' QURBAN SADIQ IKRAM, J.-- This is an appeal by Nazar Ali (40), Shah Muhammad (60), Muhammad Iqbal (35), Muhammad Ayub (22), Abdul Ghani (70) and Muhammad Shafi (25) against their convictions under sections 302/307/149 and 148, P.P.C. By the learned Additional Sessions Judge V, Sahiwal, vide judgment dated 28-1-1981. All of them were sentenced to two years' R.I. Under section 148, P.P.C., and to three years' R.I. Plus a fine of Rs,1,000 or in default three months' R.I. Each on three counts under section 307/149, P.P.C., Nazar All was sentenced to death under section 302/149, P.P.C.
While the remaining appellants were sentenced to imprisonment for life and a fine of Rs,2,000 or in default six months' R.I. Under section 302/149, P.P.C. All the sentences were ordered to run concurrently. It was further directed that, if recovered, half of the fine will be paid as compensation to the heirs of the deceased and to the injured witnesses. By the same judgment their co-accused Hakam Ali (55), and Liaqat Ali (26) were acquitted. Nazar Ali having been sentenced to death, the proceedings of the case were referred to this Court for confirmation of death sentence, which were registered as M.R. 41 of 1981. The complainant filed criminal revision against Hakam All and Liaqat Ali accused against their acquittal. All these matters will be disposed of by this judgment.
2. The prosecution case, according to the F.I.R. In brief, is that Ghulam Rasool complainant, a college student, was in his village during summer vacation. He used to help his father Muhammad Siddiq deceased and his brother Shah Rasool (P.W.10) iii agricultural pursuits. On 15-7-1979, complainant Ghulam Rasool (P.W.9) alongwith his brother Shah Rasool (P.W.10), his uncle Abdul Maleek (P.W.12) and his father Muhammad Siddiq deceased were present in Killa No,25 of their Square No,62. Hafiz Abdul Aziz (P.W.13) had come to ask for the tractor and Abdul Aziz Chahal (given up P.W.) had come to have some fodder from Muhammad Siddig. They were all sitting together and having talks with each other. Meanwhile, the cattle of Muhammad Shafi accused strayed into their field and started damaging Jawar crop standing therein. Ghulam Rasool P.W. Went to that side to take out the cattle but in the meantime Muhammad Shafi accused came there and told him not to do so as their cattle also use to damage their (accused) crops. This resulted in exchange of abuses between the two. At this, Muhammad Shafi accused told Ghulam Rasool P.W.
That earlier he had teased his relative Mst. Giri and that he would teach him a lesson today. After extending this threat, Muhammad Shafi accused went to his house. At about 9-00 a.m. On that very day, Shah Muhammad armed with Gundasi, Muhammad Ayub armed with Gundasi, Nazar armed with Gundasi, Abdul Ghani armed with hatchet, Muhammad lqbal, Hakam Ali, Liaqat All and Muhammad Shafi armed with sticks came to Killa No,25 shouting Lalkaras that they will not spare the complainant party. Shah Muhammad gave Gundasi blow on the head of Siddiq deceased, while Nazar gave another Gundasi blow on the back of head of Siddiq deceased, who fell down.
Thereafter, Muhammad Ayub accused gave Gundasi blow to Siddiq on his right arm. Abdul Maleek (P.W.12) went forward to rescue his brother Siddiq deceased but was given blows by Abdul Ghani, Muhammad Ayub, Liaqat All and Hakam All accused on his head and face. Ghulam Rasool P.W.
Also went to help his father but was given blows by Muhammad Shafi and Muhammad lqbal on his head and right arm. Hafiz Abdul Aziz and Abdul Aziz Chahal P.Ws. Also tried to help the injured but they could not come near them on account of the threats of the accused. The accused then ran away with their respective weapons.
' It is alleged in the F.I.R. That a few days before the occurrence Mst. Giri daughter of Shah Muhammad accused had come to get her wheat ground from the flour mill of Ghulam Rasooi P.W.
