' KHIZAR HAYAT, L-Ismail alias Milu son of Walia (44 years) and Noor Muhammad alias Noora son of Allah Jiwaya (37 years), caste Muslim Sheikh have been sentenced to death and fine of Rs, 200 each, in default to undergo one month simple imprisonment each, while Muhammad Hanif son of Wali Muhammad (24 years) has been sentenced to imprisonment for life and a fine of Rs, 200 in default to undergo one month simple imprisonment under section 302/34, P. P. C. By Additional Sessions Judge, Vehari, for having caused intentional death of Muhammad Nawaz (deceased) aged 43 years at his Dera in Chak No, 187/E. B. Tehsil Burewala District Vehari on the night between 14th/15th May, 1977. Noor Muhammad alias Noora filed appeal through his counsel and additional grounds through Jail (Criminal Appeal No, 880/80) while Ismail and Hanif have filed separate appeals through jail (Criminal Appeal No, 1291/80 and Criminal .Appeal No, 1291-A/80) against their conviction and sentence. The Reference sent by the trial Court (M. R. No, 189/80) under section 374, Cr. P. C. For confirmation of the death sentence awarded to Noor Muhammad and Ismail is also before us. The appeals as well as the reference are disposed of by this judgment.
2. The prosecution case briefly was that Haji Ahmad complainant was sleeping at his Dera near his tubewell on the fateful night. Near him were sleeping his son Bashir P. W. And his brother Muhammad Nawaz (deceased) on separate cots. At mid-night (12-30 a.m.) Haji Ahmad and Bashir Ahmad woke up on the cries of Muhammad Nawaz and saw Muhammad Hanif appellant holding the legs of Muhammad Nawaz while Ismail and Noor Muhammad appellants were giving kassi blows to him standing on the head side of his cot. They raised lalkara which attracted Fazal Hussain. P. W. Noora threw his kassi P. 4 and ran away alongwith Muhammad Hanif but Ismail who was running with kassi in his hands was captured by the witnesses at a few Karams distance from the spot. They snatched blood-stained kassi P. 5 from him. Haji Ahmad then went to Police Station Gaggo and lodged F. I. R. Exh. P. D. About the incident at 1-30 a.m. The same night which was recorded by S.-I. Zafar Hussain Raja (P. W. 10). The motive as mentioned in the F. I. R. Was that on the day preceding the night of occurrence Ismail and Muhammad Hanif appellants went to the threshing floor of Muhammad Nawaz deceased for separating grains from chaff. Muhammad Nawaz asked them that they should join two more persons with them so that the thrashing business could finish soon. They refused to do so and a quarrel ensued between them whereupon Muhammad Nawaz slapped Ismail. At this both Ismail and Muhammad Hanif went away administering threat to Muhammad Nawaz to avenge the insult. Having registered the case S.-I.
Went to the spot and took up the investigation. He prepared injury statement (Exh. P. L.) and inquest report (Exh. P. M.) of Muhammad Nawaz (deceased) and sent the dead body under police escort to mortuary for post-mortem examination. He collected blood-stained earth from there and also blood-stained cot, pillow and pair of shoes of the deceased. He seized blood-stained kassi (P. 5)
(snatched from Ismail appellant) and produced by Bashir Ahmad P. W. After making its sealed parcel. He arrested Ismail who was produced by the witnesses at the spot and removed his blood- stained shirt and chaddar (P. 6 and P. 7). Muhammad Hanif was arrested on 16th May, 1977. His blood-stained shirt and chaddar (P. 8 and P. 9) was also secured. Noor Muhammad was arrested on 19th May, 1980.
3. On 15th May, 1977 at 4-00 p.m. Dr. Muhammad Aslam Awan, Medical Officer, Burewala (P. W. 1) conducted autopsy on the dead body of Muhammad Nawaz and noted following injuries :-
(1) Incised wound on the bridge of nose cutting the nasal and maxila bones 5-i" x li" and 4k" deep in horizontal position.
(2) Incised wound 11" x 1/2" x bone cutting at lower jaw from ear to mouth angle.
(3) Incised wound on left middle side of nose 6i" x 1/2", lower jaw bone cutting from middle of chin uptil mastoid bone.
