1. QURBAN SADIQ IKRAM, J.---This is an appeal by Alam Sher 25, Falak Sher 23, Muhammad Ramzan son of Mapal 27, Muhammad Ramzan son of Khan 25 and Haq Nawaz 24 against their conviction an4 sentences by learned Additional Sessions Judge, Multan, who vide judgment dated 21-11-1983 sentenced all of them to one year R.I. And fine of Rs.1,000 or in default six months' R.I. Each under section 148. P.P.C. Alam Sher, Falak Sher, Ramzan son of Mapal and Ramzan son of Khan were sentenced to death plus fine of Rs.5,000 or in default two years R.I. Each for the murder of Sher Khan under section 302/149, P.P.C. Haq Nawaz was sentenced to imprisonment for life and lane of Rs.5,000 or in default two years R.I. Under section 302/149, P.P.C. For the murder of Sher Khan. It was ordered that the entire amount of fine, if recovered will be paid as compensation to heirs of the deceased.
2. Mapal 80, Khan 70 and Muhammad Yar 33, co-accused of the appellants were acquitted by the same judgment.
3. Alam Sher, Falak Sher, Ramzan son of Mapal and Ramzan son of Khan, having been sentenced to death each, the proceedings are also before us for confirmation of their sentences. All these matters will be disposed of together by this judgment.
2. The occurrence in this case took place at 5-30 p.m. On 30-4-1982 in Kills No. 22 Square No. 50 in village Dangra about six miles from police station Talamba District Multan (now district Khanewal).
4. The F.I.R. Exh .P.M. Was recorded at the police station at 6-30 p.m. On the same day by S.I. Sabir Hussain P.W. 12 on the statement of Karam Khan P.W.6.
3. It was stated by Karam Khan P.W. 6 in his F.I.R. Exh.P.M. That on 30-4-1982 at 5-30 p.m. He was present in his Square No. 50 alongwith Manzoor Hussain and Baqir Khan P.Ws. All of a sudden they heard a rifle shot. They saw Sher Khan deceased running on the road leading to Makhdoom Pur towards West followed by Mapal armed with Chhura, Haq Nawaz armed with rifle, Alam Sher armed with gun, Ramzan son of Kapal, Falak Sher and Ramzan son of Khan armed with hatchets and Khan armed with Chhura. They encircled Sher Khan deceased in Killa No. 22 of Square No. 50, who raised alarm. At this he alongwith Mansoor and Baqir P.Ws rushed to that side. When they were about 10 Karams from Sher Khan the accused threatened them not to come near. Ramaan son of Mapal gave two hatchet blows on the head of Sher Khan. Simultaneously Falak Sher inflicted hatchet blow on the back of the head of Sher Khan, deceased. Alam Sher accused fired a shot at Sher Khan deceased from a close range. Khan accused gave two Chhura blows to Sher Khan.
5. Thereafter Mapal accused gave two Chhura blows on the chest and abdomen of Sher Khan who fell down. Ramzan son of Khan then gave two hatchet blows to Sher Khan deceased. Haq Nawaz accused gave Butt blow on the head of Sher Khan where after Falak Sher accused gave three successive hatchet blows to Sher Khan deceased. After this Alam Sher and Falak Sher accused dragged Sher Khan deceased in the nearby Kotha. The accused then left the spot raising Lalkaras that they have avenged the murder of Manzoor Hussain son of Waryam. After the accused left the place of occurrence, Karam Khan complainant and the two eye-witnesses went inside the Kotha and found Sher Khan lying dead.
6. The motive was stated to be that about six months before this occurrence Manzoor Hussain son of Waryam, a brother of Mapal accused and father of Alam Sher accused, was murdered. The matter was reported by Mapal accused against Sher Khan deceased of this case and his brother Haq Nawaz and his two relatives Zaman and Allah Ditta. The said case was still pending trial when this occurrence took place. Sher Khan had been allowed bail in the said murder case.
4. The dead body of Sher Khan aged about 30 years was sent for post-mortem examination which was conducted on 1-5-1982 at 9 a.m. By P.W.1 Dr. Abdul Ghaffar who on external examination noted the following injuries on the dead body:- (1)Incised wound 2" x --" x bone deep oblique in direction on the left side of the forehead, 2" above the left eye. Frontal bone was cut under this injury.
