LEHRASAP KHAN, J.--Muhammad Hanif (63), Bashir Ahmad (42) Sajid Mahmud (20) and Rashid Mahmood (50) , have been convicted the learned Sessions Judge, Sahiwal vide his judgment, dated 8-7-1984 under section 302/149, P.P.C., for causing the murder of Muhammad Sharif deceased and under section 307/149, P.P.C. For launching murderous assault on and causing injuries to Rashid Ahmad (P.W. And Ijaz Rasool P.W. 9 and under section 148, P.P.C. For forming unlawful assembly after arming themselves with deadly weapons. V same judgment their co- accused Sultan Mahmood has been acquit Muhammad Hanif has been sentenced to death while Bashir Ahmid Sajid Mahmud and Rashid Mahmud to imprisonment for life under section 302/149, P.P.C. All of them have also been fined Rs.10,000 (each) the same offence; in default whereof they have been directed to sin further three years' R.I. They have also been directed to compensation to the legal heirs of the deceased in the sum of Rs.10, each or in default to suffer further R.I. For a period of six month Muhammad Hanif, Bashir Ahmad, Sajid Mahmud and Rashid Mahr have also been sentenced to three years R.I. Each and fine of Rs.5, each or in default further R.I. For one year under section 307/11 P.P.C. They have been directed to pay compensation of Rs.5,000 payable to the injured P.Ws. Ijaz Rasul and Rashid Ahmad in ea shares failing which they have been directed to suffer R.I. For months. All the four have also been sentenced to one year R.I. Under section 148, P.P.C.
The substantive sentence have been directed to run concurrently.
The convicts have challenged their convictions and sentence through the present appeal, viz. Criminal Appeal No. 138 of 19 while the matter also stands referred to us under section 374, Cr.P.C seeking confirmation of death sentence awarded to Muhammad Hanif vide Murder Reference No. 134 of 1984.
Muhammad Ibrahim, father of the deceased Muhammad Sharif, has also filed Criminal Revision No. 258 of 1984, against the acquittal of Sultan Mahmud. He has also filed another criminal revision, viz. Criminal Revision No. 199 of 1984, for enhancement of sentence of Bashir Ahmad, Sajid Mahmud and Rashid Mahmud under section 302/149, P.P.C. From imprisonment for life to death. All these four matters shall be disposed of by this judgment.
2. The occurrence took place on 15-9-1982 at 5-30 p.m. On the road in the area of Mohallah Eidgah, Arifwala Town at distance of four, furlongs from Police Station Arifwala. F.I.R. Exh. P.H. Was lodged by Muhammad Aslam P.W. 6 at the police station on the same day at 6--Uu p.m. It was recorded by Lal Hussain Shah S.I. P.W. 15.
3. Regarding motive it has been alleged that before the present occurrence, a fight had taken place about 4-- months earlier between Ijaz Rasul P.W. 9 and Rashid Mahmud appellant.
Consequently, a case under sections 506/308, P.P.C. Was registered against Ijaz Rasul which was still pending. Because of the said grievance, the appellants launched an attack on Ijaz Rasul and his companions.
4. As for the main occurrence, it has been stated that on the day of occurrence at about 5-00 p.m.
The deceased Muhammad Sharif boarded a Tonga in which Muhammad Aslam P.W. 6, Rashid Ahmad P.W. 8, Ijaz Rasul P. W. 9 and one Shamshad (given up P.W.) were also the passengers. They left for their village Chak No. 19/E.B. When the reached the culvert of Rajbah 2L of Chak No. 63/EB., the appellant armed with Chhuris and two unknown persons armed with Dangs came, there and stopped the Tonga Muhammad Sharif deceased who was sitting in the rear seat got down from the Tonga. Muhammad Hanif inflicted him a Chhuri blow on the left side of his abdomen, whereupon Muhammad Sharif deceased fell down. In the meantime, Ijaz Rasul P.W. Also got down from the Tonga, Muhammad Hanif and Sajid Mahmud appellant gave him injuries with their Chhuris on his abdomen and back. Rashid Mahmud caused injuries with Chhuri on the buttocks and chest of Ijaz. Rasul. Ijaz Rasul also fell down. The unknown assailants caused injuries with sticks on the head of Ijaz Rasul P.W. One of the unknown assailant inflicted stick blows on Rashid Ahmad P.W. On his back when he intervened to rescue. The accused after they were satisfied that the injured had expired went towards the south at their leisure. It has also been alleged that they left motor-cycle No. 67-3749 Yamaha at the --place of occurrence. This motor-cycle is alleged to be the ownership of Muhammad Hanif appellant.
