JAVID IQBAL, J.---Muhammad Taj, aged 32 years, and Muhammad Riaz, aged 24 years, both sons of Jahan Dad and, therefore, bothers have been convicted under section 302/34, P.P.C. For the murders of Fazal Karim, a young man, Muhammad Afzal, aged, 24 years, Sher Zaman, aged 50 years, and Mst. Bhagan, aged 30132 years, and both of them were sentenced to death on four counts plus fine of Rs.1,000 each on each count or in default to undergo ,one year's rigorous imprisonment vide judgment, dated 17-1-1977 of the Sessions Judge, Jhelum, who giving the benefits of doubt acquitted their co accused, namely, Jahan Dad, their father, Mst. Fatima, their mother, Mst Said an Bibi, their sister and were of Muhammad Afzal deceased and Mst. Imtiaz Begum, their another sister.
The relationship between the parties is as follows:- Mst. Bhagan deceased was the were of Muhammad Taj appellant and in exchange Mst. Saidan Bibi, acquitted co-accused and sister of the appellants, was the were of Muhammad Afzal deceased. The complainant in this case, namely, Mst. Mano P.W. 7 first married one Shah Nawaz.
From this marriage were born Mst. Bhagan deceased and Muhammad Afzal deceased.
Subsequently, she married Hukam Dad, who was brother of Shah Nawaz aforementioned. Sher Zaman deceased in the present case .Is the brother of Shah Nawaz and Hukam Dad while Fazal Karim deceased is the son of Mir. Dad, another brother of Shah Nawaz and Hukam Dad. Mst.
Bhagan deceased was married to Muhammad Taj appellant and as it has been pointed out; in exchange Mst. Saidan Bibi; sister of the appellants, was married to Muhammad Afzal deceased.
The murdered persons, in the instant case, are Mst. Bhagan were of Muhammad Taj appellant, her real brother Muhammad Afzal, her real uncle Sher Zaman and her real cousin Fazal Karim.
The appeal filed by the appellants is being taken up alongwith the reference for the confirmation of the death sentence awarded to them as well as Criminal Revision No. 493 of 1977 filed by Mst. Mano P.W. 7 complainant against the acquittal of the four acquitted co-accused which was admitted for full hearing only as against the acquittal of Jahan Dad co-accused, who died after the filing of the said Criminal Revision, and these are being disposed of by this judgment.
2. The occurrence took place on 17-1-1975 at about Deegarwela within the area of Village Sarkal Kasar at a distance of 21 miles from police Station, Chakwal, District Jhelum. F.I.R. Exh. P.E.E. Was lodged by Mst. Mano P.W. 7, mother-in-law of Muhammad Taj appellant, at 7-00 P.m. On the same day and it was recorded at the police station by Baqa Muhammad S.I., P.W. 10.
3. The motive for crime, as stated in the F.I.R. Is that the parties were closely related and resided in the same area. There was a dispute between them on the construction of a wall in the street by the accused --side and the demolition of the same by the complainant-side. This led to an altercation between the parties but the matter was compromised through Jahan Dad son of Abdullah P.W. 6, cousin of Mst. Mano P.W. 7 and Muhammad Nawaz Lambardar (not produced). But the said compromise was only superficial and in reality relations remained strained between the parties due to which Muhammad Taj appellant continued to trouble Mst. Bhagan deceased, his were and daughter of 61st. Mano P.W.
7. Muhammad Taj appellant is stated to have insisted on Mst. Bhagan deceased that she should persuade her brother Muhammad Afzal deceased, who was married to Mst. Saidan Bibi, sister of the appellants, that he should not side with his uncle Sher Zaman deceased in the wall dispute but -Muhammad Afzal deceased would not agree. On this two days before the present occurrence Muhammad Taj appellant gave beating to Mst. Bhagan deceased.
When Muhammad Afzal deceased, her brother, came to know about this incident there was a fist fight between him and Muhammad Taj appellant in the fields, in the afternoon preceding the present occurrence, which followed at Deegarwela, when Muhammad Taj appellant returned to his house and in order to avenge the insult done to him by Muhammad Afzal deceased he again started beating up Mst. Bhagan deceased. In the meantime Muhammad Afzal deceased returned from the fields. Mst. Bhagan deceased in order to save her life climbed over the roof of her house and raised alarm while Muhammad Taj appellant armed with a hatchet followed her on the roof and continued causing injuries to her. The present occurrence took place when the four deceased, in the instant case, who were related to Mst. Bhagan deceased tried to climb up the roof in order to rescue Mst. Bhagan deceased but the appellants and their companions are stated to have attacked them and murdered them one after the other.
