1. Sardar Khan, Muhammad Ilyas, Shaukat Ali and Muhammad Nawaz have come up in appeal against the judgment, dated 30-4-1980 by learned Additional Sessions Judge, Gujrat, who sentenced them under section 302/34, P.P.C. To imprisonment for life and a fine of Rs.3,000 or in default one year's R.I. Each for the murder of Wilayat. They all were ordered to pay Rs.3,000 each as compensation to the heirs of deceased and in default to suffer one year's R.I. Each. Muhammad Ilyas appellant was also sentenced to suffer six months under section 323, P.P.C. For injuring Lal P.W.
2. This sentence was ordered to run concurrently with his sentence under section 302/34, P.P.C.
2. The occurrence in this case took place at Marri Degarwela (about 5-30 p.m.) on 6-3-1977 in the field of Muhammad Siddique in village Kassokey, about six miles from Police Station Jalalpur Jattan, District Gujrat. The F.I.R. Exh.P.H. Was recorded on the same day at about 9-00 p.m. By S.I.
3. Manzoor Hussain, (P.W.11) at the instance of Ali Muhammad (P.W.10).
4. It was stated by Ali Muhammad in his First Information Report that on 6-3-1977 at about Chahwela (about 9.00 a.m.) he was present at his well alongwith his brother Wilayat deceased. Ilyas and Shaukat accused cut sugarcane crop belonging to them. Wilayat deceased told them not to damage the sugarcane crop which resulted in exchange of abuses between him and the two accused. It was stated by Ali Muhammad that he intervened and settled the matter. Ilyas and Shaukat accused, however, leaving extended threats that they would take revenge of the abuses.
5. On the same day at about Marri Degarwela, Ali Muhammad complainant and his brother Wilayat deceased were returning home from the house of Lal P.W. Father-in-law of Wilayat deceased. At that time, Shaukat armed with Chhuri, Nawaz armed with Toka, Ilyas armed with hatchet and Sardar armed with Sarya came there in the street. On seeing them both Ali Muhammad and Wilayat deceased started running. The accused chased them. When Ali Muhammad complainant and his brother reached the land of Muhammad Siddique, the accused overtook them. Ilyas gave a hatchet blow on the occipit of Wilayat deceased who fell down. Thereafter, all the accused gave successive blows to the deceased with their respective weapons. The alarm attracted Lal P.W., who tried to rescue his son-in-law from the accused. At that time, Muhammad Ilyas accused gave hatchet blow on his head who fell down Muhammad Hussain and Ahmad Khan P.Ws. Were also attracted to the spot. They witnessed the occurrence. The accused ran away towards east of the village with their respective weapons. Wilayat died as a result of the injuries on his person at the spot. Leaving the dead body in the care of his brother Ashiq, the complainant himself went to the Police Station and lodged the report Exh.P.H.
3. The Police after registration of the case undertook investigation. The dead body of Wilayat deceased aged about 40 year was sent for post-mortem examination which was conducted by Dr. Riaz Ahmad (P.W.6) on 7-3-1977 at 12-30 p.m. (noon). On external examination the Medical officer found the following injuries on his dead body:-- (1)Incised wound 2" x --" x bone deep on left temporal region cutting the upper part of left ear.
6. (2)Incised wound 3/4" x 1" cutting left pinna.
7. (3)Incised wound -- " x -- " x -- " in front of left ear.
8. (4)Lacerated wound 2 -- " x -- x bone deep on left side of the scalp.
9. (5)Lacerated wound 1" x -- " x bone deep on middle of head.
10. (6)Incised wound 2" x ----- x bone deep on right side of scalp.
11. (7)Incised wound 2 -- " x -- " x bone deep 1 -- " behind and above right ear.
12. (8)Incised wound 1 -- " x -- --- x bone deep 1 -- " behind right ear.
13. (9)Incised wound 2" x -- " x bone deep on right ear.
14. (10)Punctured wound" -- x -- " x -- " on front of right ear.
15. (11)Punctured wound -- " x -- " x -- " on right cheek.
16. (12)Lacerated wound 1" x -- " x 1/3" on outer side left forearm.
17. (13)Incised wound -- " x -- " above left clavical.
18. (14)Incised wound -- " x -- " into chest cavity deep on central part back of right of chest.
