This judgment will dispose of Criminal Appeal No. 150 of 1983 filed by the appellants against their conviction and sentences and Criminal Revision No. 168 of 1983 filed by the complainant for enhancement of the sentence of the appellants.
2. The appellants Rab Nawaz son of Jahandad, aged 30 years, Hakam Khan son of Khan Muhammad aged 70 sears and Ghulam Jilani son of Muhammad Khan aged 42 years all Awans by caste, residents of village Lund, Police Station Fateh Jang Tehsil Fateh Jang, District Attock stood their trial under section 302/34, P.P.C. For committing the murder of Ghulam Muhammad, in the Court of Hakim Syed Akhtar Irshad, Additional Sessions Judge, Attock. They were convicted under section 302/34, P.P.C. And were awarded life imprisonment with a fine of Rs.5,000 each or in default to suffer six months' R.I. Each. The amount of fine it realized was expressed to be paid to the heirs of the deceased, vide judgment; dated 23-11-1983.
3. According to the facts as alleged in the F.I.R., on 25-3-1983 at evening time Muhammad Aslam, the complainant P.W.8, his son Ghulam Muhammad (deceased) and Sher Khan P.W. 9 were coming to the village from the Dhok of the complainant. When they reached near the Bada of Amir Khan, the complainant took to urinate, Sher Khan P.W.9 stood nearby him while his son Ghulam Muhammad (deceased) proceeded ahead. When Ghulam Muhammad reached the middle of the Bada of wheat crop of Amir Khan, Muhammad Aslam, the complainant P.W.8 heard the noise raised by his son, then he and Sher Khan P.W.9 saw Hakam Khan accused holding Ghulam Muhammad while Rab Nawaz and Ghulam Jilani accused giving blows with knives hitting him in the chest, abdomen and flanks where after Ghulam Muhammad fell down. On hearing an alarm Khan Bahadur P.W.10 son of Amir Khan who was present in the nearby wheat crop field came to the spot and also witnessed the occurrence. On seeing the P.Ws. After injuring Ghulam Muhammad, the accused fled away. Ghulam Muhammad succumbed to the injuries after a short while.
4. The motive due to which Ghulam Muhammad was done to death, as alleged, was that Rab Nawaz etc: suspected Ghulam Muhammad deceased as having illicit relations with Mat. Nasim Begum were of Saadullah and said Mst. Nasim Begum was the Phuphizad of Rab Nawaz and Ghulam Jilani appellants and the real niece of Hakam Khan appellant.
5. Malik Muhammad Bashir A.S.I., (P.W.11) and Malik Muhammad Ashraf S.H.O./Inspector (P.W.13) conducted the investigation. They covered all the formalities in securing the necessary links conducive to the trial. Malik Muhammad Bashir, A.S.I. Collected the blood-stained earth from the spot and recorded the statements of the witnesses. Malik Muhammad Ashraf, Inspector (P.W.13) arrested the appellants on 26-3-1983. On the lead of Rab Nawaz, appellant, he got recovered the blood-stained knife Exh. P.10 from the shady bushes underneath the stone on the same day. He, also recovered knife Exh.P.11 from the residential Kotha of Ghulam Jilani, appellant pan 29-3-1983 at his instance.
6. Khalid Mahmood, Patwari (P.W.3) prepared the site plan (Exh. P.B.) and its duplicate (Exh. P.B./1) in the scale of 30 Karams = 1--- 7.According to the post-mortem examination conducted on 26-3-1983 by Dr. Rehmat Elahi Chughtai P.W.12 on the dead body of the deceased described as 32 years old, the following nine injuries were found on his person:-- (1)An incised wound on the left side of neck upper part going horizontally inwards and right side 1" x 3/4" x 5". There was corresponding cut on the left side of the collar of the shirt.
(2)An incised wound on the front of left side of chest. 1" away from mid-line, 2" away and little below from the level of nipple, 2" x 1" x muscle deep. The corresponding cut mark on the shirt was present.
(3)A stab wound on the left lateral side of chest 1" x --" x going upward into chest cavity. The corresponding cut mark on the shirt was present.
(4)An incised wound 3/4" above injury No. 3, 3/4" x -- " x muscle deep.
(5)A stab wound on left side of chest on front 5" below left nipple, 1" x -- x going into chest cavity.
