MIAN BURHANUDDIN KHAN, J-- Mehboob Shah, 16 years, Rehmat Shah aged 20 years, alongwith their third brother Safdar Shah, aged 35 years, the acquitted accused, were convicted under section 302/34 PPC for committing the murders of Mehboob son of Afsar Khan and Inayat Hussain son of Chan Shah, and were sentenced to death, on two counts, and fine of Rs.5,000 each, on each count, by the learned Sessions Judge, Rawalpindi, per judgment dated 5-5-1980.
Appeal filed by the convicts in the Lahore High Court against their conviction and sentence was dismissed, death sentence awarded to them by the trial Court, was confirmed and Murder Reference was answered in the affirmative by the learned Judges vide the impugned judgment dated 28-2-1983.
2. The convicts filed a petition for leave to appeal and leave was granted by this Court vide order dated 1-6-1983 to consider the quality of evidence; recoveries effected from the accused and the contradictions between the ocular testimony and the medical evidence because some of the injuries were found to be stab wounds, and, the doctor stated that injuries on the bodies of the two deceased could be caused with two different type of weapons as some of the injuries were stab wounds, while the others were caused with a heavy weapons like hatchet or Toka.
3. According to complainant Waris Khan PW.11 on 17-12-1978 at about Shamvela he was proceeding towards the Water Mills run by his brother-in-law Afsar Khan (sister's husband) in village Koka on the request of the .Latter to look after his Mills. He reached the house of Afsar Khan where he was informed by his sister that his nephew Mehboob, son of Afsar Khan had already gone to the Water Mills. He, therefore, started towards the Mills. On the way he met Akbar Shah, brother of Inayat Shah deceased and Muhammad Siddique PW.12. All the three proceeded in the same direction because Akbar Shah was carrying food for his brother Inayat Shah deceased who was employed in the Mills by Afsar Khan. When the three of them reached the Mills at about sunset time, they found Inayat Shah standing in the door of the Mills and in their view, Mehboob accused, armed with hatchet, Rehmat accused, armed with a Toka and Safdar accused, holding a piece of cloth in his hand, after raising Lalkara attacked Inayat Shah. Safdar accused threw around the neck of Inayat Shah piece of cloth whereupon Mehboob Shah gave Kulhari blow which fell on the head of Inayat deceased; then Rehmat also gave a Toka blow on the head of Inayat who fell to the ground, and they continued giving blows with their respective weapons to the deceased. The witnesses raised alarm, whereupon the accused left Inayat Shah and ran towards the Water Mills of Muhammad Nawaz, situated nearby where Mehboob was working, who, on seeing the accused, ran towards the Kotha of the Mills but the accused overtook him. Safdar Shah put the cloth around the neck of the deceased Mehboob, while Mehboob Shah and Rehmat Shah accused gave hatchet and Toka blows to the deceased Mehboob.
4. The motive for the crime, as stated by the complainant Waris Khan PW.11 is that his brother-in- law Afsar Khan, father of Mehboob deceased, had taken on lease Water Mills from one Muhammad Nawaz. Near the said Water Mills, there is another Water Mills belonging to one Mumtaz Knan. Haji Allah Ditta PW.9 Mukhtiar kar of Mumtaz Khan had leased out the said Mills to the accused but due to non-payment of lease money, the Mill was taken back from Rahmat Shah and the same was leased out to Afsar Khan, who had employed Inayat Shah deceased as a worker; over this the accused were annoyed with the other side.
5. On 17-12-1978 Gul Nawaz PW.14 SHO Police Station, Margala was in Sector G/9 Islamabad where he was notified about the incident by Waris Khan PW.11. He recorded the statement of Waris Khan Ex. PM and sent the same to the Police Station, Margala for the registration of the case. The SHO then proceeded to the spot; prepared the injuries statements and inquest reports of the two deceased and sent the dead bodies to the mortuary for post-mortem examination. He arrested the accused Mehboob Shah and Rehmat Shah on 20-12-1978. On 26-12-1978 Rahmat Shah led to the recovery of blood-stained Toka P.12 from his- residential house and his blood-stained Shalwar P.13 and shirt P.14 which were taken into possession vide memo. Ex. PJ; while Mehboob Shah accused led to the recovery of blood-stained hatchet P.15 from his house which was taken into possession vide memo. Ex. PK. And also led to the recovery of his blood-stained shirt P.16 and Shalwar P.17 which were sealed into a parcel vide memo. Ex. P. L.
6. Dr Agha Muhammad Zafar PW.1 performed the post-mortem examination on the dead body of Mehboob and found the following injuries:
(i) stab wound 4" x 1/2" x brain deep underline bones found cut on middle of head 4" above the ear.
(ii) An oblique stab incised wound 4.1/2" x 1/2" x underline bones found cut from middle of left ear
(iii) incised wound 5" x 1" x underline mandible found cut.
(iv) incided wound 5" x 1/2" x brain deep
(v) incised wound 3.1/2" x 1/2" x brain deep above the nose bridge
(vi) incised wound 4" x 2" on middle face cutting both mandibles and nose
(vii) incised wound on lower jaw frontal incissor lateral incisor cannine teeth and premolar teeth on both sides were found chapped with another incised wound upper jaw right side with cutting of seven teeth on right side. Both lips were found cut.
(viii) incised wound 1.1/211 x 1/2" x abdomen deep on front lower most part of the chest just above epigastrium.
Stomach contained about 4 ounces of digested food. Intestines contained faecal matter. Bladder contained about 3 ounces of urine. In the opinion of the doctor, death was due to shock and heamorrhage as a result of injuries Nos. (i) (ii) (iv) (v) and (viii) which were sufficient to cause death individually in ordinary course of nature.