19. On internal examination left temporal bone was found fractured and there was congestion of brain and meanings. A clot was found under injury No.1. There were fractures on right temporal, right mastoid and right occipatal bones under injuries Nos. 6, 7, 8 and 9. There was fracture of right part of right side of jaw under injury No.10. Injuries Nos.4, 5, 12 and 13 had been caused by a blunt weapon. Rest of the injuries were by sharp-edged weapon. Injuries Nos.6 to 9 were grievous and dangerous to life. Injury No.1 was grievous. The death was due to shock and haemorrhage as a result of the injuries Nos.1, 6, 7, 8 and 9 which could cause death individually in the ordinary course of nature. The time between injuries and death was immediate and the post-mortem was conducted after about 19-21 hours.
20. On examination of Lal Khan P.W. (not examined during trial) the Medical Officer found a lacerated wound 3" x -- " bone deep on right side of the scalp. The injury was by blunt weapon, of 15 to 18 hours duration and simple in nature.
21. The Investigating Officer, during inspection of spot, collected blood-stained earth, vide memo.
22. Exh.P.I on 6-3-1977 from the place where dead body of Wilayat was lying. He also collected blood- stained earth vide memo. Exh. P.J. At about the same time from the place of injury of Lal P.W.
23. Sardar Khan accused was arrested on 20-3-1977 while the remaining three accused were arrested on 18-3-1977.
24. On 25-3-1977 Sardar khan accused led to the recovery of blood--stained Sarya P.1. From inside his under construction room which was taken in possession, vide memo. Exh.P.D. By S.I. Manzoor Hussain (P.W.11) in presence of Muhammad Sadiq (P.W.7) and Muhammad Nazir P.W. (not examined).
25. Nawaz accused on the same day at about the same time led to the recovery of blood-stained Toka P.2 from beneath a box lying in his house which was taken in possession, vide memo. Exh.P.E.
26. By the Investigating Officer in presence of the same witnesses.
27. Ilyas accused at about the same time led to the recovery of blood-stained hatchet P.3 from behind a earthen bin in his house which was taken in possession, vide memo. Exh.P.F. In presence of same witnesses.
28. Shaukat Ali accused led to the recovery of blood-stained churri P.4 from beneath the beds lying on a cot in his house which was taken in possession, vide memo. Exh.P.G. In presence of same witnesses. All these four weapons were found stained with human blood, vide report of Chemical Examiner Exh.F.R. And that of Serologist Exh. P.T.
29. The accused were challaned after completion of investigation.
4. The prosecution, during the trial, examined 11 witnesses in all. P.W.8 Ahmad Khan, P.W.9 Muhammad Hussain and P.W.10 Ali Muhammad were examined as eye-witnesses. Lal Khan P.W.
30. Was injured. He was father-in-law of Walayat deceased and a real brother of Sardar accused. He was, therefore, given up as having been won over by the accused. Bahawal Bakhsh, a witness to the earlier incident which took place on the morning of the day of occurrence was given up as unnecessary. The recoveries were witnessed by Muhammad Sadiq (P.W.7). The medical evidence was furnished by Dr. Riaz Ahmad Chaudhary (P.W.6) as given in detail above. -The case was investigated by S.I. Manzoor Hussain (P.W.11) who challaned the accused. The evidence of rest of the witnesses was of formal nature.
31. The accused when examined, during the trial, under section 342, Cr.P.C. Denied the charge. They denied their presence at the spot and pleaded innocence. They produced Sana Ullah (D.W.1) in their defence who stated during the trial that he had filed a complaint in Court against Ali Muhammad P.W. Etc. On 30-10-1971. In that complaint, Muhammad Hussain (P.W.9) had appeared as a prosecution witness in preliminary proceedings and had made statement copy of which is Exh.D.E. The accused also tendered in evidence copy of pedigree table Exh.D.F. And closed their defence. It may here be stated that the ages of all the four accused are not available on the record of this case. These were not mentioned in the chit prepared by the Investigating Officer nor their ages were noted at the time of recording of their statements under section 342, Cr.P.C. Ahmad Khan (P.W.8) gave the age of Shaukat All accused as 16/17 years.
32. The learned trial Judge placed reliance on the evidence of motive, recoveries of crime weapons and the eye-witnesses and convicted the accused as stated above.
5. I have gone through the record of this case with the assistance of learned counsel appearing on behalf of the appellants and the State.
