MUHAMMAD MUNIR KHAN, J.--This Criminal Appeal No.246 of 1985 and the connected Murder Reference No.156 of 1985 arise from the judgment of the learned Additional Sessions Judge, Gujranwala whereby he on 16-4-1985 convicted Liaqat (26) and Karamat (26) appellants under section 302/34 P.P.C. For the double murder of two real brothers namely Muhammad Amin (28) and Shaukat Ali (29) and sentenced them as under:-
1. For the murder of Shaukat Ali deceased:-
(i) Liaquat Ali to death and a fine of Rs.5,000 in default whereof one year R.I. And a compensation of Rs.20,000 or in default six months. R.I.;
(ii) Karamat Ali appellant to imprisonment for life and a fine of Rs.2,500 or in default six months R.I.
And a compensation of Rs.10,000 or in default six months R.I.
2. For the murder of Muhammad Ameen:-
(i) Both the appellants to imprisonment for life and fine of Rs.2,500 or in default, six months R.I. And compensation of Rs.10,000 or in default six months R.I.
The sentences of imprisonment for life on both counts awarded to Karamat Ali appellant were to run concurrently. It was directed that the compensation, if realized, be paid to the legal heirs of the deceased. It may be noted hear that Muhammad Nawaz co-accused was arrested in the case but he subsequently absconded and as such was proceeded against under section 512, Cr.P.C.
2. The occurrence took place on 20-9-1977 at 6-30 p.m. In the bazar of village Ferozewala at a distance of five miles from the Police Station, Saddar Gujranwala. F.I.R. Is statement Ex.P.A. Of Muhammad Sharif P.W.12, paternal uncle of the deceased recorded at Moor Sheikhupura by Javed lqbal A.S.I. P.W.15 on the same day at 11 p.m. Formal F.I.R. Ex.P.A./1 was drawn up by Muhammad Afzal A.S.I. P.W.3 under section 307/326/34, P.P.C. On the same night at 11-15 p.m. At Police Station Saddar Gujranwala. Shaukat Ali and Muhammad Ameen both died on 21-9-1977 at 2 p.m. In District Headquarters Hospital, Gujranwala so section 307/326, P.P.C. Were converted into section 302, P.P.C.
3. The appellants and Muhammad Nawaz absconder are stated to be friends. The motive as alleged by the prosecution was that four days before the occurrence, it was Eid Day. The two appellants and Muhammad Nawaz absconder accused while flying kites crossed over to the roof of the house of Shaukat Ali and Muhammad Ameen deceased. On this, the two deceased launched protest which resulted in the exchange of hot words between them and the appellants. While leaving the roof of the house of the deceased, the two appellants and their companion Muhammad Nawaz threatened the deceased with dire consequences, hence this occurrence.
4. As for the main occurrence, it has been stated that at the eventful time, Muhammad Ameen and Shaukat Ali deceased were sitting at the shop of Muhammad Sharif complainant P.W.12 when Liaquat Ali armed with knife, Muhammad Nawaz absconder /accused armed with dagger and Karamat Ali empty handed came there. They raised lalkara that they would teach the deceased lesson for insulting them over kite flying on the Eid occasion. Muhammad Nawaz gave two dagger blows to Muhammad Ameen one hitting on his left armpit and the other on his right shoulder.
Karamat appellant then caught hold of Shaukat Ali deceased and Liaquat Ali appellant gave two knife blows to Shaukat hitting on the left as well as right side of the chest. Shaukat Ali and Muhammad Amin fell down. The appellants and Muhammad Nawaz absconder then ran away from the spot along with their weapons. The occurrence was also seen by Muhammad Arshad P.
W.13.
5. Dr. Harbins Lal P.W.8 conducted post-mortem examination on the dead body of Shaukat Ali on 21-9-1977 at 4 p.m. He found following injuries:-
(1) Stitched wound 1--" long on the front of chest on right side 3" below the nipple.
(2) Stitched wound 1-3/4" long on the left side of chest 11 outer to left nipple.
On internal examination 8th rib on the right side was found fractured and the chest wall was seen injured on both sides. Both plura, left lung and chest vessels were found injured. In his opinion, death was on account of shock and haemorrhage due to the injuries which were sufficient to cause death in the ordinary course of nature. The time between injuries and death was twenty hours. The time between death and post-mortem was six hours. The injuries were caused by sharp-edged weapons.
On the same day at 4-30 p.m. The doctor conducted post-mortem on the dead body of Muhammad Ameen and found following injuries:- "(1) Stitched wound 3/4" long on the back of right chest in upper part.
(2) Stitched wound 1" long on the left side of chest in the middle part."