7. (2)Incised wound 1-3/4" x --" x bone deep on the left side of the head 3--" above the left ear, left parital bone was cut under this injury.
8. (3)Incised wound 4" x -- x bone deep on left side of head --" below the injury No.2. Left parital bone was cut.
9. (4)Incised wound 2-- x -- x bone deep on the left side of the head 2" behind injury No.2.
10. (5)Incised wound 2--" x --" x bone deep on the left side of the head --" below injury No.3.
11. (6)Incised wound 2-3/4" x -- x bone deep on the back and left side of the head behind injury No.5.
12. (7)Lacerated wound 1--" x --" x bone deep on the back and left side of the head 2" from the left ear.
13. (8)Incised wound 2-- " x --" x pinna cut on the middle of left ear.
14. (9)Incised wound --" x --" x bone deep on the outer side of left eye brow.
15. (10)Incised wound 1--" x --" x skin deep on the left cheek.
16. (11)Incised wound 2" x --" x bone deep on front of the chin. Chin wound was cut.
17. (12)Incised wound 1" X -- x skin deep on the right side of the chin.
18. (13)Fire Arm wound 1--" x 1" x ingoing with black and inverted margins on the front of right exilla directed obliquely backwards towards the right shoulder. There were wounds of exit with everted margins 1--" x --". Front piece of the cartridge and pellet were removed sealed and handed over to the police. Right humorous bone was fractured under this injury.
19. (14)Incised wound 1" x --" x muscle deep on the front of the right chest 1-3/4" inner to the right nipple.
20. (15)Incised wound 1-- " x --" x muscle deep on the right side of the chest 3" below the right nipple.
21. (16)Incised wound 1-3/4" x --" x muscle deep on the front of right chest 1" below injury No.15.
22. (17)Incised wound 1--" x --" x muscle deep on the front and left side of the abdomen 5" from the umbliacus.
23. (18)Incised wound 1" x --" x bone deep on front of left fore arm.
24. (19)Incised wound 1" x --" x skin deep on the back of left fort arm.
25. (20)Incised wound 2" x --" x skin deep on the outer side of left chest.
26. (21)Incised wound 3/4" x --" x skin deep on the front of left leg at its middle.
27. (22)Incised wound --" x --" x --" below the testicles.
28. (23)Small abrasions on front of the chest.
29. On internal examination the medical officer found that the skull bones were fractured under injuries 1 to 7. The brain matter was also injured.
30. The death was due to shock and haemorrhage as a result of injuries 1 to 7, 11 and 13 which were collectively sufficient to cause death in ordinary course of nature. Injuries 7 and 23 had been caused with blunt weapon. Injury No. 13 was by fire arm while rest of the injuries were by sharp edged weapon. The death occurred immediately after receipt of injuries and the post-mortem was conducted after about 12 to 24 `ours of death.
5. S.I. Sabir Hussain P.W.12 during inspection of spot on 30-4-1982 collected blood-stained earth from a place in Killa No. 22 of Square No.50 vide memo Exh.P.G. He also collected blood-stained earth from inside of the nearby Kotha vide memo Exh . P.H.
31. During inspection of the spot on 30-4-1982 S.I. Sabir Hussain P.W.12 took in possession two .12 bore crime empties P.5 and P.6 from inside the Kotha, where the dead body was lying, vide memo.
32. Exh.P.J. Attested by Abdul Sattar P.W.5 and Dost Muhammad P.W. (not examined). He also took in possession three 7 M.M. Crime empties Exh.P7-9 from a path in Killa No. 22 of Square No. 50, vide memo. Exh.P.K. In presence of same witnesses. He took in possession a pair of shoes P.10/1-2 and Chappal P. 11/1-2 and Chadar P.12 allegedly left by the accused at the place of occurrence vide memo. Exh.P.L. In presence of the same witnesses.
