' IJAZ NISAR, J.-Amir son of Ghulam Muhammad (35) and Muhammad Nawaz son of Jan Muhammad (35) alongwith three others, namely, Khuda Bakhsh son of Allah Yar, Abdur Razza9 son of Ghulam Muhammad and Ghulam Rasool son of Sher Muhammad were tried for having in prosecution of their common object committed the murder of Khushi Muhammad deceased and for murderously assaulting Mst. Safia, Muhammad Naeem and Muhammad Ismail P. Ws. With sticks after entering into the house of Khushi Muhammad deceased on 26-10-1977 at 10 a. m. The learned Additional Sessions Judge, Vehari vide his order dated 7-3-1981 acquitted Khuda Bakhsh, Abdur Razzaq and Ghulam Rasool by giving them the benefit of doubt but convicted Amir and Muhammad Nawaz appellants under section 302/323/452/34, P. P. C. And sentenced Amir appellant to death and a fine of Rs, 1,000 or in default to undergo 3 months' S.
1. Muhammad Nawaz appellant was sentenced to imprisonment for life and a fine of Rs, 1,000 or in defaut to undergo 3 months' S. I. They were further sentenced to 3 months' R. I. Each under section 323/34, P. P. C. And one year R. I. Each under section 452/34, P. P. C. All the sentences were ordered to run concurrently.
' This judgment will dispose of the appeal filed by Amir and Muhammad Nawaz appellants, the reference made under section 374, Cr. P. C. By the trial Court for confirmation of the death sentence of Amir appellant as also revision filed by Khan Muhammid complainant for enhancement of the sentence of Muhammad Nawaz appellant from life imprisonment to death.
2. Khushi Muhammad deceased was a tenant under Khan Muhammad P. W.
6. He had cultivated cotton crop in the land under his cultivation. Amir appellant used to damage his crop by letting loose bis cattle. On the day of occurrence at about 7 a. m. Khushi Muhammad deceased found his cotton field damaged. He followed the foot-prints of the cattle which went upto the Behni of Amir appellant. He complained to Amir appellant about the damage to his crop and asked him to be careful in future. Amir appellant abused him, the deceased also returned the abuses.
' On the same day at about 10 a. Tit. The appellant alongwith the acquitted accused while armed with sticks entered into the house of the deceased. Amir appellant declared that the deceased woald be taught a lesson for abusing him. Mst. Safia P. W. 7, widow of the deceased, pushed the deceased inside the residential Kotha and chained it from outside. The accused opened the door and dragged out the deceased in the courtyard and started causing injuries to him with their Lathis. Khan Muhammad P. W. 6 who was present in his house rushed to the spot on hearing the alarm and tried to intervene Abdur Razzaq accused (since acquitted) caught hold of the deceased while the other accused caused further blows to him. Mst. Safia P. W. 7 tried to save her husbard when Khuda Bakhsh accused (since acquitted) gave lathi blows to he: while Gbulam Rasool accused (since acquitted) injured Muhammad Naee n P. W. 8 son of the deceased. Muhammad Ismail P. W. 6 who had also reached the spot on hearing the alarm tried to intervene but be was also injured by Amir and Muhammad Nawaz appellants. Shahab attd Zulfiqar P. Ws. (given up) also reached the spot and witnessed the occurrence. The accused ran away with their weapons. Khushi Muhammad deceased became unconscious. He and the other injured were removed to the Civil Hospital, Mailsi where they were medically examined On the receipt of the medico-legal report Khan Muhammad P. W. Proceeded to the Police Station, Mailsi where he lodged the F. I. R. Exh. P H with Faiz Muhammad A. S. I. (since dead).
3. Abdul Gbafoor S. I. P. W. 10 carried out investigation of the case. He collected blood-stained earth from the spot. Khushi Muhammad deceased died in the hospital on 2-11-1977. The S. I. Prepared his injury statement Exh. P. R. And inquest report Exh. P. S. ' On 3-11-1977 S.-I. Abdul Ghafoor arrested the appellants and the acquitted accused. Amir appellant while in police custody led to the recovery of blood-stained lathi P. 4 from his residential kotha through memo. An. P. L. Muhammad Nawaz appellant led to the recovery of blood-stained lathi P. 8 from a field through memo. Exh. P. Q. Khuda Bakhsh and Ghulam Rasool accused (since acquitted) also got recovered lathis P. 5 and P. 7 respectively.