On internal examination, second right rib, sixth rib, both pleura, right lung and blood vessels were found injured. The injuries were caused by sharp-edged weapons. In his opinion, the death was due to shock and haemorrhage as a result of the injuries which were sufficient to cause death in the ordinary course of nature. The time between the death and the injuries was within twenty hours.
The time between death and post-mortem was about five hours.
At the time of his arrest, Karamat Ali appellant was found injured as Dr. Gulzar P.W.9 examined him on 26-9-1977 at 12-30 p.m. He found following injury on his person:- "Incised wound (healing) 2--" x --"x --" at the back of the right wrist joint."
The injury was simple in nature and was caused by sharp-edged weapon.
6. It may be noted that the two deceased in their injured condition were examined by Dr. Shah Nawaz P.W.10 on the date of occurrence. Muhammad Ameen was examined at 8-45 p. m. And following injuries were found on his person:- "(1) An incised wound 25 x 15 mm going left side of chest lower part, omentum was protruding out of the wound, wound was obliquely verticle in direction.
(2) Incised wound 23 x 15 m.m. x going deep in oblique verticle direction back upper part of right chest. Air was coming out of the wound.
The injuries were caused by sharp-edged weapon. Injury No.1 was declared grievous and injury No.2 was kept under observation. The wounds were caused within three hours of the examination.
Shaukat Ali was examined at 8-15 p.m. And following injuries were found on his person:- "(1) An incised wound 25 x 15 mm x going deep vertically about 80 mm directly below the right nipple.
(2) An incised wound 48 x 25 mm x going deep obliquely about 45 mm outer to left nipple on the left side of chest. Omentum was protruding out of the wound. One shirt and shalwar containing cut and blood-stained was sent to police. Patient was in a condition of shock and was semi- unconscious, he was restless and pulseless. "
The injuries were caused by sharp-edged weapon. Injury No-1 was kept under observation and injury No.2 was declared grievous. In cross-examination, the doctor stated that the injuries inflicted on both the injured persons could be caused by ore type of weapon.
7. The appellants were arrested on 25-9-1977 by Mahmood Ahmad A.S.I. P.W.16. Muhammad Nawaz absconder was arrested on 25-9-1977. On 27-9-1977 Liaqat Ali appellant got recovered blood- stained knife P.8 from a field which was taken into possession vide Memo P.Q. Attested by Bashir Ahmad P.W.14, uncle of the deceased and Abdullah (not produced). On the same day Muhammad Nawaz absconder accused led to the recovery of blood-stained dagger P.7 from a field which was taken into possession vide memo PO attested by the same witnesses. The Serologist report Ex.P.B.B.
Shows that the blood-stained knife recovered from Liaqat Ali and blood-stained dagger recovered from Muhammad Nawaz absconder accused were stained with human blood.
8. To prove its case, the prosecution produced 16 witnesses. Muhammad Sharif P.W.12 and Muhammad Arshad P.W.13 claimed to have seen Muhammad Nawaz absconder accused causing dagger blows to Muhammad Ameen deceased, Karamat Ali appellant catching hold of Shaukat Ali deceased and Liaquat Ali appellant causing him knife blows. The aforesaid two witnesses have also supported the incident of motive which took place on the day of Eid i.e. Four days before the occurrence. Bashir Ahmad P.W.14 and Mahmood Ahmad S.I. P.W.16 have supported the recoveries of blood-stained knife P.8 and blood-stained dagger P.7 from Liaqat Ali appellant and Muhammad Nawaz absconder respectively. Dr. Shah Nawaz P.W.10 has proved the medico-legal reports of the injuries found on the person of the two deceased at the time of their examination------------Dr. Harbins Lal P.W.8 has proved the post-mortem examination reports of the two deceased. He also stated that on the enquiry made from him about the capability of the two deceased to make statement, he had issued certificates Exhs. PE/1 and PF/1 to the effect that they------------were fit to make statements. Dr. Gulzar has proved the medico-legal report of the injury found on the person of Karamat Ali appellant. The rest of the evidence is more or less of formal nature.
9. When examined under section 342, Cr.P. C. The appellants denied all the incriminating circumstances and raised plea of false implication on account of enmity. In defence, no witness was produced. It may be noted here that on the conclusion of the trial, the appellants were convicted under section 302/34, P.P.C. By the learned Additional Sessions Judge, Gujranwala on 11- 4-1981. While disposing of the appeal and the connecting Murder Reference, this Court remanded the case to learned Sessions Judge for fresh decision according to law who after hearing the parties, has believed motive, ocular evidence and the incriminating recoveries and convicted and sentenced the appellants as stated above.
