Abdul Majid, Inayat, Muhammad Shafi, Bashir, Hashim and Muhammad Sarwar were tried by the learned Sessions Judge, Okara, under section 302/148/149, P.P.C. For the murder of Sahib Khan, deceased, and for rioting. The learned trial Judge, by his judgment, dated 1-2-1983, convicted Abdul Majid, Inayat, Muhammad Shafi, Bashir and Hashim, accused, under sections 302/149 and 148, P.P.C.
And sentenced them under section 302/148, P.P.C. To life imprisonment each and to pay a fine of rupees two thousand (Rs.2,000) each or in default thereof to undergo further rigorous imprisonment for six months each and under section 148, P.P.C. To one year's rigorous imprisonment each. He also ordered each of the accused to pay rupees two thousand (Rs.2,000) as compensation under section 544-A, Cr. P.C. To the legal heirs of Sahib Khan, deceased, or in default thereof to undergo further rigorous imprisonment for six months each. Both the substantive sentences were ordered to run concurrently. Muhammad Sarwar, accused, was; however, given the benefit of doubt and acquitted of all the charges. The joint appeal of the five convicts is now before me for disposal.
2. The prosecution case in brief is that Muhammad Tufail complainant P.W. 8 was a cultivator and resident of village Kliar Khan. In the year 1974, Muhammad Shafi, son of Muhammad Sarwar, accused, illegally took possession of some land owned by the complainant and constructed his Dera there. Thereafter, the complainant party forcibly retook possession of the same and Muhammad Shafi aforesaid got a case under section 448, P.P.C. Registered against the complainant party, vide F.I.R. No. 30, dated 21-3-1974 at Police Station Mandi Hire Singh. During two investigation by the police, the said case was found to be false and was cancelled. Then Muhammad 'Shefi instituted a civil suit in then Court of the Civil Judge. Depalpur, with respect to the same Dera and its land; but the same was decided in favour of the complainant. Muhammad Shafi, thereupon, preferred an appeal in the Court of the District Judge, Sahiwal, and the same was still pending and fixed for hearing on 10-6-1980. Besides that, in the year 1976, the complainant and his father and others were injured by Hashim and Inayat accused, and their party men, whereupon a case under section 307/149/148, P.P.C. Was registered against them, vide F.I.R. No. 73, dated 28-5- 1976 and a cross-case against the complainant party was also registered under section 307/149/148, P.P.C., vide F.I.R. No. 74, dated 28-5-1976 at Police Station Mandi Hire Singh. Both the parties were ultimately acquitted in the said two cases.
Due to these incidents, the accused party bore a grudge against the complainant.
On the day of occurrence i.e. 5-5-1980 at about 6-30 a, m., Muhammad Tufail complainant P.W. 8 and his father Sahib Khan deceased, were bringing milk from their tube well and going to their village. When they were on the public pathway adjacent to land of Muhammad Ramzan son of Abdullah, they saw Muhammad Sarwar; accused, armed with a .12 bore gun standing under a Keeker tree near the wheat threshing floor of his brother Ashiq. Muhammad Sarwar, accused, raised a Lalkara on seeing the complainant and his father, whereupon suddenly Abdul Majid, Inayat and Hashim, accused, armed with hatchets, and Muhammad Shafi and Bashir accused, armed with Dangs, 'who were holding in the said wheat threshing floor, came out. Abdul Majid, accused, gave two hatchet blows on the right wrist and right ankle of the deceased. Sahib Khan, deceased, fell down and Inayat, accused, gave two-hatchet blows to him on his right calf. Hashim, accused gave him two successive hatchet blows on his right calf near the knee. Muhammad Shafi and Bashir, accused gave Deng blows to the deceased and caused numerous injuries on .His right buttock, left leg and left wrist. In the meantime, on the alarm raised by the complainant, Sadder Din P.W.10 and Jahangir and Sakhi Muhammad (given up P.Ws.) came there and saw the occurrence.
But for the intervention of-the witnesses the accused would have killed Sahib Khan, deceased, at, the spot. The accused then fled away towards the village Abadi and on-the way Hashim accused, fired from his .12 bore pistol in the air.
