' Muhammad Ashiq (50), Muhammad Sadiq (25), Ghulam Rasool (65), Muhammad Tariq (18), Muhammad Yousaf (28), Muhammad Khalid (14) and Mst. Farkhanda (16) were tried by the Additional Sessions Judge, Lahore, for the murders of Muhammad Sarwar and Mazhar Sultan, and for having murderously assaulted the witnesses of this case. On 22nd December, 1979 the last mentioned four accused were acquitted of the charges. Muhammad Ashiq was held guilty for the murder of Muhammad Sarwar and Ghulam Rasul for the murder of Mazhar Sultan. They were convicted under section 302, P. P. C. And sentenced to life imprisonment alongwith a fine of Rs, 4,000 each, in default to undergo further two years' R. I. They were also convicted under section 452, P. P. C. And sentenced to two years' R. I. Each. Their sentences were ordered to run concurrently.
Muhammad Sadiq was convicted under section 307, P. P. C. For murderous assault on Sultan Mahmood and sentenced to seven years' R. I. With a fine of Rs, 4,000 in default to further undergo two years' R. I. He was also sentenced to two years' R. I. For the offence under section 452, P. P. C.
Half of the fine, if recovered, was ordered to be paid to the heirs of the deceased.
' The State filed an appeal (Cr. A. No, 948 of 1980) against the acquittal of Tariq and Yousaf which was dismissed by a Division Bench of this Court on 16th February, 1981. The appeal of the convicts (Cr. A. No, 87 of 1979), the State revision (Cr. Revision No, 741 of 1980) and the revision filed by Muhammad Akhtar informant (Cr. Revision No, 195 of 1980) for the enhancement of the sentence are before me.
' Muhammad Sadiq, Muhammad Khalid and Muhammad Tariq (acquitted accused) are the sons of Ashiq. Muhammad Yousaf is the son of Ghulam Rasool, Mst. Farkhanda is the daughter of Ghulam Rasool. Ashiq and Ghulam Rasool accused are related inter se.
2. Muhammad Tariq, Mazher Sultan, Muhammad Sarwar and Sultan Mahmood lived in House No, 392, Street No, 34, Diggi Mohallah, Lahore Cantt. Muhammad Saleem and Muhammad Kaleem P.
Ws. Lived with their mother Zubeda in House No, 391, situated opposite to the house of the aforementioned. Mst. Zubeda is the sister of Muhammad Ashiq accused. The accused had a dispute about the partition of the house with Mst. Zubeda and a civil suit was also pending.
According to the prosecution on 16th December, 1977 at about 5.30 a: m., Muhammad Akhtar was present in his house ; he heard an alarm upon which he reached the house of Mst. Zubeda and saw Muhammad Ashiq, Ghulam Rasool, Muhammad Sadiq armed with daggers, Muhammad Tariq and Muhammad Yousaf armed with knives,, Khalid Mahmood armed with an iron bar and Mst.
Farkhanda had a stick with her. All accused were pushing the door of Mst. Zubeda's house. The alarm also attracted P. W. Muhammad Tariq, Mazhar Sultan, Muhammad Sarwar and Sultan Mahmood. The door of the house of Mst. Zubeda broke, the accused went inside, they abused and attacked Muhammad Salem, his mother Mst. Zubaida and his sister M. Shahida Parveen. P. Ws.
Muhammad Tariq, Mazhar Sultan, Muhammad Sarwar and Sultan Mahmood intervened upon which Ashiq accused inflicted a dagger blow to Sarwar in the abdomen. Sarwar fell down. Ghulam Rasool gave a dagger blow to Mazhar Sultan in the abdomen. Muhammad Yousaf inflicted knife blow to Muhammad Tariq and Muhammad Sadiq inflicted a dagger blow to Sultan Mahmood.
Thereafter all accused started giving successive blows to the victims. The injured came out in the lane and fell unconscious there. Mst. Farkhanda gave a stick blow on the head of Mst. Shahida Begum, sister of the informant. Mst. Zubaida and Mst. Shahida Parveen, mother and sister of Muhammad Saleem, were also given fist blows. The injured were carried to the hospital, Upon receiving information from the Moharrir, P. W. 19 Rashid, A. S.-I. Police Station North Cantt., went .To the Mayo Hospital the same day. He recorded statement (Exh. P. Y.) of Muhammad Akhtar at 8.00 a. m. On the basis of which the formal F. I. R. (Exh. P. H.) was registered at Police Station Cantt. At 8.30 a. m. The same day. The S.-I. Recorded the statements of the witnesses, inspected the spot and prepared the necessary documents.
