JAVID IQBAL, C.J.--Muhammad Jamil son of Muhammad Sharif, aged 25, armed with Dater and revolver, and Muhammad Abbas son of Muhammad Ali, aged 17, armed with Chhuri both cousins inter se, stand convicted under section 302/34, P.P.C. For the murder of Muhammad Rafiq, aged 25 and vide judgment dated 22-9-1984 of the Additional Sessions Judge, Lahore, each of them was sentenced to death plus fine of Rs.10,000 or in default to undergo two years' rigorous imprisonment with the direction that if the fine was realized from them, it should be paid as compensation to the heirs of the deceased. Two co-accused of the convicts namely, Muhammad Tufail alias Billu, aged 26 armed with Danda, and Muhammad Ashraf, aged 28, armed with Chhuri, also their cousins, were given the benefit of doubt and acquitted. The appeal of the convicts is being taken up and heard together with the reference for the confirmation of death sentence and these connected matters are being disposed of by this judgment.
2. The occurrence took place on 17-6-1983 at 11.45 a.m. In the fields outside village Nabibakshwala at a distance of six miles from police station Kahna District Lahore. F.I.R .Exh .P.E. Was lodged by Muhammad Latif P.W.3 brother of the deceased, at 1.30 p.m. On the same day and it was recorded by Fazal Ahmed Masood S.I. P.W.12 at the police station.
3. The motive given in the F.I.R. Is that for the last 10/11 years the complainant party had a dispute over a house with Muhammad Sharif, father of Muhammad Jamil appellant. They also had a long contest for obtaining lease of some land with the same Muhammad Sharif which led to further estrangement of relations between the parties. Then about 1-3/4 years before the present occurrence an incident took place in the village mosque in which Nazir, brother of the deceased, on one side and Mukhtar, uncle of Muhammad Jamil appellant, on the other side were injured and two cross cases were registered. Thereafter once again the deceased had an altercation with the present appellants However, later on the parties effected a compromise. But it is alleged that the appellants continued nursing a grudge against the deceased although they did not show it. On the other hand, the deceased and his brother Nazir were cautious on their own part and the deceased was not allowed to move about with the appellants.
4. The prosecution has produced two eye-witnesses of the occurrence namely, Muhammad Latif P.W.3 brother of the deceased, and Din Muhammad P.W.8 father of the deceased. Two other eye- witnesses of the occurrence, namely, Muhammad Nazir and Abdul Aziz were cited but were not produced and they were given up as having been won over.
5. Muhammad Jamil appellant was arrested on 17-6-1983, when he appeared before the police, by Fazal Ahmed Masood S.I. P.W.12, whereas Muhammad Abbas appellant was arrested by the same police officer on 22-6 1983. The acquitted co-accused were arrested by the same police officer on 24-6-1983. From the person of Muhammad Jamil appellant was recovered revolver Exh.P.8 containing four crime empties Exh.P.9/1-4, one missed bullet Exh.P.10 and one live bullet Exh.P.11.
These were taken into possession vide memo. Exh.P.F. Dated 17-6-1983. The attesting witnesses are Shams Din P.W.11, Rashid Ahmed not produced and Fazal Ahmed Masood S. I. P.W.12. Again from the person of Muhammad Jamil appellant were removed blood-stained shirt Exh.P.6 and Chadar Exh.P.T and taken into possession vide memo. Exh.P.L. Dated 17-6-1983. The attesting witnesses are Alam Khan P. W.4 Rashid Ahmed not produced and Fazal Ahmed Masood S.I. P.W.12. At the pointing out of Muhammad Abbas appellant were recovered blood-stained Chhuri Exh.P.12 from Jantar field near the place of occurrence and taken into possession vide memo. Exh.P.M. Dated 22-6-1983. The attesting witnesses are Shams Din P.W.11, Karam Din (not produced) and Fazal Ahmed Masood S.I.
