IJAZ NISAR, J.-- Nazar (26), his brother Ashiq (30), their father Hamayun (70) and their cousin Rabnawaz (20) were tried for the murder of Jahangir (25). By his judgment, dated 20-12-1982 the learned Additional Sessions Judge, Multan convicted Nazar, Ashiq and Rabnawaz under section 302/34, P.P.C. And sentenced them to death and a fine of Rs.3,000 each in default to suffer R.I. For a period of one year. The amount of fine, if recovered, was ordered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Hamayun accused was, however, given the benefit of doubt and acquitted.
2. We have before us the appeal filed by the convicted accused and the connected murder reference. Both are being disposed of by this judgment.
3. The prosecution case is that Mst. Amiran wife of Sher Mohammad and niece of Jahangir deceased had illicit connection with Nazar appellant. Jahangir deceased had asked Nazar appellant to abstain from having liaison with Mst. Amiran who felt annoyed and threatened Jahangir deceased with dire consequences.
On 13-8-1980 it was Eid day, at about 6-00 p.m. Jahangir deceased along with Falak Sher P.W. (not produced) was on his way to his village from the graveyard. As soon as they reached near the flour grinding machine of Bahawal Lohri, Nazar and Ashiq appellants armed with Chhuris, Rabnawaz, appellant armed with a hatchet and their father Hamayun came out from the southern side of the grinding machine. Hamayun accused (since acquitted) raised a Lalkara exhorting his co--- accused not to spare Jahangir deceased whereupon they launched an attack on him with their respective weapons. He fell injured and died instantaneously. The occurrence was witnessed by Mohammad Fazil P.W.6, Shah Mohammad P.W.7, Mohammad Nawaz P.W.8 and Machhia (not produced). Mohammad Fazil left for Police Station Mian Channu and lodged the F.I.R. Exh.P.M. At 6- 30 p.m., the distance between the spot and the police station being five miles.
4. After recording the F.I.R. Mohammad Iqbal S.H.O. P.W.10 proceeded to the place of occurrence and prepared the injury statement Exh.P.N. And the inquest report Exh.P.O. Of Jahangir deceased.
He secured blood-stained earth from there through memo. Exh.P.B. He arrested the accused on 15- 8-1980. Nazar appellant produced blood-stained Chhuri P.5 through memo. Exh.P.D. His blood- stained shirt P.8 and blood-stained Chaddar P.9 were removed from his person through memo.
Exh.P.G. Ashiq appellant produced blood-stained Chhuri P.6 through memo. Exh.P.E. His blood- stained Kurta P.10 and blood-stained Chaddar P.11 were secured through memo. Exh.P.H. Rabnawaz appellant produced blood-stained hatchet P.7 through memo. Exh.P.F., his blood-stained Chaddar P.12 was secured through memo. Exh.P.J. Blood-stained Kurta P.13 of Hamayun accused (since acquitted) was also taken into possession through memo. Exh.P.K. The above-mentioned weapons and clothes were sent for chemical examination arid according to the report Exh.P.Q. Of the serologist human blood was found on them.
5. Dr. Abdul Ghaffar P.W.4 conducted the post-mortem examination on the dead body of Jahangir deceased on 14-8-1980 at 7-30 a.m. And found the following injuries thereon:-
(1) Incised wound 1/2" x 1/4" x bone deep (Nasal bone cut) on the front and upper part of the nose.
(2) Incised wound 4-1 /2" x 1/2" x bone deep on the right side of the nose. The wound was on the middle of the nose upto right cheek. Nasal bone was cut and the right laterial canin teeth were cut under this injury.
(3) Incised wound 2-1,'2" x 1/2" x skin deep on the tip of the nose and right side of upper lip.
(4) Incise wound 1" x 1/2" x deep going into the chest cavity on the left axilla.
(5) Incised wound 1-1/4" x 1/2" x deep going into the chest cavity on the left nipple.
(6) Incised wound 1-1/4" x 1/2" x deep going into the chest cavity 1/2" lateral to injury No. 5.
(7) Incised wound 2" x 1" x deep going into the chest cavity on the front of the left chest 3" below the left nipple.
