QURBAN SADIQ IKRAM, J.--This is an appeal by Muhammad Javaid 24 Muhammad Younas 20 and Nazir Ahmad 45 against their conviction under section 302/34, P.P.C. By learned Additional Sessions Judge, Sialkot vide judgment dated 20-2-1982. Muhammad Javaid and Muhammad Younas were sentenced to death and fine of Rs.10,000 'in default two years' R.I. Each while Nazir Ahmad was sentenced to imprisonment for life and fine of Rs.10,000 or in default two years' R.I. It was ordered that half of the amount of fine, if recovered, be paid as compensation to the heirs of Sajjad Asghar deceased.
Muhammad Javaid and Muhammad Younas appellants, having been sentenced to death, the proceedings are also before us for confirmation of their sentence.
Muhammad Tufail 27, Shabbir Hussain 32 and Zakir Hussain 36, co---accused of the present appellants were, however, acquitted by the same judgment.
2. The occurrence in this case took place at 8.00 a.m. On 25-2-1981 in a street in village Mandranwala, about 1- I/2 miles from Police Station Daska, District Sialkot. The F.I.R. Ex.P.E. Was recorded on the same day, at 8-40 a.m. At the Police Station by A.S.I. Abdul Haq P.W.10 on the statement of Barkat Ali P.W.7.
3. It was stated by Barkat Ali in his First Information Report that on 25- 2- 1981, at about 8-00 a.m. He was proceeding to have bath in the bath rooms attached with village mosque. When he reached near the Baithak of Bashir Hussain, he saw Shabbir Hussain and Zakir Hussain accused present there. The aforesaid two accused exhorted Javaid accused armed with Khanjar, Muhammad Younas accused armed with Chhuri, Nazir accused armed with hatchet and Muhammad Tufail accused armed with stick, who were present near the western wall of the house of Abdullah saying that Sajjad Asghar had reached the open space near the house of Ghulam Qadir in the street and he be killed. At this all these four accused launched an attack on Sajjad Asghar. Nazir gave hatchet blow on the head of Sajjad Asghar. Javaid accused gave Khanjar blow which fell between the lower part of the chest and upper of the abdomen of Sajjad Asghar Muhammad Younas accused gave Chhuri blow on the left flank of the deceased who fell down, Sajjad Asghar deceased received few other minor injuries as well. Muhammad Tufail accused remained shouting Lalkara at the spot. It was stated by Barkat Ali that this occurrence was witnessed by Taj Din, Nazir Hussain and Khadim Hussain as well. The accused then left the spot with their respective weapons. Sajjad Asghar died at the place of occurrence after few minutes on account of the injuries.
The motive was stated to be that about four days earlier to this occurrence, Nazir Ahmad accused went to Rajab Ali who worked at the furniture shop of Mistri Barkat Ali, to get some pieces of wood.
Rajab Ali, a brother of Sajjad Asghar deceased, told Nazir Ahmad accused that as the owner of shop was absent, he was not in a position to oblige him. At this, Nazir Ahmad accused picked up a danda from the shop and injured Rajab Ali. In the meanwhile, Sajjad Asghar deceased also reached there. He and Rajab Ali caused injuries to Nazir Ahmad accused. They were separated by Akbar Ali and Kafayat Hussain P.Ws. Nazir Ahmad left the spot threatening to take revenge of the insult.
Barkat Ali complainant, leaving the dead body of his son Sajjad Asghar in the care of Khadim Hussain and Taj Din P.Ws. Went to Police Station and lodged the F.I.R.
4. The police after registration of the case undertook investigation. The dead body of Sajjad Asghar aged about 23 years was sent for post--mortem examination which was conducted on 25-2-1981, at 2-00 p.m. By Dr. Mumtaz Ahmad Bhatti P.W.9 who on external examination found the following injuries on the dead body:-
(1) A stab wound with clear cut margin 12 x 5 c.m. Abdominal cavity deep on upper part of epigastric region transverse in direction, abdominal viscera were visible in the wound.
(2) A stab wound 4 x 2-1/2 c.m. Abdominal cavity deep, transverse in the late aspect of left lumber region, intestines were protruding out and faecal matter was leaking.
(3) An incised wound 2 x 1 c.m. Skin deep transverse 3 cm away from the right nipple.
