KHIZAR HAYAT, J.--Faiz Muhammad (32 years), Ghulam Mustafa (34 years) and Muhammad Ismail (30 years) sons of Gul Muhammad caste Gorman residents of Village Pir Adil, District D.G.
Khan, were tried by the Additional Sessions Judge, D.G. Khan, for having committed the murder d, Muse Gormani aged 45/50 years in furtherance of their common intention being armed with hatchets, on 30-11-1979 at Assarwela, in the area of Village Pir Adil. The learned trial Judge vide his order dated 18-6-1480 convicted them under section 302/34, P.P.C. And sentenced Ghulam Mustafa and Muhammad Ismail, appellants, to imprisonment for life and a fine of Rs.3,000 each. In default of payment of fine to undergo rigorous imprisonment for two years but he awarded sentence of loath to Faiz Muhammad, appellant, and a fine of Rs.5,000. In default of payment of fine, to undergo rigorous imprisonment for two years. It was directed that half of the fine, if realised, would be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C
2. All the three appellants have challenged their conviction and sentence by filing a joint appeal (Criminal Appeal No. 68 of 1980). The learned Additional Sessions Judge has made reference (Murder Reference No. 22 of 1980) under section 374, Cr.P.C. For the confirmation of death sentence awarded to Faiz Muhammad, appellant. We propose to dispose of both the appeal and the reference by this judgment.
3. The incident was reported by Khadim Hussain (P.W. 3) to Sardar Muhammad S.I. (P.W. 9) at 8-30 p.m. On 30-11-1978 at Darri Pir Adil where the latter was present in connection with patrol duty. The statement of Khadim Hussain (P.W. 3) was sent by him through Muhammad Din Constable to Police Station Batal for registration of formal F.I.R. Sardar Muhammad S.I. (P.W. 9) himself left for the spot in the company of the complainant. Subsequently, a formal F.I.R. Exh. P.C./1 was drawn up on the basis of the statement Exh. P.C., by Muhammad Bakhsh, H.C. (P.W. 6).
4. According to the F.L.R. Hap Muhammad Azim, stepfather of complainant Khadim Hussain (P.W. 3) purchased 10 Acres of land from Muhammad Ramzan son of Wali Muhammad Muhajir about a year ago. This land was previously under the cultivation of the three appellants as tenants and they had their residential houses on the said land. It occurred to the appellants that if Hap Muhammad Azim took over the possession of the said land then their residences would also be possessed by him. To save their residences, the appellants took Muhammad Ramzan vendor in confidence and through his son Muhammad lqbal, filed a suit for pre-emption on the said land. Musa (deceased) who was cultivating the said land for about a year as tenant under Muhammad Ramzan, also filed a rival suit for pre-emption on the ground of tenancy. The appellants did not take this act of Musa (deceased) with good taste. A day before the occurrence, it is alleged that Faiz Muhammad, appellant, had quarrelled with Musa (deceased) in a bus while returning from D.G.Khan. On the eventful day at about Assarwela. Musa (deceased) returned from D.G.Khan and was going towards his house on foot. When he reached in Kills No. 1 of rectangle No. 112 owned by Muhammad Bakhsh Ferdani, all the three appellants armed with hatchets emerged from a cotton crop where they were lying in ambush. Raising Lalkara to the effect that Musa would not go alive, Faiz Muhammad, appellant, dealt a hatchet blow on the head of Musa (deceased) and Muhammad Ismail appellant, gave a hatchet blow on his forehead and the left ear while Ghulam Mustafa appellant's blow landed on his right wrist as well as on his right palm. Ghulam Mustafa appellant, repeated the blow but the handle of his hatchet struck the deceased on his left. As e. Result of these blows, Musa fell down. Thereafter, Faiz Muhammad appellant, pressed the neck of Musa, dragged his body and threw it in a water--course. Khadim Hussain, complainant (P.W. 3). Hap Muhammad (P.W.7), Abdul Mejid (P.W. 8) (son of the deceased) and Rahim Bakhsh (P.W. Not examined by the prosecution) were attracted by the alarm raised by the deceased and witnessed the occurrence. Seeing the witnesses reaching the spot, the appellants made good their escape. The witnesses then took out the dead body from the watercourse and placed it on a cot and then Khadim Hussain left for the report.