(8) Incised wound 2" x -1" x deep going on left side of the abdomen just above the pelvic region.
Intestines were out of this injury. A loop of small guts was cut.
(9) Incised wound 1-1/4" x 1/2" x 1/3" on back of left shoulder.
Left ventrical of the heart was cut under injury No. 5. There was gas and half full semi-digested food in the stomach. Urinary bladder was full of urine: The death occurred due to shock and haemorrhage collectively caused by above-mentioned injuries and individually by injury No. 5. All the injuries were ante-mortem caused by sharp-edged weapons. Death was immediate and the duration between death and post-mortem was about 12 to 24 hours. Exh.P.L. Is the post-mortem report while Exh.P.L./1 is diagram showing location of the injuries.
6. The appellants denied the prosecution allegations and attributed the case to enmity. According to them it was an unwitnessed occurrence having taken place in the darkness of the night. There were many enemies of the deceased, the complainant and their relations and that the complainant party had falsely involved them in collusion with the police. No evidence was led by them in defence.
7. The prosecution examined Mohammad Fazil, P.W.6, Shah Mohammad P.W.7 and Mohammad Nawaz P.W.8 to prove the ocular account. Ghulam Mohammad P.W.3 and Mohammad Iqbal, S.H.O.
P.W.10 proved the recoveries of weapons of offence and the blood-stained clothes from the appellants. The other witnesses were of formal nature.
8. Mohammad Fazil P.W.6 is a first cousin of Jahangir deceased. According to him on the day and time of occurrence he was returning from graveyard after offering Fateha on the graves of his parents. Jahangir deceased and Falak Sher P.W. (not produced) were going ahead of him and when they reached near the flour mill of Bahawal Lohri the accused attacked the deceased on the Lalkara of Hamayun accused (since acquitted). He went on to say that Nazar appellant gave Chhuri blows to Jahangir deceased on the front side of his chest while Ashiq appellant caused Chhuri blows on his back. Rabnawaz appellant gave hatchet blows to the deceased on his face while he had fallen on the ground. Shah Mohammad P.W.7 stated that he was proceeding towards Chak No. 44/15-L from Chak No. 43/15-L where he had gone to get Taaweez for his ailing buffaloes and when he reached near the flour grinding machine he witnessed the occurrence. Mohammad Nawaz P.W. 8 stated that he had gone to the graveyard to offer Fateha on the grave of his father when he witnessed the occurrence. He also deposed about the motive stating that 4/5 days before the occurrence Jahangir deceased had asked Nazar appellant to abstain from carrying on with Mst. Amiran but Nazar refused to pay any heed to it and on the other hand threatened Jahangir deceased with dire consequences.
9. Relying on the ocular testimony, the motive and the recoveries, the trial Court convicted and sentenced the appellants as stated above. The participation of Hamayun accused being an old man was considered doubtful. He was said to be empty-handed with no allegation of causing any injury to the deceased.
10. Learned counsel for the appellants has argued that it was an un--witnessed occurrence having taken place in the dark hours of the night. The eye-witnesses are chance witnesses, nobody from the neighbouring Abadis was examined and that Jahangir deceased had enmity over the murder of Hassan Bakhsh and had been challaned along with his brother Dalmeer and was acquitted on appeal from the High Court. Thus, the possibility of his having been done to death by any member of the family of Hassan Bakhsh aforementioned cannot be ruled out, it is added.
11. Mohammad Fazil P.W.6 though a cousin of the deceased had no personal enmity against the appellant. He has given a cogent explanation for his presence at the spot at the relevant time.