P.W.12. No recovery was effected from the acquitted co-accused. However, from the spot were picked up Dater Exh.P.4, blood-stained and taken into possession vide memo. Exh.P.C., dated 17-6- 1983. The attesting witnesses are Muhammad Amjad Amin P.W.2, Rashid Ahmed (not produced) and Fazal Ahmed Masood S.I. P.W.12. Again from the spot was recovered blood-stained Sota Exh.P.5 and taken into possession vide memo. Exh.P.D. Dated 17-6-1983. The attesting witnesses are the same. According to the report of the Serologist Exh.P.O. At page 13 of the printed paper-book, items like shirt Exh.P.6, Chadar Exh.P.7, Chhuri Exh.P.12, Dater Exh.P.4 and Sots Exh.P.5 were found to be stained with human blood. In the opinion of the Firearms Expert report Exh.P.P. At page 14 of the printed paper book two crimes empties C.1 and C.2 had been fired from revolver Exh.P.B. Since the other two crime empties i.e. C.3 and C.4 were without percussion caps, no opinion could be expressed about them. The missed bullet marked M. i.e. Exh.P.10 had also been fired from the same revolver.
6. I n the F.I.R. The occurrence is reported to have taken place in the following manner: On the fateful day Muhammad Latif and Din Muhammad P.Ws. Came home and were informed by the mother of the deceased (not produced) that the appellants had come to their house and were talking to the deceased about the lease deed of the land. Thereafter they took him alongwith them.
On this Muhammad Latif and Din Muhammad P.Ws became suspicious and hurriedly followed them. When they arrived at a distance of about two squares out of the village, they saw Muhammad Jamil appellant armed with Dater, Muhammad Abbas appellant armed with Chhuri.
Muhammad Ashraf acquitted co-accused armed with Chhuri and Muhammad Tufail alias Billu acquitted co-accused armed with Dang surrounding the deceased and were quarrelling with him.
Thereafter right under their eyes Muhammad Jamil appellant gave a blow with the Datar on the abdomen of the deceased. He gave him the second Datar blow on his abdomen which he warded of by holding the Datar and snatching it away from his hand. Thereafter he gave a blow therewith to Muhammad Jamil appellant who warded it of with his hand and then after receding a few steps took out a revolver from his Dub and fired two shots at the deceased. Then Muhammad Abbas appellant and Muhammad Ashraf acquitted co-accused gave successive blows with their respective Chhuris on the chest, waist and head of the deceased. In the meantime Muhammad Tufail alias Billu acquitted co-accused caused injuries with his Dang on the head and shoulders of the deceased. OR seeing this Muhammad Latif P.W. Raised Lalkara whereupon Muhammad Jamil appellant also fired a shot through his revolver at them. This made Muhammad Latif and Din Muhammad P.Ws. Very apprehensive. In the meantime Muhammad Nazir (not produced) and Abdul Aziz (not produced) were passing nearby and they also witnessed the occurrence On the alarm of the P.Ws. The accused party managed to escape. The deceased fell down on the ground and died on the spot. Leaving behind Din Muhammad .P.W. Muhammad Nazir (not produced) and Abdul Aziz (not produced) to guard the dead body of the deceased Muhammad Latif P.W.
Proceeded to lodge the report.
7. The appellants in their statements before the trial Court denied having participated in the occurrence. They disowned the recoveries and stated that they have been falsely implicated due to enmity and also for the reason that the dead body of the deceased had been found lying in the land of Muhammad Sharif, father of Muhammad Jamil appellant. The defence version is that it was an un witnessed occurrence, that the deceased was a desperate character and had many enemies and that even the father of the deceased had disconnected his relations with him and had got published a notice to this effect in the Press. They did not produce any defence.
8. Dr. Muhammad Farooq Akmal P.W.9 conducted the post-mortem examination on the dead body of the deceased at 12.30 p.m. On 18-6-1983 and found the following injuries on his person:--- (1)Transverse stab wound 4 x 1 c.m. At the front of upper left chest, at the 7 o'clock position of the left nipple, 7 c.m. Above and inner to it the injury was 134 c.m. Above left heel.