6. Mapal, Khan, and Ramzan son of Mapal accused were arrested by S.I. Abid Hussain P.W.15 on 27- 6-1982. Alam Sher, Falak Sher and Ramzan son of Khan accused were arrested by S.I. Muhammad Shafi P.W.16 on 2-6-1982. The date of arrest remaining accused is not available on record of this case.
7. On 2-6-1982 Alam Sher accused, while in police custody led to the recovery of unlicensed .12 bore gun P. 13 from his house which was taken in possession by S.I. Muhammad Shafi P.W. 16 vide memo.
33. Exh.P.N. In presence of Nusrat P.W.10 and Allah Bakhsh P.W. (not examined).
34. On the same day Ramzan son of Khan accused while in police custody led to the recovery of hatchet P.14 from his house which was taken in possession vide memo. Exh.P.O. And Falak Sher accused while in police custody led to the recovery of hatchet P.15 from his house which was taken in possession, vide memo. Exh.P.Q. These recovery memos were prepared by S.I. Muhammad Shafi P.W. 16 and attested by P.W.10 Nusrat and Allah Bakhsh P.W. (not examined). These two hatchets were not stained with blood.
35. The crime empties Exh.P.5 and P.6 were delivered in the office of Forensic Science Laboratory Lahore by F.C. Hameed Ullah P.W.14 on 29-5-1982. The gun Exh.P.13 was delivered at the Forensic Science Laboratory Lahore on 3-6-1982 by F.C. Muhammad Ashraf P.W.13. The Director Forensic Science Laboratory vide his report Exh.P.T. Opined that one of the two crime empties marked C.1 was found to have been fired from gun P.13.
36. The accused were challaned after completion of investigation.
8. In support of its case, the prosecution examined 17 witnesses in all. P.W.6 Karam Khan and P.W. 7 Manzoor Hussain were examined as eye-witnesses. Baqir Khan another eye-witness named in F.I.R.
37. Was given up as unnecessary. The evidence on motive was furnished by S.I. Ghulam Muhammad P.W.2 who was scribe of the F.I.R. Exh.P.D. Recorded at the instance of Mapal accused against Sher Khan (deceased) etc., for the murder of Manzoor Hussain son of Waryam on 16-10-1981. The evidence of incriminating recoveries from the place of occurrence was furnished by P.W.5 Abdul Sattar. The recoveries of crime weapons from the three accused were witnessed by P.W.10 Nusrat and P.W.16 S.I. Muhammad Shaft. The medical evidence was furnished by P.W.1 Dr. Abdul Ghaffar.
38. The evidence of conspiracy for this murder by Muhammad Yar acquitted accused was furnished by P.W.8 Manzoor Khan son of Shamsher Khan and P.W.9 Ghulam Muhammad. The case was investigated by S.I. Sabir Hussain P.W.12 and also partly by S.I. Muhammad Shaft P.W.16. The evidence of rest of the witnesses was of formal nature.
39. The accused when examined after close of prosecution evidence denied the charge and pleaded innocence. The incriminating recoveries were also denied. They attributed this case against them due to enmity. Excepting Muhammad Yar and Mapal no other accused produced any defence evidence. Muhammad Yar accused examined Haq Nawaz D.W.1 who stated that during investigation he had written a document Exh.D.B. Which was signed by Karam Khan complainant and others. He further stated that Muhammad Yar accused took oath on Holy Qur'an in mosque to prove his innocence where after another document Exh.D.D. Executed.
40. The learned trial Judge placed reliance on the evidence of 1notive, report of Forensic Science Laboratory Exh.P.T. And the eye- witnesses and convicted the five appellants as stated above. The learned trial Judge as abundant caution gave benefit of doubt to Mapal, Khan and Ramzan son of Khan accused and acquitted them. He also acquitted Muhammad Yar accused from the charge of conspiracy.
9. We have gone through the evidence on record with the assistance of learned counsel for the appellants and have heard arguments at some length. It is contended on behalf of the appellants that firstly, eye-witnesses were interested that the medical evidence do neat corroborate them and that their evidence lacked inherent worth; secondly, that the recoveries of gun P.13 and crime empties P.5 and P.6 were doubtful and therefore, cannot be considered as corroborating evidence in this case and finally that in any case it was not a case, justifying capital sentence in the facts and circumstances of this case. The learned counsel for the State and complainant controverted the contentions on behalf of the appellants.