The corresponding cut mark on the shirt was present.
(6)A stab wound in epigastriam 1--- x --" x going into the abdominal cavity. The corresponding cut mark on the shirt was present.
(7)A stab wound 1 --" towards left of injury No. 6, 3/4" x -- x abdominal cavity. Corresponding cut mark was present on the shirt.
(8)A stab wound -- " above the middle the left iliac crest 1 --" x -- x going into abdominal cavity.
The corresponding cut mark on the shirt was present.
(9)A stab wound on the back of abdomen on right lumber region 3/4" x -- x going into abdominal cavity. The corresponding cut mark was present on the shirt.
On his internal examination in the thorax he found the plurae injured under Injuries Nos. 3 and 5, the left lung injured under injuries Nos. 3 and 5. Oesaphagus cut under injury No.1, the main blood vessels of the left side of neck also cut under injury No.1. Large intestine had two cut marks, one was wound of entry and the other of exit under injuries Nos. 8 and 9. The liver had an injury to portal vein, bilduct and hepatic artery due to injury No.9.
The injuries were stated by him as ante-mortem caused by sharp-edged weapon. Injuries Nos. 1, 3, 5, 8 and 9 he found as grievous while the rest as simple. The probable time that elapsed between the injuries and death he expressed as within 30 minutes and between death and post-mortem examination 12 to 18 hours. The death was due to shock and severe haemorrhage resulting from all the injuries. However, injuries Nos. 1, 3, 5, 8 and 9 were sufficient to cause the death individually as well as collectively in the ordinary course of nature.
8. The prosecution at the trial relied upon the evidence as to the motive furnished by Muhammad Aslam P.W.8, the ocular testimony given by Muhammad Aslam P.W.8, Sher Khan P.W.9 and Khan Bahadur P.W.10, the evidence as to the recoveries given by Fateh Khan P.W.5, Subedar Muhammad Aslam P. W.6, Ahmad Khan P. W. 7 and Malik Muhammad Ashraf Investigating Officer P.W.13 and the medical evidence deposed by Dr. Rehmat Elahi Chughtai P.W.12.
9. All the appellants when examined under section 342, Cr.P.C. Denied the allegations of the prosecution. Rab Nawaz appellant stated as follows:-- "The relationship with Mst. Nasim Begum is admitted. It is also correct that Ghulam Muhammad deceased had illicit relations with Mst. Nasim Begum. Saadullah husband of Nasim Begum and his brothers Ahmad Khan, Abdullah and Nawaz reside at the same Dhok in the village. Father of Nasim Begum is also alive. I and my co-accused have been implicated on account of enmity although the motive is correct. The P.Ws. Have deposed against me on account of enmity and close relationship with Muhammad Aslam complainant. I alongwith my father were living at Islamabad. 1 had come to the village on the demise of my maternal-grandmother list. Nur Bhari and was living at the Dhok of Khawaja Khan who is my father-in-law as well as my uncle. There at I came to know that Sherbaz my were's brother was employed with the complainant and the complainant had not paid his wages to Sher Baz. I went to Ghulam Muhammad deceased and his father Muhammad Aslam complainant and I requested them to pay the wages of Sher Baz but they did not pay heed to my request. About 2 days prior to the present occurrence due to the above-said reasons I and Ghulam Muhammad deceased exchanged hot words, at a cattle fair. On account of this altercation Jaffar Khan who is brother-in-law of Muhammad Aslam complainant turned out Khawaja Khan my father-in-law from the Dhok owned by him at which Khawaja Khan was residing and I withdrew Sherbaz from the service of Muhammad Aslam complainant.
I am innocent. I was arrested by the police while I was on my way to the house of Muhammad Aslam complainant for offering condolence alongwith Hakam Khan my cc-accused and Khawaja Khan my father-in-law. The deceased not of good character and I alongwith my co-accused have been falsely implicated on account of enmity."
Rab Nawaz appellant produced a copy of Register Haqdaran Exh. D.E., a copy of the bail application Exh D.F. And the order, dated 17-4-1983 of the learned Sessions Judge with D.F. And an attested copy of the statement of Ghulam Ali in the Court of R.M. Fatehjang pertaining to the recovery of knife P.10 which is Exh. D.G. And closed his defence.
