RASHID AZIZ KHAN, J.-- Sohni (25), Manzoor (28), Faiz (53), Shaman (55) and Muhammad Hussain
(25) were tried by Additional Sessions Judge, Okara for the murder of Mokha aged 32 years. All of them were found guilty and sentenced as under:- Sohni, Manzoor and Faiz were sentenced to death under sections 302 and 149, P.P.C. And a fine of Rs.10,000 in default of payment to further undergo R.I., for two years each. Shaman and Muhammad Hussain were sentenced to undergo . Life imprisonment and a fine of Rs.10,000 and in default thereof to undergo two years' R.I. All of them were sentenced to 1 year's each under section 148, P.P.C. All were sentenced to 5 years' R.I. Each under- sections 307/149, P.P.C. For murderous assault on Khan Muhammad P.W. Similarly all the five accused were also sentenced to two years R.I. Each under sections 325/149, P.P.C., for causing hurt to Mst. Sattan and Muhammad Hussain.
It was further ordered that if fine is recovered, 2/3rd would be paid to the legal heirs of the deceased. No order under section 35, Cr.P.C. Was however passed.
The accused have filed the appeal against their conviction and sentence. The matter is also before us for the confirmation of death sentence. Both the matters will be disposed of by this judgment.
2. The prosecution story in brief is that on 23-6-1981 at about 4 p.m. a she-donkey of Khan Muhammad P.W entered the crop of Shaman who captured the same. Khan Muhammad went to him to get his she-donkey back but was abused by Shaman accused. Khan Muhammad approached Masha P.W., a Lambardar of the village who with Khan Muhammad started towards the house of Shaman accused to enquire about it. They were still near the house of Khan Muhammad P.W. When Shaman accused armed with Dang, Muhammad Hussain, and Manzoor armed with hatchets, Sohni and Faiz armed with Sotas came out of their houses, raising Lalkara.
They came near the door of Khan Muhammad P.W. Manzoor accused gave a hatchet blow on the head of Mokha, son of Khan Muhammad who was standing in his door. This was followed by Sohni and Faiz who caused a blow each on the head of Mokha. In consequence Mokha, fell down and in that condition Sohni, Faiz and Shaman gave him more blows with their weapons. Khan Muhammad P.W. Tried to rescue his son Mokha but was given a hatchet blow by Muhammad Hussain which landed on his left hand fingers. Shaman accused also gave a Dang blow on his hand. This was followed by Sohni and Faiz who gave Sota blows on his head. Muhammad Hussain son of Khan Muhammad P.W. Came out of his house to save his father but was dealt with by Shaman, Sohni and Faiz with their respective weapons. Mst. Sattan wife of Khan Muhamad tried to rescue but was given a Dang blow by Shaman accused on the back of her right hand. The commotion attracted Ahmad Ali and Abdul Sattar who witnessed the occurrence and beseeched the accused to spare the injured. Mokha had become unconscious. All the injured were transported to Municipal Hospital Renala Khurd on a tractor trolley by Muhammad Mansha P.W. And Ahmad Ali.
The motive is that Shaman accused had demanded the hand of Khan Muhammad's daughter for his son Muhammad Hussain which was refused. This was resented by the accused.
3. The occurrence took place on 23-6-1981 at 4 p.m. Within the area of village Naul Plot, about 14 kilometers from the Police Station Chochak, District Okara. Report Exh.PT was lodged by Muhammad Mansha P.W.8 on 24-6-1981 at 2.00 p.m. At the bus stand, Chochak. It was recorded by Abdul Ghafoor SI, P.W.11 Formal F.I.R is Exh.PT 1 which was recorded by Ghulam Ahmad ASI, P.W.3.
4. After recording the FIR, the SHO, proceeded to the spot and collected blood-stained earth vide memo. Exh . PA . He went to the hospital and enquired from the doctor vide application Exh.PO, if Mokha was in a fit state to make statement. The reply was in the negative which is Exh.PO/B. On 29- 6-1981, Mokha died, therefore, offence was converted to section 302, P.P.C. The SHO arrested all the accused on 29-6-1981.