10. Ramzan, Haq Nawaz and Falak Sher accused are brothers inter se and sons of Mapal accused.
41. Alam Sher accused is the son of Manzoor Hussain, a real brother of Mapal accused. A sister of Mapal accused were of Khan accused and mother of Ramzan son of Khan accused. These accused are, therefore, closely related to each other. Muhammad Yar accused is not related to his co-accused though he was on inimical terms with the complainant party.
42. As stated above Manzoor Hussain, real brother of Mapal accused and father of Alam Sher accused was murdered about six months before the present occurrence. Sher Khan deceased, his brother Haq Nawaz, his nephew Zaman and his first cousin Allah Ditta were named as accused in the F.I.R.
43. By Mapal for the said murder. The accused in their statements admitted that the present occurrence took place during pendency of the case regarding murder of Manzoor Hussain. They however, expressed ignorance about the fate of the said murder case. The motive in his case stands fully established by the evidence of P.W.2 S. I. Ghulam Muhammad and copy of F. I. R. Exh.P.D.
44. The accused are closely related to each other and they, therefore, had a common motive to murder Sher Khan deceased who allegedly had murdered Manzoor Hussain alongwith others only six months before this occurrence and was on bail.
11. The evidence on recovery of crime empties Exh.P.5 and P.6 was furnished by P.W.5 Abdul Sattar.
45. He was in no way related to the deceased. He had no enmity with the accused and we do not find any reason to exclude his evidence from consideration. It was contended on behalf of the appellants that in the statement Exh.D.A. This witness disclosed the name of his father as Karam Khan whereas during trial he stated that he was son of Waryam. It was, therefore, argued that no reliance can be placed on this witness. We do not find any merit in this contention. This witness denied the suggestion in cross-examination that he was son of Karam Khan complainant. It is correct that in the statement Exh.D.A. Under section 161, Cr.P.C. The parentage of this witness is recorded as Karam Khan but this appears to be a mistake of the S.I. Sabir Hussain P.W.12 who was not cross-examined on this point for clarification. In reply to a question it was stated by him that he recorded the statements of Abdul Sattar and Manzoor Hussain without any addition and omission.
46. A perusal of the evidence would show that Abdul Sattar P.W.5 was aged 30 years and Karam Khan complainant P.W.6 was aged about 42 years. It, therefore, does not stand to reason that the difference of age between father and son would be only 12 years. We are satisfied that Abdul Sattar P.W. Was not son of Karam Khan complainant and was an independent witness.
47. The recovery of gun P.13 at the instance of Alam Sher accused was witnessed by Nusrat P.W.10 and S.I. Muhammad Shafi P.W.16. It was contended on behalf of the appellants that this recovery was not reliable because of five discrepancies noted by the learned counsel. It was pointed out on behalf of the appellants that he joined recovery proceedings with the police from the spot of occurrence whereas S.I. Muhammad Shafi P.W.16 stated that Nusrat had joined him in village Dangra at a place about f Furlongs from the place of occurrence. Secondly, according to Nusrat P.W. The place of recovery was in Killa No.22 of Square No.24 which had 3/4 Kothas while according to S.I. Muhammad Shafi the recovery was effected from a house in Kills No.1. Thirdly, according to Nusrat P.W., two live cartridges were also recovered alongwith gun P.13 but according to S.I.