5. During the investigation, Sardar Muhammad S. I. (P. W. 9) collected blood-stained earth from the spot and made it into a sealed parcel vide memo. Exh.P.D. He recovered Chaddar P. 5 of the deceased lying on the spot and seized it through memo. Exh. P.E. He prepared injury statement Exh.
P.J. And inquest report Exh. P.K. Of Musa (deceased) and despatched the dead body for post- mortem examination under the escort of Ghulam Farid Constable (P.W. 1) who on the following day produced before him the last worn clothes of the deceased P.1 to P. 4 which were seized through memo. Exh. P.A. He arrested all the appellants on 2-12-1978.
6. Faiz Muhammad appellant while in police custody led to the recovery of blood-stained hatchet P. 6 from an earthen bin and the S.I. Took it into possession after making the same into a sealed parcel through memo. Exh. P.F. Attested by Khadim Hussain (P.W. 3) and Hap Muhammad (P.W. 7).
Likewise, Ghulam Mustafa, appellant led to the recovery of blood-stained hatchet P. 7 and Muhammad Ismail, appellant, led to the recovery of blood-stained hatchet P. 8 which were taken into possession by making separate sealed parcels through memos. Exh. P.G. And Exh. P.H.
Respectively. All these recovery memos were attested by Rahim Bakhsn (P.W. Not produced) and Abdul Majid (P.W. 8) besides the Investigating Officer. Site plan Exh. P.B. Was got prepared in triplicate from Manzoor Hussain, Patwari (P.W. 2). Blood-stained hatchets P. 6, P. 7 and P. 8 allegedly recovered from the appellants as well as the blood-stained earth collected from the spot were sent to the Chemical Examiner for detection of blood. The Chemical Examiner reported in positive vide his report Exh. P.M. And Serologist's report Exh. P.N. Confirmed that the blood found on the aforesaid articles was of human origin. After completing the usual investigation, challan was submitted to Court for trial.
7. Dr. Nasir Ahmad, Medical Officer, D.H.Q. Hospital (P.W. 4) conducted the autopsy on the dead body of Musa (deceased), indentified by Rahim Bakhsh and Khadim Hussain (P.Ws:) on 1-12-197ts et 4-00 P.m. And noticed the following injuries thereon:- (1)An incised wound 2" x -- " x bone deep on front part of the head 2 -- " behind the root of the nose About-- " of the wound on right side and 1 --" on left side.
(2)An incised wound about 3" x -- x bone deep transverse in direction 1" behind injury No. 1. The underlying bone was cut through and through about half of the wound on right side and half on left side.
(3)An incised wound about 1 -- " x -- " x bone deep on left side head longitudinal. The underlying bore was cut through and through.
(4)An incised wound 1" x 1/6" x bone deep on back of right side head oblique in direction.
(5)An incised wound 1" x 116" x skin deep on back of left ear.
(6)An incised wound about 4" x 1" x muscle deep on right forearm 3 1/2" above the wrist.
(7)Abrasion 1" on medial side of back of right wrist.
(8)Abrasion on back of right hand in the middle.
(9)Abrasion 1 -- " or medial side of left knee. Transverse in direction.
8. At the trial, 9 witnesses were examined by the prosecution to support its case. Khadim Hussain, informant (P.W. 3), Haji Muhammad (P.W. 7) and Abdul Majid (P.W. 8) gave the eye-account of the occurrence. They also deposed about the recovery of hatchets used as weapons of offence by the appellants. Khadim Hussain, informant (P.W. 3) also furnished the evidence regarding motive.
Sardar Muhammad S.I. (P.W. 9) investigated the case and Dr. Nasir Ahmad (P.W.4) proved that Musa (deceased) had met an unnatural death due to the injuries suffered by him in the attack as indicated earlier.
9. The plea of the appellants was denial simplicitor and they professed innocence. They denied the recovery of weapons of offence and stated that the case against them was brought up due to enmity with the complainant party and with the local police. Ghulam Mustafa and Muhammad Ismail, appellants, declined to produce any evidence in their defence. However, Faiz Muhammad, appellant, examined three witnesses in his defence, namely, Shaukat Hayat Muharrir B.C. (D.W. 1)
Rahim Bakhsh son of Illahi Bakhsh (D.W. 2) who was a prosecution witness but was given up as having been won over, and Khadim Hussain (D.W. 3).
10. Learned counsel appearing on behalf of the appellants assailed the conviction and sentence of the appellants on various grounds which would be disposed of seriatim hereunder.