She asked him to do her job immediately. Ghulam Rasool replied that he would grind her wheat after finishing job in hand. A short while thereafter Muhammad Shafi came to the said flour mill of Muhammad Siddiq deceased. He found Mst. Giri present there and suspected that the complainant had cut joke with her. By that time, the wheat of Mst. Giri had already been ground.
She, therefore, left along with Muhammad Shafi. Ghulam Rasool, after this incident, informed his father Muhammad Siddiq deceased, who went to Shah Muhammad to explain the situation but did not succeed. This motivated the murder of Muhammad Siddiq.
' Muhammad Siddiq deceased, who was still alive, and the injured witnesses were taken to Civil Dispensary, Kamir, on a tractor-trolley. Muhammad Siddiq died shortly after reaching the hospital whereafter the complainant Ghulam Rasool went to lodge the report. On his way to the police station, he learnt about the presence of the police in Chak No,117/9-L. He went there and made statement Exh.P.K. On 15-7-1979 at 12-45 p.m. Before S.I. Abdul Razzaq (P.W.15), who sent the same for registration of the case. Formal F.I.R. Exh.PK/1 was recorded by Moharrir A.S.I. Muhammad Shafi (P.W.3) at 2-00 p.m. On the same day.
' The police undertook investigation. Excepting Nazar Ali, the remaining accused were arrested on 16-7-1979. Shah Muhammad accused produced Gundasi P/1 which was taken in possession vide memo Exh.P.Q., Muhammad Ayub produced Gundasi P/2 and the same was taken in possession vide memo. Exh.P.R., Abdul Ghani produced bloodstained hatchet P/3 and it was taken in possession vide memo. Exh.P.S., Liaqat Ali produced Dang P/4 which was taken in possession vide memo. Exh.P.T., Hakam Ali produced Dang P/5 and that was taken in possession vide memo.
Exh.P.U., Muhammad Iqbal accused produced Dang P/6 and the same was taken in possession vide memo. Exh.P.V., and Muhammad Shafi accused produced Dang P/7 and it was taken in possession vide memo. Exh. P.X. All these crime weapons were produced by the accused on 16-7- 1979. Recovery memos were prepared by S.I. Abdul Razzaq (P.W.15) and attested by Hafiz Abdul Aziz (P.W.13) and Abdul Aziz Chahal (given up P.W.). Nazar Ali accused was arrested on 24-7-1979 and he produced Gundasi P/8 which was taken in possession vide memo Exh.P.Y. By S.I. Abdul Razzaq in the presence of Hafiz Abdul Aziz and Abdul Aziz Chahai. P.Ws. All these weapons except hatchet P/3 were not stained with blood and not sent for examination to the Chemical Examiner.
3. On 15-7-1979 at about 12-30 p.m. Dr.Nazir Ahmad (P.W.1) medically examined Abdul Maleek P.W.
And found four injuries on his person. 1st was incised wound 2-3/4" x 1" x bone deep on the right side of head 4" from the right ear; 2nd was incised wound 1" x 1/8" x bone deep on the back of head; 3rd injury was a bruise on the right side of head near right ear; and the 4th was a swelling on the right side of face near right eye. Injuries Nos. 1 and 3 were dangerous/ grievous while the other two injuries were simple in nature. Injuries Nos. 1 and 2 were caused by sharp-edged weapon while injuries Nos. 3 and 4 were by blunt weapon.
' On the same day, at about 12-50 p.m. This witness medically examined Shah Rasool P.W. And found five blunt weapon simple injuries on his person. Injury No,1 was a lacerated wound 2k" x I" x bone deep with swelling in the middle and right side of the head. Other injuries were on the right arm and back of the right chest. Injury No,1 was dangerous to life, while the other injuries were simple in nature.
' On the same day at about 1-10 p.m., on medical examination by this witness, Ghulam Rasool P.W.
Was found to be having two simple blunt weapon injuries on his person. One was on the right side of head and the other on the back side of right forearm.
' Dr. Javed Mahmood Akhtar (P.W.2) conducted post-mortem examination on the dead body of Muhammad Siddiq and found the following injuries:-
(1) A crescent lacerated wound 11/2" x 1/2" x bone deep on the back of head 3" behind the left ear (on occipital bone).
(2) Lacerated wound 2" x 3/4" x bone deep on the top of 51/2" from left ear.
