LEHRASAP KHAN, J.--Dilbaz Khan (30), Pervaiz Khan (17/18), Muhammad Bashir (30) and Muhammad Matah (16/17), have been convicted by the learned Sessions Judge, Khushab, vide his judgment, dated 19-1-1983, under section 302/34, P.P.C., for causing the murder of Khizar Hayat deceased aged 42 years. Dilbaz Khan and Pervaiz Khan have been sentenced to death and a fine of &x.10,000 each or in default two years further R.I., each, while Muhammad Bashir and Muhammad Matah have been sentenced to imprisonment for life 9ach and a fine of Rs.10,000 each or in default two years R.I. Each. It has been also directed that out o: the fine, if realised, a sum of Rs.30,000 shall be paid as compensation to the legal heirs of the deceased.
Muhammad Riaz, Muhammad Hussain, Sher Muhammad and Dost Muhammad were also tried under section 120-B, P.P.C., alongwith the aforementioned convicts, but through the aforesaid judgment they have been acquitted.
Dilbaz Khan, Pervaiz Khan, Muhammad Bashir and Muhammad Match, he convicts, have challenged their conviction and sentences through Criminal Appeal No.71 of 1983, while the matter also stands referred to us under section 374, Cr.P.C., (Murder Reference No.32/L of 1083), seeking confirmation of death sentence awarded to Dilbaz Khan and Pervaiz Khan.
Muhammad Sher complainant has filed criminal revision (Criminal Revision No.131 of 1983), challenging the acquittal of Muhammad Riaz, Muhammad Hussain, Sher Muhammad and Dost Muhammad, under section 120-B, P.P.C., and also seeking enhancement of sentence from imprisonment for life to death awarded to Muhammad Bashir and Muhammad Match.
The aforesaid appeal, the murder reference and the revision petition shall be disposed of by this judgment.
2. The occurrence took place on 20-10-1980, at 8.00 a.m., in Kacha Bazar, Khushab, at a distance of one furlong from Police Station, Khushab. The occurrence was reported at the Police Station through F.I.R. Exh. P.F at 11-00 a.m., the same day by Muhammad Sher P.W.10, a Khalazad of Khizar Hayat deceased. The case was originally registered under section 307, P.P.C. The F.I.R., was recorded by Muhammad Siddique A.S.I. P.W.
12. Khizar Hayat deceased succumbed to the injuries in Mayo Hospital, Lahore, on 21-10-1980. The charge was altered from section 307 , P.P.C. To section 302, P.P.C.
3. Regarding motive it has been alleged that Rustam Khan son of Muhammad Hussain acquitted accused was murdered on 19-9-1980, by Niamat Khan, a nephew (brother's son) of Khizar Hayat deceased. Khizar Hayat defended the case on behalf of his nephew Niamat Khan to the annoyance of the accused and thus they murdered him.
4. The accused are closely related inter se. Muhammad Bashir is brother of Muhammad Hussain.
Muhammad Matah is his nephew. Pervaiz Khan is his sister's son. Sher Muhammad is his sister's husband. Dilbaz Khan is son of sister-in-law of Muhammad Hussain. Muhammad Riaz is also son of his sister-in-law and Dost Muhammad who is father of Dilbaz Khan and Muhammad Riaz is Hamzulf of Muhammad Hussain.
5. As for the main occurrence it has been stated that on the eventful day at 8-00 a.m., Muhammad Sher P.W.10, went to the house of Khizar Hayat deceased and took him along for saying Eid prayer in the mosque located near bus-stand. Khizar Hayat was walking about ten Karams ahead of Muhammad Sher while Muhammad Ali P.W.11 &no Manzoor Hussain, given up P.W. Were coming behind the complainant. When the deceased reached in front of Jannah Medical Store, the accused emerged from Darbar Noori Hazuri Street. Muhammad Bashir and Muhammad Matah were armed with carbines. Pervaiz Khan and Dilbaz Khan were armed with daggers. They raised Lalkaras. Muhammad Bashir fired his carbine causing injury to the deceased on tote left side of his head. Then Muhammad Matah fired at him but the shot did not hit him. Dilbaz Khan gave a dagger blow in the abdomen of the deceased under the umbilicus. Pervaiz Khan caused injury with dagger on the upper portion of the abdomen. Dilbaz Khan again caused injury with dagger in the left flank.
