MUHAMMAD MUNIR KHAN, J.--This Criminal Appeal No. 182 of 1982 and the connected Murder Reference No. 134 of 1982 arise from the judgment of learned Sessions Judge, Vehari whereby he on 7-7-1982 while acquitting Muhammad Tufail and Sakhi Muhammad co-accused convicted Muhammad Iqbal alias Phulla aged 25 years and Zulfiqar alias Kiali aged 21 years under section 302, P.P.C. For causing death of Hakim Ali aged 25 years and sentenced them to death and a fine of Rs.2,000 each in default thereof six months' R.I. Each with the direction that the fine when recovered be paid to the heirs of the deceased.
2. The occurrence took place before sunrise on 25-3-1981 in Chowk of Chak No. 289/E.B.- of Police Station Sadar, Burewala. The distance between the place of occurrence and the Police Station is 10 miles. F.I.R. Exh.P.L. Was lodged by Ghulam Farid P.W.9 paternal-uncle of the deceased at the Police Station on the same day at 8-30 a.m. And was recorded by Muhammad Anwar S.I. P. W.11.
3. The motive as alleged by the prosecution was that 1 -- months prior to the occurrence Muhammad Iqbal appellant cut jokes with Mst. Moofan granddaughter of Ghulam Farid P.W.2 and niece of the deceased. The matter was however settled by way of Punchayat. Nevertheless Hakim Ali deceased proclaimed that he would take the revenge from Muhammad Iqbal for having cut jokes with Mst. Moofan, therefore, he was killed by the appellants.
4. As for the main occurrence, it has been stated that on the eventful day before sunrise Hakim Ali deceased was coming along with Ghulam Farid P.W.9 back from their land to the village. When they reached near the mosque in the Chowk of the village, the appellants armed with hatchet, Tufail and Sakhi acquitted co-accused with Sotas came there and abused Hakim Ali deceased.
The noise attracted Talib Hussain P.W.8 and Ghulam Muhammad P.W.10 to the spot. It was within the view of Ghulam Farid P.W.9, Talib Hussain P.W.8 and Ghulam Muhammad P.W.10 that Iqbal gave hatchet blow on the head of Hakim Ali. Zulfiqar alias Kali inflicted blow with hatchet on the neck.
Then both of them gave more blows on his person whereon Hakim Ali fell down. Thereafter, Sakhi and Muhammad Tufail gave Sota blows to him. The deceased died on the spot.
5. On 25-3-1981 Dr. S. Akhtar Hussain Jafari conducted post-mortem examination on the dead body of Hakim Ali and found following injuries:--
(1) An incised wound 4.5 c.m. x 2 c.m. x bone deep on the left side of the fact just blow and in front of the lobule of the right ear.
(2) A cut 8.25 c.m. x ? c.m. x bone deep on the left side of the head.
(3) A cut 10 c.m. x 2 c.m. x bone cut and brain flowing out on the left side of the head of the parieto- occipital region 9 c.m. From the left pinna.
(4) Cut 12 c.m. x 4.25 c.m. x bone cut on the left lateral surface of the neck extending from the occipital area to the angle of the lower jaw.
(5)An incised wound 6.75 c.m. x 1 c.m. x bone cut on the back of the head on the right side reaching the pinna of the ear.
(6) Contusion 8 c.m. x 1 c.m. On the back of the neck more on the right than on the left.
(7) Cut 2.5 cm. x 0.2 c.m. x muscle deep on the upper part of the back of chest. Over the left scapula, with a tail 5 c. m. Long.
(8) Contusion with abrasion 7 c. m. x 0.2 c. m. On the back of the left shoulder.
On internal examination, the stomach was found healthy and empty.
In his opinion, the cause of death was shock brought by injuries 1 to 5 and especially by injuries Nos.3 and 4 which damaged the brain and the spinal cord respectively. Injuries Nos. 6, 7 and 8 were simple. Injuries 3 and 4 were sufficient to cause death in the ordinary course of nature. Probable time between the injuries and death was immediate between death and post-mortem was within 12 hours. In cross-examination the witness, with reasons stated that injuries No.6 and 8 were also caused with sharp-edged weapon.