(4) Incised wound 21" x 1/2" x bone cutting at the centre of head cutting the skull bone.
(5) Incised wound 7" x cutting the bones (lower jaw, upper jaw, mastoid bone), right side below the ear.
(6) Incised wound 2i" x 1/4" on the left middle finger on its back skin deep.
(7) Lacerated wound on the left middle finger at middle palmer side 3/4" x 1/4" x muscle deep.
(8) Lacerated wound 3/4" x 1/4" on the palmer side of left index finger at its uper part. In the opinion of the doctor, all injuries were ante-mortem. Injuries Nos. 6, 7 and 8 were simple and rest were grievous. They were caused with sharp-edged weapon except injuries Nos. 7 and 8 caused by blunt weapon and death of the deceased had occurred due to shock, haemorrhage and multiple fracture of bones under-neath the injuries which were found to be sufficient to cause death in the ordinary course of nature. Death occurred within minutes after the receipt of injuries and post- mortem examination was done within 16 hours of the death.
4. On 1st June, 1977 the Investigating Officer sent blood-stained clothes of both the appellants Ismail and Muhammad Hanif alongwith Kass: (P. 4) left behind by Noor Muhammad appellant to Chemical Examiner through Ghulam Haider Constable for detecting blood thereon. Kassi (P. 5) snatched from Ismail by the witnesses, was sent to the Chemical Examiner on 24th June, 1977 through the same constable. According to the Chemical Examiner all the above-mentioned articles were found stained with blood of human origin except of kassi of Ismail appellant because the stains thereon had disintegrated making it impossible to determine their origin.
5. At the trial in all 10 witnesses were examined. Prosecution has relied on the testimony of Haji Ahmad (P. W. 6), Fazal Hussain (P. W. 7) and Bashir Ahmad (P. W. 8) the eye-witnesses ; Haq Nawaz (P. W. 9) and the Investigating Officer Zafar Hussain Raja (P. W. 10) the recovery witnesses and Dr. Muhammad Aslam Awan (P. W. 1) who proved Muhammad Nawaz's death as unnatural.
6. Learned trial Court having believed the motive, the ocular account and also recovery of blood- stained apparels of Ismail and Muhammad Hanif, convicted all the appellants for murder and sentenced them as mentioned above. The convicts have challenged their conviction and sentence through instant appeals.
7. It has been argued on behalf of the appellants that the testimony of Haji Ahmad and his son Bashir Ahmad P. Ws. Being close relations of the deceased cannot be accepted on capital charge without independent )k, corroboration and Fazal Hussain P. W. Though unconnected with the deceased is a chance witness so his evidence is also not worthy of credit. It is true that Haji Ahmad P. W. Is the real brother while Bashir Ahmad is the nephew of the deceased but at the same time they did not have any or anmosity against the appellant prior to the occurrence. It is in evidence that on the fateful night these witnesses were sleeping alongwith the deceased on their tube-well for keeping guard on their animals tethered there and also to look after their field being irrigated by their tube-well which was working at the relevant time. It is commonly known that farmers of this country usually maintain their Deras on their tubewells/ wells outside the village Abadi where they tether their animals particularly during the summer season and the ablebodied members of the family sleep there to keep guard on them. There is nothing unusual in it that Haji Ahmad and Bashir Ahmad P. Ws, were sleeping at their tube-well on the f fateful night rather their presence appears to be quite natural and we feel no hesitation in relying on their testimony since it appears to us in accord with truth. Learned counsel submitted that since the tube-well was working at the time of occurrence, therefore, the assailants of the deceased whosoever they were would not have dared to go and attack the deceased fearing that they would be spotted. We confess our inability to agree with this argument of the learned counsel because the human reaction in a particular situation varies from man to man. About Fazal Hussain P. W. 7 it may be stated that he is Arain by caste whereas the deceased was from Awan tribe. There is nothing on record to suggest that he had any special interest with the complainant party or anmosity with the appellants. Admittedly, he lived in the same village where the occurrence took place. According to him he had gone to Gaggo for arranging gunny bags and was returning from there at relevant time following the road which passes near the Dera of Haji Ahmad complainant. Hearing alarm he went there, saw the occurrence and captured Ismail appellant with kasst alongwith other witnesses. It was harvesting season in the days of occurrence when the farmers need gunny bags for storing or transporting their agricultural produce for marketing. We do not see anything unusual about his reaching the spot in the manner alleged by him. He had no personal axe to grind by falsely implicating the appellants.