The deceased fell down. Thereafter, Dilbaz Khan and Pervaiz Khan caused many injuries on the arm and other parts of the body of the deceased. It has been alleged that the aforementioned four accused conspired with the four acquitted accused before causing the death of the deceased.
6. All the four appellants were arrested on 26-10-1980, .By Muhammad Siddique A.S.I. P.W.12. A .12 bore missed cartridge P.5 was recovered from the spot and secured vide recovery memo. Exh.P.I., attested by Muhammad Sher P.W.10, Muhammad Ali P.W.11 and Muhammad Siddique A.S.I. P.W.12 on 20-10-1980 i.e. The day of occurrence. On the same day crime empty P.6 was recovered vide recovery memo. Exh .P.H. In the presence of the aforementioned witnesses.
On 30-10-1880 Muhammad Matah led to the recovery of .12 bore carbine P.7 from the graveyard of Bawa Rahmat, which was taken into possession vide memo. Exh.P.J., attested by P.W.11 Muhammad All.; P.W.12 Muhammad Siddique A.S.1. And Muhammad Latif given up.
On 2-11-1980, .12 bore carbine P.8 was recovered at the instance of Muhammad Bashir which was secured vide memo. Exh.P.K. In the presence of the aforementioned witnesses. On 4-11-1980, blood- stained dagger P.3 was recovered at the instance of Pervaiz Khan from a Bharola in his house. The same was taken into possession vide memo. Exh. P.C. In the presence of Muhammad Nazir P.W.6, Muhammad Siddique. A.S.I P.W. 12 and Muhammad Mumtaz given up. On 10-11-1980, a blood-- stained dagger P.4 was recovered at the instance of Dilbaz Khan which was taken into possession vide memo. EXh.P.D. Attested by Muhammad Nazir and Muhammad Siddique aforesaid. It has been reported by the Chemical Examiner vide his report Exh.P.V. That the dagger recovered from Dilbaz Khan did not have any blood-stains. In regard to the stains of blood on the dagger recovered from Pervaiz Rhan, the result has been returned in positive by the Serologist vide report Exh.P.V. Forensic Laboratory Expert has reported vide report Ex..P.Z. That crime empty P.6 matched with .12 bore shot pistol marked as P.2 by the expert. There is no direct evidence to suggest that this pistol which has been marked as P.2 by the Fire-arm Expert was recovered from Muhammad Bashir or Muhammad Matah, unless contents of the recovery memo. Are taken into consideration. The said contents are not legally admissible in evidence under section 27 of the Evidence Act.
7. Doctor Malik Muhammad Khan R.W.14 examined Khizar Hayat deceased while he was alive and noticed 16 injuries on his person. Injuries 13,14,15 and 16 were lacerated wounds injury No.10 was a contusion on back of left elbow, while the rest were incised wounds.
8. The autopsy on the dead body of Khizar Hayat deceased was performed on 22-10-1980 at 9-50 a.m. By P.W.13 Dr. Sabir Ali, Superintendent Dispensary Mayo Hospital, Lahore. He noticed 19 injuries on the dead body of the deceased including four lacerates, wounds, one abrasion and one incised scratch in addition to 13 other injuries, which are caused by sharp-edged weapon and include two slab wounds on different parts of the body of the deceased. Lacerated wounds were on the head.
Dr. Sabir Ali opined that all the injuries were ante-mortem and injuries 1,2 and 3 inflicted by some sharp-edged and pointed weapons were individually sufficient to cause death in the ordinary course of nature. Injuries 1,2 and 3 are detailed as follows:- (1)Incised wound below umbilicus (3 c.m. Below it) 3 cm x 1 cm x cavity deep.
(2)Stab wound clean cut 3 cm stitched on the left upper abdomen, 12 cm above the naval at one O' clock position placed transversely.
(3)Stab wound stitched 4 cm on the right upper abdomen, 15 cm above the naval at eleven o'clock position placed transversely.
He stated that lacerated wounds detailed at serial Noa.13,14,15 and 16 could be assessed to have been caused by fire-arm if certain other peculiarities were noticed but such peculiarities were absent in the case of these wounds of the deceased. Thus, he opined that lacerated wounds noticed on the head of the deceased were not caused by fire-arm. P.W.14 Dr. Malik Muhammad Khan also did not say positively that lacerated wounds described in M.L.R. At serial Nos.13,14,15 and 16 were caused by fire-arm. He simply stated that possibility of these injuries having been caused by fire-arm could not be ruled out. He had advised X-Ray examination of the injuries as he was not certain of nature of weapons of offence, but no such X-Ray was taken subsequently.
