' Nasir Mahmood and Faiz Ahmad were tried by an Additional Sessions Judge of Sahiwal under section 302/34, P. P. C. For the murder of Abdul Sattar deceased. The learned trial Judge, by his judgment dated 9th October, 1979, convicted both the accused under section 302/34, P.P.C. And sentenced them to life imprisonment each with a fine of Rs, 5,000 each or in default thereof to undergo further R. I. For two years each. Half of the fine, if collected, was ordered to be paid to the heirs of Abdul Sattar deceased. The appeal (Criminal Appeal 1162/79 and Criminal Appeal 1221 of 1979) preferred by Faiz Ahmad and Nasir Mahmood convicts against their conviction and sentences and a private revision (Crl. Revision 908 of 1979) filed by Umar Din complainant for the enhancement of the sentences of the convicts to death under section 302/34, P.P.C., are all now before me for disposal.
2. The prosecution case as disclosed in the F. I. R. (Exh. P. C.) is that Umar Din complainant P. W. 5, a farmer by profession, owned 22 Killas of land in village Gubba Fazal. On the night between 21/22nd May, 1976 he alongwith his son Abdul Sattar (deceased) was sleeping in Killa No, 13 of Square No, 30 to protect his wheat 'pie. After about midnight he was awakened by the sound of footsteps (ashat). A lantern was burning nearby. He saw Nasir Mahmood, accused, standing towards the head side of the cot on which his son Abdul Sattar (deceased) was sleeping. Nasir Mahmood, accused, was armed with a hatchet. Faiz Ahmad, accused, while armed with a hatchet, was standing on the other side of the cot. Faiz Ahmad, accused, raised a `lalkara' in the direction of his co-accused enquiring as to why he was waiting and that the deceased be attacked. Nasir Mahmood, accused then inflicted a hatchet injury on the neck of Abdul Sattar deceased, who started writhing in agony. The complainant picked up a 'kali and rushed towards the accused, who ran away towards the East. The alarm raised by the complainant attracted Hakim Ali P. W. 8 and Imam Din P. W. 9 to the spot. At that time these two witnesses were going to irrigate their land. The two accused whilst brandishing their hatchets and threatening the witnesses with dire consequences, made good their escape. The complainant attended his son Abdul Sattar; deceased, who succumbed to his injury on the spot after some time. The motive for the offence was that about 3-4 months before the occurrence it was generally rumoured in the village that Mst. Kausar, the sister of Nasir Mahmood, accused had become pregnant due to her illicit relations with Faiz Ahmad, accused.
Both the accused had threatened Abdul Sattar, deceased, as they held him responsible for circulating this rumour. The complainant twice went to the father of Nasir Mahmood, accused, and tried to clear the position of his son, but in vain. The father of Nasir Mahmood, accused, also held Abdul Sattar, deceased responsible for defaming his daughter and threatened that his son would avenge this insult. Bashir Mahmood and Faiz Ahmad accused were stated to be fast friends and therefore, they had murdered Abdul Sattar, deceased, because of this grievance. After the occurrence, Allah Dad Lambardar Nek Muhammad Lambardar and other villagers also arrived at the spot. The complainant left Hakim All and Imam Din P. Ws. Near the dead body and went to the police station, at a distance of about four miles, alongwith Nek Muhammad, Lambardar, and got recorded his statement Exh. P. C. At 5-00 a. m. On 22nd May, 1976.
3. Asghar Ali, S. I., P. W. 10 then proceeded to the spot where, after preparing the necessary papers, he sent the dead body of Abdul Sattar, deceased, for post-mortem examination. He also collected blood-stained earth and a lantern P. 5 from the spot vide memos. P. F. And P. H., respectively.
4. On 23rd May, 1976 at 7-30 a. m. Dr. Muhammad Athar, P. W. 1 conducted the post-mortem examination on the dead body of Abdul Sattar, deceased, and found one incised wound 3i" x 1 muscle deep on the left side of the neck, starting 1 f" below the angle of the mandible going to front of neck. Medial II" was skin deep only. On exploring the wound, external carotid artery, external Jugular vein, internal jugular vein, stern mastoid muscle and stero-hyoid were cut. Chambers of the heart, the stomach and the urinary bladder, were all found empty.
Death was due to haemorrhage as a result of the said ante-mortem sharp-edged injury, which was found to be sufficient to cause death in the ordinary course of nature. Time between injury and death was opined between 5 and 10 minutes and between death and post-mortem examination within 36 hours. The direction of the injury was from the angle of the mandible to the front of the neck. Diagram attached to the post-mortem report Exh. P.
A. Shows that the injury was below the left jaw on the neck, starting from a point on the neck below the left angle of the jaw and running to the front of the neck.