9. We have also considered the fact that after having received extensive injuries on head jaws and face the deceased could raise alarm or not ? Even if it is conceded for argument sake that, he could not do so, yet we are of the view that the sound produced by the strokes of kassis used by the two appellants while inflicting injuries to the deceased was sufficient to alert Haji Ahmad and Bashir Ahmad P. Ws. Sleeping just by his side. The fact that Ismail applicant was captured at the spot lays aside all doubts regarding the presence of these witnesses there.
10. It is further contended that the prosecution story is improbable because the witnesses failed to arrest Noor Muhammad who was running empty-handed but succeeded in rounding up Ismail who at that time was armed with a kassi and could use the same to avoid his arrest. The argument has no fore. With a little experience of village life one can understand that a person who is empty handed would run faster than that Rho carries a kassi which is an odd type of implement.
11. On behalf of Noor Muhammad appellant it has been argued that he had no motive whatsoever against the deceased and therefore it does not look probable that he would join hands with other appellants for killing the deceased. It was also urged that he joined the investigations with the police on the morning following night of occurrence which suggests that he had no guilty conscience when the Investigating Officer did not arrest till 19th May, 1977 as admitted by the Investigating Officer. The record shows that Noor Muhammad belongs to the brotherhood of Hanif and Ismail appellants who were insulted and slapped on the day preceding the night of occurrence by the deceased and therefore, they had a motive against the deceased. It appears that Noor Muhammad being a member of their brotherhood made it a common cause to avenge the insult and then not only accompanied them but also participated actively by giving injuries to the deceased with a kassi. Noor Muhammad appellant has been named in the F. I. R. And specific role has also been attributed to him. In the normal course of events the Investigating Officer should have arrested him the moment he appeared before him. The postponement of his arrest till 19th May, 1977 appears to be either due to idefficiency of the Investigating Officer or he afforded chance to him to prove his innocence and on his failure to do so he was arrested. The appellant did not prove his alibi by producing any evidence much less of cogent and convincing character.
12. Lastly an objection was raised about the investigation. It is pointed out that the witnesses have deposed that an A. S.-1. Visited the spot and before him they made statements whereas S.-I. Raja Zafar Hussain had claimed to have investigated the whole case. It is also pointed out that Raja Zafar Hussain admitted that he sealed the packets of the articles picked up from the spot with the seal of "A. S..
1. Abdul Qadir". The learned counsel, therefore, argued that the case was in fact investigated by A.
S.-I. Abdul Qadir and S -I. Raja Zafar Hussain wrongly claimed to be the Investigating Officer of this case. We think that villagers are unable to differentiate between S.-I. And A. S.-I. The defence had deliberately avoided to ask them name of the Police Officer who examined them. May be that they described S.-I. Raja Zafar Hussain as A. S.-I. The reasons as to why Raja Zafar Hussain used the seal of A. S.-I. Abdul Qadir, too was not asked from him. It is not shown as to what has prosecution gained by this. This objection in our opinion in no way affects .Ae prosecution case adversely.
13. For the above discussion, we are convinced in our minds that the appellants were rightly held guilty by the trial Court for causing death of Muhammad Na.Waz at the relevant time and in the manner narrated by the prosecution. We, therefore, maintain their conviction on the murder charge. While maintaining the sentence of life imprisonment awarded to Hanif appellant we are disposed to commute the death sentence of Ismail and Noor Muhammad appellants to imprisonment for life because it is not possible to ascertain as to whose blow had particularly proved fatal, E however, the sentence of fine is maintained. The learned lower Court has not awarded any compensation and we also refrain from awarding the same since the appellants belong to village labour class.
14. Except for the modification in sentence, the appeals are dismissed. Appellants shall be given benefit in sentence unde section 382-B, Cr. P. C.
15. The death sentence of Ismail and Noor Muhammad appellants are not confirmed.