(4) An abrasion 5 x 1/2 c.m. On the right buttock.
(5) An incised wound 2 x 1/4 c.m. x muscle deep on the inner aspect of left forearm below its middle.
(6) An abrasion 3 x 1/4 c.m. On the front of right forearm in middle.
(7) An incised wound 2 x 1 c.m. Muscle deep on the inner aspect of right fore-arm just above the wrist.
(8) An incised wound 3-1/2 x 1 c.m. x scalp deep, oblique on the left side of top of head.
On the internal examination, the Medical Officer found 7th and 8th costal cartilages on right side cut under injury No.1. The diaphragm was also cut. Under injury No.2, liver had 8 c.m. x 2 c.m. x 3 c.m.
Cut. The stomach also contained 2 c.m. x 1/2 c.m. Cut. Skin muscles and large intestines were also found cut under injury No.2. The remaining injuries were superficial nature. Abdominal cavity was full of blood.
Injuries 4 and 6 been caused by blunt weapon while the remaining injuries with sharp-edged weapon.
The death occurred due to shock and haemorrhage as a result of injuries and 2 which were sufficient in ordinary course of nature to cause death. Injuries 1 and 2 were grievous and dangerous to life. The remaining injuries were of simple nature. Probable time between injuries and death was about 5 to 15 minutes and the post-mortem was conducted after about 6 to 12 hours of death.
5. A.S.I. Abdul Haq P.W. 10 on 25-2-1981, during inspection of spot of the occurrence collected blood- stained earth vide memo. Ex.P.F.
Muhammad Javaid and Muhammad Younas accused were arrested on 10-3-1981. Muhammad Tufail, and Nazir Ahmad accused were arrested on 10-5-1981. Shabbir Hussain and Zakir Hussain accused were not arrested in this case.
On 23-3-1981, Muhammad Javaid accused while in police custody, led to the recovery of blood- stained Khanjar P.4 which was taken in possession vide memo. EX.P.C. By S.I. Ghulam Sarwar P.W. 11 in presence of Nazir Hussain P.W.4 and Ghulam Rasool P.W. (not examined). Khanjar P.4 was found stained with human blood vide report of Chemical Examiner Ex.P.M. And that of Serologist Ex.P.O.
On 23-3-1981, Muhammad Younas accused while in police custody led to the recovery of blood- stained Chhuri P.5 which was taken in possession vide memo. Ex.P.D. By S.I. Ghulam Sarwar P.W. 12 in presence of Nazir Hussain P.W.4 and Ghulam Rasool P.W. (not examined) Chhuri P.5 was 'found stained with human blood vide report of Chemical Examiner Ex.P.L. And that of Serologist Ex.P.Q.
The accused were challaned after completion of investigation.
6. In support ,9f its case, the prosecution examined 11 witnesses in all. Barkat Ali P.W. 7 and Khadim Hussain P.W. 8 were examined as eye--witnesses. Nazar Hussain, another eye-witness named in the F.I.R. Was given up as unnecessary. Taj Din, a witness named in the F.I.R. Was not cited as a prosecution witness in the challan. The recoveries of crime weapons were supported by Nazir Hussain P.W.4. The evidence on motive was furnished by Rajab Ali P.W.5. The post-mortem was conducted by Dr. Mumtaz Ahmad Bhatti P.W.9 as given in detail above. The case was investigated partly by A.S.I. Abdul Haq P.W. 10 and partly by S.I. Ghulam Sarwar P.W.11. The evidence of the rest of the witnesses was of formal nature.
The accused when examined after close of prosecution evidence denied the charge and pleaded innocence. The recoveries of crime weapons were also denied. The defence plea was that Sajjad Asghar deceased was murdered by, some unknown persons at some other place The accused did not produce any evidence in defence.
The learned trial Judge placed reliance on the evidence of motive, recoveries of crime weapons and the eye-witnesses and convicted the three appellants as stated above.