5. On 24th May, 1976 both the accused were arrested by Muhammad Yusuf, S. I., P. W.
11. Nasir Mahmood, accused, produced his bloodstained hatchet P. 7 before the police, which was taken into possession vide memo. Exh. P. J. Faiz Ahmad, accused, led to the recovery of a hatchet P. 6 from his residential house, which was taken into possession vide Memo. P.
1. Both the recoveries were witnessed by Hakim Ali P. W. 8, Muhammad Yusuf, S.-I., P. W. 11 and Nek Muhammad (won over P. W.).
6. At the trial, the prosecution produced Umar Din P. W. 5, Hakim Ali P. W. 8 and Imam Din P. W. 9 in proof of the motive and the ocular account. Hakim Ali P.W. 8, Asghar Ali, A.S.-I., P. W. 10 and Muhammad Yusuf, S.-I. P.
W. 11 to prove the recoveries and Dr. Muhammad Athar P. W. 1 in support of the medical testimony. Both the accused denied the accusations levelled against them. Faiz Ahmad, accused, attributed his false involvement to enmity with the complainant party due to a dispute relating to path and irrigation facilities. Nasir Mahmood, accused, imputed his false implication to Umar Din P. W. 5, who was hostile to him over the turn of irrigation water.
7. The learned trial Judge, relying upon the motive, the ocular account and the medical testimony, convicted and sentences both the accused, as stated in para. 1 above.
8. I have heard the arguments of the learned counsel for the appellants, the complainant and the State. The evidence as regards motive is furnished by Umar Din P. W. 5, Hakim Ali P. W. 8 and Imam Din P. W.
9. According to their consistent testimony, there was afloat a rumour throughout the village that Faiz Ahmad, appellant, had illicit relation with Mst. Kausar, the sister of Nasir Mahmood and that both the appellants suspected Abdul Satter, deceased, for circulating the said rumour. Both the appellants had also threatened the deceased that they would avenge this insult, which fact the deceased brought to the knowledge of his father, Umar Din P. W.
5. According to the testimony of Umar Din P. W. 5, he went to Barkat, the father of Nasir Mahmood, appellant to inform him that his son was not connected with the rumour, but Barkat replied to state that his son would definitely avenge the insult. Since both the appellants were fast friends in furtherance of their common intention, they had both murdered Abdul Sattar, deceased, because of this grievance. Nothing was brought in cross- examination of these witnesses to show that the motive, as set up by them, was false or could not be accepted without some reservation. In these circumstances, I cannot help but observe that the motive stands fully established from the evidence on the record.
9. The ocular account in this case is furnished by the same three witnesses who have deposed to the motive, namely, Umar Din P. W. 5, Hakim Ali P.W. 8 and Imam Din P. W.
9. Umar Din P.W. 5 is the father of the deceased, Hakim Ali P. W. 8 is a nephew of Umar Din complainant P. W.
5 and Imam Din, P. W. 9 is the father-in-law of Hakim Ali P. W.
8. Hakim All P. W 8 also lives in the same Ihata where Umar Din P. W. 5 resides. The prosecution story of the occurrence as given by Umar Din P. W. $ stands recorded in his F. I. R. Exh. P. C, particulars of which are stated in para. 1 above, which need not be repeated once again. However, at the trial he made certain additions. In the F.
1. R. He has stated that Faiz Ahmad appellant had first raised Lalkara to his co-appellant, whereafter Nasir Ahmad appellant, had delivered the fatal blow with his kulhart to his son on which he raised the alarm and Hakim Din P. W. 8 and Imam Din F. W. 9, who were going to water their fields, came to the spot, but at the trial he stated that after he saw both the appellants near the cost of his son he raised the lalkara which attracted these two witnesses, whereafter Faiz Ahmad, appellant, shouted to Nasir Ahmad, appellant{{URDU TEXT}}.." on which Nasir Ahmad, appellant, gave a hatchet below on the left side of the neck of his son and then both the accused ran away. In cross-examination Umar Din P. W. 5 stated that he did not mention in the F. I. R. Exh. P.
C. That Hakim Ali and Imam Din P. Ws. Came to the spot after the appellants had run away but when confronted with F. I. R. Exh. P. C. It was found that the same was not so recorded, but it was mentioned therein that after the two appellants had run away, the said P. Ws. Had arrived on hearing the lalkara of Umar Din P. W.