10. Mr. S. M. Masood learned counsel for Liaqat Ali appellant contended that his client has falsely been involved in the case; that the eye-witnesses are related to the deceased; that no independent witness has been produced by the prosecution although the occurrence took place in a 'bazar; that in view of the statement made by Dr. Shah Nawaz P.W.10 that the injuries found on both the deceased persons could be caused by one type of weapon, the possibility that Shaukat Ali and Muhammad Ameen were done to death by one and the same person cannot be excluded; that the recovery of blood-stained knife from Liaqat Ali is doubtful as no person from the vicinity was joined in the investigation; that the story of the prosecution is improbable, that since the occurrence took place at .Evening prayer time, therefore, Muhammad Sharif might have gone to offer prayer and might not have seen the occurrence and that the alleged motive besides being doubtful, has also not been proved through reliable evidence. In the alternative, the learned counsel requested for the reduction of sentence on the grounds that the alleged motive was not very much serious and that the appellant who was arrested in the year 1977 has already suffered the agony of protracted trial.
Mr. R.A. Awan learned counsel for Liaqat Ali argued that there is a delay of five hours in lodging the F.I.R.; that since the F.I.R. Was recorded at Moor Sheikhupura and-not at the police station, therefore, irresistible conclusion would be that the same was recorded after preliminary investigation;. That the statement of Muhammad Arshad P.W. Was recorded on the next date of occurrence; that the Investigating Officer has prepared false dying declarations Ex.P.S and P.R. Of Shaukat Ali and Muhammad Amin deceased; that since one person alone could cause the injuries on the person of Shaukat Ali just like Muhammad Nawaz absconder, who alone had caused injuries to Muhammad Amin, therefore, no assistance from Karamat Ali was required by Liaqat Ali appellant for inflicting injuries on Shaukat Ali deceased and that the statements made by the eye-witnesses suffer from infirmities such as contradictions, discrepancies and improvements. Conversely, the learned counsel for the State has supported the judgment of the trial Court.
11. We have anxiously attended to the elaborate arguments addressed by the learned counsel for the parties in the light of evidence on record. We find that the occurrence took place at 6-30 p.m.
And the F.I.R. i.e. Statement Ex.P.A. Of Muhammad Sharif P.W.12 was recorded within 5 hours.
Muhammad Sharif has explained that after the occurrence, the two injured persons were removed to Civil Hospital, Gujranwala where they were admitted and examined by the medical evidence and it was after getting the medico-legal reports of the injured persons that he left the hospital for police station and when he was on his way, he came across Javed Iqbal, A.S.I, P.W.15 near Moor Sheikhupura and narrated the occurrence to him. Since Shaukat Ali and Muhammad Amin, the two injured persons were in precarious condition, the conduct of the complainant of taking them straight-away to the hospital for medical treatment, does not run counter to the natural probabilities and as such, there was no inordinate delay in lodging the F.I.R. There is no evidence on the file to show that the F.I.R. Was not recorded at the time and place as it purports, so much so, no suggestion was given to Muhammad Sharif, the first informant to the effect that the F.I.R. Was recorded after preliminary investigation. In these circumstances, the mere fact that the F.I.R. Was recorded at a place other than police station, does not indicate that the F.I.R. Was recorded after preliminary investigation. It seems to us that the F.I.R. Ex.P.A. Is quite dependable document.
12. Taking "up the statements Exs. P.R. And PS of Muhammad Amin and Shaukat Ali (deceased) recorded by Javed Iqbal A.S.I., P.W.15 under section 161, Cr.P.C., which of course, can be treated as dying declaration. We feel inclined to exclude this piece of evidence from consideration on the grounds that these statements are almost verbatim not only with each other but with F.I.R. Ex. P.A.
As well. So, it seems to us that the Investigating Officer had prepared false statements Exs. P.R. And P.S. In order to use the same as dying declarations; that no attempt was made to get the statements of the two dying persons recorded under section 164, Cr.P.C. By a Magistrate; that the statements have also not been verified by the Medical Officer and that the statements were not even recorded in the presence of the doctor. There is nothing in evidence to show that Muhammad Amin and Shaukat Ali remained in their complete senses in the course of recording their statements.
13. Adverting to the crucial evidence i.e. Ocular account of the occurrence given by the eye- witnesses, we find that the occurrence took place just near the shop of Muhammad Sharif P.W.12, so he was the natural witness of the occurrence. Muhammad Arshad P.W.13 has given plausible cause of his arrival on the spot at the time of occurrence. He stated that he was present in a nearby Haveli when he heard alarm coming from the shop of Muhammad Sharif P.W.12 which attracted him to the spot. His name is also mentioned in the F.I.R., authenticity of which is not open to doubt.