According to him he had gone to offer Fateha on the graves of his parents when he witnessed the occurrence taking place near the graveyard. According to him Jahangir deceased had also gone to the graveyard to offer Fateha on the grave of his father which was at a short distance from the graves of his parents. He stated that he visited the graveyard on every Eid. Mohammad Nawaz P.W.8 is also a resident of the same village. He too had gone to the graveyard to offer Fateha on the grave of his father when he witnessed the occurrence. He is absolutely an independent witness having no connection with the complainant party or enmity with the appellants. He has supported Mohammad Fazil P.W. 6 on all material particulars. He had also proved the motive stating that 5 or 6 days before the occurrence the deceased had asked Nazar appellant to abstain from maintaining illicit intimacy with Mst. Amiran. In reply to a question in the cross-examination he stated that about a month after the occurrence Shera husband of Mst. Amiran aforementioned had divorced her because of her illicit relation with Nazar appellant. The defence has not been able to rebut or shatter his evidence on this score. All the three aye-witnesses were subjected to very lengthy cross-examination but they stood the test and their evidence could not be shattered. They have given a consistent and coherent account of the occurrence. They stand corroborated by the medical evidence which proved that different kinds of weapons were used in causing injuries to the deceased. The statement made by the doctor that there was possibility that all the injuries could be caused by single sharp-edged weapon is of no avail to the appellants because of its apparent falsity. The dimensions of various injuries prove beyond any doubt that they had been caused by different kinds of weapons. The dimension of injury No. 2 was 4-1/2" x 1/2" x bone deep whereas the dimensions of most of the other injuries ranged between 1" x 2". The mere possibility of the injuries having been caused by one sharp-edged weapon cannot discredit the unimpeachable I, testimony of three ocular witnesses who categorically stated that the deceased was given injuries with a hatchet and Chhuris. The recoveries of blood-stained hatchet and Chhuris lend further corroboration to the testimony of the eye-witnesses. The recoveries were proved by Ghulam Mohammad P.W.3 though he admitted his distant relationship with the deceased but this fact by itself is not sufficient to discredit him. He stands fully corroborated by Mohammad Iqbal, S.H.O.
P.W.10. The weapons and clothes of the appellants were sent to the Serologist who found human blood on them. The F.I.R. Was promptly lodged with all the necessary details. The occurrence had taken place at 6-00 p.m. While the F.I.R. Was lodged at 6-30 p.m. It would, thus, be evident that the complainant party had no time at their disposal to concoct or fabricate 'the story. There is nothing on the record to show that any other person had any immediate cause of grievance against the deceased. The incident between the deceased and Nazar appellant had taken place 4/5 days before the occurrence over the deceased's asking the appellants to disconnect his illicit relationship with Mst. Amiran, a niece of Jahangir deceased. The deceased's involvement in the murder of Hassan Bakhsh could not be a cause for his murder because Mohammad Fazil P.W.6 had stated that the families of Hassan Bakhsh and Jahangir had patched up their differences after the acquittal of Jahangir by giving the hands of womenfolk. Furthermore, a sufficient time had elapsed between the acquittal of Jahangir deceased and the occurrence giving rise to an impression that the family of Hassan Bakhsh had acquiesced in his acquittal. Had the deceased been murdered by any of the family members of Hassan Bakhsh aforementioned there was no reason for the complainant party to have let them off and instead involve the present appellants without any cause.
There was no previous background of enmity between the complainant party and the, appellants inducing them to falsely implicate them in a case of the present nature.
12. Having considered all the pros and cons of the case, we are of the view that the prosecution case stands fully established against the appellants beyond any shadow of doubt and they were, therefore, rightly convicted. Their conviction is thus maintained. As regards sentence, we think that there are mitigating circumstances so far as Ashiq an Rabnawaz appellants are concerned. They had no direct motive against the deceased and joined hands with Nazar appellant because of their close relationship with him. Ashiq is his real brother while Rabnawaz is his cousin. There was only one individual fatal blow to the deceased which is attributed to Nazar appellant. The injuries attributed to Ashiq and Rabnawaz appellants were collectively fatal. In this view of the matter, we think that the ends of justice will be met if they (Ashiq and Rabnawaz) are awarded the lesser sentence provided for the offence of murder. We order accordingly and while maintaining their conviction under section 302/34, P.P.C. Alter their sentence from death to imprisonment for life plus fine already awarded. There are, however, no extenuating circumstances in respect of Nazar appellant. It was he who had a direct motive against the deceased and the fatal injury is also attributed to him. He was, therefore, rightly awarded the extreme penalty of death. His sentence is accordingly maintained. The appeal is dismissed with the above modification in the sentences of Ashiq and Rabnawaz appellants.
The death sentence awarded to Nazar appellant is confirmed.