5. In aross-examination he admitted that Imam Din P. W. 9 had no land near the place of occurrence but that Hakim Ali P. W. 8 and Imam Din P. W. 9 had jointly taken 2 acres of land in Square No, 35 on lease during the days of occurrence, but which factum of lease he had not got recorded in his F. I. R. Exh. P. C. Hakim Ali P. W. 8 and Imam Din P. W. 9 corroborated the story of Umar Din complainant P. W. 5 as given in his examination-in- chief on all material parts of the case in minute detail. In cross-examination Hakim All P. W. 8 admitted that his father owned land in Square No, 35, that they had no sickles with them when they went to irrigate their land in Square No,
35. Though he had stated in his police statement that both he and Imam Din P. W. 9 had torches, which they had flashed on the appellants, at the trial he stated that only he had a torch and in cross-examination admitted that the same was not taken into possession by the Police. He also mentioned in cross-examination that though they had no sickles they were going to borrow the same from the tenants of Umar Din P. W. 5 who were living in Square No,
35. In cross-examination he stated that he and Imam Din P. W. 9 were going to Square No, '35 on a pakdandi and not on a Katcha path/road and that they saw both the appellants from a distance of 10 Karams. Imam Din P. W. 9 in his police statement had referred to the fact that he and Hakim Ali P.
W. 8 had torches with them, but at the trial he stated that only Hakim Ali P. W. 8 had a torch with him, which he had flashed on the appellants at the time of occurrence, but- admitted in cross-examination that the torch was not taken into possession by the Police. He also admitted in cross-examination that both he and Hakim All P. W.
8 were on Katcha path/road while proceeding towards Square No, 35 and not on any pakdandi. In examination- in-chief he stated that he was cultivating two acres of land in Square No, 35 as a lessee, which, he and Hakim Ali P. W. 8 were to irrigate, but in cross-examination he had to admit that he had not mentioned in his police statement Exh. D. B. That the land was on lease. In cross-examination he introduced document Exh. P. K.
Being copy of Khasra Girdawri relating to Square No, 35 and document Exh. P. L. Being copy of `warabandi' showing the turn of water of Umar Din P. Ws. Land in Square No, 35 which was from 4-52 a. m. To 65-2 a. m.
Which were objected to as not having been filed with the challan.
10. The ocular testimony is challenged by the learned counsel for the appellants on a number of grounds. First, that the F. I. R. Was recorded after delay and deliberation, second, that the eye-witnesses were not present and never saw the occurrence. Third and last, that the medical testimony conflicted with the ocular account. As regards the first objection, learned counsel submitted that according to F. I. R. Exh. P. C. N ek Muhammad jambardar, a resident of village Mopalke, about two miles from the place of occurrence, had accompanied Umar Din P. W. 5 to the Police Station Chuchak for lodging the F. I. R. And as Hakim Ali P. W. 8 had admitted in cross- examination that Nek Muhammad Lambardar had come to the spot on his own, he very likely came between 8.00 and 9.00 a.m. On 22nd May, 1976 and not before dawn and that, therefore, the assertion that the F. I. R.
Exh. P. C. Was recorded at 5.00 a.m. On 22nd May, 1976 is a fabrication on the part of the Police. Learned counsel also submitted that the relevant papers and the dead body of the deceased were not received by the Doctor till 7.00 p.m. On 22nd May, 1976, which further supports the fact that the F. I. R. Was recorded very late that day and not at 5.00 a.m. In the early morning, as alleged. As regards the second objection, learned counsel submitted that Umar Din P. W. 5 was not present at the spot, for, according to his own showing, his son Abdul Sattar deceased did not wake up on hearing the footsteps of the appellants and remained asleep, but he alone heard the noise of the appellants, footsteps and got up, which circumstance seems unbelievable. The additions made by Umar Din P. W.. 5 to his original story as stated in the F. I. R. Exh. P. C., as stated in para. Above, were also pointed out to show that none of the witnesses were present but artificial attempts were being made by them to prove their presence. It was also mentioned that the introduction of the lantern Exh. P. 5 at the spot of occurrence and the torches in the hands of two of the eye-witnesses were introduced to justify identification of the appellants. In this connection it was submitted that there was no reference about the lantern in the inquest report Exh. P. N. Or about the torch or torches in the F. I. R. Exh. P. C. And that these additions were made later to justify the identification of the appellants. It was also submitted that the behavior of the eye-witnesses was unnatural as nobody attempted to chase or apprehend the appellants though one of them was the father of the deceased and he would not have remained a passive spectator. As regards the third and last objection, it was submitted that the injury of Abdul Satter deceased appeared to be by knife and not by a hatchet as the weapon had only cut the outer skin of the neck, the thin muscles thereunder, such as the sterno-mastoid muscle and the sterno-hyoid muscle, and external carotid artery and the internal and external jugular veins just beneath it. In this connection it was submitted that had a hatchet like hatchet P. 7 been used, which had a heavy blade and a long handle, the wind pipe, oesophagus and the upper vertebral column would have been cut if not crushed.
11. In the instant case it appears that the F. I. R. Exh. P. C. Was lodged after some delay and preliminary investigation, and not early in the morning before sunrise at 5.00 a.m. On 22nd May, 1976, as alleged.