4. The prosecution has produced three eye-witnesses of the occurrence, namely, Mst. Mano P.W. 7, mother-in-law of Muhammad Taj appellant as well as mother of Mst. Bhagan deceased and Muhammad Afzal deceased, Bhabi of Sher Zaman deceased and aunt of Fazal Karim deceased; Rab Nawaz P.W. 8, also a relative of the complainant-party and Ghulam Hussain P.W. 9 unconnected but held to be a chance witness, who was hostile to the accused-side. The trial court, in the instant case, has not relied upon the testimony of Rab Nawaz and Ghulam Hussain P.Ws. For the reasons stated in para. 46 of the judgment at pages 98 and 99 of the Paper Book. He has not relied upon the testimony of Rab Nawaz P.W. Because it appeared to be inconsistent and he disbelieved Ghulam Hussain P.W. Because he was held to be a chance witness as well as hostile to the accused-party.
5. Muhammad Taj appellant was arrested on 18-1-1975 by Baqa Muhammad S.I. P.W. 10 whereas Muhammad Riaz appellant was arrested by the same police officer on 4-2-1975. The acquitted co- accused were arrested also on 18-1-1975 by Baqa Muhammad S.I. P.W.10.At the instance of Muhammad Taj appellant was recovered blood-stained hatchet P.20 and it was taken into possession, vide memo. Exh. P.Y., dated 18-1-1975. At the instance of Muhammad Riaz appellant was recovered blood-stained Barchhi P. 27 which was taken into possession vide memo. Exh. P.D.D., dated 8-2-1975. At the instance of Jahan Dad, acquitted co-accused, was recovered blood- stained hatchet P. 19 and it was taken into possession vide memo. Exh. P.a., dated 18-1-1975. At the time of the arrest of Muhammad Taj appellant and the acquitted co-accused blood-stained clothes, namely, Chaddar P.21, Saluka P. 22 and Chaddar for the head P. 23 were removed from the person of Muhammad Taj appellant and taken into possession vide memo. Exh. P.Z., dated 18-1- 1975. The blood-stained Patka P. 24 belonging to Jahan Dad, acquitted co-accused, was taken into possession vide memo. Exh. P.A.A., dated 18-1-1975. Blood-stained Dopatta P. 25 belonging to Mst.
Fatima, acquitted co-accused, was taken into possession vide memo. Exh. P. B. B., dated 18-1-1975.
Another blood-stained Dopatta P. 26 belonging to Mst. Saidan Bibi, acquitted co-accused, was taken into possession, vide memo. Exh. P.C.C., dated 18-1-1975. All these recoveries had been attested by Jahan Dad son of Abdullah P.W. 6, cousin of Mst. Mano P.W. 7, Ghulam Hussain (not produced) and Baqa Hussain S.I.P.W.
10. The report of the Serologist Exh. P.R.R. In respect of all the above items was to the effect that these were found to be stained with human blood.
At this stage it may be pointed out that Muhammad Taj appellant and three of the acquitted co- accused, namely, Jahan Dad, Mst. Fatima and Mst. Saidan Bibi had injuries on their, persons because in the course of occurrence, as stated in the F.I.R. The complainant-side was throwing stones at them in order to rescue Mst. Bhagan deceased. These stones were thrown from the street below on the roof.
6. In their statements before the trial Court. Muhammad Riaz appellant stated that he did not receive any injury in, the course of occurrence like Mst. Imtiaz Begum, acquitted co-accused, his sister, because both of them were not present in the house but had been falsely implicated due to their relationship with Muhammad Taj appellant, Jahan Dad, acquitted co-accused, who was injured, stated that he was injured by stones when the other side had started brick batting at them.
