SARDAR MUHAMMAD, J.-Appellant Sikander (32), armed with a dang with iron shod, Jamal (53), armed with a sota and Amir (40), armed with a sota, accompanied by eight acquitted accused (seven of them armed with sotas and one armed with a Kulhari had attacked Sardar Ali deceased, on 1st May, 1977 at peshiwela, near his cattleshed, close to the house of Fazil, P. W. Sikander appellant had given a dang blow on the upper side of head of Sardar Ali, as a result of which Sardar Ali had fallen down. Sota blow given by Amir had injured middle finger of his right hand.
Jamal had given a sota blow on the right side of upper arm. The blow of acquitted accused Aswar had injured the little finger of left hand while the blow given by Sajwar, acquitted accused, had fallen on the left shank of Sardar Ali. When Gohar Ali, Muhammad Ali, Fazil, brothers of Sardar Ali, Mst. Nur Bakhsh, daughter of Muhammad Ali P. W. And Shahbaz, sister's son of Sardar Ali, intervened to save Sardar Ali, they were also attacked and caused injuries.
2. According to the medical examination conducted by Dr. Muhammad fifzal (P. W. 1), Sardar Ali was found to have suffered a contused wound, scalp deep, on the right side of head, a contusion on the upper arm, four abrasions, on right elbow, left leg, left middle finger and left little finger. The head injury was declared dangerous to life.
Same doctor had medically examined the injured P. Ws. Muhammad Ali P. W. Was found to have suffered three injuries, Shahbaz P. W., one injury. Gohar Ali P. W., three, Mst. Nur Bakhsh P. W., one and Fazil P. W. Three injuries. Injury on the back of lower chest of Muhammad Ali P. W. Was declared grievous after X-ray examination, while all other injuries on other P. Ws. Were declared simple.
Sardar Ali, who was admitted in Civil Hospital, Pakpattan, died on the same day. Autopsy on his dead body was performed by the same doctor. He noted same injuries which he had found at the time of medical examination. Right temporal and parietal bones were found fractured under injury No, 1 and fractured bones were depressed. Membranes and brain were injured. The doctor opined that death was the result of compressed fracture of skull and injury to the brain.
3. According to the F. I. R., Sikander, Jamal, Amir, Aswar, Yara and Sajwar had attacked Sardar Ali deceased and when P. Ws. Had intervened to save Sardar Ali, Yara, Mamma, Khan, Nur Ahmad, Qasim Ali and Ahmad Yar had also joined them and caused injuries to different P. Ws. The occurrence in addition to the injured P. Ws. Was also witnessed by Nura son of Wallia and Sultan, who had reached the spot on hearing noise.
The motive for the occurrence was that Nura son of Wallia had intended to give his sister Mst.
Ghulam Fatima in marriage to Gohar Ali P. W. And had demanded in watta hand of Mu. Ghulam Fatima, sister of the deceased, for his son Yousaf. Sharie nikah of Mst. Ghulam Fatima, sister of Nura, had earlier been performed with Sikander. She was owner of 231 Acres of land. Sikander etc., had felt aggrieved that Sardar Ali deceased will not only get the hand of Mst. Ghulam Fatima for his brother, but will also avail the benefits of the land owned by her. Two/ three days prior to the occurrence, Sikander etc., had threatened Sardar Ali that they will teach him a lesson, for having gone in, for this relationship.
4. The occurrence was reported by Fazil (P. W. 6) on the same day at 8 p. m. F. I. R. (Exh. P. Y.), on his statement, was recorded by Maqbul Ahmed, S. I./S.H.O., Police Station Qabula. Fazil had stated in Exh. P. Y. That Amir, Jamal and Qasim Ali had also received injuries at the hands of Muhammad Ali and Gohar Ali P. Ws. During the occurrence. Dr. Muhammad Hussain, who had medically examined them, had noted one lacerated wound on the person of Jamal, a lacerated wound on the person of Amir and a lacerated wound on Qasim Ali. All the injuries were declared simple.
5. After trial the learned Additional Sessions Judge, Sahiwal, vide order, dated 5th March, 1981 convicted Sikander, Jamal and Amir under section 302/34, P. P. C. For having murdered Sardar Ali and under section 307/34, P. P. C. For having launched murderous assault on P. Ws. All other accused were acquitted. Under section 302/34, P. P. C., Sikander has been awarded sentence of death and has been fined Rs, 5,000 in default to undergo R. I. For one year. The other two appellants have been sentenced to imprisonment for life and a fine of Rs, 2,000 each, in default of payment of fine to suffer six months' R. I. Each. Under section 307/34, P. P. C. All the three appellants have been sentenced to undefgo two years' R.