4. The lathis were sent to the Serologist for detection of blood Who ride his report Exh. P. U. Found that three lathis were found to be stained with human blood while on'the 4th the blood had disintegrated and its origin could not be determined.
5. Dr. Safdar All P. W. 4 examined Khushi Muhammad deceased on 26-10-1977 and found the following injuries on his person :
(1) A contused wound x 1/8" x bone deep on the right side of head 4 above the right ear on parietal region.
(2) A contusion mark x 1" on the middle line of chest.
(3) A contusion mark 6" x on the back of right chest lower part.
(4) An abrasion 1" x on the top of right shoulder.
(5) A contusion mark 5" x 2k" on the outer side of right chest lower part. All the injuries were caused with blunt weapon within 12 hours. There was fracture of right parietal bone of the skull. Injuries Nos.
1 and 5 were grievous. On the same day, be examined Muhammad Naeem P. W. 8 and found the following injuries on his person :
(1) A lacerated wound.i" x i" x scalp deep on the middle line of head parietal region.
(2) An abrasion 1" x on the left temple 1' from the eye.
(3) A contusion mark 3 x on the outer side of left shoulder.
(4) Complained of pain on the top of right shoulder.
(5) An abrasion r x 4" on the outer side of right elbow-joint.
(6) An abrasion 4' x on the outer side of left little finger, second phalanx.
' The injuries were simple in nature caused with blunt weapon within 12 hours from the time of examination. He also examined Muhammad Ismail P. W. 9 and found the following injuries on his person :
(1) An abrasion 3' x " on the back of left forearm upper part.
(2) A contusion mark 4' x 1" on the outer side of right hip.
' The injuries were simple in nature caused with blunt weapon with 12 hours from the time of examination. On the same day at 5-50 p. m., he also examined Mst. Safia P. W. 7 and found the following injuries on her person :
(1) Contusion x e on the front of left wrist-joint.
(2) Complained of pain on the back of right shoulder.
' The injuries were simple in nature caused with blunt weapon withiii 12 hours.
6. Dr. Arif Saeed who conducted post-mortem examination on the dead body of Khushi Muhammad deceased could not be examined personally because he was reported to have left for abroad. Consequently, secondary evidence was led to prove the post-mortem examination Exh. P.
G. And diagram Exh. P. G/I and PG/2 by Amir Bakhsh P. W. 5, Head Clerk of the Civil Hospital, Multan.
7. The appellants pleaded not guilty to the charge, denied the prosecution allegation and attributed the case to enmity: Explaining his involvement Amir appellant stated as follows : "We all, the accused persons are closely related inter se. Khan Muhammad Bhapa P. W. Is the cousin of Zulfiqar P. W. On maternal side. Mst. Zahoor Mai is the daughter of said Zulfiqar who was married to Khuda Bakhsh deceased. Zultiqar P. W. Was demanding talaq for the daughter Mst.
Zahoor Mai from Khuda Bakhsh co-accused but Khuda Bakhsh was not willing to divorce her which resulted in the enmity of the accused party and that of Khan Muhammad and Zulfiqar P. Ws. In fact Khan Muhammad Bhapa wanted Mst. Safia P. W. For his own sake, and he intended to remove Khushi Muhammad from his way. Khushi Muhammad was murdered by Khan Muhammad, Naeem and Muhammad Ismail P. Ws. Under a hatched up conspiracy and I and my co-accused have been falsely implicated in this case due to enmity with Khan Muhammad and other P.Ws. Mst. Safia P. W. Is now living with Khan Muhammad Bhapa at Mailsi City as his keep."
' Muhammad .Nawaz appellant also made a similar statement. The accused did not call any eivdence in defence.
8. The prosecution examined Khan Muhammad P. W. 64 Mst. Safia P. W. 7 Muhammad Naeem P.W.
8 and Muhammad Ismail P.W. 9 as ocular witnesses. Mst. Safia P. W. 7 is the widow of the deceased, Muhammad Naeem P. W. 8 is son of the deceased, Khan Muhammad P. W. 6 is landlord of the deceased while Muhammad Ismail P. W. 9 is nephew of the deceased. Khan Muhammad P. W. 6 was present in his house when he reached the spot on hearing the alarm and thus witnessed the occurrence. Muhammad Ismail P. W. 9 stated that the deceased used to stitch clothes and on the day of occurrence he had gone to his house to collect his clothes when the occurrence took place.
Khan Muhammad P. W.
