' SARDAR MUHAMMAD DOGAR, J.--Appellants Zafar alias Zafari (26) and Ghulam (28) were tried by Additional Sessions Judge, Faisalabad, for having committed the murder of Mahmood alias Mondi, on 6-3-1980, at 7-30 a.m., near Chah Taliwala, in the area of Chak No, 762/G.B. At a distance of 11 miles from Police Station Pir Mahal. The learned trial Judge vide order dated 6-1-1982, convicted both of them under section 302/34, P.P.C. Zafar was sentenced to death, plus a fine of Rs,,1,000 in default whereof to undergo one year R.I., while Ghulam was sentenced to imprisonment for life, plus a fine of Rs, 4,000 in default whereof to undergo R.I. For two years. Half of the fine, on realization, from both was directed to be paid as compensation to the heirs of the deceased.
2. The convicts have filed appeal. The trial Judge has referred the case for confirmation of death awarded to Zafar appellant. Nek Muhammad complainant has filed Criminal Revision 81 of 1985, praying enhancement of sentence of Ghulam appellant from imprisonment for life to death. As all the matters arise from one order, they are being disposed of by one order.
3. F.I.R. (Exh. P.L.) was recorded at Police Station Pir Mahal on the same day at 1-30 p.m. By Ziaullah, S.I./S.H.O. (P.W.11), on the statement of Nek Muhammad (P.W.9).
4. Briefly, the prosecution case according to the F.I.R., is that a month before the occurrence, complainant and Zafar had quarrelled among themselves, but the matter was settled.
' On the day of occurrence, Mahmood alias Mondi was going with a camel loaded with wood for selling the same in Darbar Sindhilianwali. At 7-30 a.m., he reached near Chah Taliwala, Zafar alias Zafari armed with an iron Sanbal (iron rod) and Ghulam armed with a Kulhari, residents of Chak No, 765/G.B., who were sitting ambush, came out, raising Lalkara. Zafar hurled an abuse and after saying that he will avenge the insult, gave two Sanbal blows on the left and back side of the head of Mahrnood. He fell down. Ghulam gave him Kulhari blows on left thigh, .Left ankle, left elbow and right knee. Thereafter, Zafar caused him injuries on the left leg and both arms. As Mahmood had placed both his hands on the head, he did not receive anx further injury on the head.
' The occurrence was witnessed by Nek Muhammad (P.W.11), brother of the deceased, Hassan Ali (P.W.10), Muhammad Sarwar and Muhammad Ramzan (P.Ws. Given up), who were going to Sindhilianwali, to make purchases. When they tried to intervene to save Mahmood, Zafar threatened them that they will also be murdered. The accused thereafter left the place of occurrence. Mahmood was taken to Civil Hospital, Sindhilianwali, where he died same day at 3-45 p.m.
' In the concluding lines of the F.I.R., complainant stated that Zafar and Ghulam had launched the premeditated assault on his brother to avenge the insult.
5. Dr. Asghar Ali (P.W.2), medically examined Mahmood Ahmad on the same day on his arrival in the Rural Dispensary. Sindhilianwali. He was found to have suffered in all 23 injuries. Eight of them were contusions, eight were swellings, three were abrasions and four were incised, wounds. The injured had arrived in the Hospital the same day at 10-30 a.m.
' The autopsy on the dead body of Mahmood was performed on the following day at 10-00 a.m. By Dr. Muhammad Iqbal (P.W.1). At the time of autopsy also, he was found to have suffered 23 injuries, which included contusions, swellings, abrasions and incised wounds.
' On opening skull, the doctor found that the scalp was congested and lacerated, over the left parietal regions and occipital regions, at the site of injuries 1 and 2, which have been described as under:-
(1) A contused wound, 2" x x bone deep over the left parietal region of head with depressed fracture of the underlying bone.
(2) A contused wound, I," x 1" x bone deep over occipital region of head on the upper part.
' Left parietal bone had a depressed fracture. Membranes were congested with extra-vasation of blood. Brain was congested and lacerated over the left parietal region, due to depressed fracture of skull.
