Mushtaq Ahmad, Muhammad Rafiq, Muhammad Akram, Abdul Haq and Muhammad Arshad were tried by an Additional Sessions Judge of Toba Tek Singh under sections 302/149 and 148, P.P.C. For the murder of Abdul Hafeez, deceased, and for committing rioting. The learned trial Judge convicted Mushtaq Ahmad, Muhammad Rafiq and Muhammad Akram under section 302/34, P.P.C.
And acquitted Abdul Haq and Muhammad Arshad, accused. Mushtaq Ahmad accused, was sentenced to death and Muhammad Akram and Muhammad Rafiq, accused, to life imprisonment, with a fine of Rs. 5,000 each, or in default thereof to undergo further rigorous imprisonment for one year each. All the three accused were directed to pay compensation of Rs. 5,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default thereof to undergo further rigorous imprisonment for one year. The joint appeal (Criminal Appeal 110 of 1984) filed by Mushtaq Ahmad and-others, convicts, against their conviction and sentences, the reference (M.R. 51 of 1984) submitted by the learned trial Judge for the confirmation of the death sentence awarded to Mushtaq Ahmad, convict, and the private revision (Criminal Revision No. 294 of 1984) filed by Abdul Latif, complainant, for the enhancement of sentences awarded to Muhammad Rafiq and Muhammad Akram, convicts, are all now before us for disposal.
2. The prosecution case in brief is that on 2-4-1982, Abdul Latif complainant P.W. 8 made a statement before the police stating that they were seven brothers. He, Abdul Hafeez, deceased, Shah Muhammad and Ghafran Ahmad lived in the village and the remaining three brothers were employees. About three years ago, over an Ihata which was in their possession, a quarrel took place between them and Abdul Haq etc. Accused. A case was registered against them in which he along with his brothers Abdul Hafeez, deceased, and Shah Muhammad and his father Noor Ahmad were challaned and were convicted by the Court. During the pendency of appeal, they were released on bail and on 1-4-1982 his brother Abdul Hafeez, deceased brought some wood on a cart from outside and ,hey started placing it in that Ihata occupied by them, when Mushtaq Ahmad and Muhammad Rafique, accused, armed with .12 bore guns, Abdul Haq and Muhammad Akram, accused, and Ashiq, armed with Sotas appeared there and they raised a Lalkara as to why they were keeping wood there. At the same time Mushtaq Ahmad and Muhammad Rafique, accused, started firing at them. They escaped. He along with Abdul Hafeez, deceased, entered in their Ihata and they did not come out due to fear. On 2-4-1984 at 8-00 a.m. He along with his brother Abdul Hafeez, deceased, Zulfiqar P.W. 9 and Khadim Hussain (given up P.W.), residents of the village, started towards Toba Tek Singh for lodging the report of the occurrence of the previous evening.
When they reached near the land of Umar Din Jat, his brother Abdul Hafeez, sat down to urinate and they proceeded ahead. They had gone a little distance, when Abdul Hafeez, deceased, raised alarm. On hearing that alarm, he and his companions looked back and saw that Mushtaq Ahmad.
Muhammad Rafique and Muhammad Akram, accused, armed with Phoras were assaulting his brother Abdul Hafeez. Mushtaq Ahmad, accused, gave a Phora blow on the head of Abdul Hafeez, deceased, on which he fell down on the ground, whereafter Muhammad Rafique accused, gave Phora blow to him while he was lying on the ground and Muhammad Akram, accused, gave blow to him on his head. During this attack, Abdul Haq and Muhammad Arshad, accused, while armed with Sotas, also appeared and joined the other accused. After that all the five accused gave injuries to Abdul Hafeez, deceased, with their Phoras and Sotas. Since they were empty-handed, they could not go near the deceased. They raised alarm, on which a number of persons came out from the village, whereupon all the five accused fled away. He along with his companions found Abdul Hafeez, deceased, unconscious. They carried Abdul Hafeez on a trolly to the Civil Hospital, Toba Tek Singh. Medical Officer was not available in the hospital and they, on the same trolly, brought Abdul Hafeez to Civil Hospital, Gojra, where Abdul Hafeez succumbed to his injuries.
3. On the same day at 11-30 a.m. Abdul Latif P.W. 8 lodged F.I.R. Exh. P.K. At Police Station Toba Tek Singh, which was recorded by Munir Ali Shah S.I. P.W.10.
4. On the same day at 5-00 p.m. Dr. Abdul Khalid P.W. 4 conducted the post-mortem examination on the dead body of Abdul Hafeez, deceased, and found three lacerated wounds, nine contusion marks and six abrasions on different parts of the body. A lacerated wound and two swellings on the head were declared to be sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was about one hour and that between death and post-mortem examination about six hours.