(3) Lacerated wound 1" x 1" x bone deep on the outer lower part of right upper arm.
' On dissection, he found haemotomas present under injuries Nos. 1 and 2. On removing the skull, he found the frontal and parietal suture of skull having opened up. He found left temporal and frontal bones fractured. He also found haemotoma present over the meninges. He also noticed a large number of blood which exuded out on opening of meninges over the brain matter. In his opinion, injuries Nos. 1 and 2 were individually fatal and sufficient to cause death in the ordinary course of nature.
' Dr.Muhammad Ashraf (P.W 11), Radiologist, after X-Ray of the injuries of Shah Rasool and Abdul Maleek declared them to be grievous, as already stated by Dr.Nazir Ahmad (P.W.1).
' Dr.Munir-ud-Din (D.W.I) on 17-7-1979 medically examined Muhammad Shafi accused and found seven simple blunt weapon injuries on the back of upper part of right elbow; right upper part of back chest; back of upper part of chest; back of abdomen; back lower chest and abdomen; right knee joint; and right ankle joint.
' After investigation of the case, the police found Hakam Ali and Liaqat Ali accused innocent and placed them in column No,2. The remaining accused were challaned to face the trial for the murder of Muhammad Siddiq and for causing injuries to the three eye-witnesses. All the eight accused including the two placed in column No,2 were jointly tried by the learned Additional Sessions Judge, Sahiwal.
4. During trial, the prosecution examined 15 witnesses in all. P.W.9 Ghulam Rasool, P.W.10 Shah Rasool, P.W.12 Abdul Maleek and P.W.13 Hafiz Abdul Aziz were examined as the eye-witnesses. Abdul Aziz Chahal, an eye-witness, was given up as unnecessary. Recoveries of crime weapons were witnessed by Abdul Aziz P.W.13 and Abdul Aziz Chahal (given up P.W.) as given in detail above. The medical evidence was provided by P.W.1 Dr. Nazir Ahmad, P.W.2 Dr.Javed Mehmood Akhtar, P.W.11 Dr. Muhammad Ashraf and D.W.1 Dr.Munir-ud-Din. S.I. Abdul Razzaq (P.W.15) investigated and challaned the accused. The evidence of rest of the witnesses was of formal nature.
5. After close of the prosecution evidence, the accused in their statements under section 342, Cr.P.C. Denied the charge. They all denied recoveries of crime weapons from them and denied their presence at the spot. However, Muhammad Shafi accused admitted his presence at the spot and pleaded self-defence. He made the following statement:- "I am innocent. On the day of occurrence Ghulam Rasool P.W., who is a man of bad character had outraged the modesty of Mst. Ghurri, daughter of Shah Muhammad accused in the morning when she was going for call of nature. Ghulam Rasool P.W. For the consummation of his criminal designs dragged her to his Dhari on the day of occurrence. I had my turn of water to irrigate my land. I and Hakam All son of Mehr Din were attracted at the shrieks of Mst. Ghurri while she was being dragged by Ghulam Rasool P.W. On my intervention Muhammad Siddique (deceased), Abdul Maleek and Shah Muhammad along with Ghulam Rasool P.W. Started beating me with Sotas. I along with Hakam All son of Mehr Din and some other persons of the village who were also attracted at the spot caused injuries to Muhammad Siddique deceased, Abdul Maleek, Shah Rasool and Ghulam Rasool P.Ws. We caused injuries to them in order to save my life and to save the honour of Mst.
Ghurri without any intention to kill anyone of them. The alleged co-accused Shah Muhammad, Muhammad Ayub, Muhammad lqbal, Abdul Ghani, Liaqat Ali, Nazar and Hakam All son of Imam Din were not present at the spot at the time of occurrence.
' He produced D.W.1 Dr.Munir-ud-Din in defence and also tendered in evidence certified copy Exh.D.2 of an order of the High Court dated 20-1-1980.