' According to the opinion of the doctor, the deceased has died, as a result of shock and haemorrhage, which resulted from extensive head injury, causing depressed fracture of skull. Injury No,1 was opined to be sufficient to cause death in the ordinary course of nature.
' Injuries 6, 15, 18 and 20 which have been described as under, were opined to have been caused by a sharp-edged weapon, while the rest were opined to have been caused by a blunt weapon:-
(6) An incised wound, 11" x 1.3/4" x 1/2" skin deep outer surface of left side in the middle part.
(15) An incised wound, in x-1/8" over the outer part of left heel.
(18) An incised wound, 1/2" x 1/8" over the inner part of right forearm on the upper half. /
(20) An incised wound, 1" x 1/8" over the inner part of right knee.
6. Ziaullah, S.I./S.H.O. (P.W.11), visited the Hospital after recording the F.I.R. He learnt about the death of Mahmood there. He proceeded to the spot after despatching the dead body for post-mortem examination, after completion of necessary papers.
' At the spot, he collected blood-stained earth vide memo. Exh.
P. H .
' Both the appellants were arrested by Muhammad Sarwar, A.S.I. (P.W.8) on 12-3-1980. Ghulam led to the recovery of blood-stained hatchet (P.5.) from his Kotha on the same day, while Zafar led to the recovery of blood-stained iron Sanbal (P.6) from his store same day. They were taken into possession vide memos. Exhs. P.J. And P.K. Respectively. They were sealed into parcels and handed over to the Moharrir of the Police Station. These parcels alongwith the parcel of blood-stained earth were transported to the office of the Chemical Examiner on 24-3-1980 intact by Muhammad Latif constable (P.W.4). These articles were entrusted to him on the same day by Muhammad Sherif, M.H.C. (P.W.5.).
7. At the trial prosecution in all examined eleven witnesses. The gist of the medical evidence and a resume of the investigation of the case has been noted above.
' The ocular account has been furnished by Nek Muhammad (P.W.9) and Hassan Ali (P.W.10).
Ghulam Sarwar and Muhammad Ramzan, named in the F.I.R. As eye-witnesses, were given up as having been won over. Positive reports (Exhs. P.M. And P.N.), about the blood in the earth taken from the spot and on the two weapons recovered at the instance of the appellants, of the Chemical Examiner and that of the Serologist, respectively, were also tendered in evidence.
8. Both the appellants during their statements under section 342, Cr.P.C. Pleaded not guilty, denied the prosecution allegations, as well as recoveries alleged to have been effected at their instance.
Zafar, in answer to the question, why this case against him, stated as under:- "I used to have friendly relation with Mahmood deceased. Some years back Murad, the father of Mahmood died. On that occasion, Mahmood borrowed Rs, 400 from me for funeral expenses. Later, I asked him to repay the amount, but he kept on putting me off for two-three years. He paid me a part of rupees. When I insisted for the balance, there was quarrel and I gave him beating. The family of the deceased bore this grudge against me. The deceased had enmity with several other persons. He was killed by somebody and we have been implicated for suspicion in this case."
' Ghulam, in answer to the question, why this case against him, stated that he has been implicated because of his relations with Zafar co-accused.
' The relationship inter se has been admitted by them. They did not produce any defence evidence.
9. Nek Muhammad (P.W.9) during examination-in-chief repeated the facts given by him in the F.I.R.
However, while stating about motive he added that Zafar had damaged hie crop 5/10 days prior to the occurrence and on his intervention had abused him. On the second or third day, deceased had complained to father of Zafar, whereupon they had exchanged abuses. He stated that deceased was murdered due to that. On confrontation he was not found to have stated these facts in the F.I.R.
During cross-examination, he denied that on the death of his father, who had died 5/7 years back, due to drowning, Zafar had spent Rs, 400/500, on his funeral ceremony or that he had quarrelled with Zafar over the return of this amount. He admitted that grandfather of Hassan Ali P.W. Was real brother of his grandfather and the deceased was married to Mst. Wallan, sister of Hassan All P.W.