5. On 5-4-1982 all the five accused were arrested by Munir Ali Shah, S.I. P.W.10.
6. On 8-4-1982 Mushtaq Ahmad, Muhammad Rafique, Muhammad Akram Abdul Haq and Muhammad Arshad, accused, led to the recoveries of blood-stained Phora P. 5, blood-stained Phora P. 6, blood-stained Phora. 7, stick P. 8 and stick P. 9, which were taken into possession by the police vide memos. Exhs. P.E., PY., P.G., P.H. And P.J respectively in the presence of Munawwar Hussain P.W. 7, Munir All, Shah, S.I. P.W. 10 and Abdul Razzaq (given up P.W.). The blood on the three Phoras was found to be of human origin by the Chemical Examiner and the Serologist.
7. At the trial the prosecution produced Abdul Latif, complainant P.W 8 and Zulfiqar Ahmad P.W. 9 in support of the motive and the ocular account, Munawwar Hussain P.W. 7, Munir Ali Shah P.W. 10 and Abdul Razzaq (given up P.W.) in proof of the recoveries and Dr. Abdul Khalid P.W. 4 in corroboration of the medical testimony.
8. All the five accused, in their statements recorded under section 34'. Cr.P.C., denied their participation and imputed their false involvement due to enmity. Mushtaq Ahmad, Muhammad Rafique and Muhammad Akram, accused, stated that Abdul Hafeez, deceased, was a man of bad character, that he used to make indecent overtures to ladies of the village, that on the date of occurrence he had made such overtures to Mst. Shahida, sister of Mushtaq Ahmad accused, whilst she was throwing cow-dung in the Ihata near her house, that on her alarm Mushtaq Ahmad, accused reached there, upon which Abdul Hafeez, deceased, ran towards the field of Umer Din, but Mushtaq Ahmad, accused overpowered him and, under grave and sudden provocation, caused injuries to him, as a result of which the deceased expired. They stated that none of the witnesses had witnessed the occurrence. Abdul Haq and Muhammad Arshad, accused, submitted that they were found innocent during the police investigation.
9. The learned trial Judge, relying upon the motive, the ocular account, the recoveries and the medical evidence, convicted and sentenced Mushtaq Ahmad, Muhammad Shafique and Muhammad Akram, accused, as stated in para. I above, and acquitted the rest.
10. We have heard the arguments of the learned counsel for the appellants, the complainant and the State and have also perused the record. The evidence as regards motive is furnished by Abdul Latif, complainant P.W. 8, and Zulfiqar Ahmad P.W.
9. The two incidents regarding the motive --are already referred to in para. 2 above and need not be repeated. Though the F.I.R. Exh. P.K. Of Abdul Latif P.W. 8 mentioned the earlier occurrence which took place three years earlier and that which took place in the evening preceding the day of occurrence, both of which were set up to prove the motive, none of the two witnesses referred to the said events in their examination-in-chief, but admitted the same in answers to leading questions put to them by the learned counsel for the appellants. It appears, therefore, that it is the case of the appellants also that the said two incidents covering motive, existed. However; the appellants in their statements under section 342, Cr.P.C.
Denied the said two incidents but in view of the leading questions put to the witnesses on their behalf whereby --the said two incidents stand established, we have no hesitation in coming to the conclusion that the motive, as originally set up in the F.I.R. Exh. P.K., stands established in tile case.
11. The ocular account in this case is furnished by the same two witnesses referred to above, namely, Abdul Latif complainant P.W. 8 and Zulfiqar Ahmad P.W. 9, who happen to be the brother and cousin respectively of Abdul Hafeez, deceased. Khadim Hussain P.W. Who was also a witness of the occurrence, was given up as unnecessary. The narrative of the occurrence already stands reproduced in para. 2 above. Their evidence is consistent in all respects. On behalf of the appellants, the following submissions have been made in respect of their testimony:----- First, that the eye-witnesses are related to the deceased and, in view of their past enmity, their statements cannot be accepted with any degree of safety.
Secondly, that the F.I.R. Was lodged after, a delay and at the police station. In this connection, the statement of Talib Hussain P.W. 3, who admitted that the statement of the complainant was recorded by the police at the police station, which was some time after 1-30 p.m. When he had reached the spot and found the dead body of Abdul Hafeez, deceased, lying there and by which time the police had not arrived at the spot, was referred to.
Third, and last, that the place of occurrence was such that none of the eye-witnesses could have seen the incident. In this connection, it is submitted that the place of occurrence was sixteen Karam from the path way where there was sugarcane crop about a man's height all around and in these circumstances, the witnesses could not have seen the occurrence, much less describe particular blows being given by different assailants to the deceased.