7. We have carefully gone through the record of this case and have heard the learned counsel appearing on behalf of the parties. It is contended on behalf of the appellants firstly, that the eye- witnesses were interested; that they were not reliable because they tried to implicate a large number of innocent accused and made improvements in their statements and that they were not expected to be present at the spot at the time of occurrence, secondly, the prosecution has failed to prove motive against the accused and as such, the evidence of Rajab Ali P.W. 5 cannot corroborate the two eye-witnesses; thirdly, that the recoveries of Khanjar P.4 and Chhuri P.5 were of no consequence as corroborating evidence because these recoveries were affected after more than 24 days of the occurrence and have been supported only by an interested witness: and fourthly, that the medical evidence did not support the ocular account regarding the time of occurrence.
The learned counsel for the State controverted the above contentions.
8. Barkat Ali P.W. 7, Khadim Hussain P.W: 8 and recovery witness Nazir Hussain P.W. 4 are brothers inter se. Sajjad Asghar deceased and Rajad Ali P.W. 5 are sons of Barkat Ali P.W. Complainant.
Shabbir and Zakir accused are real brothers inter se. Nazir Ahmad accused is the son of their real uncle. Lal Din and his brother Nawab are first cousins of Nazir, Shabbir and Zakir accused. Younas accused is son of Lal Din while Tufail accused is son of Nawab. Javaid accused is son of Shabbir, a real brother of Nazir accused. The accused are, therefore, closely related to each other.
9. The motive in this case is stated to be that about four days before this occurrence, Nazir Alimad accused went to the shop of one Mistri Barkat Ali where Rajab Ali P.W.5 was employed as worker.
Nazir accused asked him for some pieces of wood but Rajab Ali expressed his inability to oblige on account of the absence of the owner of the shop. At this, Nazir Ahmad accused picked up a Danda from the shop and injured Rajab Ali P.W. In the meanwhile, Sajjad Asghar deceased reached there.
Then both the brothers inflicted soma injuries on the person of Nazir P.W. Who left the spot threatening to take revenge. This motive has been furnished by Rajab Ali P.W. 5 who has given all the details of the said incident. Nazir Ahmad accused in his statement after the close of prosecution evidence admitted this motive but added that did not proclaim to take revenge. The motive, therefore, stands proved by the admission of Nazir Ahmad accused appellant. It was contended on behalf of the appellant that no report regarding the incident which took place at the shop of Mistri Barkat Ali was lodged with the police; secondly, that only Nazir accused could be said to have a motive in this case; and finally, that the remaining accused had no motive to launch an.
Assault on Sajjad Asghar deceased. In our view, all these contentions are without any basis, because firstly, the motive is supported by Rajab Ali P.W.; secondly, Nazir Ahmad accused admitted the said incident; and thirdly, all the accused are very closely related to each other and it could, therefore, not be said that only Nazir accused had motive while other accused had no motive in this case. In our view, the prosecution has successfully proved motive against the accused.
10. The prosecution case is supported by the evidence of recoveries of blood-stained Khanjar P. 4 from Muhammad Javaid accused and blood--stained Chhuri P. 5 from Muhammad Younas accused. The evidence on these recoveries was furnished by Nazir Hussain P.W. 4 and S.I. Ghulam Sarwar P.W.
11. It was contended on behalf of the appellants firstly, that Nazir Hussain P.W. Was interested and, therefore, not reliable: secondly, he was a chance witness; thirdly, that no one of the accused made statement under section 27 Evidence Act (Article 40 of Qanun-e--Shahadat); fourthly that according to Nazir Hussain P.W. 4, they remained sitting in the courtyard while the accused went inside the room and got recovered their respective weapons: and finally, that the recovery was effected on the last day of the personal remand of the accused which makes all the proceedings doubtful. We have considered all these contentions. Nazir Hussain P.W. 4 is real brother of Barkat Ali complainant and therefore closely related to the deceased. He had no enmity whatsoever against the accused to falsely implicate them in this case. Mere relationship, therefore, was not enough to exclude his evidence from B consideration. It was stated by him that he met the police by the roadside when the accused were brought in a tonga to the village for recoveries. This meeting could not be considered, in any way, unnatural. The village occurrence took place is not a big village and the possibility cannot be excluded that Nazir Hussain P.W. Met the police by the roadside. According to this witness, many other residents of the village were present when the police arrived at the spot but they were not associated in the recovery proceedings by the police. It was, therefore, argued that no reliance can be placed or the evidence of this witness. It is commonly known that people unless coerced