3. Sahib Khan, deceased; was brought in an injured condition to the Civil Hospital Mandi Hira Singh, where he was examined at 8.30 a.m. By Dr. Muhammad Rashid P.W. 6, who found six sharp-edged weapon injuries and thirteen blunt weapon injuries on his person, of which two incised injuries on the back of right hand the right and left fore-arms :were found to be grievous. Probable duration of injuries was within six hours. The doctor sent a Rukka Exh. P.C. To the Police Station Mandi Hire Singh, informing of the arrival of Sahib Khan, deceased, in the hospital in, a precarious condition. On receipt of the Rukka Exh. P.C., Abdul Qadir A.S.I. P.W. 12 reached the Civil Hospital Mandi Hire Singh where Muhammad Tufail complainant P.W. 8 met him and produced before him the medico-legal report Exh. P.D of Sahib Khan, deceased, and had his statement , Exh. P.A. Recorded by the said Police Officer. On the basis of the said statement, formal F.I.R. P.A./1 was registered at Police Station Mandi Hire Singti by Khadim Hussain, Assistant Moharrir P.W. 4 at 10.00 a.m. After despatching the complainant statement. Exh. P.A. To the Police Station, Abdul Qadir A.S.I. P.W. 12 recorded the statement Exh. P.O. Of Sahib Khan, deceased. After the statement, on the advice of Dr. Muhammad Rashid P.W. 6, Shaib Khan, deceased, was shifted at about 9.00 a.m. From, the Civil Hospital Mandi Hira Singh for being taken to the Mayo Hospital, Lahore. He thereafter proceeded to the spot and collected blood-stained earth from the place of occurrence, vide memo. P.E.
4. On 9-5-1980, all the accused except Muhammad Sarwar, appeared before the investigating Officer, who arrested them. Muhammad Shafi and Bashir, accused produced their Dangs P. 3 and P.
4 before the Police Officer, which he took into possession, vide memos. P.E. And P.H., respectively.
These recoveries were witnessed by Muhammad Tufail P.W. 8, Abdul Qadir A.S.I. P.W. 12 and Haq Nawai (given up P.W.). Inayat, Abdul Majid and Hashim, accused led to the recovery of their blood- stained hatchets P.5, P.6 and P.7, respectively, which were taken into possession vide memos. P.L., P.M. And P.N. These recoveries were witnessed by Muhammad Hanif P.W. 11, Abdul Qadir A.S.I. P.W.C 1.2 and Muhammad Ismail (given up P.W.).
5. On 21-5-1980, Sahib Khan, deceased, expired in the Mayo Hospital, Lahore. The Investigating.
Officer visited the Mayo Hospital on 22-5-1980 and, after preparing the necessary papers, he sent the dead body of the deceased for post-mortem examination.
6. On 23-5-1980 Dr. Sabir Ali P.W. 9 performed the -post-mortem examination of the dead body of Sahib Khan, deceased, and found the same injuries on his body as were earlier found by Dr. Muhammad Rashid P.W. 6.
7. The blood recovered from the spot and the blood found of-the three hatchets was found to be of human origin. After completing the investigation, the challan against the' accused was sent up.
8. At the trial, the prosecution produced Muhammad Tufail P.W. 8 to prove the motive, the said witness and Sadar Din P.W. 10 in proof of the ocular account Abdul Qadir A.S.I. P.W. 12 to prove the dying declaration Exh. P.O. Made by Sahib Khan, deceased, Muhammad Tufail P.W. 8 Muhammad Hanif P.W. 11 and Abdul Qadir A.S.I. P.W. 1-2 in support of the recoveries and Dr. Muhammad Rashid P.W. 6 and Dr. Sabir Ali P.W. 9 in corroboration of the medical testimony.
9. All the accused denied the accusations that were levelled against them, including the recoveries effected at their instance. All of them stated that Sahib Khan, deceased, had sustained the injuries in the early hours of the morning when it was still dark, that it was an unwitnessed occurrence and that they had been falsely involved due to suspicion and enmity. They all claimed that none of the eye-witnesses were either present at or had seen the occurrence.
10. The learned trial, Judge, relying upon the motive the ocular account and the medical testimony, convicted and sentenced the five accused, as stated above, and 'acquitted the sixth.