(2)Vertical stab wound 3 x 1 c.m at the front mid left chest at 9 o'clock position of left nipple and 1.5 c.m. Away from it, the injury was 132 c. m above left heel.
(3)Vertically oblique stab wound 3 x 1 c.m. At the front lower left chest at 7 o'clock position of left nipple and 7 c.m. Below it. This injury was 126 c.m. Above left heel.
(4)Transverse stab wound 4 x 1.5 c.m. At the outer mid left chest 15 c.m. Below and outer to the left nipple at the 5 o'clock position 126 c.m. Above left heel.
(5)Transverse stab wound 4 x 2 c.m. At the front lower right chest at the 5 o'clock position of the right nipple and 7 c.m. Away, 126 c.m. Above left heel.
(6)Transverse stab wound 5 x 1.5 c.m. Just above the umbilicus at the 12 o'clock position. This injury entered the abdomen to cut the omentum 126 c.m. Above left heel.
(7)Vertically oblique stab wound 3 x 1 c.m. At the front lower abdomen 10 c.m. Below it and at the 6 o'clock position, of umbilicus. This injury entered the abdominal cavity to cut a lower small intestinal loop.
(8)Incised wound 4 x 2 c.m. At the back upper right forearm communicating with injury No.9 which is an incised wound 3 x 1.5 c.m. At the front upper right forearm, both muscle deep.
(10)Incised wound 6 x 2 c.m. At the left ring finger cutting the flexortendo.
(11)Incised wound 4 x 1 c.m. Cutting into the web between the left thumb and forefinger.
(12)Incised wound 2.5x 1 c.m. At the inner lower left forearm muscle deep.
(13)Incised wound 4 x 1.5 c.m. At the outer upper left forearm.
(14)Stab wound 1 x 1 c.m. At the outer upper left -thigh.
(15)Stab wound 1.5 x 1.5 c.m., 6.5 c.m. Away from the spinal midline, at the back of the right waist, muscle deep (16)Incised wound 10 x 2 c.m. At the top of head.
(17)Incised wound 8 x 1.5 c.m. At the back of head.
(18)Abrasion 1.5 x 1.5 c.m. At the front right forehead.
(19)Circularly arranged multiple abrasion 5 x 4 c.m. At the front upper right chest.
(20)A circular entry wound. 5 c.m. Diameter at the outer upper left thigh, a deshaped lead pellet recovered from the thigh muscles.
According to the Medical Officer the stomach contained 6 ounces of partially digested food consisting of lady fingers. The small intestines contained chyme. The large intestines contained gas and faeces. The bladder was empty. In his opinion all the injuries were ante-mortem. Injuries Nos.1 to 17 were caused by a sharp-edged weapon while injuries Nos.18 and 19 were caused by a blunt weapon and injury No 20 was caused by a fire-arm. Injuries Nos.1, 3, 4 and 5 were individually sufficient to cause death in the ordinary course of nature. The cause of death was shock and haemorrhage due to excessive blood loss because of the injuries already stated. Probable time that elapsed between injuries and death was immediate.
He also medically examined on 18-6-1983 at 2.30 p. m. Muhammad Jamil appellant and found on his person a scabbed linear abrasion at the palm of right hand and a linear abrasion at the inner side of left forefinger as well as a scabbed abrasion on the left thinner eminence. All the injuries were simple caused by a blunt weapon and were one to two days old. In the cross-examination he stated that injury No.18 on the person of the deceased could be caused by striking against a hard surface. Injury No.19 could be the result of a Dang blow as the injury had consisted of multiple abrasions which could be one or more than one Dang blows or the same could be the result of a fall on the bushes or it could be caused by a push of a Danda.
9. The Trial Court observed that the ocular testimony furnished by Muhammad Latif P.W.3 and Din Muhammad P.W.8 stood corroborated by the motive, the medical evidence and the recoveries of incriminating articles from the spot and the appellants. In consequence the appellants were convicted and sentenced as described above.