6. After conclusion of the trial, the learned Additional Sessions Judge acquitted Hakam An and Liaqat Ali accused while the remaining accused were convicted as given in detail above. He disbelieved the evidence regarding recovery of crime weapons. He placed reliance on the evidence of the eye-witnesSes and accepted their presence at the spot. He also accepted the evidence of motive against the accused and came to the conclusion that the prosecution has succeeded in establishing the charges against the convicted accused. They were accordingly sentenced as stated above.
7. We have gone through the record of this case with the assistance of the learned counsel for the appellants as well as the complainant and the State.
' It is contended by the learned counsel for the appellants that the prosecution story pertaining to the motive is false and that the story put forth by the defence is plausible and emerges out of the evidence on record; that even if there was some motive, it was only against Ghulam Rasool P.W.
And not against Muhammad Siddique deceased; that the eye-witnesses are closely related to the deceased and are not telling the truth because they suppressed the injuries on the person of Muhammad Shafi accused in the F.I.R; that, at any rate, there was no independent corroboration to the evidence of interested eye-witnesses; that all the adult and able-bodied male members of the family have been involved in this case; and that, in any situation, it was not a case of capital punishment.
8. Learned 'counsel for the State as also the complainant have controverted the arguments on behalf of the appellants.
9. In this case, we find that the prosecution case is based on the evidence of motive, ocular evidence, recoveries of crime weapons, and the medical evidence.
10. The learned trial Judge, as stated above, disbelieved the recovery of crime weapons from the accused.
' The prosecution witnesses namely, Ghulam Rasool and Shah Rasool are the sons of Muhammad Siddique deceased. Abdul Maleek P.W. Is a real brother of Muhammad Siddique deceased. A daughter of the elder brother of Abdul Aziz P.W.13 was the wife of Muhammad Siddique deceased.
' Iqbal and Ayub accused are the sons of Shah Muhammad accused. Nazar Ali and Liaqat Ali (acquitted accused) are the sons of Abdul Ghani accused. Hakam Ali acquitted accused is a brother of Abdul Ghani accused. A real sister of Muhammad Shafi accused is the wife of the first cousin of Shah Muhammad accused. Besides this, a real paternal aunt of Muhammad Shafi accused is the widow of paternal-uncle of Shah Muhammad accused.
In this case, the parties did not have any previous enmity before the present occurrence. The eye- witnesses though related inter se have no enmity whatsoever against the accused to falsely implicate them in the present case. Three of the eye-witnesses were injured during the occurrence.
One of the accused, namely, Muhammad Shafi, admitted in his statement under section 342, Cr.P.C. That Ghulam Rasool, Shah Rasool and Abdul Maleek P.Ws. Were present at the time of occurrence and were injured. The other accused though denied their presence and participation in the occurrence but still in view of the statement of Muhammad Shafi, it is established that these three witnesses were injured during the occurrence. The prosecution story regarding motive is divided in two parts: firstly, a day before the occurrence, Mst. Giri had gone to the flour mill of Muhammad Siddique deceased, which, at that time, was attended to by Ghulam Rasool P.W. In the meantime, Muhammad Shafi accused came there and suspected that Ghulam Rasool had cut some joke with Mst. Giri aforesaid. It was argued by the learned counsel for the appellants that this part of the motive was not believable, because, according to the statement of S.I. Abdul Razzaq (P.W.15) the motive set up by the prosecution was not proved during investigation and that no person by the name of Mst. Giri existed in the village. We are not prepared to accept this argument of the learned counsel, because it is even admitted by one of the accused that Mst. Giri was the daughter of Shah Muhammad accused. Even during arguments, learned counsel was not able to deny that she was not the daughter of Shah Muhammad accused. Thus, the statement of S.I. Abdul Razzaq is without any substance. The evidence on this part of the motive is fully supported by Ghulam Rasool P.W., according to whom, he deputed his father towards Shah Muhammad accused for clarification/removal of any misunderstanding that might have come in the mind of the accused.
' The second part of the motive pertains to the damage of crop by the cattle of Muhammad Shafi accused a short while before the present occurrence. It is contended by the learned counsel that there was no evidence of damage to the crop nor was any such damage noted by the Investigating Officer in the inspection note or the site plan prepared by Shaukat All Patwari (P.W.4).