11. I have heard the arguments of the learned counsel for the-- appellants and the State and have also perused by Muhammad Tufail P.W. 8, the details of which have been given in para. 2 above and need not be repeated. Nothing was brought out in cross-examination to show that the evidence given in the said connection was untrue or could not be safely relied upon. In fact the learned counsel for the appellants relies upon the two incidents of 1973-74 and 1976 in support of his assertion, to show that the witnesses were inimically inclined A towards the appellants Learned counsel has also mentioned that the appeal filed by Muhammad Shafi son of Muhammad Sarwar, acquitted accused, before the District judge, which was pending at the time of occurrence, was decided in favour of his client, but he has not tendered for inspection a copy of the judgment.
Taking all circumstances into consideration, the incidents of 1973-74 and 1976 stand adequately proved and I would hold that the appellants bore ill-will against the deceased and had 'a good motive to give a good hiding to him, but I would not go to the extent of holding that it gave the appellants motivation to cause his death for apart from the civil dispute then pending, nothing untoward had happened since 1976.
12. The ocular account in this case is furnished by Muhammad Tufail P.W. 8 and Sadar Din P.W.10.
Muhammad Tufail P.W. 8 was coming with his father Sahib Khan, deceased, to his village from his tube well, when they were attacked. He immediately took his father to the hospital. He is, therefore a natural witness Sadar Din P.W.10 at the relevant time was, going on his tractor trolley alongwith his brother from his tubewell to the tubewell of Sahib Khan, deceased for threshing his wheat crop, when, near the village, Sakhi Muhammad (given up P.W.) met him on the way and asked him where he was going and boarded his tractor. When they reached near the place of occurrence, they saw Muhammad Tufail P.W. 8 and Sahib Khan, deceased, coming towards the village. Bringing their milk with them and then they saw the whole occurrence, alongwith Jahangir (given up P.W.). On their raising alarm, the appellants left the place of occurrence with their respective weapons. The statements of the complainant was recorded in this case at 10.00 a.m. Soon after Shahib Khan, deceased, was medically examined 'in the Civil Hospital. The names of all the assailants stand recorded in the said statement. The occurrence took place in the morning and the F.I.R. Was prompt. On behalf of the appellants, it is submitted that none of the witnesses were present and they cannot be relied upon. In this connection it is submitted that Muhammad Tufail P.W. 8 is the son of the deceased, and Sadar Din P.W. 10, a partisan of the deceased, in that he had appeared as a witnesses on behalf of the deceased in the civil suit instituted by Muhammad Shafi, father of Muhammad Sarwar, appellant, against Sahib Khan, deceased, Muhammad Tufail P.W. 8 and others, that he had also appeared in defence of the deceased before the police during the investigation of the criminal case registered by the said Muhammad Shah and that had these two persons been present, they would also have been mercilessly beaten. The fact that they were not injured is proof positive of the fact that they were not present at the spot. It is also contended that the testimony of both these witnesses is discrepant. According to Muhammad Tufail P.W. 8, the Investigating Officer, after recording his statement Exh. P.A. Went to Police Station Mandi Hira Singh and thereafter to the spot, whereas according to Sader Din P.W. 10, he recorded the statement Exh.
P.O. Of Sahib Khan, deceased, after the statement Exh. P.A. Of Muhammad Tufail P.W.
8. According to the complainant, the threshing had not begun, though the people had started harvesting their wheat crop, whereas according to Sadar Din P.W. 10, the threshing had begun. According to Muhammad Tufail P.W. 8, first his statement was recorded and then that of his father, whereas according to Sadar Din P.W. 10, the statements were recorded the other way round. It is true that Muhammad Tufail. P.W. 8 is the son of the deceased and Sader Din P.W. 10 is not entirely disinterested, but is a partisan witness, but from this no unequivocal inference can be drawn that the appellants invariably would have inflicted injuries on Muhammad Tufail P.W.8 and Sadar Din P.W. 10, had they been present. How different persons react in different circumstances is entirely personal to each of them. Since the appellants were heavily armed, it is believable that Muhammad Tufail P.W, 8 and others kept themselves out of their way to save themselves. The bone C of contention where the appellants were concerned, was Sahib Khan, deceased, the king pin and source of their worries and not his son Muhammad Tufail P.W.