[Medical Evidence].
3. On 17th December, 1977 Mazhar Sultan died in the hospital. P. W. 18 Rahid Ahmad, A. S.-I. Prepared necessary documents and sent the dead body for its post-mortem examination. On the night between 17th/18th February, 1977 Muhammad Sarwar also died. The S.-I. Prepared necessary documents and sent the dead body for post-mortem examination, Since Dr. Fareed Bakhsh Hashmi, who performed the autopsy on the dead bodies, had gone abroad, therefore, secondary evidence was led and P. W. 10 Abdul Sattar Shah, Dispenser who had worked under the doctor, proved post-mortem reports (Exs. P. N. And P.
0.) of Muhammad Sawar and Sultan Mahmood respectively. Similarly P. W. 11, Record-keeper, proved the operation notes recorded by the other doctors of the Mayo Hospital who had also proceeded abroad. According to the post-mortem reports, the same injuries were found on the two dead bodies which were noted by Dr. Muhammad Saleem when the deceased were alive.
4. P. W. 22 Faiz Muhammad S. H.
0., Police Station, North Cantt. Also partly investigated the case. On 16th December, 1977 at 8-30 a. m. Mst. Farkhanda met him in the Cantt. Bazar and told him that she had been injured. He directed Abdur Rashid A. S.-I. To take her to the hospital where she was got medically examined. On 17th December, 1977 the S. H 0. Arrested the accused except Tariq and Yousf who were arrested by him on 19th December, 1977. On 25th December, 1977 Sadiq accused led to the recovery of a blood- stained chhuri P. 14 from his house from within a hen coupe which was taken into possession vide memo. Exh. P. W. 22/A attested by the S.-I., Javed and Asghar Ali (both not produced). The same day Ghulam Rasool got recovered chhuri Exh. P. 15 from underneath a wooden sleeper of the railway track near Pir Ghazi Road. It was taken into possession vide memo. Exh. P. W. 22/B attested by the same witnesses.
5. P. W. 20 Noor Ahmad, Inspector, C. I. A., also investigated this case. The medico-legal reports of Saleem and Kaleem P. Ws. Were said to have been produced before him by Muhammad Akhtar informant. This witness got recorded the statements of Saleem, Kaleem, Shahida and Zubaida under section 164, Cr. P. C. He got the photographs of the broken door of the house of Muhammad Saleem. After completing the investigation, the accused were sent up for trial.
6. All accused denied the prosecution case. Explaining the case against him, Muhammad Ashiq made the following statement :- "I and my co-accused have been falsely implicated in this case. In fact prior to the present occurrence in 1977 Muhammad Akhtar P. W. Alongwith his brother Sarwar (deceased), nephew Sultan Mahmood and his sister Mst. Shahida abducted Mst. Shaista and a case was registered against them. Muhammad Akhtar P. W. And his co-accused in that case were apprehending danger at the hands of the complainant party in that case. In order to save their lives, Muhammand Akhtar and his co-accused in that case used to sleep in the house of Mst. Zubaida.
On 16th December, 1977 in the dark hours of early morning, some persons with muffled faces attacked Sarwar, etc., in the house of Mst. Zubaida where they were residing at that time. As the actual culprits were not known to the present complainant party, they, after due deliberation and mutual consultation, involved me and my co-accused in this case as they had doubts that as I had some dispute with my sister Zubaida, I and my co-accused should be involved in this case.
Later on, the present complainant party got the opportunity to occupy the lower portion of the house of Mst. Zubaida and where they are residing even at present. The complainant party implicated all the members of my family and my niece Mst. Farkhanda were also roped in so that no one is left to persue the case."
' The remaining accused supported his statement. No accused led defence.