6. It was contended by the learned counsel for the appellants that the prosecution has failed to prove motive against the accused. It was argued that the sugarcane field was not mentioned in the site plan: that the damaged sugarcane were not taken in possession by the Police nor the said place was pointed out to the Police during inspection of the spot and that Bahawal Bakhsh P.W.
33. Was not examined during the trial.
34. Ilyas, Shaukat Ali and Muhammad Nawaz P.Ws. Are brothers inter se while Sardar Khan accused is their uncle. Lal Khan (given up P.W.) was a real brother of Sardar Khan accused. A daughter of Lal Khan was married to Wilayat deceased. In this way the accused are closely inter-related and also related to Wilayat deceased. Ali Muhammad A (P.W.10) is a real brother of Wilayat deceased.
35. Ahmad Khan (P.W.8) is their cousin. Muhammad Hussain P.W. Is, however, not related to the deceased. The witnesses have absolutely no enmity with the accused to falsely implicate them in this case. The evidence on motive is furnished by Ali Muhammad P.W. The occurrence of motive took place early in the day of occurrence at the tubewell of the deceased where both the brothers were present. Their presence at the tubewell was natural and as such even if Bahawal Bakhsh P.W.
36. Has not been examined there is nothing to discard the evidence of Ali Muhammad SP.W. It is correct that the damaged crop was not taken in possession nor the said place was indicated in the site plan, but this omission in no way damages the testimony of Ali Muhammad P.W. In fact it was not necessary to indicate the said place in the site plan or to take in possession the damaged sugarcane crop. In my view, the prosecution has successfully proved motive against the accused.
37. The accused have not been able t show as to why they have been falsely implicated in this case. A suggestion was put to P.W.10 Ali Muhammad that some unknown persons have murdered Wilayat and that they have been substituted as accused in this case. The learned counsel for the appellants referred to the statements of the eye-witnesses and pointed out that Nabi Bakhsh, a cousin of Sardar accused, was murdered for which Nawab father o Ahmad Khan P.W. Was challaned alongwith his brother. Secondly, it was pointed out that Lal P.W. Was occupying the ancestral house o Sardar accused and was, therefore, or: inimical terms and as such these accused have been falsely implicated in this case.
38. I have considered this contention on behalf of the appellants. It is not known as to when Nabi Bakhsh was murdered. There is nothing to show that Ali Muhammad P.W. And Wilayat deceased had any concern with the murder of Nabi Bakhsh. Moreover, the murder was allegedly committed by Nawab father of Ahmad Khan P.W. And his brother and as such the complainant party could not have any grudge against Sardar Khan to falsely implicate him in this case. If at all there was any grouse, it was for Sardar Khan whose cousin Nabi Bakhsh had been murdered by Nawab, etc. If there was any dispute between Lal Khan P.W. And Sardar accused regarding possession of a house, it could not be said that the complainant would leave the real culprits and instead implicate their close relatives in a false murder case. I am, therefore, of the view that Ali Muhammad P.W. Or any of the two eye-witnesses had no enmity to falsely implicate the accused in the instant case.
39. The learned counsel for the appellants pointed out that the complainant party had other enemies as well. It was argued that father of Ali Muhammad P.W. Had appeared as witness against brother of Fazal, first husband of Mst. Naziran were of Ali Muhammad P. W. It was also contended that Wilayat was challaned alongwith his were and his mother-in-law for the murder of one Mst.
40. Khalida daughter of Piran Ditta. These enmities are far-fetched. The occurrence took place in broad daylight and near the village. It, therefore, does not appeal to reason that the witnesses would falsely implicate their relatives, by omitting the names of strangers, as the assailants of Wilayat deceased.
7. The recoveries in this case were witnessed by Muhammad Sadiq (P.W.7). He had no enmity with the accused. He was not related to the complainant party. The learned counsel for the appellants made out two points in this behalf. Firstly, that there was doubt in the prosecution evidence about the time when the accused were arrested and secondly that even if the recoveries are accepted, then also the blood could not have stayed on for about 21 days after the occurrence. I have considered this aspect of the case. According to the Investigating Officer Sardar accused was arrested on 20-3-1977 while the remaining three accused were arrested on 18-3-1977. Ashiq Muhammad (P.W.5), a real brother of the deceased, stated, during the trial that "the Police had arrived in the village sufficiently after 'Khufhtanwela' and had arrested accused Sardar, Shaukat and Ilyas. I do not know when Nawaz was arrested. Again said, that he was arrested on second or third day of the occurrence. The accused were taken away by the Police from the village after their arrest. The Police again came to the village after 2/3 days but the accused were not with them at that time. After lapse of 2 to 5 days the accused were again brought to the village by the Police."
