' KAMAL MUSTAFA BOKHARY, J. - Sarfraz alias Sarwar son of Khushi Muhammad, Ashraf, aged 18 years, son of Ghulam Rasul, Imtiaz, aged 21 years, son of Muhammad Sharif and four others were tried for forming themselves into an unlawful assembly armed with deadly weapons, for committing rioting, for murderous assault on Khalid Mahmood P.W. And for murder of Arshad. The Additional Sessions Judge, Gujranwala, on 15-5-1980, convicted Sarfraz alias Sarwar, Ashraf and Imtiaz under sections 302/34, P.P.C. And acquitted them of all other charges. Their co-accused were outright acquitted of all offences. Sarfraz alias Sarwar, Ashraf and Imtiaz were sentenced to death and were ordered to pay a fine of Rs, 10,000 each or in default thereof to undergo rigorous imprisonment for three years. If realised, the amount of fine was ordered to be paid to lawful heirs of Arshad deceased as compensation under section 544-A, Cr.P.C. The learned Additional Sessions Judge has sent reference for confirmation of their death sentences and the convicts have filed appeal. This judgment will dispose of both the appeal and the reference.
2. On 15-12-1978 before sunset time Arshad deceased with his younger brother Khalid Mahmood P.W., aged about ten years, followed by Uzair Ahmad complainant and Manzoor P.W., apart from Muhammad Inayat (given up) were proceeding from their dera to village Shori Chattha. When they reached near Saim Nala bridge, about three Killas away from the village, the deceased and Khalid Mahmood P.W. Were surprised by the three appellants carrying a hatchet each and four acquitted accused armed with dandas. All seven of them pushed away Arshad deceased about 25 karams away from the bridge where they gave him merciless beating. Sarfraz alias Sarwar appellant delivered a hatchet blow on head of Arshad. Imtiaz appellant then twice tried to hit head of the deceased but could cause injuries resulting in chopping of fingers of the left hand of the deceased.
Ashraf appellant gave a hatchet blow on left arm of the deceased. Sarfraz appellant repeated a blow with back side of his hatchet on left flank of the deceased upon which the deceased fell down on the ground. Thereafter, the acquitted accused with their dandas caused injuries to the deceased. Ashraf appellant also gave another hatchet blow on right arm of the deceased and during that time Imtiaz appellant continued giving hatchet blows to the deceased. The occurrence was witnessed by Uzair Ahmad complainant. Khalid Mahmood injured, Manzoor Ahmad P. Ws. And Muhammad Inayat son of Mauladad, were given up as unnecessary.
' About a month prior to this occurrence in a music concert in their village' the parties had clashed over a joke which resulted in injuries to Ashraf appellant and Mushtaq acquitted accused for which F.I.R. Under section 307/34, P.P.C. Had been registered against father of the deceased, Mansha and other relations, namely, Ashraf, Afrahim and Mustafa. Proceedings under section 107/151, Cr. P. C.
Were also taken by the Police against both the parties. Aforementioned father and uncles of Arshad deceased were in Jail on the day of present occurrence which opportunity of their absence was availed of by the accused for causing murder of Arshad.
' Arshad deceased and Khalid Mahmood P.W. In injured condition were removed to Civil Hospital, Hafizabad where both of them were medically examined but Arshad died in hospital at 11-30 p.m.
On the same day, i,e, 15-12-1978. On a ruqqa (Exh. P. D.) received from the doctor Noor Hussain A.S.-I.
Went to the hospital where he recorded the statement of Uzair Ahmad at 9-30 p.m. On which formal F.I.R. Was registered at Police Station, Hafizabad at 9-45 p.m., on 15-12-1978. The distance between the place of occurrence and the police station is five miles.
3. The investigation in this case was made by Noor Hussain AS.-I. P.W. Who had recorded statement of the complainant in the hopital after making enquiry from the doctor about the condition of Arshad deceased and Khalid Mahmood P.W. Who were reported to be unable to make the statements, He sent the statement of Uzair Ahmad (Exh. P. B.) to the police station for registration of the F.I.R. He also made a request vide Exh. P.D./1 to the Magistrate concerned for recording dying declaration of the deceased but Arshad expired before arrival of the Magistrate. The investigating officer after completing formalities sent the dead body of Arshad to the mortuary. He went to the place of occurrence on 16-12-1978 at 3-a.m. Where he inspected the spot and secured bloodstained earth vide Memo. Exh. P.