The aforesaid two eye-witnesses had no animus against the appellants. They had no motive, whatsoever, to involve the appellants falsely in the case. The number of the assailants named by them commensurate with the number of the injuries found on the person of the two deceased. WP are very much impressed by the straight-forward manner in which the two eye-witnesses have made their statements. There were four incised wounds on the person of two deceased. So, the eye-witnesses could easily state that Karamat Ali was armed with knife/dagger and had inflicted injuries to the deceased but they did not state so. It appears that they have stated in the Court what they had actually seen at the time of occurrence. Their statements cannot be discarded on account of their relationship with the deceased. Except for minor discrepancies, improvements and immaterial contradictions here and there, the learned counsel for the appellants have not been able to point out any major contradiction and dishonest improvement in their statements. The ocular testimony is not only consistent but is also in conformity with the medical evidence. The appellants were previously known to the eye-witnesses, therefore, there was no difficulty in their identification. The failure on the part of the prosecution to produce any independent person occupying the shops in the bazar or residing nearby does not detract the statements of the eye- witnesses from correctness. The statements made by the witnesses have already been found to be confidence inspiring. There can be no two opinions that no particular number of the witnesses is required to prove any fact. The two eye-witnesses have also deposed about the motive, incident. It has been brought on record through cross-examination that the motive incident which took place on Eid day was witnessed by Muhammad Arsahd P.W.13. In view of the motive incident which stands established through reliable evidence, the appellants were the persons most likely to be the assailants of the deceased. The statements made by the two eye-witnesses are in conformity with the rest of the evidence and the attending circumstances. We are convinced that the two eye- witnesses have given true account of the main occurrence as well as of the incident constituting motive. So, they are absolutely dependable witnesses and conviction can safely be maintained without corroboration. If the rule of prudence insists upon corroboration, the same is available in the shape of evidence of recovery of blood--stained knife from. Liaqat Ali and from circumstances appearing in the case itself Bashir Ahmad P.W.14 and Mehmood Ahmad A.S.I. P.W.16 have deposed about the recovery of blood-stained knife Ex.P.8 from Liaquat Ali appellant. They had no enmity with the appellants. The statement of Bashir Ahmad P.W.14 cannot be thrown out on account of his relationship with the deceased. Similarly, the statement of Mehmood A.S.I. P.W.16 cannot be brushed aside because of the office he held at the time of occurrence. Their statements do not suffer from any legal infirmity. The failure of the Investigating Officer to join disinterested person to witness the recovery has no adverse affect upon the testimony of the aforesaid two witnesses.
There is also a circumstance which offers a strong support to the prosecution version that Shaukat Ali deceased had been caught hold of and was actually in the grips when the two knife blows were plunged in his chest by Liaqat Ali appellant. The medical evidence reveals that injury No. l was an incised wound 25 x 15 mm x going deep vertically about 80 mm directly below the right nipple and injury No.2 was an incised wound 48 x 25 mm x going deep oblique about 45 mm outer to left nipple on the left side of the chest. The location and depth of the injuries found on the person of Shaukat Ali are of great significance, which indicate that he had been completely over-powered enabling' Liaqat Ali appellant to give knife blow with full force. This would not have been possible, if Shaukat Ali had freedom of movement., Reliance in this behalf may be placed on case 'State v.
Mushtaq Ahmad reported as PLD 1973 SC 418 where in the similar circumstances, the acquittal of the accused who allegedly had caught hold of the deceased was set aside and he was convicted for constructive liability. For all these reasons we feel that the objections raised by the learned counsel for the appellants with regard to the credibility of the eye-witnesses, improbability of the prosecution version and lack of corroborative evidence qua each appellant, do not hold any water.
We are satisfied that the trial Court has rightly convicted the appellants for the murders of Muhammad Amin and Shaukat Ali deceased.
14. This brings us to the question of sentence of Liaqat Ali appellant. We have considered this question with utmost care on our part. We do not see any mitigating/ extenuating circumstance in his favour for lesser penalty. He had inflicted two fatal injuries on the vital part of the body of the deceased. It is, by now, well-settled that delay in the conclusion of the trial or in the disposal of the appeal is not a valid ground for imposing lesser penalty. The submission made by the learned counsel for the appellants that there was no serious motive to kill the deceased can hardly furnish a mitigating/ extenuating circumstance. It rather goes against Liaqat Ali appellant that he had killed Shaukat Ali although there was no serious motive for that.
The upshot of the above discussion is that there being satisfactory basis to uphold the convictions and sentences of the appellants, the appeal merits rejection in to to. The sentence of death awarded by the trial Court to Liaqat Ali appellant is, hereby, confirmed.