He further stated that he had been falsely involved because he was the head of the family. He also stated that he was incapacitated from his hands and could neither wield a stone piece nor a weapon. The observation of the learned trial Judge in respect of him is that his right hand was really incapacitated. He could only move his little finger while the other fingers and thumb could not be moved. His left hand was partially deformed and it could not work in full capacity of a normal man. It was in this background that Jahan Dad C0-accused was acquitted by the trial Court Mst. Fatima, acquitted co-accused, stated that she was injured by the brick batting of the complainant party at their house and further that she did not participate in the occurrence which had taken place on their roof. Similarly, Mst. Saidan Bibi, acquitted co-accused, stated that she was injured by the brick batting of the complainant-party at their house and that site did not take part in the occurrence which took place on the roof of their house. Mst. Imtiaz Begum, acquitted co- accused, made the same statement a Muhammad Riaz appellant that she was not present at the time of the occurrence but had been implicated due to her relationship with Muhammad Taj appellant. Muhammad Taj appellant however, did not deny the occurrence. He partially accepted the motive version advanced by the prosecution but gave his own version of the occurrence which was as follows:- "Due to slap to his sister Mist. Bhagan deceased, Afzal deceased reached me in the fields and under the false pretention being an Army man that he would be able to overpower me assaulted me, but he was no match for me and I rather beat him and deprived him of his hatchet. But I had the idea that innumerable relatives of Afzal were also in the village and that he would assault me with their help. With this fear in my mind I came to my house and closed the door. I told my father to be ready as Afzal and his relatives were about to assault me. My father rather abused me that I was creating a mischief. 1, however, took up Barchhi and was ready to face if any body entered the house. Afzal (deceased) alongwith Sher Zaman (deceased), Fazal Karim (deceased) and many others assaulted me. I stood on the higher part of our haveli separating it from the southern part and faced them with Barchhi. I told them that one would be no more in this world out of them. They were not successful and went on brickbatting me, these brickbats hit my family members including myself and my family members hid themselves, but 1 retaliated with brickbatting. Finding the situation difficult the complainant party thought of placing a ladder from the other side for coming on the roof so that I was cornered from both the sides. The three deceased came up the roof and on this 1 went upstairs with my barchhi. I was given a blow by Afzal deceased and I defended myself but was able to injure all the three one by one. Mst. Bhagan deceased had also reached the roof top, when she saw me as well as her near relatives on the roof perhaps thinking that some one would be no more and she too was injured in the affair. Mst. Mano was on her own roof and was brickbatting at us."
7. In the F.I.R. The occurrence is reported to have taken place in the following manner: After having received fist blows from Muhammad Afzal deceased in the fields Muhammad Taj appellant returned to his house and in order to avenge the insult done to him started beating Mst. Bhagan deceased. Mst. Bhagan deceased in order to save her life climbed up the roof of the house and raised alarm there. Muhammad Taj appellant followed her there armed with a hatchet and started giving her injuries. In the meantime Muhammad Afzal deceased had also returned from the fields and heard the cries of his sister. The houses of the parties are close to one another. On the alarm of Mst. Bhagan deceased, Muhammad Afzal deceased, Fazal Karim deceased and Sher Zaman deceased ran towards the house of Muhammad Taj appellant in order to rescue Mat. Bhagan deceased. But Muhammad Taj appellant had bolted the door of his house from inside so that they could not reach Mst. Bhagan deceased. While he was giving blows with the reverse side of the hatchet to Mst. Bhagan deceased, she was calling her brother Muhammad Afzal deceased, her uncle Sher Zaman deceased and her cousin Fazal Karim deceased for their help. Upon this brother of Muhammad Taj appellant, namely, Muhammad Riaz appellant armed with a Barchhi and the rest of the acquitted co-accused empty-handed also climbed up the roof, while Muhammad Taj appellant went on beating Mst. Bhagan deceased. Since the entrance door of the house was bolted from inside Muhammad Afzal, Karim and Sher Zaman, all deceased, put two pieces of wood by the side of the room and reached the lower Kotha one by one. Thereafter. Fazal Karim deceased pulled up these two pieces of wood and with the help of these two pieces climbed up the upper Kotha where Mst. Bhagan deceased was being beaten. The three of then could not climb up at the same time and they had to proceed to the upper Kotha one after the other. The result was that when each of them reached the upper Kotha, they- were attacked by the appellants and Johan Dad, acquitted co-accused, with their hatchets and Barchhi whereas the other acquitted co- accused went on throwing stones at Mst. Mano P.W. 7, her husband Hukam Dad (not produced) and Rab Nawaz P.W. 8, who had gathered in the street were raising alarm. These acquitted co- accused were also raising Lalkaras that the deceased should be done to death. In the meantime Ghulam Hussain P.W. 9 was attracted to the scene of crime and witnessed the same. All the eye- witnesses were trying to dissuade the accused-party including the appellants not to cause injuries to the members of the complainant --party. In due course all the four persons, who are deceased in the instant case, fell on the Kotha of the appellants and the appellants alongwith their companions went on, raising Lalkaras. None else from the complainant side had the courage to climb up the upper Kotha. Many other people 'of the village had assembled there. When the Lalkaras of the accused party had subsided, Ghulam Hussain P.W climbed up the Kotha and found that the four injured persons had died on the spot. Thereafter, Mst. Mano P.W. Proceeded to the police station in order to lodge the report.