However, he added that the deceased had, divorced her 3/4 months prior to the occurrence. He could not give any reason for divorce, but denied the suggestion that Mst. Wallan was not divorced.
' Hassan Ali (P.W.10), corroborated the deposition of complainant Nek Muhammad (P.W.9). In cross- examination, he stated that Mahmood had divorced his sister, Mst. Wallan, 2/3 months before the occurrence. He avoided, straightaway admitting his relationship with Nek Muhammad by being from the same descendants. It was also stated by him that the deceased had divorced his sister.
' Javed Saleem, who attested the recoveries of weapons of offence, recovered at the instance of both the appellants, had also attested the recovery of blood-stained earth from the spot, appeared as P.W.7 and verified, of having attested the recoveries. He did not admit his relationship with the deceased. However, Nur Jamal Constable (P.W.3) in cross-examination stated that the deceased and his family were tenants of Javid Saleem P.W. Muhammad Sarwar, A.S.I. Corroborated the statement of Javed Saleem with regard to the recoveries of weapons of offence at the instance of the appellants. Both the witnesses denied that the weapons were planted on the appellants.
10. Learned counsel for the appellants contended that the prosecution had failed to prove the motive, that the evidence of recoveries of weapons of offence has not come through unimpeachable source, and so, is not worth reliance, that the ocular account furnished by P.Ws.9 and 10 is not worth reliance, for the reasons that being relations of the deceased they are interested witnesses and by making improvements over their previous statements have further made themselves unreliable. Learned counsel further contended that medical evidence also contradicts the ocular account. Learned counsel cited Muhammad Din V. StatePLD 1959 SC 491 and Ghaus Muhammad v. State 1971 P Cr. L J 1089. .11. Learned counsel for the State/complainant contended that there was sufficient evidence on record to believe the alleged motive, that the eye-witnesses even though related had no enmity with the appellants and, as such, their testimony is worth reliance, that the evidence of recoveries of weapons of offence at the instance of the appellants is worth reliance and lends full corroboration to the eye-witness account, that there was no contradiction between the medical account and the eye-witness account.
' Learned counsel. For the complainant argued that both the appellants were equally liable for having done the deceased to death and, as such, there was no jurisdiction to award lesser sentence to Ghulam appellant.
12. We have examined the contentions of the learned counsel for the parties after going through the record.
' Learned counsel for the appellants while criticizing the evidence of recoveries of weapons contended that no witness from the surrounding area, wherefrom the weapons are alleged to have been recovered at the instance of the appellants, was joined in the recovery proceedings and that Javed Saleem, who had attested the recoveries did not belong to the Abadi wherefrom the recoveries were effected. He attacked the bona fides of Javed Saleem on two counts. First, that he associated himself with the investigation right from the first day without admitting as to why he was so concerned. Secondly, while referring to the statement of P.W.3, learned counsel contended that being owner of the land which was under cultivation of the deceased and his family, he was an interested witness. The other argument advanced by him for discarding the evidence of recoveries of weapons was that the recovered items were not sent to the office of the Chemical Examiner till 12 days and, as such, should not be given any weight. Yet the other argument advanced was that although it has not been- stated in the recovery memos, nor has been so stated by the witnesses at the trial that Sanbal (iron rod) recovered from Ghulam was blood- stained, still positive opinion was given by the Chemical Examiner and the Serologist. Learned counsel contended that this was unbelievable.
13. No question was put to Muhammad Sarwar, A.S.I. During cross-examination, whether any person from vicinity was present nearby or was available at the time of recoveries effected at the instance of the appellant (excepting the attesting witnesses). Similarly, Javed Saleem P.W. Was also not asked any such question. There being nothing on record to consider that persons other than Javed Saleem and Sajjad Hussain (who was given up as unnecessary) were available for joining the recovery proceedings, it cannot be granted that provisions of section 103, Cr.P.C. Were violated. No connection of Javed Saleem with the deceased by way of relationship has been proved either.
' Even if the statement made by Constable (P.W.3) (who was an official witness) in cross- examination, that deceased was tenant of Javed Saleem is accepted to be true, it cannot be conceded that he would have volunteered to become a false witness. We have reached this conclusion, particularly, keeping in view that no enmity of Javed Salim with the appellants have been brought on record.