We find no substance in this argument because the deceased and the witnesses were present in Killa No,25 of their land. The cattle which had strayed into Killa No,4, where the said crop was standing, was not far away and, as such, as stated by Ghulam Rasool P.W., he went to that side and brought out the cattle from the said field. Even if no damage to the crop was recorded in the inspection note or the site plan then also it would not mean that the crop was not damaged. It appears that there was negligible damage to the crop and the cattle were turned out of the field before any more damage by them. Secondly, the inspection note pertains only to the place of occurrence. It is, therefore, clear that the Investigating Officer omitted to mention the damage to the crop in field No,4 which was at the northern end of Square No,62 belonging to Muhammad Siddique deceased. This story is supported by Shah Rasool P.W., Abdul Maleek P.W. And Hafiz Abdul Aziz P.W. The defence version that Ghulam Rasool P.W. Tried to drag Mst. Giri in a nearby field in order to commit rape on her which attracted Muhammad Shafi accused and ultimately resulted in the present occurrence is not worthy of any credence. Firstly, Mst. Giri was not produced by the accused before the investigating officer. Secondly, she must have received some drag marks on her person but was not medically examined. Thirdly, the defence story is improbable because it was day time and the said place was near the main village and also because the deceased and the other eye-witnesses were sitting nearby in Killa No,25. Ghulam Rasool P.W. Could not have dared to drag Mst. Giri in the nearby field at that time of the day in the presence of his own father and other witnesses. We, therefore, find that the defence version on this point is not believable and that the prosecution has fully established the motive against the accused to commit the present crime.
' It is correct that the learned trial Court has disbelieved the evidence of recovery of crime weapons from the accused. We have gone through the relevant portion of the judgment of the trial Court.
The evidence of recoveries was disbelieved for the reason: firstly, because the persons other than Hafiz Abdul Aziz were not associated in the recovery of crime weapons from the accused; secondly, that the Chaukidar could be appropriate witness but he too was not cited; and thirdly, that the second recovery witness was given up during the trial. It was further held that all the weapons produced by the accused except hatchet P/3 were not stained with blood. The hatchet P/3 was not sent to the Chemical Examiner for examination. It was also held by the learned trial Judge that Hafiz Abdul Aziz was an interested-witness. We have considered these points and find ourselves unable to agree with these findings. Hafiz Abdul Aziz P.W., though related to the deceased, had no enmity with the accused. The learned trial Judge accepted his presence at the spot at the time of occurrence and placed reliance on his evidence as an eye-witness. As such, we are of the view that he was present with the Investigating Officer during investigation and, therefore, could witness the production of crime weapons by the accused before the Investigating Officer. The fact that other persons present at that time were not made to join the recovery proceedings is not enough to discard the evidence of Hafiz Abdul Aziz (P.W.13). The weapons were not sent to the Chemical Examiner and, as such, it could not be said that they were stained with human blood. In spite of this, these weapons could provide corroboration to the ocular account. These weapons are usually found with Zimandars in villages. The recoveries of these weapons have been supported by Hafiz Abdul Aziz P.W. And the Investigating Officer S.I. Abdul Razzaq. These recoveries, therefore, provide corroboration to the eye-witnesses.
The eye-witnesses were injured. Their presence, at the spot, during occurrence, was admitted by the learned counsel for the appellants in his arguments. The injuries on the person of these witnesses not only provide corroboration to their statements but also are proof of their presence at the spot at the time of occurrence. We, therefore, find that the prosecution case stands established by the evidence of four , eye-witnesses out of which three were injured during the occurrence.
' It was argued by the learned counsel for the appellants that the eye-witnesses should not be relied upon because: firstly, the injuries on the person of Shah Rasool P.W. Were not mentioned in the F.I.R.; secondly that the injuries on the person of Muhammad Shafi were suppressed by the complainant while recording the F.I.R.; and finally that the eye-witnesses have now during the trial made improvements in their statements by stating that the injuries by Gundasis and hatchet had been caused from the sharp side. It is correct that the detail of the injuries and the name of the accused who caused injuries to Shah Rasool is not mentioned in the F.I.R. But it is recorded therein that when he lodged the F.I.R. He produced the medico-legal certificates of all the injured including Shah Rasool P.W. It is also a fact that the injuries on the person of Muhammad Shafi are not mentioned in the F.I.R. We, however, find that Ghuiam Rasool P.W., who was only a student, might have been under shock on account of death of his father and dangerous to life injuries to other two witnesses. In such a state of mind, if he omitted to mention in detail the injuries to Shah Rasool P.W.