With regard to the first submission, it has to be admitted that the eye-witnesses are related to the deceased and otherwise inimical to the appellants, but this does not mean that their testimony cannot be accepted. If they were present and saw the occurrence, we will have to accept their testimony, subject, of course, to corroboration. With regard to the second submission, it is true that the occurrence is alleged to have taken place at 8-00 a.m. And the F.I.R. Is alleged to have been lodged at 1-30 a.m., but the delay has been explained, as the deceased was first transported to tile Civil Hospital, Toba Tek Singh, but the doctor being not available there, he was taken to Civil Hospital, Gojra, where he died. The time taken in travelling from one hospital to another sufficiently explained the delay in the judgment of the F.I.R. Munir Ali Shah, S.I. P.W. 10, who was the Police Officer, recorded the F.I.R. After recording the same, he went to Police Station. Gojra, and prepared the injury statement of the deceased and other necessary papers. He denied the fact that after observing the injuries and making investigation he drafted the F.I.R. To suit the interest of Abdul Latif, complainant P.W.
8. Talib Hussain P.W. 3 admitted in cross-examination that the statement of the complainant was recorded by the police at the police station, where the injury statement of the deceased was also prepared. Munir Ali Shah, S.I. P.W. 10 was not put any question in cross- examination to elicit the admission that he had recorded the statement of Abdul Latif, complainant P.W. 8, at the police station, where he had also prepared the injury statement of the deceased. The learned trial Judge has held in his judgment that Talib Hussain P.W. 3 appeared to have made certain concession in favour of the appellants in his statement, which he though had been made with deliberation. Since the learned trial Judge had observed the demeanour of this witness at tile trial the findings are not without substance. Since the Police Officer was not put these questions to elicit his explanation, the statement of Talib Hussain P.W. 3 cannot be accepted with any degree of safety. We, therefore, hold that the F.I.R. Was not only prompt, but was recorded before the investigation was begun. With regard to the third submission, it appears from the statement of Nazir Ahmad Patwari, P.W. 2 that at points Nos. 1 and 2 of the site plan Exh. P.A. There were sugarcane crops about a man's height standing in between and that if one was present at point No. 2, he could not properly see any person present at point No. I. He further stated that close to point No. 2 towards east, there were field and that Barsheen and peas were sown at the place of occurrence. Strangely, none of the witnesses was put any question to elicit the admission whether sugarcane crop was standing at points Nos. 1 and 2. It is admitted that at the place where the deceased was done to death, Barsheen and peas were standing in that field. But it is nobody's case that this was the place where he was urinating. Abdul Hafeez, deceased sat to urinate in the field of Umer Din Jat, while his companions proceeded further. It was only when the deceased raised alarm that the attention of the eye-witnesses was attracted backward and the ran in the direction of the deceased The distance which they had to cover was not long, as it was only fourteen Karams i.e. Twenty-five yards. Even assuming for the sake of argument that the witnesses were not able to see the assailants belabouring the deceased at point No. 1 from point No. 2, it cannot be denied that they were running in the direction of point No. 1 and would have reached the place of occurrence in a minute or two. The deceased did not receive one injury, but nineteen. He was being belaboured and if the eye-witnesses initially were at point No. 2, even assuming they were not able to see the first few injuries, they definitely saw the remaining and were, therefore, able to identify the assailants. The three assailants were armed with Phoras, whereas the witnesses were unarmed.
This accounts for the fact that the witnesses did not intervene. Both the witnesses have explained their presence at the spot. They with Abdul Hafeez, deceased, and Khadim Hussain (given up P.W.) were proceeding from their Chak to Toba Tek Singh to lodge a police report regarding the firing that had taken place the previous evening. It is nobody's case that the field of Umar Din Butt where the occurrence occurred, was not on their way. The occurrence of the previous evening stands admitted by the appellants, by virtue of their own cross-examination of the eye-witnesses. Taking all circumstances into consideration, we have no doubt that Abdul Latif, complainant P.W. 8 and Zulfiqar Ahmad P.W.9 were accompanying the deceased at the time of occurrence, when he was attacked, and that they did see the occurrence. However, since there is enmity between the parties, we would look for corroboration in this case in order to fix the participation of each appellant in the crime in instance.
12. Corroboration in this case is furnished by the recovery of blood--stained Phora P. 5, blood- stained Phora P. 6 and blood-stained Phora P.7, at the instance of Mushtaq Ahmad, Muhammad Rafique and Muhammad Akram, appellants, on 8-4-1982. The evidence with regard to the said recoveries is furnished by Munawar Hussain P.W. 7 and Munir Hussain Shah, S.I. P.W. 10, Munawar Hussain P.W. 7 is not related to any of the eye--witnesses. He is a Jat by caste, whereas the eye- witnesses are Gujjars. In respect of the recoveries, the following submissions have been made by the learned counsel for the appellants:-- First, that Munawar Hussain P.W. 7 is a party man of the complainant and since there are two parties in the village, he is an interested witness. In this connection, it is submitted that the said witness himself admitted that there were two parties in his village, one of the complainant and the other of the accused.
