1. ' SARDAR MUHAMMAD, J.-Appellants ljaz Ahmad alias Jaja, aged 23 years, Iftikhar Ahmad alias Khara, aged 25 years, sons of Mushtaq Ahmad, have filed appeal against the order, dated 7th June, 1980, of Additional Sessions Judge, Gujrat, whereby the learned Additional Sessions Judge convicted the appellants under section 302/34, P. P. C. For having committed the murder of Abdur Rashid and under section 307/34, P. P. C. For having launched murderous assault on Abdul Ghani, father of Abdur Rashid deceased and sentenced them as under :- Ijaz Ahmad appellant : Death sentence and a fine of Rs, 3,000 or in default to suffer further R. I. For one year, under section 302/34, P. P. C.
2. ' Five years' R. I. And fine of Rs, 1,500 or in default to suffer six months' R. I. Under section 307/34, P. P.
3. C.
4. Iftikhar Ahmad appel- Imprisonment for life and a fine of Rs, 3,000 or lant in default to suffer R. I. For one year, under section 302/34, P. P. C.
5. Five years' R.I. And a fine of Rs, 1,500 or in default to suffer R. I. For six months, under section 307/34, P.
6. P. C.
7. Vide the same judgment, the learned Additional Sessions Judge acquitted Mst. Ferozan, Mushtaq and Imtiaz, co-accused of the appellants.
8. ' The learned Additional Sessions Judge has referred the case for confirmation ,of death sentence awarded to appellant Ijaz Ahmad. Abdul Ghani injured P. W., father of the deceased, has filed Criminal Revision No, 751 of 1980, praying enhancement of sentence of Iftikhar Ahmad appellant from life imprisonment to that of death. As Murder Reference, criminal appeal and criminal revision arise from the same judgment, they are being disposed of by the ensuing judgment.
2. The occurrence in this case took place on 26th February, 1975 at 6.30 p. m. In the lane in front of the house of Abdur Ghani P. W. Formal F. R. (Exh. P. F./1) was drafted at the Police Station by Muhammad Nur Khan, A. S. I. (P. W. 6) on 26th February, 1975 at 7.15 p. m. On receipt of the statement (Exh. P. F.) of Mst. Inayat Begum (P. W. 9), recorded by Raja Muhammad Shafiq, S.-I. (P. W.
9. 15), at the spot on the same day at 7 p. m. Raja Muhammad Shafiq, S.-I. Reached the spot after having learnt about the occurrence when he was onipatrol duty.
3. Mst. Inayat Begum (P. W. 9), stated that she was present in the house of Abdul Ghani P. W. At 4 p. m. When Naveed, son of Abdul Ghani P. W. Was given beating by Mst. Guddo, aged 10/12 years, daughter of Mushtaq, acquitted accused. Mst. Gulzar Bibi P. W. On hearing the cries of her son went out in the street and complained to Mst. Ferozan, acquitted accused, wife of Mushtaq. Mst. Ferozan abused her. She has further stated that she came forward and separated them. Soon thereafter Mst. Ferozan entered the house of her brother alongwith her son Imtiaz and started quarrelling with Mst. Gulzar and grappled with her, but she again got them separated. She has further stated that at about 6.30 p. m. On the same day, when Abdul Ghani P.W. And Abdur Rashid deceased had reached their house after being free from usual work, appellants Iftikhar alias Khara and Ijaz alias Jaja armed with knives, acquitted accused Imtiaz and Mushtaq empty-handed entered their house raising lalkaras. The accused took out Abdur Rashid deceased and Abdul Ghani P.W. In the street by holding them from their collars. Ljaz appellant gave two knife blows to Abdur Rashid deceased, one on his chest and the other on his right thigh while he had been taken into Japha by acquitted accused Imtiaz. When Abdul Ghani tried to rescue his son, Imtiaz and ljaz caught him while Iftikhar gave him knife blows on chest, front and abdomen. When Abdul Ghani tried to rescue himself, he was given injuries on his right hand and mouth. As a result of the injuries Abdur Rashid and Abdul Ghani started bleeding. On the noise raised by her and by Mst. Gulzar Begum, P.Ws.