8. Dr. Asghar Hameed Qureshi P.W. 1 conducted post-mortem examination on the dead body of Fazal Karim at 8-00 a.m. Or, 19-1-1975 and found on his person four lacerated wounds on the back of scalp the bone underneath was fractured. An abrasion with a lacerated wound on the right jaw and multiple abrasions on the front and right side of neck. Death, in his opinion, was due to injury to the brain and the fracture of thyroid, cartilage and closure of the vocal cords. Two of these injuries were fatal individually as well as collectively and they were sufficient to cause death in the ordinary course of nature. The injuries had been caused by blunt weapon and the probable time that elapsed between the injuries and death was a few minutes.
At 9.30 a.m. On the same day he conducted post-mortem examination on the dead body of Muhammad Afzal and found on --person two lacerated wounds on the scalp, bone underneath way fractured, multiple abrasions on the neck and the mastoid bone under--neath was fractured.
Swelling on the left side of scalp, abrasion or the left cheek, another abrasion on the lower part of left cheek, lacerated wound on the lower lip, three contusion marks on the left side of chest and two contusion marks on the chest outer side with two abrasion on the right lumbar area and an abrasion on the left leg. Death, his opinion, was due to injury to the brain. The first three injuries were fatal individually as well as collectively and they were sufficient to cause death in the ordinary course of nature. The injuries had beer caused by a blunt weapon and the probable time that elapsed between -injuries and death was 5 to 10 minutes.
On the same day at 11-30 a.m. He conducted post-mortem examination on the dead body of Shah Zaman and found on his person extensive lacerated wound brain matter deep, two lacerated wounds or the scalp, lacerated wound on the left scalp, a lacerated wound on the posterior part of the scalp, a swelling over left temporal area and incised/stab wound chest deep going downward in the front of the chest. There was exit wound of this injury. Death, in his opinion, was due to extensive injuries to the brain and stabbing of the left heart. These injuries were individually as well as collectively fatal and were sufficient to cause death in the ordinary course of nature except stab injury which was caused by a sharp-edged weapon, all others had been caused with a blunt weapon. The probable time between injuries and death was two or three minutes.
On the same day at 1-00 p.m. He performed post-mortem examination on the dead body of Mst.
Bhagan and found on her person three abrasions on the back of neck, an abrasion on right lumbar area, two abrasions on right buttock, contusion mark on right arm with a lacerated wound, contusion on middle of right arm, two contusion marks on the back of right forearm, two contusion marks on the back of right forearm abrasion on the back of left thumb, two abrasions on the left chest, an abrasion on the left cheek, an abrasion on the left eye-brow; a lacerated wound on the scalp, a lacerated wound on the mastoid area, a lacerated wound on the top of head, a lacerated wound on a contusion mark or, the left leg as well as a lacerated wound and a contusion mark on the right leg. Death, in his opinion, was due to injuries to brain as a result of the injury on the top of the head. This injury was fatal and was sufficient to cause death in the ordinary course of nature.
The probable time between injuries and death was half hour. The injuries had been caused by a blunt weapon.
On 19-1-1975 at 4-00 p.m. He medically examined Johan Dad, acquitted co-accused and found on his person a simple injury caused with blunt weapon in the form of an abrasion on the left forearm within 2/3 days.