8. Thus, the absence of injuries on Muhammad Tufail P.W.8 and other does not lead to any unequivocal inference that they were not present. As regards certain discrepancies pointed out by the learned counsel in the statements of these two witnesses, they are there, but they only go to show that Sadar Din P.W. 10 was not present and did not see the occurrence. The two versions do not reconcile. Since Muhammad Tufail P.W. 8 was present with his father. Sadar Din P.W. 10 must be discarded as a person not present and who did not see the occurrence. The discrepancy in the statements of these two witnesses is, therefore, not fatal to the case. I would hold, taking all circumstances into consideration that Muhammad Tufail P.W. 8 did see the occurrence.
13. The evidence as regards the dying declaration Exh. P.O. Furnished by Sahib Khan, deceased, is furnished by Abdul Qadir A.S.I. P.W.
12. According to his testimony, the said statement was recorded immediately after he had recorded the statement Exh. P.A. Of Muhammad Tufail P.W. 8 at 10.00 a.m.
At Civil Hospital Mandi Hire Singh and had sent its copy to the Police Station for the registration of the case. The said statement was rejected by the learned trial Judge on the ground that there was discrepancy in the evidence as regards the time when it was recorded and because the doctor's certificate as to the ability of the said deceased to make the statement was not obtained. The medico legal certificate Exh. P.D. Does not show that the deceased at the time of his medical examination was unconscious or senseless, though it does mention that its condition was precarious. Likewise the Rukka Exh. P.C. Despatched by the same doctor to the Police Station after his examination, clearly states that the Police Officer should take necessary action in law to record the deceased's statement as he was then in a condition to do so, though the Rukka also mentions that the deceased had been admitted in a precarious condition. Obviously, the condition of the deceased was precarious, because the deceased had lost some blood due to the number of injuries on his limbs, but in any case he was not senseless or unconscious, which is also obvious from the Rukka Exh. P.C. Sent by the doctor to the Police Station. When the doctor appeared in the witness-box, he was not put any question to prove that the injured at the time was unconscious or senseless or not in a position to make a deposition. The learned trial Judge took into consideration certain contradictions made by the witnesses as regards the time when the deceased gave his statement Exh. P.O. In order to hold that the same was not genuine, but prepared later. As found earlier, Seder Din P.W. 10 did not see the occurrence and his statement in this respect must, therefore, be kept out of consideration. As regards the statement of Muhammad Tufail P.W. 8 in cross-examination that after the Thanedar recorded his statement Exh. P.A. He went to Police Station Mandi Hire Singh and, thereafter he went to the spot, which must be treated as fatal to the prosecution case, the same cannot be so treated in that manner. It appears that the Thanedar was put a leading question that after Muhammad Tufail's statement Exh. P.A. Was recorded he had proceeded to Police Station Mandi Hire Singh and thereafter to the spot, which he affirmed, but this would not exclude the fact that before proceeding to the Police Station he had recorded the statement Exh. P.O. Of the deceased. The police officer was riot put any question that during the period between the time he had recorded Muhammad Tufail's statement Exh. P.A. And had gone to the Police Station, he had not recorded the statement of the deceased. Tire mere fact that a tricky question was put to elicit a particular answer, does not unequivocally leads to a particular inference. If the deceased was in a .Fit condition to make a statement, I am no doubt sure that the Investigating Officer would have recorded the same there and then If the deceased was not in such a condition, the 'Police officer would have waited and gone to Lahore to record his statement at the Mayo Hospital where the deceased was alive for almost twenty days. The deceased had not died abruptly leaving the Investigating Officer with the arduous task of manufacturing a false dying declaration and compelling the doctor to add certain words into his Rukka Exh. P.C. Taking all circumstances into consideration, the dying declaration. Exh. P.O. Appears to have been properly recorded by Abdul Qadir A.S.I. P.W. 12 on the statement of Sahib Khan deceased, and I would hold accordingly.
14. The medical testimony furnished by Dr. Muhammad Rashid P.W. 6 and Dr. Sabir Ali P.W. 9 clearly shows that the deceased received six sharp-edged weapon injuries and thirteen blunt weapon injuries (of which two sharp-edged and two blunt weapon injuries were grievous). The right leg was cut through and through. The number of injuries clearly show that there was four to five assailants and that weapons such as hatchets and Dangs were used in the occurrence. The medical testimony therefore, clearly corroborates the other account.