Ghulam Jillani appellant stated as follows:- "It is correct that Mst. Nasim Begum is related to us as she is my Phuphizad. It is also correct that Mst. Nasim Begum was carrying on illicit relations with Ghulam Muhammad deceased. This fact was also within the knowledge of Saadullah her husband and his brothers Ahmad Khan, Abdullah and Nawaz who reside at the same Dhok in the village. Father of Nasim Begum is also alive. The motive is correct but I and my co-accused have been falsely implicated on account of the enmity with the complainant and the P.Ws. The P.Ws. Have deposed against me on account of enmity and on account of their close relationship with the complainant. During the previous District Council Election I was agent for Malik Ahmad Khan, Advocate and Ahmad Khan P.W.7 was agent of Sardar Arif Khan resident of Ratwal. At the time of said poling Ahmad Khan had an altercation with me and asked me to withdraw from the agent-ship of Malik Ahmad Khan, Advocate but I refused and an altercation took place between me and said Ahmad Khan. Said Ahmad Khan is closely related to Muhammad Aslam complainant and even today he is present in the Court. Abdullah, my brother- in-law had purchased 11 Kanals of land from Nur Khan which the complainant wanted to purchase as it was contiguous to his lands. Even after the purchase of the said land Muhammad Aslam resisted upon Abdullah through me to give back that land but we refused and on account of this he bore grudge against me and falsely involved me in this case."
Hakam Khan appellant stated as follows:--- "It is correct that Mst. Nasim Begum is my niece. It is also correct that Ghulam Muhammad deceased was having illicit relations with her and this fact was known to Saadullah her husband and Nawaz. Abdullah and Ahmad Khan brothers of said Saadullah and father of Nasim Begum who are all alive and are residing in the same village. On account of my relationship with the co- accused and my enmity with the complainant party I have been falsely implicated in this case."
The appellants produced no witness in their defence.
10. After noting down the motive, the learned Additional Sessions Judge observed that the motive was admitted by all the appellants and their relation with Mst. Nasim Begum as alleged by the prosecution and the fact of illicit intimacy between the deceased and Mst. Nasim Begum yet he opined that the, motive however, strong that might be and even if that was admitted by the appellants could not alone form the basis of conviction as held in Faiz and 2 others v. The State PLD 1983 Lah. 602, the motive was a double-edged weapon as that cut both ways and in what way that did depend upon the peculiar circumstances of each case. Even if that was granted that the appellants or any of the appellants had a motive to commit the murder that could not form the sole criterion for basing the conviction. The evidence of motive was to be judged and evaluated in the context of other evidence on the record He believed the ocular testimony by observing that the testimony of the three eye-witnesses was confidence inspiring, cogent and convincing The presence of all the three P. Ws. Near the place of occurrence which was quite adjacent to the village was not unnatural. In the closing hours of the day towards the evening prayer the presence of the P.Ws. Could not be doubted. He rejected the recoveries by holding that, that appeared to be against the human conduct that Rab Nawaz appellant had been wearing the blood-stained clothes and he was present alongwith his co-accused at the Dhuk of Hakam Khan appellant and he was waiting for the arrival of the police. He opined that the prosecution did not produce any independent witness to prove the recovery of blood-stained clothes from the person of Rab Nawaz appellant. He further expressed that the recovery of knife Exh.P.10 from Rab Nawaz appellant became doubtful as the manner of arrest appeared to be suspicious The place from where Rab Nawaz appellant allegedly got recovered blood-stained 4crtfe belonged to Jaffer Khan who was the sister's husband of the complainant: The prosecution had not produced any respectable of the locality or any other independent witness to prove the recovery of knife from Rab Nawaz. The recovery witness was duly confronted with the statement Exh.D.A. Which related to the recovery of the knife which was recorded before the Magistrate in a case under section 13 of the Arms Ordinance. He had made deliberate improvements before him as compared with his previous statement. As to the recovery of the knife EXh.P.11 at the instance of Ghulam Jillani appellant from his residential Kotha he did not consider safe to rely upon Ahmad Khan (P.W.7) one of the recovery witnesses, as the witness was related to the complainant party and the police had failed to cite any respectable or independent witness to witness the recovery of the knife from Ghulam Jillani appellant despite the availability of impartial persons. The knife was riot blood-stained. The prosecution had not complied with the mandatory provision of section 103, Cr. P. C. As to the delay in the lodging of the F.I.R. Brought to his notice the learned Additional Sessions Judge observed that there was ho delay in the F.I.R. As Muhammad Aslam complainant had deposed that he left after the expiry of the deceased leaving Nawab Khan, Lamberdar to guard the dead body. It was in the evidence of the witness that Ghulam Muhammad died after half an hour due to the injuries at the spot. The F.I.R., was recorded at the police station at 10-30 p.m. And there appeared no delay in lodging the F.I.R. According to him the appellants were guilty of committing the murder of Ghulam Muhammad, the prosecution had been able to prove the case against them beyond the reasonable doubt. He did not give any weight to the statements of the appellants made by them in their defence. He, however, withheld the capital sentence in view of the motive as alleged by the prosecution and the admission made as to that by the appellants the family honour was somewhat involved.