1. And fine of Rs, 500 each, in default to undergo three-months' R. I. Half of the fine, on realization, has been directed to be paid as compensation to the heirs of Sardar Ali deceased.
The learned Additional Sessions Judge has sent up the case for confirmation of death sentence of Sikander appellant and the convicts have filed appeal against their conviction and sentences. As both the matters arise from the same judgment, they are being disposed of by one judgment.
6. Out of the seven cited eye-witnesses, the prosecution had examined four. The other three, I. e.
Mst. Nur Bakhsh, daughter of Muhammad Ali P. W., Nura son of Wallia and Sultan were given up as unnecessary.
Fazil (P. W. 6), complainant, Muhammad Ali (P. W. 7), Gohar All (P. W. 9), who are real brothers of Sardar Ali deceased, and Shahbaz, sister's son of the deceased, have deposed the eye-witness account. They have stated that the appellants alongwith their acquitted accused had attacked Sardar Ali deceased and in the same occurrence they (P. Ws.) had also received injuries alongwith Mst. Nur Bakhsh. All the witnesses are unanimous regarding Sikander having caused an injury on the head of the deceased with iron shod dang and of Amir having given a sota blow on the left hand of the deceased. Against Jamal, Fazil P. W. Has stated that he had caused an injury on the right shank of the deceased. Muhammad Ali P. W. Has stated that the blow given by Jamal had injured right upper arm of deceased while the other two eye-witnesses have stated that Jamal had caused an injury on the right shoulder.
Fazil P. W. Has also stated that Nura P. W. (given up) had intended to give the hand of his sister Mst.
Ghulam Fatima (whose nikah earlier had been performed with Sikander accused, but rukhsati had not taken place) to Gohar Ali P. W., in exchange of his son Yousaf's marriage with deceased's sister, and that on this account the accused party nursed a grudge against them. He has further stated that three days prior to the occurrence, Sikander appellant had threatened Sardar Ali that he would teach a lesson, for trying to get the hand of Mst. Ghulam Fatima for his brother Gohar Ali. The deposition of this witness regarding motive has been corroborated by Muhammad Ali (P. W. 7).
These witnesses have also given other details of the occurrence qua the other accused named in the F. I. R.
Fazil P. W. Had denied file suggestion that they had attacked Jamal appellant, had caused injuries, and that it was thereafter that they were injured by Amir and Qasim in self-defence. P. W. 8 had denied the suggestion that they had launched an attack on Jamal, Qasim and Amir, who in self- defence had caused injuries to them. Somewhat similar suggestion put to Gohar Ali was denied by him.
7. Prosecution have also led evidence of recoveries from and at the instance of the appellants.
Sadiq (P. W. 4) has stated that after arrest of Amir appellant, on 3rd May, 1977 blood-stained kar ta (P. I) and bloodstained chadar (P. 2) were removed from his person and taken into possession, ne a 11$9- stated that on the same day Muir had led to the recovery of dang. This witness has also stated that at the time of arres of Jamal on the same day, blood-stained kurta (P. 7) and blood- stainee safa (P. 8) were removed from his person and that he had led to the recovery of sota (P. 9) on the same day.
Muhammad Isa (P. W. 5) has stated about Sikander having led to the recovery of blood-stained dang (P. 12) on 8th May, 1977 after his arrest on the same day. The statements of Sadiq (P. W. 4) and Isa (P. W. 5) are corroborated by Maqbui Ahmed, (P. W. 11). Apart from thie Amir and Jamel both have admitted, that their blood-stained clothes had been removed by the Police at the time of their arrest.
Positive reports Exh. P. W. 1/1 of the Chemical Examiner and Exh. P. W. 1/2 of the Serologist regarding blood-stained articles having been stained with human blood have also been produced in defence.
8. Sikander appellant in his statement under section 342, Cr. P. C. Has denied the charges and has stated that he has been implicated in the case due to enmity. Jamal appellant has denied the prosecution allegations and I n answer to the question 'why this case against you has put forth his own plea, which is as follows :- "On the day of occurrence at the relevant time, the cattle of Sardar Ali deceased trespassed and damaged my crops, I rounded up the cattle, whereupon the deceased and Muhammad Ali, Shahbaz, Gauhar Ali and Fazil P. Ws. Tried to snatch away the cattle from me. I resisted and thereupon Sardar Ali, Muhammad Ali, Shahbaz, Gauhar Ali and Fazil P. Ws. Injured me. Amir and Qasim accused came there in order to rescue me, but the deceased and the aforesaid P. Ws.