are not willing to become a witness in case like the present one. As such, the omission to examine any of those persons during the trial would not affect the merits of this case. The accused were in custody on police remand. They were brought to the village for recovery after they accepted to get the crime weapons recovered. They deposed about their willingness to get the crime weapons recovered at the police station when Nazir Hussain P.W. 4 was not present. After their disclosure the police brought the accused to the village and as such, there was no occasion for the accused to make statement within the meaning of Article 40, Qanun-e-Shahadat, 1984 in presence of Nazir P.W. This contention on behalf of the appellants is wholly misconceived. The police secured personal remand of the accused on 10-3- 1981. This was to expire on 23-3-1981 and the accused were to be produced before Court on 24- 3- 1981. The recoveries were effected on 23-3-1981. It was contended on behalf of the appellant that the fact that the recoveries were made on the last date of the remand make the recoveries doubtful. This contention also has no force because the accused might not have earlier agreed to disclose the presence of the crime; weapons at the place from which these were recovered. There was nothing wrong or illegal if the accused led to the recovery on the last day of their personal remand with the police. It was stated by Nazir Hussain P.W. 4 in cross-examination that "we sat in the courtyard of the house while the 'two accused along with one constable got recovered the weapons one after the other. The family members of the accused were in their respective houses at that time. We stayed at the house of Javaid accused for about half an hour and then went to the house of Muhammad Younas accused". It was argued, on the basis of this statement by the learned counsel for the appellants, that the recoveries of crime weapons had not been witnessed by the witnesses and that they remained sitting in the courtyard while a constable accompanied the accused for recovery of their weapons. In our view, this impression of learned counsel for the appellants is not correct. According to this witness firstly, the recovery from Javaid accused was effected. They stayed in the house of Javaid accused for about half an hour and then went to the house of Muhammad Younas accused for recovery. It is, therefore, clear that they did not remain sitting in one courtyard during both recoveries. There is no evidence to show that the respective rooms from where recoveries had been effected were at some distance from the courtyard where the police party was present. The police party, according to Nazir Hussain P.Ws. Was present in the courtyard and each accused went inside his respective room along with a constable and brought out the crime weapon and produced the same before the police. In our view, the prosecution has successfully proved the recoveries of Khanjar P-4 and Chhuri P.5 at the instance of two accused.
Even if Nazir Hussain P.W. 4 is held to be interested and his evidence is excluded from consideration, then also as held in Sohail Ahmad v. The State 1986 SCMR 1482, the statement of S.I. Ghulam Sarwar P.W. 11 alone is enough to prove recoveries of crime weapons from Muhammad Javaid and Muhammad Younas accused. It was held by their Lordships in Sohail Ahmad's case that there is no law that police officials cannot be believed. There is no allegation of mala fides or dishonest investigation against S.I. Ghulam Sarwar P.W. 11.
It was contended on behalf of the appellants that the recoveries of crime weapons were effected on 23-3-1981. These were delivered in the office of Chemical Examiner, Lahore on 30-4-1981 whereas the occurrence took place on 25-2-1981 and as such, blood must have disintegrated making it difficult for the analysis to form any opinion about presence of human blood. We have considered this contention. In the respective recovery memos. These weapons were stated to be stained with blood. These were delivered in the office of Chemical Examiner one 30- 4- 1981. The Chemical Examiner or the Serologist did not state in their' reports that they were unable to give any opinion on account of disintegration of blood on the crime weapons. It is therefore, clear that the blood had not disintegrated in spite of lapse of about two months between the time of occurrence and the time of examination by the analysis. These recoveries, therefore, fully corroborate the ocular account of this case.
11. Barkat Ali P.W. 7 and Khadim Hussain P.W. 8 have furnished eye--witness account of this occurrence. Nazar Hussain, another eye-witness was given up as unnecessary. Taj Din, an eye- witness named in the F.I.R. Was not cited as a prosecution witness in the calendar. It was stated by Barkat Ali P.W. 7 that initially Taj P.W. Did not turn up to make statement before the police: However, he himself approached the police during investigation and declined to support his case. A.S.I. Abdul Haq P.W. 10 stated in cross-examination that excepting Taj Din P.W., all the eye--witnesses appeared before him at the spot and he recorded their statements under section 161 Cr.P.C. S.1.
