suggestions, it appears that at the time of examination of the witnesses, the accused were taking a plea of having acted in provocation in so far as causing injuries to Liaqat P. W. Is concerned and in self-defence in so far as infliction of injuries on the deceased are concerned though none of the appellants have taken this plea specifically in his statement under section 342, Cr. P. C.
8. The learned counsel for the appellants have inter alia argued that there is no evidence of motive and that the P. Ws. Are related and interested and that Liaqat P. W. 10 has admitted in cross- examination that he had not seen the second part of the occurrence where Aslam deceased was murdered and that the evidence of Muhammad Akram P. W. 8 should be excluded out of consideration as Liaqat P. W. 10 had not named him in his statement under section 161, Cr. P. C. For having seen the first part of the occurrence when he was injured. It is contended that the evidence of recovery of hatchets is not wor6 reliance in view of the statement of Muhammad Mumtaz Akbar M. H. C., P. W. 7 who in cross-examination has stated that the S. I. Has deposited with him three parcels, i.e. One containing blood-stained earth and the other two allegedly containing blood- stained hatchets recovered from Ameen and Yaseen on 30th January, 1979 which is contradictory of the evidence of re--coveries of hatchets according to which the hatchets were recovered from the appellants on 2nd September, 1979. The learned counsel has further argued that the P. Ws.
Could not have identified the assailants as the occurrence had taken place after darkness had set in and there was no moon-light. He has alternately argued that the prosecution has not given any evidence of the igniting cause of the first part of the occurrence where Liaqat was injured and that the deceased was a person of violent temper and he, after having learnt that the appellants have injured his brother, armed himself with hatchet and went towards the haveli of the appellants where he was given injury by someone in defence of the appellants. He has argued that in view of the previous history of the deceased this would not be unexpected of him. He has contended that in the circumstances, his case would be covered by Exception 4 of section 300, P. P.C.
9. The learned counsel for the State/complainant have controver--ted the arguments of the learned counsel for the appellants. Learned counsel for the State has defended the judgment of the lower Court. He has contended that even though the appellants have pleaded that they have been involved because of enmity, no enmity has been suggested. The learned counsel for the complainant has not laid much stress in the revision petition for setting aside the acquittal of Muhammad Shafi under section 302'324/34, P. P. C and of Yaseen appellants under section 302. P.
P. C. Even otherwise we do not see any force in the revision petition for setting aside the acquittal of Muhammad that acquitted accused under section 302/324/34, P. P. C and under section 302, P.P.C.
Of Yaseen appellant. Muhammad Shafi acquitted accused did not play any part in the first part of the occurrence. His attitude rather was conciliatory when he took away his two sons i.e. The appellants from the place where they had caused injuries to Liaqat. In the context of the evidence and the allegations against Muhammad Shafi acquitted accused and Muhammad Yaseen appellant so far as his participation in the commission of murder is concerned, we do not find any reason to differ with the conclusion arrived at by the learned trial Court so far as their case is concerned. We, therefore, find no force in the revision petition and the same is rejected.
10. There is, however, weight in the arguments of the learned counsel that in spite of the fact that Muhammad Ameen appellant has been convicted and sentenced under section 302, P. P. C. No order of sen--tence of fine has been passed in spite of the statutory provisions in this regard neither any compensation has been awarded.
11. We have considered the arguments of the learned counsel. We do not find any force in the argument of the learned counsel for, the appellants that the evidence of the P. Ws. Should be ruled out of consideration because of their relationship with the deceased. Relationship by itself is no ground to disbelieve a witness is they appellants' own case that prior to this occurrence, no incident had ever taken place between the parties, obviously indicating that they P. Ws. Were not inimical to the appellants in any manner. The motive part of the prosecution is denied by the appellants themselves. The non-mentioning of the name of Muhammad Akram P. W. In the statement of Liaqat Ali made under section 161, Cr. P. C. As a witness of the first occurrence is not so important firstly, in view of the fact that he has named him as a witness during his statement before the Court and secondly that there is not much dispute regarding the first incident and the presence of Muhammad Akram P. W. 8 at the time of second incident is amply mentioned. The evidence of P. Ws. Is confidence inspiring. It would be not unnatural that Muhammad Aslam deceased should have gone to lodge a complaint or register protest with the appellants or their father having seen his brother who was a student then in such an injured condition. As the distance between the places of first and second incident was very short, P. Ws. Following the deceased for fear of happening of some unhappy incident would also not be unnatural. In the circumstances we find no reason to disbelieve the eye-witness account. We do not find any force in the arguments of the learned counsel that the P. Ws. Could not have identified the appellants. Half an hour after the sunset would not be so dark where the P. Ws. Would not have been able to identify their co- villagers. Their houses were also not very far from each other. Through inter-marriages they were distantly related also and it was 3rd of lunar month and the moon would not have set by that time.