11. The learned counsel for the appellants has contended that the two eye-witnesses are related to the deceased through wives and the third is father of the deceased, therefore, for safe dispensation of justice an independent corroborative evidence is necessary. In this behalf he has submitted that Sher Khan P.W.9 and Khan Bahadur P.W.10 are inter se cousins. The were of Sher Khan P.W.9. Mst. Irshad Begum is a sister of Mst. Nur Bhari and Mst. Nur Bhari is a were of Allah Yar full brother of the deceased, Sher Khan P.W.9 and Khan Bahadur P.W.10 on their own statements chanced to be there, therefore, can be treated as chance witnesses. In the peak hours these witnesses were not expected to be there. The body of the deceased was recovered 15 feet inside the wheat field and not at the Bada. In this regard the learned counsel has referred to the site plan.
The crime according to his submission was an un-witnessed one which did not take place at Shamwela but in fact took place not earlier than 9 p.m., the 'very lodging of the F.I.R: at 10-30 p.m.
Showed that. The reference has been made to the medical evidence showing semi-digested food.
The last submission of the learned counsel is that an aspect favourable to the appellants is to be preferred and that the benefit of doubt must be given to the appellants because there is, no corroboration by independent evidence. He has in this behalf referred to Ghulam Hussain v. The State PLD 1972 Lah. 153; Rehmat Ali v. The State 1978 P Cr. L J 828; Muhammad Hussain and another v. The State 1964 P Cr. L J 2603 and Wali Muhammad and others v. The State 1985 P Cr. L J 756.
12. In reply thereto the learned counsel for the State has submitted that the F.I.R. Was promptly lodged, The motive was admitted by the appellants themselves. The ocular account is well-knit.
The witnesses have no enmity with the appellants. The injuries caused are commensurate with the number of the assailants. The penalty cannot be lesser than the already imposed.
13. The learned counsel for the complainant who has filed the revision petition ordered to be heard alongwith this appeal has submitted that the P.Ws. Although related to the deceased have not the slightest enmity against any .Of the appellants. Today the law is that a mere relationship is no ground to discard the testimony of a witness. The reference has been made to Syed Mushtaq Ahmad v. Siddiqullah and others PLD 1975 SC 160, Sher and 4 others v. The State 1972 SCMR 460 and Fateh Muhammad and others v. The State 1968 SCMR 878. The corroboration can be had from the motive as well as the medical evidence. He has referred to Shahzado v. The State PLD 1917 SC 413. The digestive process is not reliable for fixing the time of death, reference is to Asghar v. The State PLD 1958 (W.P.) Lah. 395. The F.I.R. Was lodged after covering the distance of 15 miles Kacha road by travelling on a tractor within four hours which in the circumstances is to be treated as made promptly.
14. The witnesses are no doubt related to the deceased but the question is that whether these witnesses were present at the scene of occurrence and actually witnessed the occurrence. The learned Additional, Sessions Judge has observed as stated above that the presence of three P.Ws.
Near the place of occurrence which was quite adjacent to-- the village was not unnatural. Now whether this observation ref the learned Additional Sessions Judge is to be preferred. The learned counsel for the appellants as to the presence of the witnesses has asked this Court to take the witnesses as not at all present by appealing to the speculative considerations. Nothing has directly either from the evidence or from the circumstances been pointed gut, so as to suggest that the eye-witnesses were not present or could not be expected, to be there.