41. This evidence coming from the mouth of a real brother of the deceased would show that the accused were with the Investigating Officer within 2/3 days of the occurrence. This contradiction in the evidence of prosecution witnesses is material and makes the story of the arrest of the accused on 18-3-1977 and 20-3-1977 doubtful. The crime weapons were recovered on 25-3-1977 i.e. After about 19 days of the occurrence E and were sent to the Chemical Examiner on 27-4-1977. In my opinion the blood must have disintegrated by that time and as such no reliance can be placed .On the report of the Chemical Examiner and that of the Serologist. As such I am of the view that the recoveries of crime weapons are of no help to the prosecution.
8. The eye-witness account has been furnished by Ahmad Khan, Muhammad Hussain and Ali Muhammad P.Ws. Ahmad Khan P.W. Stated that he was returning home from the well at late Degarwela. He was on the path when he saw the occurrence in the land of Muhammad Siddique.
42. This witness is related to the deceased. His father Nawab and his uncle were challaned for the murder of Nabi Bakhsh, a cousin of Sardar accused. As stated above, this fact alone will not make him a false witness. He was consistent in his statement and has fully supported the prosecution case. He had no enmity of his own against the accused to falsely depose against them. His well was only 5/6 Acres away from , the place of occurrence. It was contended by the learned counsel that he made material improvements in his statement during the trial. I have gone through his statement but find no such material improvements therein. It was contended that according to this witness he had appeared before the Police 2/4 days after the occurrence when the Police recorded his statement as well as the statement of Lal, Ali and Muhammad Hussain P.Ws. It was, therefore, argued that firstly this witness should not be relied upon and secondly that the F.I.R. Was recorded at the spot. I have carefully gone through his statement. It is not stated by this witness that he for the first time appeared before the Investigating officer 2/4 days after the occurrence. He might have appeared before the Police or before some senior Police Officer at the spot alongwith other witnesses 2/4 days after the occurrence but it cannot be inferred from his statement that this was his first appearance before the Police. It was pointed out that according to this witness Ali Muhammad P.W. Resided in the shop of Allah Rakha Commission Agent at Gujrat. I have gone through this part of the evidence also. It is not stated by this witness that Ali Muhammad normally residing at that shop nor it was admitted by him that he always sleeps there. This would also not mean that Ali Muhammad P.W. Was not present at the place of occurrence., Muhammad Hussain P.W. Is not related to the complainant nor did he have any enmity with the accused. He was an independent witness. He was returning home when he saw the present occurrence. He has made consistent statement during the trial in support of prosecution case. The learned counsel for the appellants laid much stress on the statement Exh.D.E. Alleged to have beer, made by Muhammad Hussain in a complaint filed by Sana Ullah (D.W.1). It was admitted by Sana Ullah (D.W.1) that the said complaint was filed for the purpose of getting the statement of Muhammad Hussain recorded in Court. Muhammad Hussain while appearing as witness during the trial denied having ever appeared as witness in the said complaint He stated that he did not know Sana Ullah son of Khan Muhammad. In cross-examination, he stated that there were 4/5 persons in the village by the name of Muhammad Hussain son of Shah Muhammad and that even the father of Shaukat accused was also Muhammad Hussain son of Shah Muhammad like him. I have gone through the statement of Muhammad Hussain, statement of Sana Ullah (D.W.1), the file pertaining to the complaint and the judgment of the learned trial Judge on this point, I am of the view that Muhammad Hussain never appeared as witness in the complaint and that the statement Exh.D.E.
43. Was made by a person other than Muhammad Hussain P.W. Of this case. Ali Muhammad P.W.
44. Though a brother of the deceased, had no enmity against the accused. In my view, the prosecution witnesses were present at the spot at the time of occurrence. They saw the occurrence and were truthful witnesses.1 There was no delay in lodging of the F.I.R. Wherein all the accused were named.
45. If the F.I.R. Did not contain some details, it did not effect the merits of the case.
10. In view of the above discussion, I find no merits in this appeal which is accordingly dismissed.
46. The Conviction and sentence of the four appellants is maintained. The appellants, who are on bail will surrender to serve their un expired sentence.