On the same day he medically examined Muhammad Taj appellant and found on his person abrasions and swellings on left eye-brow, left forearm, left elbow, back of her neck, right shoulder, right chest and right leg. The injuries were simple and had been caused by blunt weapon within two to three days.
On the same day he medically examined Mst. Fatima, acquitted co-accused and found on the person two lacerated wounds on the scalp and right leg. The injuries were simple and had been caused within two to three days by blunt weapon.
On the same day he medically examined Mst. Saidan Bibi, acquitted co-accused, and found on her person an abrasion and swelling on the scalp. The injury was simple and caused with a blunt weapon within 2 to 3 days.
9. We have heard learned counsel for both the sides and carefully perused the record. Learned counsel for the appellants concedes that Muhammad Taj appellant did participate in the commission of crime and that as it was evident from Exh. D.C. At page 44 of the Paper Book he was a mentally deranged person. He, therefore, pleads for the awarding of lesser penalty to him, in the circumstances of the case, in case his plea of self-defence is not acceptable to this Court. In respect of Muhammad Riaz appellant it is submitted that he like Mst. Imtiaz Begum acquitted co- accused was not injured as the other members of the accused-party and that, therefore, his plea that he was not present on the scene of crime should be accepted and on that account he should be given the benefit of doubt and acquitted.
There is no evidence on the record from which an inference can be drawn that the pretence of Muhammad Riaz appellant at the time of commission of crime was doubtful. In respect of his presence at the scene of crime and participation in the same, the ocular testimony is corroborated by the recovery evidence. Therefore, he not being injured at the time of occurrence cannot automatically make us arrive at the conclusion that he was not present. In the instant case Mst.
Mano P.W. Is a natural witness of the occurrence and we have no hesitation in accepting her testimony pertaining to the part ascribed to Muhammad Riaz appellant, particularly when her statement is corroborated by the recovery evidence and supported by the motive, the medical evidence as well as the circumstantial evidence. The acquitted co-accused, in the instant case, were stated to be empty-handed by this witness. The part ascribed to them is only this that they also climbed over the roof and raised Lalkaras beside throwing stones at the P.Ws. Who were standing in the street. None of the P.Ws. Was injured as a result thereof. These acquitted co- accused, according to the ocular testimony, did not cause any injuries to the four deceased in the instant case. The number of injuries sustained by the four deceased also indicate that it was not the job of one man. In that view of the matter, we do not feel inclined to agree with learned counsel that Muhammad Riaz appellant was not present at the scene of crime and had been falsely implicated.
So far as the case of Muhammad Taj appellant is concerned, the prosecution version is supported by the ocular testimony of Mst. Mano P.W. And further corroborated by the recovery evidence, motive, medical evidence as well as circumstantial evidence. Even learned counsel for the appellants conceded before us that lie was not pleading for his acquittal but for the awarding of lesser penalty on account of his being a mentally deranged person. In this respect the documents on which he has placed reliance, namely Exh. D.C. Is a copy of plaint in the Court of the Civil Judge, Chakwal instituted by Muhammad Riaz appellant on his own behalf and on behalf of Muhammad Taj appellant as against one Muhammad Sadiq. This plaint is, dated 11-6-1973 and in the same Muhammad Taj appellant is described as a mentally deranged person (Fatir-ul-Aqal) or a lunatic under the wardship of his brother and, therefore, incapable to institute civil proceedings. As it is evident from this document, it was filed in 1973 whereas the present occurrence took place in 1975.
There is no evidence on the record to show that the appellant was a lunatic or idiot or mentally retarded at the time of the commission of crime, nor a plea of insanity had been taken on his behalf at any stage in the present proceedings. None of the eye-witnesses) including Mst. Mano P.Ws., who was mother-in-law of Muhammad Taj, appellant was given a suggestion that Muhammad Taj appellant was a lunatic or a mentally deranged person. We are, therefore, not prepared to accept this plea of learned counsel which is based on an isolated I document preferred to the Civil Court in 1973 probably for some ulterior motive.
Since the Criminal Revision, in the instant case, had only been admitted as against the acquittal of Jahan Dad co-accused, who had died during the pendency of the same, it has become infructuous and is dismissed as such. The death sentences awarded to Muhammad Taj and Muhammad Riaz appellants are hereby confirmed.