48. Muhammad Shafi no cartridge was recovered. Fourthly, according to Nusrat P.W. The house of one Ramzan was two square away from the house of Alam Sher but according to S.I. Muhammad Shafi the distance between the two was 2/3 Killas and finally according to Nusrat P.W., the police party had reached the house of Ramzan at 11 a.m. But according to S.I. Muhammad Shafi they had reached there at about 3/4 p.m. We have minutely considered these discrepancies between the statements of two recovery witnesses and do not find them material to affect the merits of this case. The recovery was effected on 2-6-1982 while Nusrat P.W. Was examined in Court on 7-8-1983 i.e. After about one year of the recoveries. The discrepancy as to the place where he joined the police party; the discrepancy regarding the distance of the house of Ramzan from the place of recovery and the discrepancy regarding the time of the arrival of police party at the house of Ramzan is not material because Nusrat was illiterate person and not expected firstly to remember all these minutes details and secondly, a Zamindar is never expected to be precise and clear about the estimate of time and distance of various places. About the discrepancy regarding the Killa Number of the house of Alam Sher accused from where the recovery was effected, it may be stated that Nusrat P.W. Was not expected to know the Kills Numbers of the house of Alain Sher accused. He might have made that statement under some impression and, therefore, this discrepancy is not material. It is correct that he admitted recovery of two live cartridges alongwith gun P.13 but we are of the view that this statement was made by him either by not following the question in cross examination or being a mueen of the village to favour the accused. These discrepancies are therefore, not material and do not in any way affect the merits of the case. It was vehemently argued by the learned counsel that the Investigating Officer sent only two .12 bore crime empties P. 5 and P.6 for examination to Forensic Science Laboratory and did not forward 7 MM crime empties P.7 to P.9 which makes the Prosecution case doubtful. We have considered this argument. There is no force in it. The medical evidence indicated that Sher Khan deceased received only one gun fire injury on his person. The medical officer had taken out pellets from their said injury which fact must have satisfied the Investigating Officer that the gun fire injury had been caused by .12 bore gun and not by 7 MM rifle. It appears that for this reason he did not forward the- 7 MM crime empties to the Forensic Science Laboratory for examination. It was next argued that the recovery of gun P.13 was not effected from the exclusive possession of Alam Sher. This argument is also without any merits. Nusrat P.W.10 admitted in cross-examination that brothers, father and other family members also resided at his house. This fact alone would not mean that the gun was not recovered from exclusive possession of Alam Sher. It was recovered on his pointing out which indicates his exclusive knowledge A of the presence of gun in his house. Nusrat P.W.10 was not related to the deceased. He had no enmity with the accused. He was resident of village Dangra from where the recovery was effected. We do not find any thing to disbelieve his evidence on recovery which is also supported by S.I. Muhammad Shafi P.W.16. According to the Forensic Science Laboratory's report Exh.P.T, one of the two crime empties P.5 and P.6 were found to have been fired from the gun P.13. Thus the recoveries of crime empties and the gun furnished corroborating evidence to the ocular account of this case.
12. The prosecution examined two eye-witnesses in this case. Sher Khan deceased was maternal uncle of Karam Khan complainant P.W.6. Manzoor Hussain P.W.7 is a tenant of Karam Khan complainant. Karam Khan P.W. Had no enmity with the accused prior to the murder of Manzoor Hussain, father of Alam Sher accused. Manzoor Hussain P.W. Had absolutely no enmity with the accused. These two eye-witnesses, in our view cannot be considered interested witnesses in this case. It was contended on behalf of the appellants that Karam Khan P.W. Was chance witness; secondly that Manzoor Hussain P.W. Being tenant was supporting Karam Khan on all aspects; thirdly, that both the witnesses were chance witnesses. Fourthly, that these two witnesses were disbelieved as against the acquitted accused and that medical evidence did not support them.
49. We have considered these contentions and find them without any force. The occurrence took place in Killa No. 22 of Square No. 50 which belonged to Sher Khan deceased and his brothers. Karam Khan P.W. Had gone to have a round of his land which was under cultivation of Manzoor Hussain P.W. At a short distance from the place of occurrence. They heard the fire shots from a distance of 3/4 Acres and were attracted to the place of occurrence. The houses of the accused were only two squares away from the place of occurrence. It is normal for a Zamindar to have a round of his land and to visit his Dera occupied by his tenant. There was nothing unusual in the conduct of Karam Khan P. W. He cannot, therefore, be considered a chance witness. Manzoor Hussain was residing in the land under his cultivation which was near the place of occurrence. He was a natural witness.
50. Both these witnesses consistently supported the prosecution case. Mere fact that Manzoor was a tenant of Karam Khan would .Not mean that he was a false and unreliable witness. It was argued that the eye-witnesses were disbelieved against Mapal, Khan and Ramzan son of Khan accused.