Or omitted to mention the injuries to Muhammad Shafi accused, it would not affect the merits of the case. In the F.I.R. He only mentioned that the accused caused injuries with Gundasis, hatchet and Dangs without specifying the side of the weapon used by the accused. However, during the trial, he specified by saying that these weapons were used from the blunt side. This statement could not be considered as material improvement in the facts and circumstances of the case and on account of the fact, as stated above, that Ghulam Rasool P.W. Was getting the F.I.R. Recorded under shock.
It was argued by the learned counsel that Ghulam Rasool P.W. Was the direct target of the accused party; that the alleged motive was also against Ghulam Rasool but in spite of that he was the last man to be injured during the occurrence. The precise argument, therefore, was that the story of motive set forth by the prosecution was not reliable. A perusal of the evidence would indicate that the accused did not draw any distinction at the time of launching of their attack on Muhammad Siddique deceased and other witnesses. They challenged and then opened the attack as a result of which one person died and three were injured. Although in the statements during the trial the eyewitnesses stated that Ghulam Rasool received injuries last of all but this sequence was only for recording of the evidence or the F.I.R. All the accused opened the attack simultaneously and caused injuries in the instant case. Thus it could not be said that on that score the prosecution evidence regarding motive was false and should not be relied upon.
' It was finally argued by the learned counsel that the common object of the appellants could not be inferred from the evidence on record, and that, in any case, it was a case of lesser punishment on account of the family honour of the accused. We have given our anxious consideration to this argument of the learned counsel. The cattle of Muhammad Shafi accused entered the field of Muhammad Siddiq deceased. They were taken out by Ghulam Rasool P.W. Which resulted in exchange of abuses between the two. It appears that Ghulam Rasool at that time caused injuries to Muhammad Shafi accused, who, thereafter, ran back to his house and came back alongwith his other co-accused. Thus, the accused had immediate motive to attack the complainant side. They all came armed with deadly weapons. They challenged and thereafter caused injuries to the deceased and the three eye-witnesses in Kills No,25 belonging to Muhammad Siddiq deceased. All the witnesses and the deceased were closely related to each other and simply because the accused had motive against Ghulam Rasool only it cannot be argued by the learned counsel for the appellants that the accused did not share any common object and were, therefore, liable for the injuries caused by them individually. As a result of the assault by the accused on the complainant party, Muhammad Siddique deceased received three injuries out of which two on the head were individually fatal. Maleek P.W. Received four injuries out of which two injuries were dangerous to life and Shah Rasool P.W., received five injuries out of which one was dangerous to life. All these facts lead to an irresistible conclusion that the accused came armed and attacked the complainant party in prosecution of their common object. We, however, find that so far as the question of family honour is concerned, there is some substance in the argument of the learned counsel for the appellants. Ghulam Rasool P.W. Was suspected to have cut joke with Mst. Giri, a day earlier. She was an unmarried daughter of Shah Muhammad appellant and sister-in-law of Nazar All appellant. This, therefore, provided sustained provocation to the accused to attack Ghulam Rasool P.W. And his relatives. In this view of the matter, we consider that there are mitigating circumstances for awarding lesser penalty to Nazar All appellant. We and while maintaining his conviction under section 302/149, P.P.C. We alter his sentence from death to imprisonment for life and a fine of Rs,5,000 or in default to undergo two years' R.I. His convictions ana sentences under sections 148, 307/149, P.P.C. Are, however, maintained. All the sentences shall run concurrently. The other appellants have been rightly convicted and properly sentenced and we see no reason to interfere with the order of the learned trial Court and in consequence dismiss their appeal.
11. For the reasons discussed above, the Criminal Revision No,63 of 1981 is dismissed in limine.
12. The death sentence of Nazar All appellant is not confirmed. 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.