6. Also deposed about the motive. Mst. Safia P. W. 7, Muhammad Naeem P. W. 8 and Muhammad Ismail P. W. 9 were also injured during the occurrence and were medically examined. The duration of their injuries tallies with that of the deceased. Muhammad Naeem P. W. 8, Muhammad Ismail P.
W. 9 and Abdul Ghafoor S. P. W. 10 testified to the recoveries of dangs from the appellants and the acquitted accused. They attested the relevant memos.
9. Relying upon the testimony of the eye-witnesses, the recoveries of dangs from the appellants and the motive the learned trial Court convicted and sentenced the appellants as stated above.
However, Khuda Bakhsh; Abdur Razzaq and Ghulam Rasool accused were given the benefit of doubt and acquitted.
10. Impugning the judgment,. The learned counsel for the appellants states that there is an inordinate delay in lodging the F. I. R., the eye-wit"nesses being closely related to the deceased are interested and their evidence is full of material discrepancies and contradictions,
11. According to the prosecution, the occurrence had taken place in the house of the deceased. The fact that the inmates of the house, namely, Mst. Safia P. W. 7 and Muhammad Naeem P. W. 8 were also injured coupled with the fact that the blood-stained earth was also secured from the house of the deceased leaves no room to doubt the testimony of the P. Ws. With regard to the place of occurrence. The evidence of Mst. Safia, Muhammad Naeem and Muhammad Ismail cannot be brushed aside merely on the ground of their relationship with the deceased. Since the occurrence had A taken place in the house of the deceased Mst. Safia and Muhammad Naeem P. Ws. Are the natural witnesses. They stand corroborated by Khan Muhammad P. W. 6 wbo had no animus against the appellants. The eyewitnesses examined by the prosecution cannot be dubbed as interested witnesses because they had no motive to falsely implicate them. They have given a consistent account of the occurrence which is quite in line with the medical evidence. They get additional corroboration from the recoveries of bloodstained dangs at the instance of the appellants. Since it was a broad day B light incident, therefore, the eye-witnesses would not have faced any difficulty in identifying their assailants. There appears to be hardly no reason for the P.
Ws. To substitute the present appellants for the real culprits.
12. We have.Considered the arguments of the learned counsel regarding the delay in lodging the F.I.R. But do not find it to be having any adverse bearing on the case because it stands fully explained. According.To Khan Muhammad P. W. 6 the deceased and the injured were first carried to the Civil Hospital, Mailsi where the doctor kept the injuries of Khushi Muhammad deceased under observation and after the medical and X-ray reports were delivered to him he lodged the F. I. R.
Because of the night fall -the X-ray examination and the preparation of the report must have taken some time and as such there appears to be no inordinate delay in reporting the matter to the police.
The contradictions pointed out in the statements of the eye-witnesses, are ignorable being without any significance. Due to lapse of-time minor discrepancies and contradictions do creep in and unless they materially affect the credibility of the P. Ws. Or make their versions highly inconsistent they can be safely ignored. We have carefully examined the statements of the eye- D witnesses but do not find any material contradictions and the discrepancies, The P. Ws. Have fully corroborated one another on all material particulars. Despite the fact that they were subjected to lengthy cross-examination and were put searching questions their testimony remains unshattered.
The argument advanced by the learned counsel that since the names of the eye-witnesses are not mentioned in the site plan, therefore, they should be presumed to be not present at the spot at the relevant time has not E impressed us. The eye-witnesses examined by the prosecution are named in the F. I. R. And the mere fact that the Patwari has omitted to mention their names would not make their presence at the spot doubtful when it stands established by the presence of injuries on their persons.
13.Considering the evidence and other circumstances, we think that the prosecution's case. Stands fully established against the . Appellants. They were, therefore, rightly convicted. However, as regards sentences, we feel inclined to interfere so far as Amir appellant is concerned because the injuries of the deceased proving fatal are not attributable with certainty to any F of the two appellants. Consequently, in the interest of justice was alter his death sentence to imprisonment for life. The sentence of fine as imposed by, the trial Court is maintained. The conviction and sentence of Muhammad Nawaz appellant is, however, maintained. The conviction and sentence of the appellants under sections 323 and 452/3 4, P. P. C. Is also maintained. The sentences shall run concurrently. The appellants are further directed to pay Rs, 5,000 each as compensation to the heirs of the deceased or in default to undergo three months' R. I. They shall also be given the benefit of section 382-B, Cr. P. C.
The death sentence of Amir appellant is not confirmed.
14. The revision filed by Khan Muhammad complainant for enhancement of sentence of Muhammad Nawaz appellant fails and is dismissed accordingly.