10. Mummad Siddique and Muhammad Aslam (given up) reached the spot and got released the two injured by beseeching the accused. Soon thereafter, Muhammad Shafi, Suraf M. L. A., Azad Kashmir, arrived at the spot. He took the deceased and Abdul Ghani injured P. W. In an injured condition to the hospital.
11. ' Muhammad Shafiq, S.-I. (P. W. 15) despatched the statement of Mst. Inayat Begum to the Police Station for recording formal F.I.R and after recording the statement of Mst. Gulzar Begum, he reached the hospital. He recorded the statement of Abdur Rashid under section 161, Cr. P.C. The Sub-Inspector also received Ruqqa (Exh. P.C./5) written by Dr. Nazir Ahmad (P.W. 1), whereby the doctor had informed the S.H.0 that Abdur Rashid and Abdul Ghani had been admitted in the hospital in serious injured condition and arrangement for recording their dying declarations be made. The Sub-Inspector moved application (Exh. P.C.) to the Additional Deputy Commissioner (General) for recording the statements of Abdur Rashid and Abdul Ghani under section 164, Cr. P.
12. C., who deputed Mr. Nasir Javed, M.I.C. (P.W. 8). The Magistrate after obtaining opinion of Dr. Nazir Ahmad (P.W. 1) (Exh. PC/1) that Abdur Rashid was fit to make a statement (Exh. P.C./5) of Abdur Rashid, in the presence of the doctor, who after completion of the dying declaration made note (Exh, P.C./2) that the deponent remained conscious throughout while the dying declaration was being recorded. The Magistrate had also recorded the dying declaration (Exh. P.C./7) of Abdul Ghani P W, after obtaining the certificate from the doctor regarding his fitness, in the presence of the doctor.
13. ' On the same night Abdur Rashid expired. The Sub-1nspector on receipt of information of his death through Dr. Nazir Ahmad, reached the hospital and after preparing the inquest report handed over the dead body for post-mortem examination to Bashir Ahmad F. C. No, 244. Which was conducted by Dr. Muhammad Sami Tariq (P.W. 2), on 27th February 1975, ' Dr. Nazir Ahmad (P.W. 1) had medically examined Abdur Rashid vide Medico-legal report (Exh. P.A.).
14. He had found two stab wounds, one on the chest and one on the right thigh of Abdur Rashid. The same injuries were detected by Dr. Muhammad Sami Tariq (P.W. 2), at the time of postmortem examination.
15. ' Dr. Nazir Ahmad at the time of medical examination (Exh. P.B.) of Abdul Ghani, noted three stab wounds, two of them on the right side of chest and one on the abdominal cavity above umbilicus.
16. He also noted superficial incised wounds on the web of right thumb and index finger and below the left lower lip. Abdul Ghani was found to have suffered another incised wound on the left lower jaw.
17. According to the opinion of the doctor injuries on both these injured were caused by a sharp- edged pointed weapon. According to Dr. Muhammad Sami Tariq (P.W. 2), who had conducted the post-mortem examination, death of Abdur Rashid was due to shock and hoemorrhage, which was the result of injury No,l.
4. Appellant ljaz Ahmad was arrested on 1st March 1975. He led to the recovery of blood-stained knife (P.W. 4) by digging out the same from a Place in the graveyard on 10th March 1975, which was taken into possession vide memo. Exh. P.G./1, which was attested by Hassan Din (P.W. 13), Muhammad Latif P. W. (not produced) and Muhammad Farooq, Inspector/ S.H.O. (P. W. 17). Imtiaz acquitted accused was arrested on 1st March, 1975. Mst. Ferozan and Mushtaq acquitted accused were arrested on 9th March, 1975. Lftikhar appellant was not available, proceedings under section 87, Cr. P. C.,were taken against him and he was arrested on 23rd July, 1975 by Muhammad Farooq, Inspector/S. H.