10. Learned counsel for the appellants contends that the ocular and recovery evidence having been furnished by the close relations of the deceased is interested and was, therefore, not worthy of credence. The motive was obscure and remote having no direct bearing on the occurrence.
Further, that two of the co-accused namely Muhammad Tufail and Muhammad Ashraf had been falsely involved by the prosecution who were found innocent by the police during investigation and the evidence adduced by the prosecution was not relied upon against them.
11. No doubt Muhammad Latif P.W.3 and Din Muhammad P.W.8 are brother and father respectively of the deceased but this fact by itself is not sufficient to discard their testimony. They stand corroborated by the medical evidence and other circumstances. According to them sharp, blunt and firearm were used for causing injuries to the deceased. In the post-mortem examination stab incised wounds, abrasion and circular entry wounds were found on the person of the deceased and from one injury a de shaped lead pellet was recovered by the doctor. The recoveries of revolver P.8 containing empties and blood-stained clothes from the person of Muhammad Jameel lend further corroboration to the ocular testimony. The clothes of Muhammad Jameel were found to be stained with human blood while the crime empties recovered from the revolver were also found to have been fired from it by the firearm expert. Likewise Chhuri P.12 recovered at the instance of Muhammad Abbas appellant was also found to be stained with human blood. Shamas Din P.W.11 who deposed about these recoveries stands corroborated by S.I. Fazal Ahmad Masood P.W.12. According to the eye-witnesses Muhammad Jameel had suffered injuries at the hands of the deceased. They stand corroborated by the medical evidence because three injuries were found on the person of Muhammad Jameel appellant. The duration of his injuries was almost the same as that of the deceased. He failed to give any satisfactory explanation of the presence of injuries on his person and denied that any injury was found on his person adding that there might have been a slight abrasion received during daily routine working. In the circumstances narrated above we find no reason to doubt the participation of the appellants in the crime. Being first cousins inter se they could have shared the common intention of doing away with the deceased.
Furthermore the number and nature of injuries of the deceased is quite commensurate with the number of the accused.
12. As regards motive the prosecution case is that for the last 10/11 years the complainant party had a dispute over a house with Muhammad Sharif father of Muhammad Jameel appellant. They also had a hot contest over obtaining lease of some land with Muhammad Sharif aforementioned.
About 1-3/4 years before, an incident is said to have been taken place in the village mosque in which Nazir brother of the deceased on one side and Mukhtar uncle of Muhammad Jameel on the other side had been injured resulting in the registration of two cross---cases. Thereafter the deceased is said to have had an altercation with the appellants. However, later on the parties effected a compromise. Despite this, the appellants are alleged to have continued nursing a grudge against the deceased. The present occurrence took place on 17-6-1983 while the earlier cross-cases were registered on 8-10-1981. In none of the earlier cases Muhammad Rafiq deceased was directly involved. He was neither the victim or a witness in the said cases. According to the prosecution those cases had been compromised by the parties. Furthermore, no details of the alleged contest between the parties for obtaining lease of land have been brought on record by the prosecution. The prosecution version that the relatives of the deceased' were apprehensive about him and did not allow him to move about with the appellants does not appeal to reason.
These circumstances show that the real and immediate cause of murder of Muhammad Rafiq deceased is shrouded in mystery. But this would not have any adverse hearing on the direct evidence and other evidence relied on by the prosecution because it is a settled proposition of law that such evidence, if credit--worthy can form valid basis for conviction notwithstanding the obscurity, of motive. In such circumstances the maximum benefit that can be extended to the accused is the award of lesser punishment provided for the offence with which they are charged.
Accordingly, while maintaining the conviction of the appellants we alter their sentence to that of imprisonment for life. The sentence of fine is, however, maintained. With this modification in the sentence the appeal is otherwise dismissed.
12. The death sentence of Muhammad Jameel and Muhammad Abbas appellants are not confirmed.