' Learned counsel for the appellants had also contended that since the recoveries were effected on the sixth day of the occurrence, on that aqcount also they deserve to be discarded. This argument, in fact, is based on the citation PLD 1959 SC 491. After having gone through this judgment, we have no hesitation to record that this judgment does not support the contention of the learned counsel in any manner. In that case, the Hon'ble Judges after having discarded the eye-witness account and the other evidence, observed that "the recovery of the blood-stained stick, which is alleged to have been made at the instance of the appellant six days after the occurrence is not by itself sufficient to maintain the conviction". There is no cavil with the problem, that recovery of a blood- stained weapon alone cannot form the basis of conviction.
' The next argument raised by the learned counsel for discarding the evidence of recoveries of weapons of offence was that these weapons although were recovered on 12-3-1980, but were not despatched till 24-3-1980.
' Both the weapons after recovery were sealed into parcels. No suggestion was put either to the Moharrir or the Constable, who had transported the parcels to the office of the Chemical Examiner that the same were tampered with. There is neither any evidence nor such allegation. In fact no question was put to any one of the witnesses as to why the parcels were not sent earlier than 24-3- 1980. Without any evidence on record to consider the possibility of the parcels having been tampered with the evidence cannot be discarded.
' The case 1971 P Cr. L J 1089, cited in support of this argument does not lend any support to this contention. The facts of that case about the recovery were entirely different. In that case the evidence was that the accused had produced the blood-stained hatchet while appearing for arrest. The learned Judge, in view of this, observed that it was unlikely to believe that the appellant would be carrying blood-stained hatchet with him, which was proof of his guilt. This is not the situation in this case. Here the recoveries were effected at the instance of the appellants from their houses, where obviously they must have kept them for hiding.
' The last argument of the learned counsel about the weapons of offence, was, that even though no witness stated that the Sanbal (iron rod) recovered from Ghulam appellant was blood-stained and in spite of the fact that this fact was not mentioned in the memo. Of - covery, Sanbal was found stained with human blood, has not impressed us, the reason being, that a chemical test is certainly more accurate and thorough than bare eyes. What could not be seen by apparent look, was found by Chemical test. The weapon was sealed into a parcel at the spot at the time of recovery. There was no tampering. In fact, had the Investigating Officer any male fides, he could have written in the memo. That iron rod was blood-stained. The fact of the same having not been described as such, and the opinion of the Chemical Examiner and the Serologist to the contrary, speaks of the bona fides of the police officer, in whose custody the appellant had led to the recovery of weapon.
' For the reasons enumerated above, we have no hesitation in saying that the argument of the learned counsel for the appellants for discarding the evidence of recoveries is without any force.
14. Coming to the criticism of the learned counsel for the appellants. About the eye-witnesses, we would at the very outset like to observe that there was no previous marked enmity between the parties. Apart from the incident of motive alleged by the complainant and denied by the appellants, the only thing suggested during trial was that Zafar appellant had spent some amount on funeral ceremony of father of deceased and on the demand made by him for return of the same, a quarrel had taken place. This fact, apart from having been denied, even otherwise does not seem to possess any substance. Nothing can be read from whole of the evidence that the deceased, the complainant or his other relatives were so poor that they could not have borne the funeral expenditure or that after having taken some amount on loan for that purpose instead of returning the same, they would have quarrelled with him. In a Muslim society the expenditure on the funeral ceremony, until cleared, is considered a debt on the soul of the deceased and when the deceased leaves any close relative behind, he makes it a point to discharge this liability. The father of the deceased had left major grown up and earning sons. As such, the suggestion seems to be without any substance.
' The other thing which has weighed with us in not agreeing with the proposition put forth by learned counsel for the appellants that the appellants were involved falsely by the complainant, is, that one Nawaz resident of Sindhilianwali was murdered and Nawaz, brother of the deceased and complainant, was challaned in that case. It means that the complainant had a family of enemies and had he intended to involve innocent persons, he would have named members of that family instead of naming the appellants, or at least both.
