SAAD SAOOD JAN, J,--In this appeal the Additional Sessions Judge, Attock, convicted Allah Bakhsh and Nazar Hussain, appellants, of an offence under section 304, Part-II, read with section 34 of the Pakistan Penal Code for causing the death of Noor Abdullah deceased and sentenced them to R.I for a period of 9 years and fine. He also convicted Allah Bakhsh of an offence under section 324 and Nazar Hussain of an offence under section 323 for causing injuries to Muhammad Riaz (R.W.1), son of Noor Abdullah deceased, and sentenced them to different terms of imprisonment and fine.
From the judgment of the learned Additional Sessions Judge, two appeals were preferred in the High Court: one was filed by the appellants and the other by the State. The complainant party also filed a revision petition. By its judgment dated 21-11-1982 the High Court accepted the appeal filed by the State and convicted the appellants of an offence under section 302, read with section 34, for causing the death of the deceased and under section 307, read with section 34, for making a murderous assault upon Muhammad Riaz (P.W.1). It rejected the appeal preferred by the appellants. In view of the acceptance of the appeal preferred by the State it made no order in respect of the revision petition. For the offence under section 302 it sentenced the appellants to imprisonment for life and fines of Rs.3,000 each; for the offence under section 307 it sentenced them to rigorous imprisonment for a period of 10 years and fines of Rs.1,000 each. The substantive sentences of imprisonment were directed to run concurrently. The appellants have filed this appeal against their convictions and sentences and the complainant party has moved a petition for leave to seek enhancement of their sentences. This judgment will dispose of both these matters.
2.When this appeal came up for hearing, counsel for appellants was absent. We have, therefore, gone through the record ourselves.
3. The deceased and his son Muhammad Riaz (P.W.l) were residents of village Humak in Tehsil Fateh Jang of District Attock. They were employed as teachers in primary schools in two different villages. They would leave Humak in the morning and return home in the afternoon. On their way back to their village they would meet at a place known as Kot Zaindi. On the day of occurrence, that is 16-10-1977, they as usual met at Kot Zaindi at 2-00 p. m. And started walking to their village.
As they entered their village and reached a place known as Mera Mari, Muhammad Riaz (P.W 1) stopped to urinate. The deceased however kept on walking. The time then was 3.00 p.m. When the deceased was about 100 yards away from his son the two appellants came out of a depression: They were armed with Dandas. They immediately set upon the deceased with their Dandas. When Muhammad Riaz (P.W.1) saw the attack on his father he ran to his rescue. Allah Bakhsh appellant took out a knife and gave a blow on the back of Muhammad Riaz (P.W.1). On being hit by the knife Muhammad Riaz (P.W.1) fell down. He was then given Danda blows by both the appellants. Nadir (P.W.2), father-in-law of the deceased, was working in a nearby field. He raised an alarm on which the two appellants ran away with their weapons. The deceased died at the spot. Muhammad Riaz (P.W.1) was taken in a van to Police Station Fateh Jang which was about 14 miles away. He reached there at 7-30 p---m. And lodged the F.I.R.
4. It was alleged by the prosecution that Noor Abdullah deceased had entered into a Shari Nikah with Mst. Gulab Bano after the death of her previous husband She was the mother of Allah Bakhsh and paternal-aunt of Nazar Hussain. The two appellants felt humiliated over the Nikah. This was described to be the motive for the attack on the deceased.
5. The two appellants were arrested on 18-10-1977. After his arrest Allah Bakhsh took the Investigating Officer to his house and from their produced a Danda and a knife. Both were stained with blood. Similarly Nazar Hussain appellant assisted the Investigating Officer in getting a blood- stained Danda recovered from his house. These recoveries were witnessed by Mian Khan (P.W.3).
According to the reports of the Chemical Examiner and the Serologist the blood on all the three weapons was of human origin.
6. The post-mortem examination of the deceased was performed by Dr. Saleem Siddiqui. When the trial started the doctor was too ill to attend the Court. In the circumstances the report prepared by him was proved by a clerk of his office who was acquainted with his handwriting and signatures.
According to the report the deceased had as many as 24 injuries caused by blunt weapons. Four of the injuries were grievous and had resulted in the fractures of the left forearm; lower part of the right leg, right ulna and little finger of the right hand. According to the doctor all these injuries were collectively sufficient in the ordinary course of nature to cause death and that the deceased had died within one or two hours of the receipt of the injuries.
7. Dr.Saleem Siddiqui also examined Muhammad Riaz (P.W.1). He had six injuries including a stab wound on the back of left side of the chest. The others were contusion marks and abrasions on the arms and legs.