0. (P.W. 17). The investigation was conducted by Raja Muhammad Shafiq. S.I. (P.W. 15), and Muhammad Farooq. Inspector (P. W. 17).
5. At the trial the prosecution in all produced 17 P. Ws. The eyewitness account was furnished by Mst.
18. Inayat Begum (P.W. 9), a sister of Abdul Ghani injured (P.W. 11), Mst. Gulzar Begum (P.W. 10), mother of Abdur Rashid deceased and wife of Abdul Ghani injured P.W. 11, father of the deceased and Muhammad Siddiq (P.W. 12). Muhammad Aslam, another eye-witness was given up as he had gone abroad and was not available. The dying declaration (Exh. P.C./5) recorded by Mr. Nasir Javed, Magistrate, on 26th February 1975 and the statement (Exh, P.K.) of the deceased recorded by the Investigating Officer under section 161, Cr. P. C. Were also tendered in evidence.
19. ' Mst. Inayat Begum (P.W. 9) by and large stuck to her statement (Exh. P.F.), on the basis of which F.I.R (Exh. P.F./1) was recorded. She has stated that when Mst. Gulzar Begum (P.W. 10) protested to Mst. Ferozan for her sou having been beaten by the daughter of the latter, she started abusing her, she got them separated but shortwhile later Mst. Ferozan entered the house of Abdul Ghani P.W.
20. With her son Imtiaz and grappled with Mst. Gulzar Begum. She again got them separated. She further stated that at about 6-30 p. m. When Abdur Rashid deceased and Abdul Ghani injured PW had arrived in their house after being free from day's labour, Khara,Jaja armed with knives and Imtiaz empty-handed after entering the house of Abdul Ghani P.W. Dragged them out, where Imtiaz held the deceased in Japha while Jaja inflicted knife blows on his chest and thigh. Thereafter, Khara inflicted injuries to Abdul Ghani PW on his chest, abdomen, lips, right thumb and index finger while Jaja and Imtiaz had held him in Japha. Ghani (injured) and Rashid (deceased) fell down on the ground besmeared with blood. She has also stated that at that time Mst. Ferozan and Mushtaq, parents of the appellants, standing nearby were raising lalkaras to kill the deceased and Ghani P.W.
21. According to her, the occurrence was also witnessed by Muhammad Siddiq (P.W. 12) and Muhammad Aslam (not produced). She has also stated that on the arrival of the Sub-Inspector at the spot she made statement (Exh. P.F.). Mst. Gulzar Begum (P.W. 10), Abdul Ghani, injured (P.W. 11), and Muhammad Siddiq (P.W. 12), have supported the account given by the complainant on all meterial points. Mst. Inayat Begum has denied the suggestion that in fact one Shahbaz had given injuries to the deceased and injured P. W. And that since she did not know him, she got registered the case against the appellants and their family members.
22. ' Mst. Gulzar Begum (P.W. 10), has stated in cross-examination that she did not know if Mst. Ferozan has a cousin named Shahbaz, she has denied the suggestion that in fact his son Guddo had teased the daughter of Mushtaq, acquitted accused, and had beaten her and that when Mst.
23. Ferozan came out in the street she grappled with her and that her cousin Shahbaz came out to help her and when Abdul Ghani P.W. Attacked Shahbaz, he snatched the knife from him and when Rashid attacked him (Shahbaz) he while running gave injuries to Rashid deceased and that since Shahbaz had left Pakistan, they have involved the appellants and other members of their family.
24. Similar suggestion put to Abdul Ghani P.W. Has also been denied by him.
25. ' Muhammad Siddique (P.W. 12), has denied his relationship with the complainant or the deceased.
26. The same fact has also been denied by the other witnesses. He has, however admitted in cross- examination that he had no previous connection with the accused and that their names were told to him by the persons who had come to the spot later. He has also admitted that he had identified the accused in the identification parade held at City Police Station 4/5 days after the occurrence.
27. ' The deceased in his dying declaration (Exh. P.C./5) recorded by Mr. Nasir Javed, Magistrate (P.W.