' The argument of the learned counsel that Hassan All by trying to hide his relationship with the complainant through common ancestors made himself unreliable and the complainant by making improvements in his statement proved himself to be a liar, has also been considered by us.
The statement of the complainant is not contradictory to the stand he had taken at the time of registration of case. There are slight variations of insignificant importance. The only improvement which can be termed as important is about motive'. In that also the crux of the matter remained the same. He has not added anything new. He has explained it at some length.
' Statement of Hassan Ali cannot be thrown away merely for not having straightaway accepted that the complainant and himself belonged to the same line from grandfathers.
' The other argument of the learned counsel that both the witnesses in order to make Hassan All an independent witness, seem to have wrongly stated that deceased had divorced the sister of Hassan Ali. The argument of the learned counsel was that it was the game of the witnesses to prove that Hassan Ali in spite of being inimically disposed came up as eye-witness and so must be relied upon.
' The next argument advanced, was, that if that had been so, he would not have been at the spot with the complainant party.
15. We have considered these contentions with utmost caution. It seems difficult to believe that Hassan All would have come up with such a thing after the death of his sister's husband, because if that was not so, he must have known that his mere statement in this regard would compromise the position of his sister. She would not be able to inherit anything from her deceased husband, and would have to move with eyes down in shame. The position of a divorced woman in our society is well-known. No brother would like to call his sister a divorced woman without such an.Untoward thing happened. The complainant would also not have made such a lie because divorcing a woman by itself is a stigma on the man as well and the complainant would not have told lie to defame his brother after death.
' The argument that Hassan All would not have been accompanying the deceased in such a situation, we think, is out of place. Actually, he was not accompanying the deceased. He was accompanying the complainant and others. The deceased was going alone on his errand for selling the wood. The complainant and others including Hassan Ali were going on their own errands. It was a co-incidence that the witnesses were following the deceased.
' While elaborating the argument that medical evidence contradicted the ocular account, learned counsel referred to the seats of the incised wounds and their dimensions. According to him, Kulhari was a formidable weapon and if the same had been used with full force (as stated by one of the eye-witnesses in cross-examination) the dimensions of injuries would not have been as they were found to be. His stance was that Ghulam appellant armed with Kulhari would have chosen vulnerable part of the body to cause injuries with his weapon.
' In support of his contention that dimensions of injuries showed that they might have been caused by friendly hand, he cited a passage from the text book, Medical Jurisprudence and Toxicology by Dr. Siddique Hussain (17th Edition page 112).
16. Although contention of the learned counsel about the seats of the incised wounds on being ..Less vulnerable parts of the body seems to be correct, but that does' not mean that the injuries can be termed as self-suffered or caused by a friendly hand. The deceased had suffered a large number of injuries on almost all parts of the body. Apparently, the assailants gave him injuries at random after he had been given injuries on the head. The deceased while labouring under pain, as a result of injuries, must be moving and in that rnoving condition, the Kulhari blows could have fallen on any part of the body and if the Kulhari blows had landed on less vulnerable parts, they cannot be termed to have been caused by friendly hands.
' The contention that the Kulhari blows would have resulted in deeper cuts cannot be granted as a matter of rule. It is not only force with which one tries to inflict a blow, it is the manner in which it strikes the body also, which will show the real damage done. Only one of the wounds has been shown to be skin deep. The depth of other three has not been mentioned. The dimensions of injuries in this case have not been specified in centimeters. They have been measured in inches, and, looking to the dimensions, we do not feel inclined to grant the contention of the learned counsel that they were minor injuries and as such were result of friendly hands. Moreover, we cannot visualise, in fact, we cannot think of it, that a person who had suffered such a large number of injuries including grievous injuries on the head, would have been caused injuries by any of his friends or relatives, just to assign a role to Ghulam appellant of having attacked the deceased with a Kulhari. Even without these four injuries, he could have been named as one of the assailants showing him to be armed with a blunt weapon. After having thoroughly examined the situation, we find it hard to agree with the contention of the learned counsel for the appellants.
