' MUHAMMAD MUNIR KHAN, J.-- This Criminal Appeal No,431/82, Suo Motu Revision No,699/82 and Criminal Revision No,771/82 by the complainant for the enhancement of the sentences, arise from the judgment of learned Additional Sessions Judge, Jhang, whereby he on 7-8-1982 convicted Zafar aged 14 years, Ahmad alias Ahma aged 30 years, Murad aged 50 years, Sher aged 60 years, Muhammad Ramzan aged 14 years and Muhammad Nawaz aged 40 years, the appellants under various sections as under:-
(1) Zafar and Ahmad appellants under section 198, P.P.C. To two years' R.I. And a fine of Rs,1,000 in default thereof 6 months' R.I. And under section 302/149, P.P.C. For the murder of Muhammad Nawaz, Zafar and Ahmad to imprisonment for life and a fine of Rs,5,000 in default thereof 2 years'
R.I.
(2) Murad appellant under section 307, P.P.C. For murderous assault on Chiragh P.W.11, sentenced to 10 years' R.I. And a fine of Rs,5,000 in default thereof 2 years' R.I.
(3) Sher, Muhammad Ramzan and Muhammad Nawaz appellants under section 148, P.P.C., sentenced to two years' R.I. Each and a fine of Rs, 1,000 in default thereof 6 months' R.I. Each.
' It was directed that the fine when recovered half of it be paid to the heirs of the deceased.
2. The occurrence took place on 29-3-1981 at about 8.00 p.m. Near the 'Dhari' of Sher appellant within the area of village Rashidpur. The distance between place of occurrence and the Police Station 1-Hazari is 3 miles. The F.I.R. Exh.P.J. Was lodged by Muhammad Bakhsh P.W.9, brother of the deceased and was recorded at 9.30 p.m. On the same day by Tilla Muhammad, S.I., P.W.12. The parties are related inter se. One sister of Murad appellant is married to Ahmad appellant. The other sister of Murad appellant is married to Sher appellant. Muhammad Nawaz, Ramzan and Zafar are first cousin, nephew and son, respectively of Sher appellant. All the appellants are collaterals of the deceased. Murad appellant is his first cousin. The wives of Sher and Ahmad appellants are also his first cousin. Mst. Nemat, niece of Ghazi P.W. Is wife of Muhammad Bakhsh complainant, P.W.9. Sister of Sher appellant is wife of Ghazi P.W.10 Chiragh P.W.11 is the husband of the sister of Muhammad Bakhsh complainant. He is also nephew of Ghazi P.W.10. Daughter of the sister of Sher appellant is wedded to him. The other daughter of the sister of Sher appellant is wife of the brother of this witness. Allah Ditta P.W.8 is brother of Ghazi P.W.10.
3. The motive as alleged by the prosecution was that 6 months before the occurrence Muhammad Nawaz deceased had abducted Mst. Pathani w/o Ahmad appellant. She was subsequently returned through 'Panchayat', so Ahmad and his co-accused who are closely related to him, were annoyed with the deceased.
4. As far the main occurrence, it has been stated that on the eventful night, Muhammad Bakhsh P.W.9 alongwith Muhammad Nawaz deceased, Ghazi P.W.10 and Chiragh P.W.11 were going on bicycle to attend the marriage of the son of one Ch. Muhammad Afzal resident of village Rashidpur.
Muhammad Bakhsh was carrying torch with him. When they reached near the 'Dhari' of Sher appellant suddenly all the appellants came in front of them. Murad, Zafar and Ahmad had hatchets while Sher, Muhammad Nawaz and Ramzan were empty-handed. Sher appellant overpowered Nawaz deceased. Muhammad Nawaz and Ramzan caught hold of Chiragh P.W.11.
Zafar gave hatchet blows on the head of Nawaz deceased who fell down. Ahmad then gave hatchet blow on his neck. Thereafter, both Ahmad and Zafar repeated blows with their hatchets hitting him on leg, face, neck and chest. When Chiragh tried to free himself, Murad appellant gave hatchet blow on his right arm. Chiragh, however, succeeded in freeing himself and started running.
From behind Murad inflicted two hatchet blows on the back of his chest. Sher and Muhammad Nawaz appellant threatened the witesses not to come near. The appellants then decamped taking away weapons with them. Muhammad Nawaz succumbed to the injuries on the spot.