Attacked them and injured them. I, Qasim and Amir accused in order to save our lives and in exercise of our right of self-defence of person and property caused injuries to Sardar Ali deceased, Muhammad Ali, Shahbaz, Gauhar Ali and Fazil P. Ws. Mst. Noor Bakhsh (given up P. W.) also sustained injuries during this occurrence. My other co-accused namely ; Sikander, Ahmed Yar, Allah Yar, Mamma, Khan, Sajwar, Aswar and Noor Ahmad were not present at the time of occurrence and they have been falsely implicated."
Appellant Amir while refuting the prosecution case has adopted the statement of his co-accused Jamal appellant. Both Amir and Jamal have admitted that they were injured during the occurrence by the P. Ws. And have accepted that blood-stained clothes were removed from their persons.
None of the appellants has led any defence evidence.
9. The presence of the P. Ws. And of their having received injuries during the occurrence has not been denied. The contention of the learned counsel for the appellants that the witnesses were interested being closely related and inimical, so their testimony cannot be relied upon, has no weight, for the reason that no instance of enmity between the P. Ws. And the appellants has either been brought on record or even suggested. Learned counsel have tried to derive strength from the fact of Qasim co-accused being a step-brother of one Nur Hasan, who had been convicted for the murder of Admir, a brother of the complainant and from the fact that one of' the P. Ws. Had admitted that they had enmity with Adil since childhood, who was husband of paternal-aunt of Qasim and he had got the case registered under section 307, P. P. C. Against Sultan, P. W. For attempt to murder of his son Khan.
Qasim, of whose relative's differences with the complainant-party have been brought to light, has been acquitted by the trial Court. No attempt has obviously been made by the complainant or the P. Ws. To enhance the role played by Qasim because of alleged enmity by assigning principal role, the other thing is that relationship of the appellants with Qasim has not been brought on record, although one of the witnesses had stated that the accused are related inter se but no specific relationship has been established to hold that the complainants would have falsely involved the appellants, for, their being relative of Qasim.
The complainant have neither involved Adil nor his son in this case in spite of the fact that a easel, already stood registered at the stance of Adil against one of the P. Ws. Named by the complainant in the F. I. R.
No direct enmity of P. Ws. Against appellants has been established, as such they cannot be dubbed as inimical P. Ws.
The mere fact of the P. Ws. Being related to the deceased is no ground to discard their evidence, particularly when their presence has not been denied.
10. The argument that no independent witness has been produced also does not find any support from the record as nothing has been brought on record to show that persons other than named in the F. I. R. Had seen the occurrence. No doubt, about one Karim, Fazil P. W. Has stated that he had seen the occurrence, but in the same sequence he has stated that he did not know whether he had witnessed the occurrence or not and that he was sure that he had not seen Karim at the time of occurrence. The occurrence had taken place in the outskirts of village Abadi and so no adverse inference of non-production of independent P. Ws. Can be drawn against the prosecution.
11. Learned counsel for the appellants contended that prosecution has not been able to establish motive for the occurrence. According to him Mst. Ghulam Fatima's intended marriage with Gohar Ali could not have been considered as her Sharie Nikah with Sikander appellant subsisted even at the time of occurrence and that Gohar, who was already married, had also not obtained permission for second marriage. The other argument putforth by him was that the prosecution has not led best evidence to prove motive by withholding Mst. Ghulam Fatima, her brother P. Ws. Nura and by not examining Gohar Ali P. W. About his proposed second marriage. He laid much stress on the fact that the trial Court has discarded the evidence of motive.
We do not feel carried by these contentions for the reason that the prosecution case is not, that marriage had taken place or any date for marriage had been fixed. All what has been stated is that this was intended by the parties. They had just made known their desires. They would have taken further steps for dissolution of Nikah of Mst. Ghulam Fatima and sought permission from the relevant authority for second marriage of Qohar Ali, after having finally decided to go in for watta marriages.
Motive for the occurrence has been stated by Fazil complainant and corroborated by Muhammad Ali (P. W. 7). Both are real brothers of Gohar All P. W. And the deceased. If anybody else had been examined on that count, it would not have advanced the prosecution case in any extra manner. In fact by producing Gohar Ali the prosecution had provided an opportunity to the accused to ask him whether story narrated regarding his proposed second marriage was correct or not, but no question was asked. Above all, if this story was not correct, there should have been no difficulty for appellant Sikander to have produced Mst. Ghulam Fatima to contradict the prosecution case.