5. Muhammad Hanif, Sajid Mahmud and Rashid Mahmud were arrested on 24-9-1982, while Bashir Ahmad and Sultan Mahmud were arrested 29-9-1982 by Lal Hussain Shah, P.W. 15.
On 15-9-1982, motor-cycle P. 3 belonging to Muhammad Hanif --alongwith bag P. 8, diary of Muhammad Hanif P. 9, register P. 10 and spectacles P. 11 was recovered vide memo Exh. P.L. Which has attested by Abdul Khaliq P.W. 12, Lal Hussain Shah S.I. P.W. 15 and Lal Khan not produced. On 6- 10-1982, blood-stained, Shalwar P. 12 and shirt P. 13 were provided by Abdul Razzaq not produced.
These clothes were secured vide memo Exh. P.H. Attested by Hafiz Abdul Aziz P.W.13, Lal Hussain Shah S.I. P.W. 15 and Hassan Ali Khan given up. Muhammad Hanif led to the recovery of blood- stained Chhuri P. 14 by digging it out from the ground in the Kotha of Tube-well of Bashir Ahmad appellant on 6-10-1982. This was taken into possession vide memo Exh. P.N., attested by Hafiz Abdul Aziz P.W. 13, Lal Hussain Shah S.I. P.W. 15 and Hassan Ali Khan not produced. On the same day, Rashid Mahmud got recovered blood-stained Chhuri P. 15 by digging it out from the earth in the Koths of tube-well of Bashir Ahmed. This was taken into possession vide memo. Exh. P.O. In the presence of the aforementioned witnesses. Blood-stained knife P. 16 was also got recovered by Sajid Mahmud from the same Kotha. It was taken into possession vide memo Exh. P.P. Attested by the same witnesses.
As per Chemical Examiner's report Exh. P.S. And Serologist's report Exh. P.T. Result in regard to stains of blood on these Chhuris and knife has been returned in positive. These recoveries, however, have not been believed by the learned trial Court. It has been observed that these Chhuris were allegedly recovered on the last day of remand from a Kotha which was not locked and was easily accessible to the A general public and exclusive possession of the Kotha was not established. P.W.
13 Hafiz Abdul Aziz is the father-in-law of the brother of the complainant. He has also election rivalry against Sultan Mahmud the acquitted accused. No independent witness of recovery was examined. We find that the learned trial Judge rightly disbelieved these recoveries.
6. On 15-9-1982, Dr. Fazal Miran, Senior Medical Officer, Civil Hospital Arifwala medically examined Ijaz Rasul P.W. 9 He noticed 12 injuries vide medico-legal report Exh. P.A. These injuries included stab wounds, lacerated wounds, abrasions and swellings. Originally most of the injuries were kept under observation but after X-Ray report injury No. 4 was declared as grievous and the remaining injuries as simple. Dying declaration Exh. P.C. /2 of this witness was also recorded in response to information sent by this Medical Officer to the local police vide Exh. P.B.
7. On 16-9-1982, at 7-15 a.m.
Autopsy was conducted by Dr. Fazal Miran on the dead body of Muhammad Sharif deceased. He noticed one stab wound on the left side of abdomen on the lower part and one lacerated wound or the left side of head. Injury No. 1 was opined to have been caused with sharp-edged weapon while injury No. 2 was caused by blunt weapon. He opined vide post-mortem report Exh. P.D. That death took place due to shock and haemorrhage as a result of injury No. 1 which was sufficient to cause death in the ordinary course of nature.
On 16-9-1982 at 10-00 a.m. Rashid Ahmed P.W. 8 was also examined. Vide medico-legal report Exh.