5. On 3-4-1981 Tills Muhammad S.I. , P .W 12 took into possession torch Exh. P.10 of Muhammad Bakhsh complainant and Cycle Exh.P.11 from the spot vide memo. Exh.P.L. Attested by Ghazi P.W.10 and Muhammad Nawaz not produced.
6. On 30-3-1981 at about 11.00 a.m. Dr. Muhammad Afzal conducted post-mortem examination on the dead body of Muhammad Nawaz and found the following injuries on his person.
(1) "An incised wound 10 x 2 c.m. x brain matter deep on the back of the head middle part.
(2) An incised wound 18 x 3.5 c.m. x bone deep from left ear to right eye crossing left cheek and neck.
(3) An incised wound 4.8 x 2 c.m. x bone deep on left cheek.
(4) An incised wound 8 x 3 c.m. x bone deep on left side of face up to right side of nose.
(5) An incised wound 8 x 2 c.m. In to bone deep on left side of neck upper part.
(6) An incised wound 8.3 c.m. x 2 c.m. x bone deep 1 c.m. Below injury No,5.
(7) An incised wound 6 x 3 c.m. x bone deep 1 c.m. Below injury No,6.
(8) An incised wound 5.5 x 2.5 c.m. x bone deep with trachea cut above thyroid cartilage and oesophagus cut on right side of neck.
' Injuries Nos. 5, 6, 7, 8, are all contineous subcontineously.
(9) An incised wound 6 x 0.8 c.m. In to skin deep on left and front of neck.
(10) An abrasion 2.5 x 0.3 c.m. On inner end of right clavide.
(11) An abrasion 11 x 0.2 c.m. On front of left chest upper part 5 c.m. Below left clavicle.
(12) Incised wound 1.5 x 0.2 c.m. In to skin deep on back of left index finger.
(13) An incised wound 2 x 0.2 c.m. x skin deep on back of middle phalynx of left middle finger.
(14) Incised wound 0.5 x 0.5 c.m. With nail pealed of on left ring finger."
' In his opinion, the cause of death was shock and haemorrhage and injury to brain resulting from injuries Nos. 1 and 2 individually and collectively. The rest of the injuries were simple. Injuries Nos. 10 and 11 were caused by blunt weapon. The others were caused by sharp-edged weapon. Injuries Nos. 1 and 2 were suficient to cause death in the ordinary course of nature. The death was immediate. The time between death and post-mortem was 15 hours.
' Dr. Mumtaz Ahmad P.W.6 examined Chiragh P.W.11 on 30-3-1981 at 7.55 a.m. And found following injuries on his person:
(1) "An incised wound 7 x .5 c.m. In to muscle deep on the left end, the wound has cut the muscle on the right and only skin is cut. It was situated on the back left chest middle part. The wearing clothes 1 Bunyan, 2 shirts were cut with the corresponding injury.
(2) An incised wound 10 c.m. x 4i c.m. Into muscle deep on the right fore-arm on back side. There is fracture of the radius bone of right fore-arm underneath the injury of fore-arm.
(3) A contusion mark 5 c.m. x 3 c.m. On the right shoulder".
' Injuries Nos. 1 and 2 were caused by sharp-edged weapon and injury No, 3 was caused by blunt weapon. Injury No, 2 was declared grievous. The rest were simple. The injuries were caused within 24 hours of the examination. In cross-examination, the doctor stated that he did not remember that the wound was cut through and through or some part was left, anyhow there was a clear cut fracture.
7. The appellants were arrested on 4-4-1981 by Tilla Muhammad S.I., P.W.12. On 4-4-1981 Zafar, Ahmad and Murad appellants led to the recoveries of blood-stained hatchets Exh.P.7, which were secured vide memoranda Exhs.P.F., P.G. And P.H., respectively attested by Allah Ditta P.W.8 and Ghulam Shabbir (not produced). The recoveries were effected by Tilla Muhammad, S.I., P.W.12.
8. In order to prove its case prosecution examined 12 witnesses. Muhammad Bakhsh P.W.9, Ghazi P.W.10 and Chiragh P.W.11 gave the ocular account of the occurrence. They supported the prosecution case as detailed in para. No, 4 of the judgment. Muhammd Bakhsh P.W.9 stated that on the day of occurrence, he accompanied by Ghazi, Chiragh P.W.5 and Muhammad Nawaz deceased were proceeding to village Rashidpur to attend the marriage of the son of Ch. Muhammad Afzal. He had a torch with him. It was about 8.00 p.m. When they reached near the 'Dhari' of Sher appellant, all of a sudden all the 6 appellants came in front of them. Zafar, Murad and Ahmad were armed with hatchets. Sher, Ramzan and Nawaz appellants were empty-handed.