A trial Court happens to have the-privilege of seeing the witnesses watching their demeanour and recording their evidence which privilege is denied to an appellate Court, therefore, in the matter of the appreciation of evidence in forming a view as to the presence of the witnesses and their account as to the' very witnessing of the occurrence the conclusion drawn by a trial Court is entitled to its due weight unless it is shown from the record that the conclusion so drawn is unwarranted being not supported by the record. The learned Additional Sessions Judge has observed that the testimony of the three eye-witnesses is confidence inspiring, cogent and convincing. This Court is not minded to disagree with the learned Additional Sessions Judge in this behalf on of hand considerations since the witnesses have been relied upon by the learned Additional Sessions Judge except regarding the participation of Hakam Khan appellant on a different consideration to be discussed later. It is an established principle of law that where the witnesses though related are found as present and having witnessed the occurrence, their testimony can be acted upon with necessary adaptations to the facts and the circumstances of the case, supplemental, derrogatory or corroboratory so as to connect the persons accused thereof with the commission of a crime.
There is no room for fixing the occurrence as having taken place inside the wheat field and not at the Bade after referring to the site plan, the place from where the blood-stained earth was collected and the fact as appearing in the evidence which could be said slightly inside the Bada.
The time of occurrence as suggested by the, learned counsel for the appellants can be come to only by an unnecessary stretching of the facts. The state of digestion may be found as lending some support relatively to the time provided there is given the exact --time when the food is taken.
The emphasis of the learned counsel for the appellants is that it is an unwitnessed occurrence because having taken place somewhat at 9 p.m. To appreciate such a thing the support is always to be taken from the facts and circumstances of the case. To come to such an inference nothing has been suggested from the record. It has been pointed out with weight by the learned counsel for the --State that the number of the injuries is quite commensurate with the participation of the two assailants namely Rab Nawaz and Ghulam Jinn: who were stated to have injured the deceased from the eastern and western sides, but a different consideration arises as to Hakam Khan appellant. It was stated by Muhammad Aslam P.W.8 in his examination-in- chief that Hakam Khan had caught hold of the deceased when the said appellants had started stabbing him, while in his cross-examination he stated that Hakam Khan appellant was holding the deceased from his two arms from behind and Hakam Khan was on the back of the deceased. The question arises that whether in this position the other appellants could cause injury No.9 on the back of the deceased in quick succession. (Sher Khan P.W.9 and Khan Bahadur P.W.10 had stated in their examination-in- chief that Hakam Khan had caught hold of the deceased when Rab Nawaz and Ghulam Jillani appellants. Were giving knives blows to the deceased). Yet theme is another aspect in the Urdu version of the evidence recorded as to the statement of the said P.W.8 that when he saw Hakam Khan for the first time he was holding the deceased with, him tooth hands from behind and Hakam Khan was at the back of the deceased. If this statement is construed then it means that Hakam Khan appellant was holding the deceased from behind but in clasp in which event the injuries denoted on the chest could not have been caused so freely without undoing the clasp.
It is there that the version in English as to the evidence was recorded by the learned Judge himself while the Urdu version by the Reader but where the witnesses depose either in Urdu or Punjabi then the Urdu version can be treated as more near to the utterance or statement. Even if it is not taken so when there is a conflict between the two records then any benefit arising out of one is as a matter of course to be accorded to the accused person. It is not being entertained as a positive finding that as to the presence and role of Hakam Khan the witnesses are not truthful but in view of the preceding observation a reasonable doubt arises as to the presence and role of Hakam Khan which can only be resolved in favour of Hakam Khan, therefore, on being given the benefit of doubt he is acquitted. His conviction and sentence is set aside. He is to be released forthwith if not required in any other case.
As to the appellants Rab Nawaz and Ghulam Jillani their conviction is upheld and the sentences are maintained and their appeal is dismissed.
The revision petition for enhancement of the sentences to the of capital which was ordered to be heard alongwith this appeal is dismissed for the reasons that Hakam Khan has been acquitted and as to Rab Nawaz and Ghulam Jillani the reason given by the learned Additional Sessions Judge for withholding the capital sentence as stated above appears to be apt.