0. He prepared the site plan himself and got prepared the plan from the Patwari. He recorded statement of Khalid Mahmood P.W. Under section 161, Cr. P. C., on 16-12-1978 and made over the investigation to the S.H.O. Malik Tahir Mahmood, P.W. Who had reached the place of occurrence on 16-12-1978.
' Tahir Mahmood P.W. After his arrival at the spot on 16.12-1978 at 10-a.m., secured last worn clothes of the deceased produced before him by Khan Muhammad Foot Constable. On 17-12-1978 he arrested the .Appellants and the remaining acquitted accused except Musbtaq who was arrested on 18-12-1978. On 25-12-1978 Ashraf appellant led him to the recovery of blood-stained hatchet (P.
3) from his house which was sealed into a parcel and was secured vide Memo. Exit. P. Q. Imtiaz appellant then led him to the recovery of blood-stained hatchet (P. 4) which was also scaled into a parcel and was taken into possession vide Memo. Exh. P. R. Sarfraz alias Sarwar appellant also led him to the recovery of his blood-stained hatchet (P. 5) from his house which was sealed into a parcel and was taken into possession vide Memo. Exh. P. S. These recoveries were witnessed by Muhammad Inayat P. W. And Muhammad Nawaz (not examined). After completion of investigation he challaned the appellants and the acquitted accused for trial in Court.
4. Dr. Muhammad Sadiq P. W., Medical Officer, Incharge Civil Hospital, Hafizabad, medically examined Muhammad Arshad, aged 20 years, on 15-12-1978 at 7-15 p.m. And found 28 injuries on his body detail of which is given from pages 8 to 10 of the printed record. The condition of Arshad was serious. Eight of the injuries on his person were grievous in nature, four were kept under observation for which X-ray was advised and rest of the injuries were declared simple. Injuries Nos.
1, 7 to 10, 12, 21, 23, 24 and 26 were caused by sharp-edged weapon and the rest by blunt weapon.
The injured was admitted in the hospital at 7-p.m and died on the same day at 11-30 p.m.
5. On the same day the same doctor medically examined Khalid Mahmood P.W., aged 12 years, and found four injuries on his person which were simple in nature- caused with blunt weapon within probable duration of few hours. Injury No, 1 was a contusion 6 c.m. x 2 c.m. On back of right chest, injury No, 2 was a faint contusion 5 c.m, x c.m. On top left shoulder, injury No, 3 was a faint contusion 6 c.m. x 3 c.m. On left calf distal 4, and injury No, 4 was multiple abrasions on lips and front of neck.
The injured was admitted in the hospital and was discharged on 24-12-1978. The doctor proved has ruqqa addressed to the police.
6. The same doctor on 16-12-1978 at 9-a.m. Conducted postmortem examination on the dead body of Muhammad Arshad, aged 20 years, son of Mansha and he found the following 28 injuries on the dead body :-
(1) An incised wound 5 c.m. x 3 c.m. Scalp deep left part of head, c.m. Away from mid-line and 13 c.m. Back of forehead of ,hair line.
(2) Contusion 5 c.m. x c.m. On right part, forehead hair 1 c.m. Above right eye-brow outer 1/3.
(3) Abraded contusion 6 c.m. x 4 c.m. On left part of face near nose.
(4) Oblique contusion 9 c.m. x 3 c.m. On outer part left arm upper 114.
(5) Oblique contusion 8 c.m. x 2 c.m. On outer part mid third right arm.
(6) Oblique contusion 14 c.m. x 3 c.m, on left side of chest lower part.
(7) Superficial incised skin deep wound 7 c.m. x c.m. On front arm distal 1/3
(8) Incised wound 3+ C,111. Xi Can. Elbow muscle deep on front of right.
(9) Superficial incised skin deep wound 6 c.m.x 4 c.m. On front right forearm upper 1/3.
(10) An incised wound 3 c.m. x 24 c.m. With chip fracture right ulna back upper hand.