According to the F.I.R. Exh. P. C., Nek Muhammad Lambardar of village Mopalke also accompanied the complainant to the police station. Nek Muhammad Lambardar resided 2 miles away from the place of occurrence. According to Hakim Ali P.W. 8, Nek Muhammad Lambardar had come of his own accord to the place of occurrence, which means he had not been sent for early in the morning. It is, therefore, more reasonable to infer that he came at about 8 or 9 a.m. In the morning on 22nd May, 1976. The fact, therefore, that the F.I.R. Was lodged at 5 a.m. On 22nd May, 1976 does not appear to be correct. The further fact that the relevant papers and dead body of Abdul Sattar, deceased, were not received by Dr. Muhammad Athar P. W. 1 till 7 p.m. Shows that the F. I. R. Was recorded late and not at 5 a.m. As alleged. I would therefore, hold that the F.
I. R. Was lodged on 22nd May, 1976 much after 5.00 a.m and after preliminary investigation. As regards the medical testimony, the statement of Dr. Muhammad Athar P. W. I shows that the incised wound on the left side of the neck of the deceased was 31" long, 11" wide and muscle deep. The wound started 1 i" below the left jaw and proceeded to the front of the neck. The injury was muscle deep below the left jaw and as it tapered off in front of the neck it was skin deep. The muscles below the skin, such as the sterno-mastoid and sterno-hyoid, were cut and so also the carotid artery and the internal and external jugular veins thereunder, but the wind pipe, the oesophagus and upper vertebral column suffered no injury. It shows that a sharp dagger or knife was used and the assailant just passed the sharp-edge of the blade on the left side of the neck of the deceased and ran away. Had the hatchet P. 7 or any normal hatchet been used, as alleged by Umar Din P. W. 5 and the other two witnesses the injury would have been deeper and the wind pipe, the oesophagus and the upper vertebra; would have sustained some injuries. It cannot be forgotten that a hatchet is usually lifted 2 to 3 feet above the point where it is to be struck and then brought down with force and if a hatchet was so used much more extensive damage would have been caused to Abdul Sattar deceased. In the instant case, the medical evidence belies the ocular account. It, therefore, appears that none of the eye-witnesses were present at the spot or saw the occurrence. The attempt on the part of the three eye-witnesses to change the story, also indicates their attempts to justify their presence. In view of what I have already held about the medical evidence, I need not waste my time with the third objection raised by the learned counsel for the appellants. However, some important facts require reference. Umar Din P. W. 5 original's alluded to the fact that the deceased was sleeping with his head facing westwards, when he was done to death by Nasir Mahmood, appellant who had stationed himself by the cot towards its head side. He then improved on this version in cross-examination by stating that Nasir Mahmood. Appellant, took a short turn towards East and then inflicted the hatchet blow. Since the deceased had his head towards the West, it would mean that Nasir Mahmood, appellant, then came towards the foot side of the deceased in the East and then struck the blow on the deceased. In either case, whether Nasir Mahmood, appellant, placed himself on the head side of the deceased in the West or the feet side of the deceased in the East, he would only have been able to give a vertical blow to the deceased in line with the body which was lying straight before him. The injury on the neck of the deceased, however, is in a horizontal direction, which means that only an assailant standing towards the North or South of the cot could have inflicted such an injury with a hatchet, as was found on the deceased. This shows that the eye-witnesses really did not see the occurrence.
Further, Umar Din P. W. 5 admitted that though his deceased son did not wake up on the sound of the appellant's footsteps, but he woke up, which is somewhat peculiar, for if one heard the footsteps and got up, the other should have done likewise. Umar Din P. W. 5 therefore, appears to have been planted at the spot. Still further, the other two eye-witnesses stated that they were going to irrigate their land in Square No, 35 when they were attracted to the spot on the lalkara of Umar Din P. W. 5, but in cross-examination had to admit that they owned no land but the same was on lease and the Khasra Girdawri and Warabandi which Imam Din P. W. 9 tried to smuggle into his evidence at the last moment showed Hakim Ali P. W. 8 was in cultivating possession of two Killas in Square No, 35 which was owned by Umar Din P. W. 5 himself. Strangely, Umar Din P. W. 5, did not state in his evidence anywhere that Hakim Ali P. W. 8 was his tenant. This also, therefore, lends strong support to the fact that Hakimp Ali P. W. 8 and Imam Din P. W. 9 were planted witnesses.
12. The upshot of the above discussion is that though the motive stands proved, the medical evidence belies the prosecution story and the B presence of the three eye-witnesses at the spot at the time of occurrence appears to be doubtful. In these circumstances, the appellants are entitled to the benefit of doubt.
13. For the foregoing reasons, I accept the appeals and set aside the conviction and sentence of the appellants.
The appellants shall be set at liberty forthwith, if not required in any other case. Fines, if any, recovered from them, shall be refunded to them. There being no merit in the revision petition, the same is dismissed in limine.