6. The appellants were arrested on 27-3-1981 by Muhammad Anwar S.H.O. P.W.11. On 3-4-1981 Muhammad Iqbal appellant got recovered blood-stained hatchet P.11 from his cattle shed, which was taken into possession, vide memo. P.K. Attested by Yaqeen Din P.W.7 and Khushi Muhammad (not produced). On the same day Zulfiqar got recovered blood-stained hatchet from his house which was taken into possession, vide memo. Exh.P.l attested by the same witness. The recoveries of hatchet P.10 and P.11 from the appellants have however, been disbelieved by the trial Court.
7. To prove its case, prosecution examined as many as 11 witnesses, out of whom Talib Hussain P.W.8, Ghulam Farid P.W.9 and Ghulam Muhammad P.W.10 gave ocular account of the occurrence.
They claimed to have seen the appellants inflicting injuries with hatchets on the person of Hakim Ali, resulting in his death. Ghulam Farid P.W.9 stated that on the eventful day before sunrise, he along with Hakim Ali deceased were coming back from their land after having irrigated the land of the deceased when they reached in Chowk near the mosque of the village, the appellants armed with hatchets, Sakhi and Muhammad Tufail (acquitted accused) having Sotas with them, came there. They abused Hakim Ali. The noise attracted Talib Hussain P.W.8 and Ghulam Muhammad P.W.10. Iqbal gave hatchet blow on the head of Hakim Ali deceased. Zulfiqar inflicted blow with hatchet on the neck of deceased. Thereafter both of them gave more blows with their hatchets to the deceased. On receiving the injuries Hakim Ali fell down, when Sakhi and Muhammad Tufail: (acquitted accused) gave Sotas blows to him. The appellants and co-accused threatened the eye-witnesses and that when the people started coming out of their houses, the appellants and co-accused made good their escape. Talib Hussain P.W.8 and Ghulam Muhammad P.W.10 made similar statements. Talib Hussain P.W.8 resides at a distance of 25 Karams from the place of occurrence. He stated that he came out of his house to offer Fajjar prayer. On his way to the mosque, he heard alarm. He rushed to the spot and witnessed the appellants causing hatchet blows and the co-accused giving Sota blows to the deceased. Ghulam Muhammad P.W.10 lives in the same vicinity. He was present in his house. He heard the alarm coming from the Chowk of the village. He rushed to the Chowk and saw the appellants causing injuires to Hakim Ali who was still in standing position. It was after receiving the hatchets blows by the appellants that he fell down and was injured with Sotas by the co-accused. Ghulam Farid P.W.9, Ghulam Muhammad P.W.10 also supported the background of murder as detailed in para. 3 of the judgment Yaqeen Din P.W.7, Muhammad Anwar S.H.O. P.W.11 stated that Zulfiqar alias Kali and Muhammad Iqbal appellants had led to the recovery of blood-stained hatchets P.10 and P.11 from their houses and cattle shed respectively. The rest of the evidence is of formal nature.
8. When examined under section 342, Cr.P.C. The appellants denied all incriminating circumstances. They raised plea of false implication at the instance of Abdul Khaliq Lambardar on account of party faction. In defence no witness was produced. Muhammad Tufail acquitted co- accused had however, tendered copy of 'Part Wara-Bandi' Exh. D. C. To falsify the time of the irrigation of the deceased as stated by Ghulam Farid P.W.9.
9. The trial Judge in its judgment has disbelieved the recoveries of hatchets P.10 and P.11 from Zulfiqar and Muhammad Iqbal appellants. He has believed motive and the ocular account of the occurrence given by the eye-witnesses. He acquitted Sakhi and Muhammad Tufail by giving them benefit of doubt.
10. The learned counsel for the appellants submitted that the recoveries of the weapons from the appellants having been disbelieved, the conviction mainly rests on the ocular testimony which is not confidence inspiring inasmuch as the eye-witnesses are related, inimical and partisan and have falsely involved the appellants on account of party faction in the village. The learned counsel further submitted that the deceased received sharp-edged injuries while standing as stated by the eye-witnesses whereas after receiving injuries Nos.1 to 5, more, particularly injury No.3 he could not remain standing to receive other sharp-edged injuries and that the prosecution has not proved motive beyond reasonable doubt. On the other hand the learned counsel for the State supported the judgment of the learned trial Court. He submitted that the eye-witnesses having no ill-will against the appellants are quite independent witnesses.