Muhammad Hussain led to blood-stained hatchet P.5 vide memo Exh . P D . Shamam led to the recovery of Dang Exh . P . 6 which was taken into possession vide memo Exh.PE. Faiz accused led to the recovery of blood-stained Sota Exh. P7, which was taken into possession vide memo Exh.PF.
Manzoor accused led to the recovery of blood-stained hatchet P8 which was taken into possession vide memo Exh.PG. Sohni accused led to the recovery of blood-stained Sota P.9 which was taken into possession vide memo Exh.PH. All the recoveries were effected on 29-6-1981, from the residential Kotha of the accused persons. All the weapons so recovered were found stained with human blood vide Serologist's report Exh.DD.
Since Shaman, Faiz and 'Manzoor accused were found injured, therefore, he got them medically examined on 30-6-1981 by Doctor Naseem Ahmad, Medical Officer, Municipal Civil Hospital Renala Khurd, P.W.2. After the completion of the investigation he challaned all the accused.
4. On 23-6-1981 at 9.30 p.m. Dr. Nasim Ahmad PW.2, Medical Officer, examined Mokha deceased and found 12 injuries. Injury No.l was an incised wound 2 c.m. x 3/4 c.m. x skin deep x bone deep on the left side of the head 1 --c.m. Above and from the lateral 2/3 of eye---above. Injury No.2 a reddish bruise 6 -- c.m. x 2 c.m. On the left'- side of the head 6 c.m. Above the lateral and of the eye-brow. Injury No.9 was a bruise 6 c.m. x 3 -- c.m. On the left elbow fossas. These were kept under observation, while the rest were declared simple. Injury No.l was by sharp-edged weapon while the rest were by blunt weapon and were caused within the duration of two hours. Injuries Nos.2 and 3 were declared grievous after X-ray report.
On the same day at 9-40 p.m. Mst. Sattan Bibi, wife of Khan Muhammad was examined. He found a swelling on the back of right hand in the area of 9 c.m. x 3 c.m. Swelling is 3 c.m. Raised from the surface along with bruise 8 c.m. x 2 c.m. Obliquly on the back of right hand. It was declared grievous.
On the same day he also examined Muhammad Hussain and found 4 injuries on his person. All the injuries were caused with blunt weapon and injury No.2 which is a swelling in the area of 8 c. m. x 6 c.m. On the back of left hand of the ulnar aspect was kept under observation and after the X-ray report it was declared grievous.
On the same day he also examined Khan Muhammad and found seven injuries on his person.
Injury No.l was caused by sharp-edged weapon while the rest were by blunt weapon. Injury No.l an incised wound 3 --c.m. x 2 --c.m. x bone deep on the ulnar and palmar aspect of the 4th toe of left hand wound starts from the back and ulnar aspect of toe, Injury No.2, was a choped wound with blunt weapon 3 c.m. x 2 c.m. x bone deep from the base of nail of 5th finger. Injuries Nos.l and 2 were declared grievous while the rest were found simple.
Post-mortem examination on the dead body of Mokha deceased was conducted by Dr. Munir-ud- Din P.W.7 on 29-6-1981. He found seven injuries on the body of the deceased. Death in his opinion was due to intracranial haemorrhage and shock caused by injuries Nos.l, 2 and 3 collectively which were sufficient to cause death.
5. The prosecution in support of its case examined 11 witnesses. Medical evidence was proved by Doctor Naseem Ahmad and Doctor Munir-ud-Din. The eye-witness account has been furnished by Mansha, Khan and Muhammad Hussain P.Ws. 8, 9 and 10 respectively. The evidence of recovery was furnished by P.W.1 and P.W.11. The rest of the witnesses are of formal nature which need not be discussed here. Mst. Sattan, Ahmad Ali, Abdus Sattar and Ahmad Nawaz a recovery witness were given up as unnecessary.