8. The appellants pleaded not guilty to the charges against them. They denied that they had caused the death of the deceased or had made a murderous attack upon Muhammad Riaz (P.W.3). They also denied that Mst. Gulab Bano had her Nikah solemnised with the deceased. They alleged that they had been falsely implicated in the case. They did not produce any evidence in their defence.
9. At the trial the eye--witness account was provided by Muhammad Riaz (P.W. 1) and Nadir (P.W.
2). They stated that they had seen the appellants attacking Noor Abdullah (deceased) with Dandas and that as a result of the injuries received by him the deceased died at the spot.
Muhammad Riaz (P.W. 1) further stated that as he attempted to rescue his father he was given a knife blow by Allah Bakhsh. On being hit he fell down. He was then given Danda blows by both appellants. His statement with regard to the attack on his person was supported by Nadir (P.W. 2).
10. The presence of Muhammad Riaz (P.W.1) at the spot at the relevant time is not open to any doubt as the injuries found on his person leave no manner of doubt in this regard. Nadir (P.W.2) had his land at a distance of 25 Karams from the scene of occurrence. He claimed that he was ploughing his land at the relevant time. This is a satisfactory explanation for his presence at the scene of occurrence.
11. In the F.I.R. Muhammad Riaz (P.W.1) stated that the deceased was given knife blows by Allah Bakhsh. The doctor did not find any injury on the body of the deceased which could be regarded as inflicted by a sharp-edged weapon. At the trial Muhammad Riaz (P.W.1) made an improvement by alleging that his father was given only Danda blows. When asked to explain this discrepancy he stated at the trial that he had seen the attack on his father from a distance. This does not appear to be a satisfactory explanation. However, when it is considered that his presence at the spot is not open to any doubt and there was no reason why he should have left out the real culprits and instead falsely implicated the appellants this discrepancy, which appears to be a sheer exaggeration loses all significances.
12. During the course of occurrence, as noticed above, two persons were injured. The deceased received as many as 24 injuries. Muhammad Riaz (P.W. 1) had six injuries on his person. This would thus appear to be a case where more than one person had taken part in the attack on the deceased and his son. As already mentioned, it was unlikely that the eye-witnesses would have let off the real culprits and substituted them with the appellants. Apart from that the participation of both the appellants in the occurrence finds support from the recovery of blood-stained weapons from their possession. As already noticed these weapons were found to be stained with human blood. Thus there can be no doubt that it were the appellants who attacked the deceased and Muhammad Riaz (P.W. 1).
13. The deceased was about 56 years of age at the time of his death. The attack on him was so brutal that he received four grievous injuries and he died within two hours of the occurrence. Thus the intention to kill the deceased can be reasonably ascribed to the appellants. The High Court was, therefore, justified in convicting them of an offence under section 302, read with section 34 of the Pakistan Penal Code. Similarly Muhammad Riaz was given a knife blow by Allah Bakhsh appellant on the back of his chest. Considering the circumstances in which he was attacked, if he too had died the appellants would have been guilty of murder. Therefore, their conviction for the offence under section 307, read with section 34, is also not open to any exception.
14. As regards the sentences, the case for the prosecution itself was that the appellant attacked the deceased for marrying the mother of Allah Bakhsh and paternal aunt of Nazar Hussain. It is to be noticed that at the time of the Nikah the deceased had a large family of his own and Mst. Gulab Bano was about 50 years of age. The Nikah was not registered, presumably, with the intention of keeping it secret. Now this marriage of their oldish relative with a man who already had a family including a living wife must have given rise to feelings of resentment in the appellants who were both young men and it would have also resulted in loss of face in the rural setting to which they belonged. In the circumstances we are not prepared to interfere with the discretion of the High Court in not passing sentences of death on them.
15. In support of the petition for enhancement of the sentences the only contention raised by the learned counsel for the complainant is that it was a case of wanton killing as there was no evidence that the deceased had his Nikah performed with Mst. Gulab Bano. This contention is without any merit, as in the F.I.R. The complainant had himself described the Nikah between the deceased and Mst. Gulab Bano as the motive for the occurrence. Apart from that, the said Nikah had generated so much bad feelings between the parties that five days before the occurrence the local police had to move the Ilaqa Magistrate to call upon them to furnish security for keeping peace. In the report submitted by the police to the Ilaqa Magistrate there is a clear reference to the factum of Nikah between the deceased and Mst. Gulab Bano.
16. We were informed at the Bar that consequent upon remission of their sentences the appellants have since been released from Jail. That being so we need not consider the propriety or severity of the sentences awarded to them for the offence under section 307 of the Pakistan Penal Code.
17. For the reasons stated above both the appeal as well as the petition for leave to appeal are dismissed.