Second, that the recoveries were made from a joint Dhari and since independent possession was not established, the recoveries could not be legally accepted.
Third, that independent respectable witnesses, who were present were not joined in the recovery proceedings.
Fourth, and last, that it is unimaginable that the appellants, who absconded from the place of occurrence for three days, would not have washed away the bloodstains from their Phoras before secreting them away and that since the Phoras were not sent to the Chemical Examiner till 14-4- 1982, which was almost twelve days after the occurrence, it is not possible to believe that blood would not have disintegrated by this time.
With regard to the first submission, nothing appears on the record to show that Munawar Hussain P.W. 7 was in any way friendly with the deceased or the complainant party, so that he could be dubbed as belonging to the party of the complainant. The first submission, therefore, cannot be accepted. With regard to the second submission, the blood--stained Phora P. 5 was recovered from the cattle-shed of Mushtaq Ahmad, appellant, in Square No. 61 in Chak No. 380/J.B. Whereas blood-stained Phora P. 6 was recovered from the cattleshed of Muhammad Rafique, appellant, in Square No. 61 of Chak No. 376/J.B. And Phora P. 7 was recovered from the cattleshed of Muhammad Akram, appellant in Chak No. 319/J.B. It cannot, therefore, be said that the recoveries effected at the instance of the three appellants were from any joint Dhari. With regard to the third submission, Munawar Hussain P.W. 7, being himself a resident of Chak No. 319/J.B., was a respectable person covering the recovery made in that village from Muhammad Akram, appellant. The other Chaks were not far away from Chak No. 319/J.B. And he was, therefore, also taken to witness the other recoveries. With regard to the fourth and last submission, the same is only hypothetical. Phoras are some sort of wooden brackets meant for levelling land. Strictly they are not weapons of offence.
Nobody would think of removing blood-stained from the Phoras before secreting them away. Even otherwise, Phoras being made of wood, wherever blood--stains occur, much of it is absorbed into the wood itself and outwardly they would be dim. As regards the blood stains being analysed on the Phoras almost twelve hours after the event, nothing has been brought by the counsel for the appellants to show that the same was not forensically possible. This submission, therefore, has no merit. Munawar Hussain P.W. 7 is neither related to the deceased nor inimical to any of the appellants. In these circumstances, his testimony and that of Munir Ali Shah S.I. P.W. To fully support the recoveries effected at the instance of Mushtaq Ahmad, Muhammad Rafiq and Muhammad Akram, appellants. The three Phoras recovered at their instance being found to be stained with human blood, the recoveries act as good incriminatory evidence showing the participation of the three appellants in the crime in instance. Taking all circumstances into consideration, we would hold that the recoveries stand proved and show the participation of the three appellants in the crime in instance.
13. The medical testimony furnished by Dr. Abdul Khalid P.W.4 clearly shows that the deceased was done to death as a result of nineteen blunt weapon injuries on his person, the shape and size of which show that Phoras could have been used as weapons of offence and that at least more than one or two persons were involved in the incident. The medical testimony, therefore, corroborates the ocular account.
14. The upshot of the above discussion is that the motive, the ocular testimony, the recoveries and the medical evidence, clearly show that the three appellants participated in the occurrence and that they have been rightly convicted under section 302/34, P.P.C.
15. With regard to the death sentence imposed on Mushtaq Ahmad, appellant, it is contended that the eye-witnesses were not able to see the first few injuries that were inflicted by the appellants on the deceased, because of the standing sugarcane crops around the two places shown at points Nos. 1 and 2 in the site plan Exh. P.E. We think this argument is not without merit. Since we cannot draw the clear inference that the eye--witnesses saw the first few injuries that were inflicted on the deceased, though we have no doubt that they saw the remaining, when they ran up to deceased, it is not possible to accept the version of the eye-witnesses that the first injury was given by Mushtaq Ahmad, appellant, on the head of the deceased. In these circumstances, we would not award death sentence to Mushtaq Ahmad, appellant, but would order that he be sentenced to imprisonment for life and to pay a fine of Rupees five thousand (Rs. 5,000) or in lieu thereof to undergo further rigorous imprisonment for one year. The sentences imposed on Muhammad Rafique and Muhammad Akram, appellants, are legal and proper and require no interference.
16. For the foregoing reasons, the appeal of Muhammad Rafique and Muhammad Akram, appellants, is dismissed, whereas that of Mushtaq Ahmad, appellant, is partly accepted in terms of alteration in the sentence, as stated above. The death sentence awarded to Mushtaq Ahmad, appellant is not confirmed. The benefit of section 382-B, Cr.P.C. Shall be granted to all the appellants.
17. There being no merit in the revision petition (Criminal Revision No. 294 of 1984) filed by Abdul Latif, complainant, the same is dismissed in limine.