Ghulam Sarwar P.W. Was not questioned about Taj Din P.W. In cross-examination. It was argued on behalf of the appellants that omission on the part of the prosecution to examine Taj Din makes its case doubtful. We have considered this contention but find it without any basis because as held above, it is common knowledge that people in such like serious cases, are always reluctant to take sides. Tai Din P.W. Who had witnessed tie occurrence might have decided for obvious reasons not to support the prosecution case. As such, omission to examine him as witness during the trial has no bearing on merits of this case.
The two eye-witnesses, as stated above, were closely related to the deceased. They had absolutely no enmity to falsely implicate the accused in this case. There was no history of previous enmity between the parties. The only cause of grudge was the incident that took place about four days, earlier at the shop of Mistri Barkat Ali between Nazir Ahmad accused ands the deceased. These witnesses can, therefore, not be disbelieved simply on, account of their relationship with the deceased. It was argued on behalf of the appellants that these very witnesses were disbelieved as against the three acquitted accused. Their evidence was not divisible and, therefore, the present appellants also deserved acquittal. This argument is without any merit. According to the prosecution evidence, Shabbir and Zakir Hussain accused were empty handed. They had not caused any injury to the deceased or any of the eye-witnesses. They had been attributed only a proverbial Lalkara in this case. They were found innocent by the police during investigation. They were not even arrested in this case by the police. Their case was clearly distinguishable from the case of the present appellants. They were rightly acquitted by the trial Court.
Muhammad Tufail, another acquitted accused though stated to be armed with a stick, was not attributed any injury to the deceased in the First Information Report. However, both the witnesses during trial ascribed injuries to Muhammad Tufait as well. His case was also, therefore, distinguishable from that of the appellants. We are, therefore, of the view that the argument that the evidence against the appellants and the three acquitted accused was not divisible is not tenable. The learned counsel for the- appellants pointed out some improvements in the statements of two eye-witnesses regarding the inflicting of injuries on the, person of the deceased by Muhammad Tufail. According to the F.I.R., one blow each was given to Sajjad Asghar deceased by Nazir Ahmad, Muhammad Javaid and Muhammad Younas accused with their respective weapons. It was stated in the F.I.R. That besides three injuries, Sajjad Asghar received a few minor injuries as well These minor injuries were not ascribed to any of the accused. However, during the trial some of these injuries were ascribed to Muhammad Tufail and others to Muhammad' Younas and Muhammad Javaid accused. In our view, these are not material improvements. The minor Injuries did find mention in the F.I.R. Their details were provided during the trial and as such, these, improvements would not have material effect on merits of the case.
It was contended by the tear fed counsel that the two eye-witnesses were not expected to be present at he spot at the time of occurrence. We have considered this contention in t e light of their statements and the site plan Ex. P.A. The house of Barkat Ali P.W. Was about 375 feet (about 70 karams) from the place of occurrence. It was stated by him that he was proceeding to the village mosque for having morning bath and saw the occurrence. It was argued that it was winter season and as such, Barkat Ali could not have gone to take bath early in the morning at about 8-00 a.m.
Secondly, according to Barkat Ali P.W., the womenfolk of his family used to take bath in the house while he and his son generally took bath in the bath rooms attached with the mosque. The learned counsel, therefore, contended that the presence of Barkat Ali P.W. At the time of occurrence was doubtful. We are not inclined to agree with the learned counsel on this point. If the womenfolk took bath in their house that did not mean that men in villages also take their bath in their house. It is common knowledge that in villages people do take bath in the bath rooms attached with the mosque. It was nearly end of the month of February and there was nothing unusual for Barkat Ali P.W. To proceed at 8-00 a.m. To have bath in the mosque. It was argued that the police did not take in possession of any towel or soap from Barkat Ali which belies his assertion that he was going to take bath. In our view it was not necessary to take the towel or soap in possession because those were not incriminating articles. His house was only 70 karams away. He was, therefore, a natural witness. The occurrence took place at about 8-00 a.m. And the F.I.R. Was lodged at the police station at a distance of about 1-1/2 miles within 40 minutes of the occurrence. We are, therefore, of the view that the presence of Barkat Ali P.W. At the spot was not improbable as suggested on behalf of the appellants.