28. 8) has stated that his father was talking to him in his house about the dispute of the children when Jaja, Khara accompanied by a third person, whom he did not know but could identify, came there.
29. All the three were armed with knives. Khara gave him fist blows and Jaja gave him knife blows while the third person had held him.
30. ' The evidence of recovery of knife (P. 4) has been furnished by Hassan Din (P.W. 13), which has been corroborated by Muhammad Farooq, Inspector/S.H.O. (P.W. 17). Both have stated that on 10th March, 1975, ljaz alias Jaja had led to the recovery of blood-stained knife (P. 4) from the graveyard by digging out the same from a place pointed out by him. Hassan Din in cross-examination has admitted that he is married to the sister of Latif P W, who is son-in-law of Mst. Inayat Begum complainant. The remaining prosecution evidence is more or less of a formal nature.
7. The appellants in their statements under section 342 Cr. P. C., have denied the occurence. Both of them have pleaded that they were not present at the spot when the occurrence took place. Four D.
31. Ws. Were examined. Mustafa Anwar (D.W. 1) and Maqbu1 Ahmad (D.W. 2), have deposed about the alibi of acquitted accused Mushthq. Zulfiqar Ahmad (D.W. 3), has stated that Ijaz alias Jaja appellant had remained with him and other persons at Mangla Dam on the day of occurrence from 10 a. m. To 9-10 p. In. Munir Ahmad (D.W. 4), has stated that on hearing alarm of a woman that murder had taken place, he reached the spot and saw a young man running with a knife in his hand. He has stated that, that person was not present in the Court along with the accused. He has admitted in cross-examination that he had not appeared before the police in this regard to make any statement.
8. We have considered the arguments of the learned counsel for the appellants. We do not find weight in the argument of the learned counsel that since the P.Ws, are inter-related their testimony is not worthy of reliance, for the reason that there was no previous animosity between the P. Ws.
32. And the appellants. In fact this is not the case of the appellants that they had strained relations with the P. Ws. They are natural witnesses. The presence of Mst. Inayat Begum P. W. In the house of her brother is nothing unusual. She was residing nearby and even if the explanation given by her for the visit to her brother's house is not taken for granted, her visit to the house of her brother cannot be dubbed as something' unusual. Abdul Ghani P. W. Had himself received the injuries.
33. There is no ostensible reason to discard his testimony.
34. The argument of the learned counsel that the dying declaration of the deceased was recorded by the Magistrate and the certificate by the doctor that the deceased had remained unconscious during the statement was under the influence of Muhammad Shafi Saraf, M. L. A. Azad Kashmir, as he was helping the complainants, who were refugees from Kashmir like him, does not find favour with us because we do not find any good reason to discard the evidence of uninterested and independent persons like the Magistrate and the doctor, only for the reason that the Magistrate had gone to the *nospital in the car of Muhammad Shafi Saraf, whose own relationship with the complainant party is not proved. Moreover, the contents of the dying declaration themselves speak that the same was not recorded under the influence of anybody nor was recorded with a plan because had that been the case the dying declaration would have been rather in line with the F. I.
35. R. Which had been recorded prior to the recording of the dying declaration.
36. ' The contention of the learned counsel for the appellants that the recovery of blood-stained knife (P. 4) is not worth credence for the reason that Hassan Din P. W. Is related and that the police officer had planted the knife, does not seem to be sound. The knife was recovered from the graveyard where nobody was residing. It was dug out from near a grave by appellant Ijaz, of which only he could have exclusive knowledge. Although Hassan Din P. W. Has admitted that- he is related to a son in law of the complainant yet we do not find it to be Sufficient reason to discard his evidence particularly in view of the fact there is no allegation that he was inimical to the appellants.