7. The same doctor also performed the post-mortem examination on the dead body of Inayat Hussain Shah son of Chan Shah and found the following injuries:
(i) incised wound 6" x 2" x brain deep on forehead and left tempral region
(ii) incised wound 4.1/2" x 1/2" x brain deep on left side of head.
(iii) incised wound 3.1/4" x 1/2" x brain deep on back of head.
(iv) incised wound 4" x 1" x underline bone cut on left mendable Stomach contained about 6 ounces of semi-digested food. Intestines contained faecal matter and bladder contained about 4 ounces of urine. Death of the deceased, in the opinion of the doctor, was due to shock and haemorrhage as a result of injuries (i), (ii) and (iii) which were sufficient to cause death individually in the ordinary course of nature, and all the injuries were found to have been caused by sharp-edged weapon.
8. The prosecution case is based on the ocular account in the case which consists of the statements of Waris Khan PW.11 the first informant; Muhammad Siddique PW.12 and Akbar Shah PW.13; recoveries of the crime weapons and blood-stained clothes, witnessed by Pervez PW.8 and Sarwar PW.10, who attested the recovery memos. Ex.PH and Ex.PJ and Ex.PK and Ex.PL respectively.
9. Haji Allah Ditta PW.9 was examined in connection with the motive for the crime. He stated that he was attorney of Mumtaz Khan, and had leased out the Water Mills to Mehboob Shah accused. As he failed to pay the lease money, he took back the Mills from him and leased it not to Afsar Khan, father of Mehboob deceased, who had employed Inayat Shah deceased to run the Mills.
10. The learned trial Court examined the accused under section 342 Cr.P.C. They denied the charges. Mehboob Shah admitted that the Mills was, at first, leased out to them but later on, the same was taken back from them, and was handed over to Afsar Khan. He, however, denied having nursed any grudge against the complainant party. He also denied the recovery of blood-stained hatchet P.15 and blood-stained shirt P.16 and Shaiwar P.17 and stated that he was falsely charged and implicated in the case.
11. The learned trial Court, after appraising the prosecution evidence, held that Waris Khan, P.W.11 was present on the spot and he reported the matter to the police within reasonable time; had he not been present there, the matter would not have been reported so promptly; that Muhammad Siddique and Akbar Shah reside in village Koka. The former was going to the water mills to take his wheat flour from there.; while the latter was going to deliver food to his brother Inayat Shah deceased, and, therefore, their presence on the scene of occurrence was quite natural. The learned trial Court also held that all the eye-witnesses had witnessed the occurrence and there was no reason for them to falsely implicate the accused with whom they had no enmity.
12. As regards the recoveries the learned trial Judge believed that the blood-stained articles were recovered at the instance of the accused /appellants and the witnesses who have attested the recovery memos are also disinterested persons and they had no motive to falsely implicate the accused; that no material had been brought on the record to discredit these witnesses nor any discrepancy is found in their statements. In addition to this, the learned trial Court believed the motive which it found to have been established by the statement of Waris Khan PW.11 and Haji Allah Ditta PW.9 who was attorney of Mumtaz Khan, owner of the Mills.
13. The learned High Court Judges also placed reliance on these pieces of evidence and observed in the impugned judgment, as follows: "The ocular testimony, in the instant case, may come forth from eye-witnesses, who were related to both the deceased in the instant case but there is nothing on the record to show that they had any enmity with the members of the accused party. Even the appellants and the acquitted co- accused, in their statements before the trial Court, had stated that they had been falsely implicated due to suspicion or the eye-witnesses being closely related to the two deceased and they had not mentioned that the eye-witnesses had any enmity or hostility towards the members of the accused party. Their testimony is absolutely consistent and free from any material discrepancy. It is further being corroborated by the recovery evidence, in the instant case particularly in respect of the participation of the appellants in the commission of crime. So far as the public attesting witnesses of the recoveries are concerned, they are Parvez PW.8 and Sarwar PW.10. Even these witnesses had no enmity with the appellants and had no motive to falsely implicate them."
14. Learned counsel for the appellants challenged the finding of the two Courts below on the ground of relationship of the eye-witnesses with the deceased particularly Waris Khan PW.11 and Akbar Shah PW.13 and pointed out conflict between ocular and the medical evidence.
15. We have examined the contentions raised by the learned counsel and find that the statement of the doctor is not in conflict with the ocular evidence because all the injuries caused, have large dimensions and can be the result of blows inflicted with heavy sharp weapon like Toka or hatchet.
The doctor, due to inexperience, has termed these injuries as stab and incised wounds whereas no instrument of stabbing, would cause injuries of as wide dimensions as 4.1/2" x 1/2", 5" x 1" and 6" x 2" etc. Etc. And would cut the underline bones like skull and mendable.
The relationship of the witnesses with the deceased is of no consequence in this case because their is no enmity worth mentioning between the parties. The presence of the witnesses on the scene of crime cannot be doubted as every one of them had a reason to be there, and their presence at the Mills had been believed by the two Courts below and we find no reason to differ with this finding.
Lastly, the learned counsel for the appellants urged that due to the tender age of Mehboob Shah accused, who at the time of occurrence was about 14.1/2 years old, and Rehmat Shah accused was about 16 years old both of them acted under the influence of their elder brother namely Safdar Shah, the acquitted accused.
We have considered this aspect of the case. Mehboob Shah was very young at the time of occurrence. We alter his death sentence into life imprisonment, whereas Rehmat Shah, who was about 18 years old at the time of occurrence, would not be entitled to this concession and his appeal is, therefore, dismissed in toto. With this modification this appeal is partly allowed.