Nawaz and Sher appellants raised Lalkara to kill us. Sher appellant caught hold of Nawaz deceased while Ramzan and Nawaz appellants caught hold of Chiragh P.W. Zafar appellant inflicted hatchet blow on the head of Nawaz who fell down. Then Ahmad and Zafar inflicted injuries on the neck, face and chest of the deceased. Chiragh P.W. Tried to free himself from the clutches of Muhammad Ramzan and Nawaz appellants, when Murad appellant gave hatchet blow hitting on his right arm.
Chiragh ran away towards South. Murad followed him and gave him hatchet blow on the back side of his chest and also a hatchet blow from its wrong side. When he and Ghazi P.Ws raised alarm, the appellants threatened them with dire consequences. The appellants then left the place of occurrence. While supporting the motive, the witness stated that Mst. Pathani wife of Ahmad appellant was abducted by the deceased 6 months before the occurrence, which was returned through a 'Panchayat'. The appellants, as such, nursed grudge against the deceased. Ghazi P.W.10 and Chiragh P.W.11 have made almost similar statements. Allah Ditta P.W.8, Ghazi P.w.10 and Tilla Muhammad S.I., P.W.12 have supported the recoveries of blood-stained hatchets Exh.P.7 to P.9 from Zafar, Ahmad and Murad appellants. The Serologist Report Exh.P.R. Shows that the weapons recovered from the three appellants were stained with human blood.
9. When examined under section 342, Cr.P.C., the appellants denied all incriminating circumstances. The appellants other than Ahmad denied their presence on the spot and raised plea of false implication. Ahmad appellant, however, raised plea of grave and sudden provocation.
He admitted that Mst. Pathani, his wife was abducted by the deceased on account of illicit relations. In answer to question as to why the case against him? He stated:- "I work as Camel Driver. On the night of occurrence it was sufficiently late when I was coming back to my house, I saw a cycle lying nearby a path. I became suspicion and then I saw the deceased and my wife Mst. Pathani in compromising position in the nearby crop. I become highly provoked and under grave and sudden provocation I caused injuries with my hatchet which was already with me to the deceased. In the meantime Charagh P.W. Who acted as a go between my wife and the deceased assaulted me and tried to snatch my hatchet upon which I also gave him injuries from the right and blunt side of the hatchet and in the meantime my wife slipped away. The occurrence was not witnessed by Muhammad Bakhsh, Ghazi P.Ws. I produced my hatchet myself to the S.I. Latter on with the help of the local Zamindars a false story has been concocted against me and my relatives.
' In defence no witness was produced. Two School Leaving Certificate Exhs.D.E. And D.F. Were tendered in evidence to show that Zafar appellant was born on 12-5-1968 and Ramzan on 14-5- 1968.
10. Learned counsel for the appellants contended that the eye-witnesses are not reliable; Muhammad Bakhsh and Ghazi P.Ws. Were not present on the spot, the story that they were going to attend the marriage of son of Ch. Muhammad Afzal is false; that the Investigating Officer did not care to examine Ch. Muhammad Afzal as to the marriage of his son on the night of occurrence; that Chiragh P.W.11 although present has not given the true account of the occurrence; that he, in fact, was working as a go-between of the deceased and Mst. Pathani wife of Ahmad and that there is a reasonable possibility that the plea of grave and sudden provocation raised by Ahmad appellant might be true. On the other hand, the learned counsel for the State and the learned counsel for the complainant supported the judgment of the trial Court. The learned counsel for the State maintained that the prosecution has brought home the guilt to the appellant beyond reasonable doubt. The learned counsel for the complainant requested for the enhancement of the sentences.