15. It is asserted that Sahib Khan, deceased, and his son Muhammad Tufail P.W. 8 being both inimical to the appellants, their statements cannot be accepted without strong corroboration. It is true that there have been differences between one or more of the appellants on the one hand and the complainant party on the other, but nothing appears in the record to show that the name of the assailants which were supplied by the deceased himself were done with the object of roping in many innocent persons. For instance Muhammad Shafi, the father and uncle, respectively of Muhammad Sarwar, acquitted accused and Abdul Majid, appellant, was not mentioned as an assailant. He was the main person with whom the deceased was having the dispute about the land. Likewise, Ramzan, the brother of the said Muhammad Shafi and the father of Abdul Majid, appellant, was not so named. Still further, Bashir, appellant, and Muhammad Shafi, appellant, were not involved in any past dispute, but they have been named If they were not the assailants, there was no necessity to rope them in, because their relative Inayat, appellant who was so involved in past litigation with the deceased, had other near relations who could have been named. The only other persons named with whom the deceased had earlier dispute or litigation were Inayat and Hashim, appellant. According to the learned counsel for the State, the Zimini shows that Hashim, appellant was a servant of Shaft, the father of Muhammad Sarwar, acquitted accused. Inayat and Hashim, appellants, with others, joined hands in attacking the complainant party in. 1976, which led to cross-cases. The connection between the Bhatti group of accused anal the Moin group of accused thus stands established. However, Sarwar, acquitted accused, and Hashim, appellant, are shown of the members of the assailant group but the deceased does not mention in Exh. P.O. That they injured him Looking at the matter from all angles, it appears that only those persons were named by the deceased who actually came duly armed as assailants and those who actually gave him the beating. I would, therefore, hold that corroboration is not required in the instant case, at least with I regard to those accused whom the deceased specially has named as the persons who have injured him. This covers Abdul Majid, Inayat, Muhammad Shafi and Bashir, appellants.
Hasim, appellant, and Sarwar, acquitted, stand excluded. Hashim, appellant is, therefore, entitled to the benefit of doubt.
16. The only question that now remains is that relating to sentence. There are a large number of injuries on the deceased, but if one sees the skiagram behind the medico-legal report Exh. P.D., it appears that the deceased received injuries on his hands and legs. Those on his hands were very likely the result of an attempt made by the deceased to ward of the injuries. The motive as stated above does not appear to be of the type as promoted the appellants to kill the deceased. If that was so, they would have given a few injuries to the deceased on the vital part of his body and finished him then and there. In fact, it appears that the appellants wanted to break the legs of the deceased and teach him a lesson. Abdul Majid, Inayat, Muhammad Shafi and Bashir, appellants, therefore, appear to be guilty of an offence under section 326/34, P.P.C. Their conviction and sentences under section 302/49 and 148, P.P.C. Do not appear to be proper and the same are set aside. I would, therefore, hold them guilty under section 326/34, P.P.C. Since the deceased had a long standing dispute with Muhammad Shafi, he appears to be the main person behind this assault. The Bhatti group of appellant, therefore, deserve to be strictly treated. Abdul Majid, appellant, and Muhammad Sarwar, acquitted accused, are two persons in the Bhatti group.
Muhammad Sarwar has been acquitted. Abdul Majid alone remains. I would sentence Abdul Majid, appellant, under section 326/34, P.P.C. To ten years' rigorous imprisonment with a fine of rupees ten thousand (Rs.10,000) or in default thereof to undergo further rigorous imprisonment for two years.
The other three appellants appear to have acted under the instigation of Muhammad Shafi. I would, therefore, sentence Inayat, Bashir and Muhammad Shafi, appellants, under section 326/34, P.P.C. To five years rigorous imprisonment each and to pay a fine of rupees two thousand (Rs.2,000) each or in default thereof to undergo further rigorous imprisonment for one year each. The fines, if realized, shall be paid to the legal heirs of Sahib Khan, deceased, as compensation under section 544-A, Cr.P.C. The appellants shall be granted the benefit of section 382-B, Cr.P.C.
17. The appeal of Hashim, appellant, succeeds. His conviction and sentences under sections 302/149 and 148, P.P.C. Are set aside. He shall be released forthwith, if not required in any other case.
Fines, if any recovered from him, shall be refunded to him. The appeal of Abdul Majid, Inayat. Bashir and Muhammad Shafi, appellants, partly succeeds. Their conviction and sentences under section 148, P.P.C. Is set aside, whereas their conviction and sentence under section 302/149, P.P.C. Is altered to that under section 326/34, P.P.C., as stated above.