We have examined the reasonings advanced by the learned trial Court for holding that the prosecution has failed to prove motive, we do not feel convinced that the trial Court has drawn correct conclusion. In the circumstances, we have no doubt that the prosecution has sufficiently proved motive for the occurrence.
12. Appellants Jamal and Amir have admitted that blood-stained clothes were removed from their persons at the time of their arrest. In fact they have not denied their participation in the occurrence and have putforth their own version. Their presence stands established from the statements of the eye-witnesses also. In these circumstances, the contention of the learned counsel for the appellants that there was some discrepancy regarding the injury having been inflicted by appellant Jamal to the deceased, is of no consequence. Even otherwise the discrepancy regarding infliction of injury by Jamal is not material, for the reason that two of the witnesses had clearly stated that the injury was caused by Jamal on the right upper arm of the deceased, which is corroborated by medical evidence. Although the other two witnesses have stated the location somewhat differently, but it is not unimaginable that in an occurrence where the P. Ws. Themselves are injured and their brother is murdered, some slight discrepancy can arise. So, also we do not find any weight in the argument of the learned counsel for the appellants that allegation of appellant Amir having caused injury No, 5 does not stand proved in view of the doctor's statement in cross-examination, that injuries Nos. 5 and 6 would be the result of one blow, for the reasons that the possibility of the two injuries being result of two blows has not been excluded by the doctor and the eye-witnesses have positively stated that the blow given by Amir had struck the deceased on the middle finger of the right hand, stands cor.)borated by the fact of the deceased having been found to have suffered injury on the middle finger.
13. Nothing particular has been brought out against Isa (P. W. 5), who had deposed regarding recovery of blood-stained dang (P. 12) from appellant Sikander. He is brother of given up P. W.
Sultan, but no relationship of Sultan with the complainant-party has been brought on record. He has categorically stated that Jamal had not appeared as P. W. Against him in case under section 307, P.P.C. Registered at the stance of Adil. As observed above, relationship of Adil with the appellants has not been established. In this view of the matter, there is nothing on record to discard his evidence. His statement, also is corroborated by Maqbul Ahmad S.-I. (P. W. 11). Recovery of blood-stained dang (P. 12) thus stands proved.
14. For the reasons enumerated above, we have no doubt regarding the participation of the appellants in the occurrence. Having concluded that the appellants had participated in the occurrence, we have examined the defence version putforth by appellants Jamal and Amir. All. The P. Ws. As noted above, had denied the suggestions that they were the aggressors or that the accused party had acted in self-defence. The denial of the suggestion by P. Ws. That on an earlier occasion their cattle had been impounded by the accused party has also not been disproved by producing any evidence that the cattle were impounded. The only relevant piece of evidence, which learned counsel for the appellants was able to point out, was the fact of admission of the land of Jamal appellant being near the place where the deceased used to tether his cattle. It is from this fact that he tried to build an argument that the cattle had trespassed in the fields and when they were being taken to the pound, the complainant party had attacked them, whereof the occurrence took place and the accused party in self-defence caused injuries to the deceased and P. Ws.
Nothing has been brought on record regarding any crop having been damaged. In fact, none of the eye-witnesses was asked about the existence of any crop in the fields of Jamal during the days of occurrence. The question put to the Investigating Officer about the fact of sugarcane crop, grown in the fields of Jamal was denied by him. The minimum that appellants could easily have done was to produce at least khasra girdawari to show that some crop was standing, but no such thing has been done. The plea of the accused in this regard, apart from not having been proved by producing evidence, does not find any support from any piece of prosecution evidence. In this occurrence, five persons on the side of the complainant were injured. One of them died. In all the prosecution side suffered 17 injuries. On the side of the appellants, three persons received in all four simple injuries. Had the complainant party been aggressor, they would not have suffered such a large number of injuries, in turn for having caused four simple injuries only. The complainant-party, even in the F. I. R., had explained injuries, to the accused.
15. In the circumstances enumerated above, we do not find any weight in the version putforth by the appellants. No doubt is left in our mind that the prosecution has been able to prove the case under section 302/34, P.P.C. Against the appellants beyond any reasonable shadow of doubt. Their conviction under section 302/34, P.P.C. Is, therefore, maintained.