11. First of all, the learned counsel argued that the appellants had no motive whatsoever to murder Musa (deceased) and they were to gain nothing by eliminating him. It is in the evidence that Muhammad Azim, father of the complainant, had purchased land from Muhammad Ramzan Muhajir. Muhammad Ramzan Muhajir's son Muhammad lqbal had filed a pre-emption suit through his attorney Faiz Muhammad, appellant. Musa (deceased) had filed a rival pre-emption suit on the ground tenancy on the came land. Learned counsel stated that it was the complainant or his father who were interested in the failure of the pre-emption suit because in that way he would have enjoyed the fruits of the land by gaining possession of the same. We think, the learned counsel has failed to appreciate that the contest was not so serious between Musa (deceased) and Muhammad Azim (vendee) as it was between the two rival pre-emptors i.e. Musa (deceased) and Muhammad Iqbal, It has been established on the record that Muhammad Iqbal son of Muhammad Ramzan Muhajir (vendor) was in fact instigated by Faiz to file the suit and he had taken upon himself therefore Muhammad, appellant, pursue the matter as his attorney. His interest in the suit quite obvious because he wanted to save his and his family's residence built over the suit land which could only be done if the deceased ha been removed from the scene because in his presence Faiz Muhammad, appellants case could not legally succeed. Learned counsel further stated that as both the rival suits of pre-emption had been withdrawn after the occurrence, it, therefore indicated that Musa (deceased) was actually done away through the mechanism of the complainant party. The argument has no force. It so happened as the situation had changed because of Musa having been murdered and the other pre-emptor Faiz Muhammad having been arrested in this case. This situation created by Faiz Muhammad, appellant, and his companions' foolish planning which had naturally come to suit the interest of the complainant and not due to his own strategy. We, therefore, hold that the appellants had strong motive to do away with Musa (deceased) so that Muhammad Iqbal (pre--emptor whose attorney Faiz Muhammad was) being the sole pre-emptor having superior right as vendor's son in the field would succeed.
12. Secondly, the learned counsel argued that Musa (deceased) was a person of bad character and had many enemies who were on chase to kill him. According to the learned counsel, Musa (deceased) was attacked and killed un witnessed by some unknown assailants. To substantiate his contention, he relied on a photostat application Exh.D.A., dated 25-6-1978 addressed to Duty Magistrate, D.G. Khan, purported to have been thumb marked by Mst. Sonan alias Soni daughter of Ghulam Qadir Gormani wherein she stated that she was not abducted by any person and that she had married Abdul Majid son of Musa. Her fiance. Of her own accord. Exh.D.H. Is an application, dated 1-7-1978 given by Ghulam Qadir (father of aforesaid Mat. Sonan) addressed to Honorary Magistrate, D.G. Khan, against Musa and his son Abdul Majid and others complaining about the abduction of his daughter by them. In June. 1973. Mist. Jindan filed F.I.R. Exh.D.K. Against Musa (deceased) and his son Abdul Majid besides others for causing injuries to her husband Wahid Bakhsh. Musa (deceased) had lodged F.1.R. Exh.D.L. Against Pir Bakhsh and others for the murder of one Amir Bakhsh in March, 1974. A cross-case regarding the same incident was registered vide F.I.R.
Exh.D.M. Wherein Musa's son Abdul Majid was one of the accused named therein. It has been admitted by Khadim Hussain (P.W. 3) that compromise in these cross-cases was effected between the parties learned counsel has laid great stress on application Exh.D.N. Made by Allah Wasaya who is the father of Amir Bakhsh (deceased) for whose murder F.I.R. Exh.D.L. Was lodged by Musa (deceased). In the said application, Allah Wasaya had complained that the compensation money about the murder of his son was received by Musa and the cases were, therefore, compromised but that money was not delivered to him. He had prayed in that application that the said money should be got recovered from Abdul Majid son of Musa because Musa, had since been killed. This application suggests that it was moved after the murder of Musa (deceased). A study of all the aforesaid documents does not show that Musa (deceased) was of bad character. He was no doubt an accused in one or two cases but those were either compromised or be was acquitted. As for the abduction of Mat. Sonan is concerned it appears that she had eloped with Abdul Majid and had married him of her own accord. The relatives of Mat. Sonan had a grouse against Abdul Majid and not against Musa to a degree that they should kill him because it was Abdul Majid who in fact was keeping the lady and they could achieve their purpose of getting back Mst. Sonan by killing Abdul Majid and not Musa (deceased). The application of Allah Wasaya is of no consequence since he did not appear in Court to prove its contents and it also appears that it had been manoeuvred by the defence after the occurrence. We do not find ourselves in agreement with the learned counsel that Muss (deceased) had many enemies on his right and left Chasing him all the time to liquidate him nor do we agree with the defence counsel that Musa was killed in an un witnessed occurrence. This aspect of the case we shall deal elaborately in the next paragraph of the judgment.