9. Muhammad Sher P.W.10 and Muhammad Ali P.W.11 testified at the trial as eye-witnesses to furnish the ocular account of the prosecution case. They supported the prosecution version as disclosed in the F.I.R.
10. The appellants pleaded that they were innocent and have been falsely involved in this murder case on account of enmity over the murder of Rustam Khan. Their stance was that the deceased had many enemies. He remained involved in various criminal case. He was done to death in the dark hours of the morning by some unknown assailants. D.W.1 Muhammad Akbar, Moharrir Head Constable has been produced to produce copies of F.I. Rs. About the criminal cases previously registered against the deceased.
11. It has been contended on behalf of the appellants that the F.I.R. In this case has been recorded after deliberations and after sufficient delay although the Police Station, is at a distance of only one furlong from the place of occurrence. It has also been argued that the medical evidence does not support the prosecution case, recoveries are of no consequence and the eye-witnesses are closely related to the deceased and are chance witnesses.
12. We have considered and analysed the arguments advanced on behalf of the appellants with reference to the facts of the case as available on the records. The occurrence as already stated, took place at 8-00 a.m. At a distance of about one furlong from the Police Station but it was reported at the police station at 11-00 a.m. On the same day i.e. Three hours after the occurrence, but this delay has been satis--factorily explained in the F.I. R. It has been stated that Khizar Hayat deceased in injured condition was first taken to local hospital and then C to Sargodha for medical aid. His medico-legal examination was also done at Sargodha. The Medical Officer at Sargodha referred the inured for treatment to Mayo Hospital, Lahore. After obtaining the medico-legal report at Sargodha, the complainant came back to Khushab and got registered the case at 11-00 a.m. In the circumstances, it cannot be said that the F.I.R. Was lodged after inordinate delay and after deliberations.
The medical evidence, no doubt, runs counter to the prosecution case to this extent that both the doctors, i.e. The one who examined the deceased while he was alive and the other who conducted post--mortem examination on his dead body, have not stated that the lacerated wounds found on the body of the deceased were caused by fire-arm. In this manner, the part attributed to Muhammad Bashir that he fired at the deceased hitting him on the left side of his head does not find corroboration from the medical evidence.
Recoveries in this case are also of not much consequence. It is not certain as to with which carbine, the crime empty matched. So far as the dagger are concerned, they were recovered more than a fortnight after the occurrence. The dagger allegedly recovered at the instance of Dilbaz Khan was not found to be stained with blood. The result in regard to dagger allegedly recovered from Pervaiz Khan has been received in positive, but it does not sound to reason that he would keep the dagger in blood-stained condition as a souvenir for more than a fortnight.
13. In spite of the infirmities noticed in the corroboratory evidence, as discussed above, we have found that the ocular evidence in this case does inspire confidence. It may be said by some stretch of imagination that P.W.10 Muhammad Sher being Khalazad of the deceased is an interested witness, but his testimony does find support from that of Muhammad Ali P.W.11. He is unrelated witness. There is nothing on the records to suggest that he had any motive or animosity against the appellants for their false involvement in the case. Medical evidence of furnishes support to the statements of the eye-witnesses to the extent that the injuries caused by sharp-edged weapon viz. Injuries Nos.1,2 and 3 were individually sufficient to cause death in the ordinary course of nature. All these injuries were in the abdomen above and under the umbilicus. Both Muhammad All and Muhammad Sher have testified that these injuries were caused by Dilbaz Khan and Pervaiz Khan.
14. In the light of the above discussion, we have come to the conclusion that since lacerated wounds found on the head of the deceased have not been declared by the medical evidence to be the result of fire-arm, therefore, we extend benefit of doubt to Muhammad Bashir and Muhammad Matah, who allegedly fired carbines at the deceased. They are, therefore, acquitted and their appeal is allowed. They shall be set at liberty forthwith if not required to be detained in any other case.
The guilt alleged against Dilbaz Khan and Pervaiz Khan of having caused the murder of the deceased by inflicting injuries to him with daggers is fully brought home to them beyond any reasonable doubt. They murdered an innocent person during broad-day light on Eid-day. They do not deserve any leniency. Their conviction and sentence are maintained. Their appeal is dismissed and their death sentence is also confirmed.
We agree with the learned trial Judge that there is no positive evidence on the records to suggest that the acquitted accused were liable for conspiracy. The criminal revision is, therefore, dismissed.