12. The statement of Muhammad Mumtaz Akbar, M. H. C., P.W that he was entrusted with the parcels on 30th August 1979 cannot he given much importance. It was obviously some confusion heCa1LSe if the S. I. Had effected the recoveries before 30th, there is no reason for him to have shown the recovery of hatchets to have taken place on 2nd July, 1979. There seems to be some mistake. Even otherwise the statements of the formal witnesses cannot be given so much importance that they should be relied over and above the eye-witness account and the evidence of recovery witnesses.
13. We have considered the alternate arguments of the learned counsel for the appellant. So far a; first incident is concerned, if no igniting cause for the first incident has been mentioned, the conviction has also not been for murderous assault. The appellants have only been convicted and sentenced for having caused simple injures. Obviously if there have been more evidence than that, the trial Court might have considered the assault to be one as murderous assault and might have held them liable under section 307, P. P. C. The con--tention of the learned counsel that the deceased had gone to the haveli of the appellants armed with a hatchet and had hurled the same on one of them does not, find support from the record. There is no iota of evidence which would give even an inkling that such. a thing had happened. Had the deceased gone prepared he would have caused injury to some one. It is also difficult to believe that the deceased would have gone alone to attack the appellants in their haveli. If that had been the fact, he would have been accompanied with his ether brothers or relatives. The suggestion put on behalf of the appellants that some of their supporters had gathered in their haveli and one of them had given injury also does not seem to be reasonable for the reason that in that case that crowd of supporters would not have felt contended by giving one or two injuries to the deceased. Such like gatherings act more violently. In view of the above discussion we hold that the prosecution have been able to prove the case against the appellants beyond any shadow of doubt. The conviction of Muhammad Amin and Muhammad Yasin appellants under section 324/34, P. P. C. And conviction of Muhammad Ameen under section 302, P. P. C. Is, therefore, maintained.
14. We have considered the last argument of the learned counsel that in the case of Muhammad Amin appellant's conviction under section 302, P. P. C. a case for lesser penalty of imprisonment for life is made out for reasons that there was no previous enmity and that the occur--rence was a sudden affair and that it was not a case of death sentence. He has placed reliance on Nand Lal v.
Emperor (37 Cr. L N 307) and Sikandar v. The State (PLD 1966 SC 555).
15. We do not find any substance in this argument. Whatever be the motive for the first incident, the second incident was the result of the first incident. The deceased would be a naturally concerned person to go and lodge a protest with the appellants who had just before attacked and caused injuries to his brother. The appellants had no rhyme or reason to have murdered the deceased when he had gone unarmed only to lodge a protest. There are no extenuating circum--stances. No case for mitigation is made out. We have considered the authorities cited by the learned counsel.
There is no similarity, of facts. In the circumstances, appeal is dismissed. Sentence of death of Muhammad Ameen appellant is confirmed, The learned trial Court failed to pass any sentence of fine and payment of compensation.1, We, therefore, order that Muhammad Amin appellant shall also be sentenced to pay fine of Rs. 2.000 in addition to the sentence of death, in default of payment of fine, he shall undergo one year's R. I Whole of the fine, if recovered, shall be paid as compensation to the heirs of the deceased. Sentence of both the appellants under section 324/34, P. P. C. Is maintained. Muhammad Yaseen appellant is or, bail. He shall be arrested and lodged in jail to undergo the remaining sentence.
16. The revision petition is also dismissed.