13. Learned counsel next argued that the occurrence was un witnessed. He contended that Khadim Hussain (P.W. 3) who is informant in the case, was declared hostile and, therefore, his evidence should be rule out of consideration. Regarding Haji Muhammad (P.W. 7) and Abdul Majid (P.W. 8), the learned counsel canvassed that they should not be believed; firstly, for the reason that they had no reasonable excuse to be present at the spot at the relevant time and secondly, because, they are closely related to Musa (deceased) and their testimony remained uncorroborated from any independent source and as such it cannot form basis beyond reasonable doubt for conviction of the appellants. Learned counsel has capitalised on the fact that Rahim Bakhsh (cited as eye- witness) has attempted to make it a blind murder. According to him, he was present with Abdul Majid (P.W. 8) at the latter's house at Isha prayers time on the day of occurrence when his nephew Nabi Bakhsh (not produced) approached them and broke the bad news that Musa had been killed.
This shocked Abdul Majid (P.W. 8) and he fainted. Thereafter, he stated, that they went to the spot and found Musa lying dead at the spot. He went on to say that a blood-stained Kasai was lying near the dead body which was identified as belonging to Faiz Muhammad, appellant, and thus he was suspected to be the murderer of Musa. He was a witness to the recoveries of blood-stained hatchets P,7, P.8 from Ghulam Mustafa and Muhammad Ismail appellants, respectively and had attested the relevant memos. Exhs. P.G. And P.H. During the cross-examination by the A.P.P., the witness admitted his signatures thereon but added that when he signed those papers they were blank. He has however admitted in the cross-examination that Musa (deceased)-had filed a pre- emption suit on the land purchased by Muhammad Azim, father of the complainant, but he denied all knowledge about the filing of another pre-emption suit by Faiz Bakhsh, appellant, on behalf of Muhammad lqbal son of Muhammad Ramzan Muhajir (vendor) as his attorney. It is strange that he knew about the purchase of the suit-lend by Muhammad Azim and also about the filing of pre- emption suit by Musa (deceased) but he expressed his ignorance about the pre-emption suit which was admittedly pursued by Faiz Muhammad, appellant. It shows the working of his mind that he wanted to conceal every circumstance through which an inference of enmity could be drawn that Faiz Muhammad, appellant, was inimically disposed towards Musa (deceased). It is well- recognized rule of appreciation of evidence that if a witness deliberately denies an admitted fact then his testimony is rendered completely untrustworthy. It may be stated, the witness had been given up as having been won over. We are of the view that in these circumstances the testimony of this witness hardly merits any credence. As for the other two eye-witnesses namely, Haji Muhammad (P.W. 7) and Abdul Majid (P.W. 8) are concerned, they are related but their relationship alone is not sufficient to discard their evidence which also has a ring of truth around it. Similarly, we do not agree with the learned counsel that the evidence of a hostile witness (Khadim Hussain) should altogether be thrown away. The correct proposition of law is that the evidence of a hostile witness is also to be judged like any other witness and reasonable and truthful portions thereof could be picked up to form an independent opinion by the Court.