51. We have examined the judgment of trial Court. There is no indication that the trial Court disbelieved these witnesses against the three above said acquitted. Accused. They were acquitted by giving them benefit of doubt as an abundant caution. As such they cannot be disbelieved against the present appellants for that reason. The learned counsel for the appellants laid much stress on the statements of these two witnesses that after inflicting injuries Alam Sher and Falak Sher accused dragged Sher -Khan deceased in the nearby Kotha. It was pointed out by the learned counsel that the story of dragging of the deceased inside that Kotha is falsified by the medical evidence which did not show any dragging marks on the dead body. We have carefully gone through the statements of these witnesses to examine this contention. A perusal of the evidence of P.W.1 Dr. Abdul Ghaffar would show that under injury No.23 small abrasions on front of chest were noted. There is not much cross-examination of the two eye-witnesses on the point as to how and in what manner the accused had dragged Sher Khan deceased in the said Kotha. It is possible that the two accused might have lifted Sher Khan deceased to drag him inside the Kotha.
52. It is also possible that the deceased was facing downward when he was dragged in the room in which case he could have received abrasions on his chest. We do not find any contradiction between the ocular account and the medical evidence on this score. It was argued on behalf of the appellants that Karam Khan was a false witness because he denied having executed two documents Exhs.D.B. And D.D. In support of the innocence of Muhammad Yar accused. Karam Khan P.W. Admitted his signatures on Exh.D.B. He however, stated that its contents were not reduced into writing at that time. He also admitted his signatures on Exh.D.D. The admission of the signatures on these two documents would show that he was not a false witness. He qualified his admission of signatures on these documents by saying that these were not written when he signed the two papers. We need not examine this point further because these two documents pertain to the innocence of Muhammad Yar acquitted accused who was admittedly not present at the spot at the time of occurrence. As such the contention on behalf of the appellants does not in any way affect the merits of the case against the accused who were present at the spot at the time of occurrence and committed murder of Sher Khan.
53. The occurrence took place at 5-30 p.m. And the F.I.R. Was lodged in about one hour's time. It was prompt F.I.R. All the accused were named therein. The eye-witnesses were also named in the F.I.R.
54. Which contained detailed facts of the occurrence. We do not find any reason to disbelieve the two eye-witnesses. Resultantly we find no merit in this appeal which is accordingly dismissed. The conviction of the appellants under section 148 and section 302/149, P.P.C. Is accordingly maintained. On a perusal of the evidence we find that medical officer admitted in cross- examination that injury No. 13 by fire-arm could alone also cause death of Sher Khan deceased though in that case it would not have been instantaneous death. The deceased received a larger number of incised wounds, including injuries No.1 to 7 which alongwith injury No.13 were collectively sufficient to cause death in ordinary course of nature. It is, therefore, not clear as to which of the accused caused the fatal injuries; secondly, Alam Sher accused was son of Manzoor Hussain deceased for whose murder Sher Khan deceased was being prosecuted alongwith three other accused. Sher Khan deceased had been allowed bail in the said case. The four appellants are aged from 23 to 2i years. They apparently acted under the influence of C their elders, i.e. The two acquitted accused namely Mapal and Khan. In view of these circumstances and relying on 1985 SC Monthly Review 479 Mukhtar Husasin v. The State and 1985 SCMR 1415 Liaqat Shah and others v.
55. The State, we reduce their sentences from death to imprisonment for life.
13. As a result of above discussion Alam Sher, Falak Sher, Ramzan son of Khan and Ramzan son of Mapal are sentenced to imprisonment for life and fine of Rs.5,000 or in default two years R.I. Each and section 302/149, P.P.C. Their sentences of death are not CONFIRMED Their conviction and sentence under section 148, P.P.C. Is maintained. The conviction and sentences of Haq Nawaz appellant on all charges are maintained. The entire amount of fine, if recovered, will be paid as compensation to heirs of Sher Khan deceased. The sentences of the --appellants under section 148, P.P.C. And under section 302/149, P.P.C. Will run concurrently. The appellant will be given benefit of section 382-B, Cr. P.C.
14. With the above modification this appeal is dismissed.