The house of Khadim Hussain P.W. Was 250 feet (about 50 karams) from the place of occurrence.
He was proceeding to his Farhat shop in Daska and was near the main road when he saw the present occurrence. His presence at the time of occurrence also could not be considered as improbable. It was argued by the learned counsel that the two eye--witnesses being closely related to the deceased did not try to save him from the accused. This was unnatural on their part.
If they had been present, they must have tried to help the deceased. This argument is without any basis. The accused were armed with deadly weapons. The occurrence did not take very long. The two eye-witnesses did try to rush to the place where Sajjad Asghar was being injured but before they could reach him, the accused left the spot. We do not find anything unnatural in the conduct of the two ye-witnesses.
It was finally contended on behalf of the appellants that the medical evidence did not support the time of occurrence stated by the eye---witnesses. According to the prosecution case, the occurrence took place at about 8-00 a.m. The F.I.R. Was lodged at 8-40 a.m. On the same day. The post-mortem examination on the dead body of Sajjad Asghar was conducted at 2-00 p.m. On the day of occurrence. According to the Medical Officer, the time between injuries arid death was 5 to 15 minutes and post---mortem was conducted between 6 and 12 hours of death. If this time is reckoned back from 2-00 p.m. When the post-mortem was conducted, it would mean that the occurrence did take place at about 8-00 a.m. As stated by the prosecution witnesses. The learned counsel argued that according to the Medical Officer, the deceased might have taken food about 3 or 4 hours before his death which would mean that the occurrence did not take place at the time stated by the eye-witnesses. This argument was basically founded on the statement of the Medical Officer that the deceased might have taken food about 2 or 3 hours before his death. We have considered this contention and find it without any substance. At the time of post mortem examination, the stomach wars found full of semi-digested food. It is stated by the Medical Officer in cross-examination that "the stomach in this case was injured and so the process of digestion would have certainly retarded". The presence of semi-digested food and retardation of process of digestion in the stomach would show that the deceased did not take meals 2 or 3 hours before his death. The food on account of chewing process is nearly semi-digested when it enters the stomach. In the instant case, the stomach was full of semi-digested food. This means that the process of digestion had just started when this occurrence took place. Food starts passing on in the small intestines from the stomach after about 2 or 3 hours. No food was found in small intestines. This means that it had not yet started passing therein. We are not prepared to agree with the Medical Officer that in the instant case, the deceased might have taken his food 2 or 3 hours before the occurrence. He seems to have taken food just a little before the present occurrence.
12. It was finally argued that the case of Nazir Ahmad appellant was distinguishable from that of his co-accused Muhammad Javaid and Muhammad Younas. We have considered this contention.
Nazir Ahmad accused admitted motive in his statement after close of prosecution) evidence. This fact alone would not mean that he was present at the place of occurrence. According to the eye- witnesses he gave one hatchet blow on the head of the deceased Sajjad Asghar. However, according to Dr. Mumtaz Ahmad P.W. 9, there was no hatchet injury on the person of the deceased.
He did not notice crushing of the hairs under injury No. 8 which did not affect the skull. No crime weapon was recovered from Nazir Ahmad who was found innocent during investigation by all the Investigating Officers. He may have been present at or near the spot at the time of occurrence but in view of the above circumstances and as an abundant caution, we give him benefit of doubt and acquit him of the charge. However, in our view, the conviction of Muhammad Javaid and Muhammad Younas under section 302/34, P.P.C. Was rightly recorded by the learned trial Judge.
However, we are of the opinion that in the instant case, sentence of death should not have been awarded to the appellants. Nazir Ahmad accused was aged 45 years. He was real uncle of Muhammad Javaid accused aged about 24 years. Muhammad Younas accused aged 29 years was a cousin of Muhammad Javaid accused in the second degree. They both gave one injury each to Sajjad Asghar deceased. It appears that Muhammad Javaid and Muhammad Younas accused, under the influence of Nazir Ahmad, caused injuries to Sajjad Asghar deceased. In view of this, we reduce their sentence from death to imprisonment for life each. The sentence of fine is maintained.
Their sentences of death are not confirmed.
13. With the above modification, this appeal fails and is accordingly dismissed. The appellant will be extended benefit of section 382-B, Cr.P.C.