16. We have considered the last contention of the learned counsel for the appellants that in the case of Sikander appellant extreme penalty of death is not called for and that there are mitigating circumstances which call for lesser sentence of imprisonment for life.
17. No doubt igniting cause for commission of murder is made out from the evidence of motive, but it also spells out a case o acting under impulse of family honour. The granted situation is that the complainant-party, in agreement with brother of Mst. Ghulam Fatima who was in the nikah of Sikandar, had reached a settlement that she will be married to Gohar Ali P. W. In spite of the fact that by that time neither appellant Sikander had been approached for divorce nor any suit for dissolution of Nikah had been filed. This would have naturally injured the feelings of Sikandar and he must have been under the stress of feelings, of having been grossly insulted. It was with this state of mind that he had participated in the occurrence and had given one injury to the deceased.
There is no evidence of his having given any other injury to the deceased or any injury to any of the P. Ws. There is no allegation of his having even attempted to cause injury after the first blow given by him to the deceased to any person of the complainant side. In this view of the matter, we feel that lesser panalty of imprisonment for life will meet the ends of justice. The sentence of death awarded to Sikander appellant is, therefore, altered to imprisonment for life. The sentence of imprisonment for life to Jamal and Amir appellants under section 302/34, P.P.C. And the sentenece of fine of all the three appellants under section 302/34, P.P.C. Is maintained. Half of the fine, on recovery, shall be paid to the heirs of the deceased as compensation.
18. Before proceeding further we would like to record, a note, that arguments in this case had concluded on 14th November, 1983, and we had verbally announced the order in open Court maintaining the convictions of the appellants, both under sections 302/34, P.P.C. And 307/34, P.P.C.
The sentences of the appellants, except the sentence of Sikandar appellant to death under section 302/34, P.P.C. Which was altered to imprisonment for life, were also maintained. The order of the trial Court regarding payment of fine was modified to the extent that half of the fine imposed under section 302/34, P.P.C. Was directed to be paid as compensation to the heirs of the deceased while the fine imposed under section 307/34, P.P.C. Was directed to be paid as compensation to the injured P.Ws. In actual shares. However, the order was neither reduced in writing by short order nor by a proper judgment signed by the Bench. At the time of writing judgment one of us (Sardar Muhammad, J.) felt the necessity of re-hearing learned counsel for the parties for revocation are the conviction of the appellants under section 302/34, P.P.C. After consultation the case was directed to be relisted for hearing for 20th November, 1983, with notice to the learned counsel for the parties.
19. When the case came up for re-hearing we asked learned counsel for both sides whether they had any objection to the re-hearing of the case after verbal announcement of the order. Nobody objected.
We would like to observe here that there are precedents where the judgments orally announced but not signed were subsequently altered H after re-hearing of the parties. Reference may be made to Rukunuddin etc. v. Hafeezuddin The point which needed clarification was whether the conviction of the appellants could be maintained under section 307/34, P.P.C. In view f the fact that there was no allegation against the appellants, that my one of them, had caused, any injury to any of the P. Ws, articularly when co- accused alleged of having caused injuries have been quitted by the trial Court. In fact, in the F. I. R.
Specific allegation gainst some of the acquitted accused, of having caused, each of the partittlar injury, to each of the witnesses is recorded. The only improvement ade at the trial was that one of the witnesses after giving account regarding some of the injuries to the P.Ws. Of having been given by persons other than appellants, made a general allegation that "then the other accused also cause us injuries". All those persons who were alleged to have caused injuries to the P. Ws. In the F.I.
R. And about whom specific allegation of having caused injuries to the P. Ws. Were levelled at the trial, have been acquitted by the trial Court. When confronted with this situation, learned counsel for the State was not able to say anything. In fact, he showed his inability to defend the judgment of the trial Court qua conviction of the appellants under section 307/34, P.P.C.
We may add here that during two days of arguments at the earlier stage none of the counsel for the appellants had argued this point. Learned counsel for the State also missed to point out this fact.
There being no allegation against the appellants for having cause injuries to the P. Ws. Provisions of section 34. Cr. P. C. Cannot be pressed into service against the appellants for having common intention with the acquitted accused. In the circumstances enumerated above, the conviction and sentences of the appellants under section 307/34, P.P.C. Cannot be maintained. The same are set aside.
The appellants shall be given the benefits of the provisions of section 382-B, Cr. P. C. Appeal is partly accepted. Death sentence is not confirmed. PLD 1962 (W. P.) Lab. 161