17. The last argument of the learned counsel, in support of his contention, that P.Ws. 9 and 10 had not witnessed the occurrence, was, that had these two witnesses accompanied by two others, named in the F.I.R., been present at the spot, at the time of occurrence, they would not have allowed the appellants to cause injuries to the deceased, as it would have been a case of five versus two.
' This argument is obviously based on the assumption, that the witnesses would have intervened physically to save the deceased.
' The prosecution case in this regard is that the appellants had threatened the witnesses and on account of fear the witnesses did not physically intervene.
No hard and fast rule can be laid down about human conduct in this regard. It can neither be laid down that the witnesses who are present at the spot, always would physically intervene, nor can it be assumed with any amount of certainty that if the witnesses are not found to have intervened, their presence should always be disbelieved.
' The graveness of the attack, the arms wielded by the assailants, the manner and the venom with which attack is launched and the availability of any weapon of defence to the witnesses, are matters which will weigh with the witnesses to go in for physical intervention.
' In the case 1982 P Cr. L J 385, the Hon'ble Judges while rebutting the argument that if the witnesses had been present they would have attempted to rescue the deceased from the clutches of the appellant, observed that, "It is reasonably probable that due to fear, the eye-witnesses did not advance forward." It may be noted that the weapons of offence in that case were stated to be ordinary Dandas and death had been caused by strangulation with hands. Three persons had claimed to have witnessed the occurrence.
' In the case in hand the weapons wielded by the appellants were definitely more dangerous and formidable.
' We are of the considered view that mere non-intervention on the part of the eye-witnesses cannot be taken to mean that they were not present at the spot.
18. As a result of the above discussion, no doubt is left in our mind that the ocular account, which has been corroborated by the evidence of recovery of weapons of offence, can be relied upon beyond any shadow of doubt. The medical evidence, which shows that the deceased had suffered injuries with two types of weapons, i.e. Sharp-edged and blunt, also corroborates the ocular account and thus strengthens the same.
19. The argument of the learned counsel for the appellants that the prosecution had failed to prove the motive, has also not impressed us. The reference in this regard by the learned counsel to the observation of the trial Court, does not support the contention of the learned counsel that the trial Court had disbelieved the evidence of motive. After having gone through para. 10 of the judgment of the trial Court, we find that the trial Court has not given any categorical finding on this aspect. In fact, the trial Court placing reliance on 1971 P Cr. L J 944, observed, "Anyhow the witnesses have stated that the decease and the , father of Zafar accused had an altercation with each othe prior to the occurrence. Be that as it may, it is a well-settled law that the motive even if disproved, will be of no consequence if the guilt of the accused is otherwise established through the ocular evidence."
' The reference made to the previous annoyance in the F.I.R. Has been elaborated at the trial by the complainant. The major ground urged for discarding the evidence of motive was, that the complainant had made improvement by stating that the deceased when had gone to the father of Zafar for complaining against his attitude, had exchanged abuses with him, and, so, this part of the statement should be excluded from consideration.
' We think, it was not an addition. It was just stating in detail what had happened earlier between the parties.
20. Be that as it may, if this part of the statement of the complainan was a motive for the occurrence, it is a ground for awarding a lesse sentence also. It is the complainant's own case that the deceased ha abused father of Zafar appellant 2/3 days prior to the occurrence. H might be surging under the impulse of his father having been insulte by the deceased. Although it cannot be taken to mean that he had acted under any provocation, but an element of a provocation wa there. We are, therefore, of the view that the sentence of imprisonment for life plus a fine of Rs, 4,000 in default of payment of fine to suffe two years, R.I., in the case of Zafar appellant will meet the ends, o justice. .
' Since we have converted the death sentence into life imprisonment in the case of Zafar appellant, the question of enhancement of sentence of Ghulam appellant from life imprisonment to death, does -not arise. The revision petition stands dismissed.
' The result is that while the appeal filed by the appellants is dismissed, the sentence of death of Zafar appellant is converted to life imprisonment. The conviction and sentence of Ghulam appellant is maintained.
' Death sentence is not confirmed.