(11) Contusion 16 c.m. x 4 c.m. On back right forearm distal half.
(12) An incised wound 11 c.m. x 1/4 c.m. With fracture middle finger metacarpal bone on back palm right.
(13) Contusion 10 c.m. x 4 c.m. On left scapular region back chest.
(14) Contused wound 1 c.m.x 4 c.m. Bone deep on tuberosity right tiliar.
(15) Contused wound 6 c.m. x 5 c.m. Right leg mid third.
(16) Contused wound 4 c.m.x 2 c.m. Right leg distal 1/3, c.m. Below
(17) Contusion 5 c.m. x 4 c.m. On right
(18) Contused wound c.m.x* c.m. Front left leg distal *.
(19) Contused wound 41 c.m.x 1 c.m. Leg mid third, 9 c.m. Above injury
(20) Contused wound 2 c.m.x If c.m. Left leg.
(21) Incised wound 2 c.m. x4 c.m. Upper 1/3.
(22) Oblique contusion 13 c.m.x 5 c.m. Third.
(23) Amputation with sharp-edged weapon of 3 left fingers except little finger at level of proximal 1/3 of proximal phalanges.
(24) An incised wound 11 c.m. x c.m. Bone deep cutting the tendons on back first phalange left little finger in line with injury No, 23.
(25) Contusion 11 c.m. x 4 c.m. On back palm, back wrist and distal left forearm back.
(26) Transverse incised wound 11 c.m. x 3 c.m. Cutting through and through both bones and muscles of back left forearm distal 1/3.
(27) Contusion 9 c.m.x 5 c.m. On back left forearm upper 1/3 of the elbow.
(28) An abrasion 3 c.m.Xf c.m. Back left arm distal .
' In the opinion of doctor death had been caused due to injury No, 6 resulting in shock and severe haemorrhage. Additional effect was caused by injury Nos. 15, 16, 18, 19, 23 and 26. Injury No, 6 was sufficient to cause death in the ordinary course of nature. All injuries were ante-mortem. Injury No, 6 was reported dangerous to life and injury Nos.
12.
15, 16, 18, 19, 24 and 26 were grievous in nature and rest were declared simple.
7. The appellants and their co-accused pleaded not guilty to the charge. The appellants denied the allegations and recoveries of bloodstained hatchets at their instance. According to the appellants it was uncles of the deceased Muhammad Uzair P.W. And Inayat (given up) who got Arshad killed and falsely involved the appellants because Inayat (given up) had refused to marry his daughter to the deceased when the deceased threatened to abduct her. The appellants did not lead any evidence in their defence.
8. The trial Court found that all the three eye-witnesses Uzair Ahmad (P. W. 6), Khalid Mahmood (P.
W. 7) and Manzoor Ahmad (P. W. 9) were closely related with the deceased and were inimical towards the appellants but found that the medical evidence supported it and their testimony was corroborated by the motive which had been established and by the recoveries of blood-stained hatchets from the appellants which had been proved by independent evidence. Four of the co- accused of the appellants were acquitted because the ocular evidence was not corroborated qua them.
9. It has been argued before us by learned counsel for the appellants that the ocular evidence comprised interested witnesses and could not be relied upon without independent corroboration which was not forthcoming in the case as their testimony had not been believed by the trial Court qua the acquitted accused, that motive was a double edged-weapon, that the recoveries of weapons of offence had not been proved and the F.I.R. Was belated. It has also been argued that the defence version was totally ignored by the trial Court.
10. It is not in dispute that Uzair Ahmad complainant P.W. Was uncle of the deceased. Khalid Mahmood was real brother of the deceased and the third eye-witness Manzoor Ahmad was maternal uncle of the deceased. The relationship has not been denied but that alone is no ground to discard testimony of an eye-witness who has otherwise truth-fully deposed about the occurrence. It is also in evidence that criminal litigation including proceedings under section 107/151, Cr. P. C. Was pending between the parties. It was for these reasons that the learned trial Judge looked for independent corroboration. The medical evidence disclosed that Khalid Mahmood P.W. Also suffered injuries simultaneously. He is a boy of 12 years whose presence at the spot cannot be doubted. He truthfully deposed about the occurrence. The testimony of the three eye-witnesses is uniform, consistent and confidence inspiring. Learned counsel for the appellants has not been able to point out any material discrepancy in their testimony. The medical evidence in this case bears out that the deceased died on account of violence having suffered as many as 28 injuries, eight of which were declared grievous. The time and place of occurrence are not disputed. We find that the trial Court rightly believed the ocular evidence and the medical evidence supports it.