37. ' The learned counsel vehemently. Argued that the appellants had no motive to launch an attack as in the previous incident of dispute regarding a child of the complainant having been beaten by Mst. Ferozan and her son Imtiaz, they had upper hand. We do not feel inclined to agree With this argument. The incident of a child of one family having been beaten by the other had happened on that day. According to the prosecution, Mst. Gulzar Begum P. W's. Son was beaten by the sister of the appellants While according to the defence son of Abdul Gbani had beaten four years old daughter of Mst. Ferozan, mother of the appellants. There is no gauge to assess the re-action of a person. The appellants having learnt about the incident which took place between their mother and Mst. Gulzar Begum P. W. Might have felt irritated and insulted and in the circumstances it cannot be concluded that they had no motive. In this case, the F. I. R. Was lodged by Mst. Inayat Begum (P. W. 9) without the assistance of any male person. The only two male persons, the deceased and his father Abdul Ghani P. W. Had already been removed to the hospital when the Sub-Inspector arrived at the spot where he recorded the statement of Ma. Inayat Begum P. W. From the statement she made it does not seem that she is crooked in any manner. She seems to be an ordinary simple woman and has stood the test of lengthy cross-examination successfully. The dying declaration of the deceased, as observed above, was recorded without being influenced by the details given in the F. I. R. It was recorded by a Magistrate in the presence of the doctor, who not only had given a certificate prior to the recording of the statement that the deceased was fit to make statement but had also after the completion of the statement put a note that during the statement the deceased had remained conscious. The recording of note at the end is indicative of another fact also that the statement was recorded in the presence of the doctor and, therefore, the value and authenticity of the statement gets enhanced. The dying declaration corroborates the participation of the appellants in the occurrence The eye-witness account coming-forth from the injured witness, the complainant, mother of the deceased, and the dying declaration finds support from the evidence of recovery of blood-stained knife (P. 4) and the medical evidence.
38. ' The evidence of alibi of Ijaz alias Jaja is of no consequence for the reason that it is the statement of a single witness and does not find corro- D boration from any other piece of evidence. The statement of Munir Ahmad (D. W. 4) is also not worth reliance. It is a negative piece of evidence and without corroboration.
39. ' The contention of the learned counsel that appellant Khara cannot be held responsible for having caused the death of Rashid even vicariously, as there is no allegation that he had caused any injury to the deceased and that common intention on the part of Khara appellant cannot be inferred from the evidence, is devoid of force. Khara appellant had accompanied appellant Ijaz alias Jaja armed, with a knife. He has been playing active role throughout the occurrence and had caused injuries to Abdul Ghani P. W. When he had tried to save Abdur Rashid.
40. ' For the reasons enumerated above, the convictions of the appellants on both the counts are upheld.
41. ' The learned counsel strenuously argued that it is not a case of extreme penalty and that a case for lesser penalty of life imprisonment in the case of Ijaz alias Jaja is made out for the reason that the occurrence had taken place suddenly on account of quarrel over children's dispute. It has been argued that admittedly there was no previous enmity between the parties and as such a case of mitigation for altering the sentence of death to that of life imprisonment is made out. We have considered the contention of the learned counsel in the light of the evidence and in the light of the argument advanced by the learned counsel for the State. The occurrence cannot be adjudged in any manner as a sudden affair. The dispute regarding the children and the quarrel inter se the Ladies bad taken place about two hours earlier to the occurrence in which a person was murdered and another was grievously injured. The appellant who alcngwith his coaccused, after making preparations and having been armed with deadly weapon, had attacked the deceased after having brought him out from his house alongwith his father, Abdul Ghani, who also was given injuries in the same occurrence, does not deserve any leniency. No case of mitigation of sentence is made out. The appeal of both the appellants is, therefore, dismissed. The death sentence awarded to Ijaz Ahmad alias Jaja appellant is confirmed.
42. ' Appellant Khara did not cause any injury to the deceased. The learned trial Court for good reasons-has awarded lesser penalty of life imprisonment to him. No case for enhancement of sentence in his case is made out. The revision petition is, therefore, dismissed.
43. ' Iftikhar Ahmad alias Khara appelleant shall be given the benefit of the provisions of section 382-B, Cr. P. C.