P.E. One bruise was noticed on the back, left upper chest and an abrasion was noticed on the back of abdomen. He also complained of pain on back of left wrist. All these injuries were simple caused by blunt weapon.
8. Muhammad Aslam P.W. 6 Rashid Ahmad P.W. 8 and Ijaz Rasul P.W. 9 testified at the trial as eye- witnesses to furnish the ocular account of the prosecution case. All these P.Ws. Fully supported the prosecution version.
9. The plea of the appellants was that of denial and false implication. No evidence has been led in defence.
10. It has been contended on behalf of the appellants that F.I.R. Is doubtful. It appears to have been recorded after deliberations. It has further been urged that Muhammad Aslam complainant is not a reliable witness. He is related to Abdul Aziz, a close relative of Ijaz Rasul P.W. He is a stock witness of the police. It has further been argued that Rashid Ahmad P.W. 8 although alleged to have received injuries during the occurrence, got himself medically examined on the following day, although during whole of the previous night he claims to have remained in the hospital in the company of Ijaz Rasul P.W.
9. It has next been urged that in the dying declaration Exh. P.C./2, a different account regarding the injuries of the deceased has been given by Ijaz Rasul than the one he gave while testifying as P.W.
9. Capital has also been sought to be made on account of non- production of Tonga driver.
11. We have considered the contentions raised on behalf of the appellants and have analysed them fully. Apart from Muhammad Aslam, Rashid Ahmad P.W. 8 and Ijaz Rasul P.W. 9 have also testified as eye-witnesses. Both these witnesses are injured P.Ws. Their injuries furnish judicial certainty about their presence at the time of occurrence. No question has been asked from the Medical Officer that the injuries on the person of Rashid Ahmed P.W. Could be self-suffered. As his injuries were simple and of not much consequence, therefore, his medical examination was postponed during the night. Ijaz Rasul I.W. Was seriously injure. His dying declaration was recorded. The doctor and the witnesses remained busy with him. The appellants cannot derives benefit from the fact that Rashid Ahmad P.W. Was medically examined on the next day of the occurrence. There is no material difference between the description of injuries to the deceased furnished by Ijaz Rasul in his dying declaration Exh. P.C./2 and in his statement while appearing as F.W.
9. The F.I.R. Has been recorded at the police station within half an hour of the occurrence. It cannot be amid that it is not a genuine document or that Muhammad Aslam had not witnessed the occurrence. It was not necessary that all the occupants of the Tonga should have been examined. Non-production of Tonga driver did not raise any adverse presumption against the prosecution.
Independent of recoveries or any corroboratory evidence, we are of the confirmed view that the prosecution has been successful too establish the guilt against the appellants beyond any reasonable doubt with the help of testimonies of three eye-witnesses including the two injured P.Ws. So far as the acquitted accused Sultan Mahmud is concerned, the allegations of abetment have been levelled against him but no convincing evidence has been led at the trial to prove his guilt. His acquittal is, therefore, unassailable.
12. In the light of the above conclusions, we uphold the convictions of the appellants under sections 302/149, 307/149 and 148, P.P.C.
The question or sentence in the circumstances of the present case requires consideration. There is nothing on the records that Muhammad Hanif had any motive to murder Muhammad Sharif. The motive was against Ijaz Rasul and Rashid Ahmad. No evidence has been led to show as to what transpired immediately before the occurrence which led to the opening of attack on Muhammad Sharif instead of Ijaz Rasul who was sought to be murdered. Thus the origin of fight is shrouded in mystery. In this view of the matter we deem it expedient and the interest of justice to alter the sentence of Muhammad Hanif from death to imprisonment for life.
13. In the light of what has been concluded above, we dismiss the appeal, but alter the sentence of Muhammad Hanif from death to imprisonment for life. The sentence of fine imposed on all the appellants and imprisonment to be suffered in default thereof under all the counts is maintained.
The death sentence awarded to Muhammad Hanif by the learned trial Judge is, therefore, not confirmed. The revision petition challenging the acquittal of Sultan Mahmud is dismissed in limine and the revision petition seeking enhancement of sentence of Bashir Ahmed, Sajid Mahmud and Rashid Mahmood ix also dismissed.
Death sentence not confirmed.