6. Trial Court came to the conclusion that there was a delay in making the F. I. R. Good reasons reliance was not placed on the statement of P. W. 12 Muhammad Akhtar (informant). Reliance was, however, placed on the evidence of the two injured eye-witnesses, namely, P. W. 14 Sultan Mahmood and P. W. 15 Muammad Tariq. P. W. 16 Muhammad Kaleem was declared hostile at the trial as he did not support the prosecution case against the accused except Ghulam Rasool who was attributed a chhuri blow in the abdomen of Mazhar Sultan (deceased). Trial Court observed that although, P. W. Kaleem said that the accused had enmity with him, yet one fact cannot be overlooked i,e, he was closely related to Ghulam Rasul, accused, who is the husband of witness's father's sister. Trial Court, however, ruled out the solitary statement of the Investigating Officer. In so far as the recoveries of chhuri Exh. P. 14 from Said and churri Exh. P. 15 from Ghulam Rasool were concerned. For lack of motive and because the occurrence was sudden and unpremeditated the three convicts were awarded lesser penalty for murder. It acquitted the remaining four accused as their presence at the spot was considered doubtful. This finding has also been accepted by the Division Bench of this Court in disposing of the State appeal against the acquittal of Tariq and Muhammad Yousaf.
7. Criticizing the findings of the trial Court, learned counsel for the appellants contended that having come to the conclusion that the F. I. R. In this case was a belated one, trial Court should not have relied on the evidence of the injured witnesses because after due deliberation a distorted version of the occurrence had been put up by them ; moreover their evidence was not relied upon against the acquitted accused. Learned counsel argued that the prosecution story was highly doubtful because the occurrence was said to have taken place at 5 a. m. When it was still dark.
This again will not help the defence because there is an electric pole shown in the site plan which is in the street in front of the house where the occurrence took place. Again I find that none of the witnesses was asked whether it was a pole without a bulb. Learned counsel further argued that the occurrence allegedly took place in a thickly populated area, but except for the members of Muhammad Akhtar's family, none of the neighbours came forward to depose and that P. W. 16 Kalim who was one of the inmates of the house, did not support the prosecution case against the accused except Ghulam Rasool. It was next contended that the story of breaking the door of the house was not plausible ; the shutters of the door were not produced ; moreover, the inmates of the house could have escaped through another door of their house, which opened in the street, and as a such avoided the clash. To my mind, their escape may not have been necessary because according to the prosecution the accused had come to take forcible possession of the house.
Under these circumstances the inmates of the house need not to have disappeared. True, there is no evidence of taking the broken door into possession although photographs were taken. However, it may be mentioned here that these are not material things in this case, for the reasons that the complainant party had no enmity with the accused. They intervened and got injured. True, there is a delay in making the F. I. R. And as already. Observed for good reasons the informant has not been relied upon by the trial Court. I also do not find any reason to differ with the trial Court's finding about the motive in the case. In spite of all this, one fact remains that there can be no doubt about the presence of the injured witnesses at the spot who admittedly have no motive to falsely involve the accused on a capital charge. True injuries suffered by an eye-witness is not a hallmark of witnesses credibility but in this case P. W. 14 Sultan Mehmood and P. W. 15 Tariq, the two injured witnesses, have no motive against the accused. According to the defence as put up in the statement of Ashiq, accused, the unknown assailants could be the relations of Mst. Shaista who had been abducted by Muhammad Akhtar, informant. Had it been true Muhammad Akhtar, complainant, and his brothers would have involved them and if at all the complainant party was to substitute the real 4 assailants, they might have then named any other enemy and not the accused because they have no enmity with them. In any case substitution is a rare phenomenon.
9. Learned counsel for the appellants further contended that the deceased did not have any under garments on. These circumstance showed that they were living in the house of Mst. Zubaida and had not come from another house. This aspect of the case, to my mind, would not be material because one of the deceased died a day after occurrence and the other two days thereafter and whether their garments were changed in the hospital or just before they were sent to the hospital has not been brought out in the evidence, through cross-examination. It was next contended that according to the prosecution, the accused had come to take possession but none of the inmates of the house were injured. This argument again would not help the appellants because on hearing the alarm, the prosecution witnesses turned up and intervened, therefore, under these circumstances if those who intervened got hurt and the inmates of the house escaped injuries, it would not be unnatural. No doubt the injuries were suffered by the deceased inside the house but they fell outside in the lane. This again to my mind does not help the defence. It appears that after receiving the injuries, the tried to rush out and fell in the lane. I am satisfied with the guilt of the three appellants and find no reason to differ with the findings of the trial Court. This appeal is, therefore, dismissed.
10. For good reasons, trial Court did not award capital sentence in this case. The revision petitions are also 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.