6. At the conclusion of the prosecution evidence, the accused were examined under section 342, Cr.P.C. Manzoor, Faiz and Shaman accused pleaded the right of self-defence. Shaman stated that on the day of occurrence a she-donkey belonging to the complainant side damaged the crop, therefore, he captured the same in order to impound in the cattle pond. Khan P.W.9 asked for the she-donkey but on his refusal abused him. When he started for the cattle pond with she-donkey and reached near the house of Khan P.W.9 he was attacked by Mokha, Khan Muhammad and Muhammad Hussain with Dangs. They tried to snatch the she-donkey forcibly. He was given Dang blows, his alarm attracted Faiz and Manzoor co-accused who tried to rescue him, but they were also given Dang blows by Mokha deceased. His co-accused Faiz and Manzoor Hussain caused injuries to Mokha, Muhammad Hussain and Khan Muhammad in self-defence. Mst. Sattan tried to intervene and she also received injury. She-donkey was forcibly taken away by the P.Ws. He further stated that the deceased Party was aggressor and Muhammad Hussain and Sohni co-accused were not even present at the time of occurrence. He further stated that Faiz, Manzoor and he received injuries at the hand of the complainant party at the time of occurrence. Manzoor and Faiz accused, also gave the same statement. Sohni and Muhammad Hussain claimed that they have been involved in the case because of the relationship with their co-accused.
6. The learned trial Judge, while convicting the accused relied upon the eye-witnesses account; motive, medical evidence and recoveries of weapons of offence from the accused.
7. Learned counsel for the appellants points out that there is an unexplained deny of 22 hours in the registration of the case. He submits that the occurrence took place at 4 p.m. On 23-6-1981, whereas the report was lodged on 24-6-1981 at 2 p.m. It is further contended that even if Muhammad Mansha, complainant remained busy in looking after the injured on 23-6-1981, yet he did not bother to go early in the morning of next day to the Police Station for the registration of the case from the hospital. He contends that there is a metalled road connecting hospital with the Police Station, and buses ply there. The next contention of the learned counsel is that the motive as set up by the prosecution is very weak. He submits that according to Muhammad Mansha P.W.8, the accused were refused the hand of Khan Muhammad's daughter for marriage about two months before the present occurrence and during this period no hard feelings were expressed from either side, nor any incident took place. On the other hand, motive if any was on the complainant side, because their she-donkey had been captured by the accused persons. On the asking of Khan Muhammad P.W., the animal was not return and Shaman also abused him. In such circumstances, the motive to attack was with the complainant side. It is further contended by the learned counsel for the appellants that the recoveries in the instant case are fake and no reliance can be placed upon them. In support of his contention, he has drawn our -attention to the cross-examination in the statement of Wasaya P.W.1, wherein he states that the accused were arrested on the next day of the occurrence and the police party went to their houses as well. He further states that the police did interrogate them about the weapons on that very day, yet the recovery was effected after six days of occurrence. He contends that this contradicts the prosecution story because the Investigating Officer states that he arrested all the accused on 29-6-1981 and on that very day they led to the recoveries. The next contention of the learned counsel is that the eye-witnesses are interested, therefore, no reliance on their statements can be placed. It is pointed out that Muhammad Mansha P.W.8 though not related yet his behaviour for not getting the case registered in time makes him an interested witness. It is contended that as for khan Muhammad and Muhammad Hussain P.W.9 and P.W.10 are concerned, they admittedly are father and brother of the deceased, therefore, reliance cannot be placed on their statements. The next contention of the learned counsel for the appellants is that the defence version is more plausible than the prosecution story. It is contended that some of the accused persons were also injured but this fact has been suppressed by the prosecution. This supports the defence version that the accused acted in the right of self-defence.
8.A perusal of the F.I.R. Does show that the case was registered after about 22 hours of the incident, but delay in the registration of the case simpliciter cannot make the prosecution case doubtful.
Though the explanation given by Muhammad Mansha for not going to the A Police Station earlier is not very convincing, yet the delay as such would not be very material because the time and place of occurrence is also accepted by the defence. In such circumstances, we hold that the delay in the registration of the case is not material.