11. We have considered the arguments advanced by the learned counsel for the parties with care.
Keeping in mind that it is a case wherein the appellants have not raised any special plea and have not claimed any exception to section 300, P.P.C-and as such the entire burden is on the prosecution to prove its case through truthful witnesses, we proceed to examine the prosecution case in order to arrive at conclusion as to its truth or falsity. Taking up the foundation of the prosecution case i.e. The F.I.R. We find that it is a case or prompt F.I.R. The occurrence took place at about 'Fajjar Namaz time'. The report was lodged at 8-30 a. m. The distance of the Police Station was 10 miles. The names of the appellants, the weapon used by them, B the part played by them, and the names of the eye-witnesses are mentioned therein. There is nothing on record to show that R.I.R. Exh.P.L. Was not written at the time and place as it purports. This prompt and genuine F.I.R.
May be used to corroborate the statement of its maker i.e. Ghulam Farid P.W.9. Now we proceed to examine C whether on this concrete foundation i.e. F.I.R. The prosecution has been able to construct a structure strong enough to face judicial scrutiny and test. This brings us to its main pillars i.e. The ocular account furnished by Talib Hussain P.W.8 Ghulam Farid P.W.9 and Ghulam Muhammad P.W.10. Examining the ocular testimony a bit more carefully than has been done by the trial Court, we find that the statements of the eye-witnesses are in consonance with probably as they have given probable cause for their presence on the place of occurrence at the D time of murder. They had no direct enmity with the appellants. Ghulam Muhammad P.W.10 is quite independent witness having no relations with the deceased; and the witness had no motive to involve the appellants falsely. No doubt Muhammad Anwar S.H.O. Has admitted that there was party faction in the village. One party was led by Abdul Khalid Lambardar and the other was led by Muhammad Bakhsh Sukhera and that complainant party belonged to the group of Abdul Khaliq while the appellants were affiliated with Muhammad Bakhsh's group but there is nothing to show that Talib Hussain P.W.8 and Ghulam Muhammad P.W.10 were the members of the party of Ghulam Farid P.W.9 or that they were in any manner under the influence of Abdul Khaliq or were inimical towards Muhammad Bakhsh Sukhera or the appellants. The eye-witnesses have successfully stood the test of cross-examination. Their statements no doubt suffer from major contradictions, material discrepancies and dishonest improvements. We also do not see any conflict between the ocular account and the Medical evidence. No doubt the witnesses have stated that the deceased had received sharp-edged injuries in his standing position and that the doctor has also stated that after sustaining injury No.3 on his head, Hakim Ali could not retain his standing posture but this does not mean that in no case the victim can retain the standing posture because the power of resistance and the effect of injuries vary from person to person. It is mentioned in Medical Jurisprudence and Toxicology by Modi, 21st Edition at page 248 that: "A very guarded reply should be given as injuries cause variable reactions in individuals, also a few cases have been recorded in which the victims were able to perform some acts as that of walking or climbing requiring some exertion, and survived for some hours or days after receiving very grave injuries, which would ordinarily have proved rapidly fatal."
In the instant case injuries Nos.1 to 5 were caused successively before the deceased could fall down on the ground. We thus do not see any reason to doubt that the three eye-witnesses in fact witnessed the occurrence. The house of Talib Hussain and Ghulam Muhammad P.Ws. Are near the place of occurrence. The appellants were previously known to the eye-witnesses. The occurrence took place at about Fajar Namaz time. So, there was no difficulty in the identification of the appellants. The number of the injuries and the appellants do commensurate. The number of the persons to whom the eye-witnesses have named does not exceed that which appears from independent evidence and circumstances not open to doubt to be the true number of culprits. We are, therefore, convinced that in the instant case the conviction can safely be sustained even on their uncorroborated testimony of the eye-witnesses. There is however additional evidence in shape of prompt F. I. R. Against the appellants and motive proved through truthful witnesses. The appellants have failed to rebut the statements of the eye-witnesses. We have examined Exh.D.C.
'Part Warabandi'. The learned counsel relied on entry at No. 18 which does not pertain to the deceased. No attempts were made during the trial to connect the deceased in any manner with', entry No. 18 of Exh.D.C. The learned trial Court has properly; appreciated the case and given sound reasons for believing the three eye-witnesses. The submissions made by learned counsel are without substance.
12. This brings us to the question of sentence. We do not see any mitigating/extenuating circumstances in favour of the appellants fort' lesser punishment.
13. For what has been said above, there being no merit, the appeal is dismissed.