11. We have considered the arguments advanced by the learned counsel for the parties in support of their contentions. Since it is a case of two versions and there were 6 accused in all, out of whom only one namely Ahmad has raised plea of grave and sudden provocation therefore, we propose to discuss prosecution first in order to come to an independent finding as to the truth or falsity of its case and the credibility of the eye-witnesses. We find that it is a case of prompt F.I.R. The occurrence took place at 8.00 p.m. On 29-3-1981. The F.I.R. Was lodged after 11 hours of the ocurrence. The F.I.R. Contains the names of the appellants, the weapons carried by them and the parts played by each one of them. The names of the witnesses and the manner in which the occurrence took place all are given in the F.I.R. There is nothing on record to show that the F.I.R. Was not a genuine document. So, the foundation of the prosecution is thus not shaky. Furthermore, this prompt and genuine F.I.R. Exh.P.J. Can be used to corroborate the statement of its maker i,e, Muhammad Bakhsh P.W.9. As far the motive, that is almost an admitted fact. Examining the ocular testimony a bit more carefully than has been done by the trial Court. We find that Muhammad Bakhsh P.W.9 and Ghazi P.W.10 have given a probable cause for their having accompanied the deceased on the eventful night. Chiragh P.W.11 is an injured witness. By the fact of injury on his person, his presence on the spot at the time of occurrence is very much established. The eye- witnesses are closely related to the appellants and could identify them even without the light of torch, so there is no reason to doubt that the eye-witnesses, in fact, witnessed the occurrence and were in a position to identify the offenders. The witnesses have successfully stood the test of cross- examination except for minor and immaterial contradictions/discrepancies here and there, the ocular evidence does not suffer from major contradictions/material discrepancies and dishonest improvements. We do not see any inherent infirmity in their evidence. We have been very much impressed by the straightforward manner in which the eye-witnesses have made statements.
There were 14 injuries on -the person of the deceased and 3 injuries on Chiragh P.W.11 and as such they could easily attribute the infliction of hatchet blows to three co-accused namely Ramzan, Sher and Muhammad Nawaz. It appears that they stated in the Court what actually they had seen.
For all these reasons we are convinced that all the 6 appellants had participated in the occurrence and had played role as assigned to them by the eye-witnesses, so we do not feel inclined to exclude the prosecution case or its evidence.
12. This bring us to the plea of grave and sudden provocation raised by Ahmad appellant. We find that the plea was firmly repudiated by the witnesses. The appellant has not produced any evidence in support of his plea. There is no evidence on record to show that the occurrence took place in the manner as alleged by him. The plea raised by Ahmad appellant is not satisfactorily established by the evidence and the circumstances appearing in the case. The circumstance, rather, falsify the stand taken by him. The deceased received 14 injuries and Chiragh P.W. Received 3 injuries. Ahmad appellant stated that he alone caused these injuries to the deceased and Chiragh P.W. The deceased was a young man of 26. Chiragh is also of 23-24 years in age. It is, therefore, not plausible that appellant alone could have caused so many injuries to them. Except for the statement of the appellant, there is no evidence direct or indirect to the effect that Mst.
Pathani was present near the place of occurrence. No one saw her running away from the place of occurrence. There were even no signs of her presence on or near the place of occurrence at the time or immediately before the occurrence. There is, thus, no reasonable possibility of the existence of grave and sudden provocation. The contentions raised by the learned counsel for the appellants do not hold any water.
13. So far as the conviction of Sher, Muhammad Ramzan and Muhammad Nawaz appellants under section 148, P.P.C. And of Murad under section B1 307, P.P.C. Is concerned, we do not feel inclined to agree with the learned trial Court. Since Sher, Muhammad Ramzan and Nawaz were empty- handed, they could not have been convicted under section 148 P.P.C. As far Murad, we find that he did not cause any grievous injury on the vital part of the body of Chiragh P.W. No doubt, injury No,2 which was on the right fore-arm has been declared grievous by the doctor but since no Radiologist has been examined to prove the X-Ray of the injury, therefore, Murad appellant cannot be convicted under section 326, P.P.C. His conviction under section 307, P.P.C. Has, therefore, to be altered to one under section 324, P.P.C. The occurrence took place in March, 1981. He was not allowed bail during 3 the trial and since his conviction on 7-8-1982, he is in jail, therefore, the sentence undergone by him would meet the case.
14. For what has been stated above, Ramzan, Sher and Muhammad Nawaz are acquitted of the charge. Since the conviction of Murad has been altered from section 307 to 324, P.P.C. And sentence reduced to one undergone by him, he, therefore, be released forthwith, if not required in any other case. The appeal to the extent of Zafar and Ahmad is dismissed. In view of the background of the occurrence that the deceased had abducted the wife of Ahmad appellant, no case of enhancement of the sentence of Ahmad and Zafar is made out. The suo motu Revision No,699/82 and the Revision filed by the complainant No, 771/82 are also dismissed.