11. The trial Court took abundant caution to look for corroboration. After arrest the appellants led to the recovery of blood-stained hatchets and the positive results of Chemical Examiner as well as the Serologist connect them with the offence. It has been argued that weapons of offence were given to Hidayat Ullah P.W., on 4-1-1979 for delivery to the Chemical Examiner but he delivered it to the Chemical Examiner on 6-1-1979 and during the intervening period the 'parcels of hatchets were not kept in safe custody. It is in evidence that the Chemical Examiner found the seals of parcels intact. The failure of Hidayat Ullah P.W. To deliver these in time was explained with which we are satisfied. Mere fact that redeposit of the parcels on 4-1-1979 and 5-1-1979 was not mentioned in his statement does not create any doubt that the parcels were tampered with. The objection that the weapons were recovered after seven days and were sent to the Che'ffiical Examiner after 13 days and that the blood must have disintegrated has no force. The Chemical Examiner did find that the hatchets were stained with blood and the Serologist confirmed that report vide Exhs. P. V/1 and P: WO, respectively. The delay in recovery and despatch of the weapons in the circumstances of the case does not create any doubt in the evidence led by the prosecution. W c find that the recoveries were proved by independent witnesses who had no motive or ill-will against the appellants.
Muhammad Inayat (P.W. 11) who proved the recoveries from the appellants was not related to the deceased and was not inimical towards the appellants. The Investigating Officer, Tahir Mahmood P.W., independently investigated the case giving benefit to four co-accused of the appellants and fully explained the delay in recovery of weapons. We are satisfied that the recoveries of blood stained hatchets from the appellants were proved by the prosecution and D connected the appellants with the offence which corroborated the ocular evidence in the case.
12. The occurrence took place before sunset time on 15-12-1978 near bridge of a saim nala in the area of Mauza Shori Chattha. The deceased in injured condition and injured P.W. Khalid Mahmood had to be brought straight to the hospital for medical aid after covering 5 miles from the spot by trolly. The deceased in injured condition was admitted in the Civil hospital, Hafizabad at 7 p.m. On a ruqqa received from the doctor Noor Hussain P.W. Went to the hospital where he recorded statement of Uzair Ahmad P.W. At 3-30 p.m. On which formal F.I.R. Was registered at 9-45 p.m. The same day. Therefore, we find that the F.I.R. Was promptly lodged in the circumstances of the present case.
13. The motive alleged by the prosecution was proved and further corroborated the ocular evidence. The appellants did not even dispute it. The defence version is not plausible. It was rightly rejected by the trial Court.
14. On the evidence on record we find that the trial Court was right in convicting the appellants and we maintain their convictions.
15. According to the medical evidence Muhammad Arshad died as a result of injury No, 6 which was sufficient to cause death in the ordinary course of nature. This was described as an oblique contusion on the left side of chest lower part. This injury was specifically attributed to Sarfraz alias Sarwar appellant. Therefore, we do not find any mitigating circumstance in his case and we maintain the sentences awarded to him by the trial Court. The case of Imtiaz and Ashraf appellants is distinguishable. They are alleged to have caused injuries generally including injuries on fingers and left and right arm of the deceased. Both these appellants are not alleged to have specifically hit any vital part of the body of the deceased. In the circumstances of the present case we are of the view that lesser sentence of imprisonment for life to each of them will serve the end of justice.
16. For the foregoing reasons we maintain convictions of Imtiaz and Ashraf appellants but reduce their sentences to imprisonment for life and uphold other sentences awarded to them by the trial Court. The death sentences imposed on them are not confirmed. Their appeal is otherwise dismissed. The appeal of Sarfraz alias Sarwar is dismissed in toto.
' The death sentence of Sarfraz alias Sa-war appellant is confirmed.