14. It is in the evidence of all the eye-witnesses that at the relevant time they were returning to the houses after attending marriage ceremony of Ghulam Rasool and when they reached near the land of Muhammad Bakhsh Fardani, they saw Musa (deceased) coming from the opposite direction towards them. Ghulam Mustata, Faiz Muhammad and Ismail appellants armed with hatchets suddenly emerged out of a nearby cotton field and attacked Musa with their hatchets simultaneously raising a Lalkara that they would not let him go alive. The witnesses were subjected to a prolonged and exacting cross-examination but for a slip here and there they withstood the test successfully. The minor dis--crepancies crept in because the witnesses were examined in Court for over l -- years after the occurrence. Khadim Hussain informant (P.W.3) had made an abortive attempt to extend some concession to Ghulam Mustafa and Ismail, appellants, by saying that at the time of occurrence they had their faces muffled up. To us, it looked to be deliberate attempt to favour them. He has clearly named these appellants in the F.I.R. They are not only known to him but are his relative as per his own admission. He also admitted that his two uncles, namely, Yar Muhammad and Karim Bakhsh were married to the two sisters of the appellants. Again, he witnessed the recovery of blood-stained hatchets from all the three appellants and attested the relevant memos. Which fact he did not deny. We find that this witness remained associated with the investigation of the case when the appellants were in custody with the police. Had it been his case that identity of Ghulam Mustafa and Ismail at the time of occurrence was doubtful then he, being their close relative would have cried hoarse to save them but on the contrary he admitted in reply to a question by the A.P.P. That he had not made any application to any officer or authority that the police had not recorded his statement correctly. We reproduce his statement with advantage which is as under:- "During the period that elapsed between my statement Exh.P.C. And the start of the present trial, I have not made any application to any officer or authority that the police had not recorded my statement correctly to the extent of muffling of faces by aforesaid two accused."
The game of Khadim Hussain (P.W. 3) to make identity of Ismail and Ghulam Mustafa, appellants, doubtful stands completely exposed. We, therefore, feel satisfied that the murder of Muss had been committed by the three appellants in the manner and at the time as alleged by the witnesses and within their view.
15. Since we have reached at a conclusion that the appellants had a motive against Musa (deceased) and that they murdered him by giving hatchet blows, we think that it would be a question of academic interest only to discuss the evidence pertaining to the recovery of blood- stained hatchets effected from the three appellants. These recoveries have been sought to be proved through the witnesses, namely, Khadim Hussain (P.W. 3), Haji Muhammad (P.W. 7) and Abdul Majid (P.W. 8) who are also the eye-witnesses. It is true that a witness cannot corroborate his own testimony but we find that the hatchets P. 6, P. 7 and P. 8 recovered from the appellants were found to be stained with human blood by the Serologist and, therefore, it is certainly a circumstance in favour of the prosecution.
16. In view of the foregoing discussion we are convinced in our minds that the appellants have been rightly convicted by the learned trial Court under section 302/34. P.P.C. Consequently we maintain the same.
17. This now brings us to the question of sentence awarded to the appellants. According to the depositions of the eye-witnesses, all the appellants simultaneously started inflicting hatchet blows on the person of Muse (deceased). He suffered two fatal injuries while the rest were simple. It was not possible for the witnesses to discern with exactitude that whose blow landed at what part of the body of the deceased. In the absence of exact information as to whose blow proved fatal, we have failed to understand as to how the learned trial Court has distinguished the case of Faiz Muhammad appellant, and chose to inflict extreme penalty of death on him, while the remaining appellants were awarded the sentence of life imprisonment. In the absence of any special reason for awarding death penalty to Faiz Muhammad, appellant, we feel inclined to commute the death sentence of Faiz Muhammad appellant, also to that of life imprisonment, to strike equality among the appellants on the point of sentence.
18. Thus, the result is that except for the commutation of the sentence of death awarded to Faiz Muhammad, appellant the appeal of the appellants is dismissed. The depth sentence of Faiz Muhammad, appellant is not confirmed. The reference is rejected.
ORDER OF THE COURT This is a petition under section 561-A, Cr.P.C. By Ghulam Mustafa and two others, petitioners, for the grant of relief to them under section 382-8. Cr.P.C.
2. The petitioner's appeal (Criminal Appeal 68 of 1980), with the connected murder reference (Murder Reference 22 of 19130/BWP), was heard by a Division Bench of this Court comprising of Khizar Hayat and Kemal Mustafa Bukhari, JJ. The judgment was announced on 28-4-1982. Whilst maintaining the conviction of the petitioners under section 302/34, P.P.C., the death sentence of Faiz Muhammad, appellant, was commuted to life imprisonment with fine, whereas the sentences of life imprisonment with fine of Ghulam Mustafa and Muhammad Ismail were maintained.
Inadvertently, the benefit of section 382-B, Cr.P.C. Was not granted to the petitioners. We, therefore, give the benefit of the said section to the three petitioners. The periods of detentions undergone by the three petitioners as under trial prisoners shall be treated as periods of detention undergone by them as convicts with this observation, this petition stands disposed of.