As for the motive for the Commission of the offence is concerned, we feel inclined to agree with the learned counsel for the appellants that refusal for marriage cannot be the basis for the present occurrence. Admittedly, the refusal had taken place about two months earlier and the parties have been living amicably since then. It is also established that the houses of the accused persons were at a distance of 8 to 10 Karams from the houses of the complainant side, yet no untoward incident took place. We also hold that the accused were well within their right to capture the she-donkey which damaged the crop and no exception can be taken. In such circumstances, we hold that the motive as set up by the prosecution is not proved.
As for the recovery witness, he has stated that he saw the accused persons in the custody of the police on the next day of occurrence, whereas the prosecution story is that they were arrested on the 6th day of occurrence. We feel that we need not go into this controversy because the accused persons admit the occurrence to have taken place though in a different manner. The fact remains that they also admit having caused injuries to the deceased as well as to the injured P.Ws. In such circumstances, the evidence of recoveries does not remain of much importance because otherwise also it could be used only for the purpose of corroboration which need (' not be done in the instant case because of the admission of the appellant about the incident.
The contention of the learned counsel is that the eye-witnesses should not be relied upon because they are closely related to the deceased as well as are interested. As for Muhammad Mansha P.W.8 is concerned, he is not related. The relationship in the circumstances of the present case would not be material, as admittedly the occurrence took place in front of the house of the witnesses, who are, therefore, the natural witnesses. In this respect reliance is placed on Liaqat Hussain and others v. Abdul Majid and others 1986 SCMR 1906. Even otherwise also the presence of Khan Muhammad and Muhammad Hussain injured P.Ws. Is also accepted by the defence. We, therefore, 1 hold that the eye-witnesses in the instant case are natural witnesses) who were present at the time of occurrence.
The contention of the learned counsel for the accused that the accused persons acted in the right of private defence, is not accepted, because the occurrence did take place in front of the house of the complainant. Even otherwise also the statement of Shaman accused indicates that he was going alone when attacked by the deceased and two injured eye-witnesses. On his alarm, two more accused, joined him in order to save his life. It is not believable that the accused who initially was alone was attacked by three persons yet he managed to cause number of injuries on the assailants with different weapons. Mokha had received 12 injuries on his person out of which one was incised as well. Mst. Sattan had received one injury. Muhammad Hussain had received 4 injuries and Khan Muhammad had received 7 injuries, whereas Shaman accused has received 5 injuries, Manzoor 4 injuries and Faiz received 3 injuries. The nature of the injuries on the deceased and complainant indicates that different weapons were used. This clearly shows that they could not have acted in the right of private defence as claimed by them. Even E otherwise since the occurrence had taken place in front of the house of the complainant side, therefore, the right of private defence as claimed by the accused persons cannot be available to them because they went near the house of the complainant.
9. A perusal of the record and after hearing the learned counsel for the appellants and State, we come to the conclusion that thewere present at the time of occurrence which has not taken place in, the manner alleged by the prosecution. As we have held that the accused persons had captured the she-donkey of the) complainant side and they were taking the same to the cattle pond, when they reached near the house of the complainant, he tried to take it back forcibly which led to a sudden fight. In these circumstances, we hold that section 149, P.P.C. Would not be applicable and each person would be responsible for his own act, Sohni, Faiz and Manzoor are alleged to have caused fatal blows. We, therefore, hold them guilty under section 304, Part I, P.P.C.
And convict them to ten years' R.I. Each and fine as ordered by the learned trial Judge is maintained. Shaman, Sohni and Faiz had caused grievous injuries to Muhammad Hussain P.W.
Their conviction and sentence under section 325, P.P.C. Is maintained. Sohni, Faiz, Shaman and Muhammad Hussain had caused a murderous assault on Khan Muhammad. Their conviction and sentence under section 307, P.P.C. Is maintained. The conviction and sentence of Shaman accused under section 325, P.P.C. For causing grievous hurt to Mst. Sattan is also maintained. All the sentences of imprisonment shall run concurrently.
We are informed that Shaman and Faiz accused have died in l-- jail, therefore, their appeal is abated and in such circumstances, we also remit their sentence of fine. All the accused are acquitted from the charge under sections 302, 148, 149,P.P.C. The amount of fine, if recovered, shall be given to the heirs of the deceased. With this modification, the appeal is accordingly dismissed.
The sentences of death are not confirmed.