RIAZ AHMAD, J.--Appellants Adalat Khan and Muhammad Azam both real brothers son of Allah Ditta alongwith the acquitted co-accused, namely, Farman A.I son of Fazal Dad and Bahadur A.I were tried by the learned Additional Sessions Judge, Gujrat on the charge under section 302 read with section 34 of the Pakistan Penal Code for having committed the murder of Muhammad Khan deceased.
Vide judgment dated 20th of January, 1986, the learned Additional Sessions Judge found only appellants Adalat Khan and Muhammad Azam guilty on the aforesaid charge, while the co- accused Farman A.I and Bahadur A.I were acquitted. Appellant Adalat Khan was sentenced to death and to pay fine of Rupees five thousand, or in default of the payment, to suffer six months rigorous imprisonment. It was further directed that the fine, if recovered shall be paid to the legal heirs of the deceased Muhammad Khan. Appellant Muhammad Azam was sentenced to undergo life imprisonment and to pay fine of rupees five thousand, or in default of its payment, to suffer further rigorous imprisonment for six months. The fine, if recovered, was ordered to be paid as compensation to the legal heirs of deceased Muhammad Khan.
2. Aggrieved by their convictions and sentences, the appellants have preferred this appeal viz. Crl.
Appeal No.197 of 1986, and the case has also been referred to us under section 374 Cr.P.C. This judgment shall dispose of both the appeal, as well as the Reference.
3. The occurrence resulting into the death of Muhammad Khan deceased took place on 14th of August, 1983 at Peshi Vela in an open place adjoining the house of the appellants m village Dittewal situated at a distance of four miles from Police Station Saddar Gujrat.
4. Muhammad Aslam PW. 8 a brother of the wife of Muhammad Khan deceased proceeded to the police station at about 9 p.m. When on his way, he came across Ghulam Muhammad A.S.I. PW-11 in Katchery Chowk. Muhammad Aslam PW-8 narrated the occurrence to the A.S.I. Ghulam Muhammad PW-11, who recorded his statement Exh. PC, and sent the same to the police station for the registration of the case, where on the basis of said statement, formal F.I.R. Exh. PC/I was drawn by Muhammad Safdar, Muharrir Head Constable PW-3 at 9.15 p.m .
5. In brief, the first informant, Muhammad Aslam PW-8 stated, that he was a resident of village Dittewal, and the husband of his sister Muhammad Khan deceased had filled his land measuring two kanals with earth so as to raise its level, and the said land is situated in front of the house of Muhammad Azam appellant. Despite the protest of the deceased, appellant Muhammad Azam kept and tethered his cattles on the said piece of land. On the fateful day, at Peshi Vela, the deceased Muhammad Khan drove out the cattles of the appellant Muhammad Azam, and soon thereafter appellants Muhammad Azam and Adalat Khan both armed with hatchets and Farman A.I and Bahadur A.I the acquitted co-accused armed with Sotas reached the scene of occurrence.
Bahadur raised a Lalkara, that the deceased would be taught a lesson for driving out the cattles.
Hue and cry attracted the first informant and Hakim A.I PW-7, and in their sight, appellant Adalat Khan, inflicted the first blow with his hatchet on the head of the deceased Muhammad Khan.
Second blow with the hatchet was inflicted by Muhammad Azam appellant on the head of the deceased, as a result of the said blows, the deceased fell down, and the acquitted co-accused Farman A.I and Bahadur A.I then inflicted Sota blows to the deceased while he was lying on the ground. It was stated in the F.I.R., that the deceased received injuries on the right eyebrow and teeth. The first informant, and others intervened and rescued the deceased. The assailants thereafter while raising Lalkaras ran away. In the meanwhile, Haji Lal Din PW-5 also arrived and they brought the deceased to the Civil Hospital.
6. Muhammad Khan deceased died in the hospital on 15th of August, 1983. Dr. Shahzad Parvez, PW- 4, Medical Officer, ABS Hospital, Gujrat, medically examined Muhammad Khan while he was alive, and noticed the following injuries on his person:
(1) 12 cm x 2-/1/2 cm x bone deep. Linear in direction. Crepitus is there on right parietal area of skull, there is profuse bleeding, edges of wound are incised.
(2) There is swelling of right eye upper and lower eyelids both.
(3) 6 cm x 8 cm x skin deep at right angle to injury No.1. Edges are incised.
(4) Upper frontal left incisor tooth is shaky.
(5) Contusion 8 cm x 3 cm at intra scapular region.
Injuries Nos.2 and 3 were kept under observation, injury No.1 was declared as grievous, while the rest were simple. Injuries No.1 and 3 were caused with sharp-edged weapon, while the rest were caused with blunt weapon.
7. After the death of the deceased Muhammad Khan, the said doctor conducted the post-mortem examination on the dead body of the deceased on 15th of August, 1983, and noticed the following injuries on the dead body:
(1) 12 cm x 2-1/2 cm x bone deep incised wound linear in direction in right parietal area of skull.
(2) A bluishness of right eye.
(3) 6 cm x 8 cm x skin deep at right angle to injury No.1. Edges are incised.
(4) Upper frontal left incisor tooth is shaky.
(5) Contusion 8 cm x 3 cm at interscapula.
Right parietal bone of skull was fractured. A big black clot was found on the right side of the brain surface. Death in the opinion of the doctor had occurred due to shock and haemorrhage, caused by injury No.1 which was sufficient in the ordinary course of nature to cause death.
8. On 22nd.Of August 1983, PW-11 Ghulam Muhammad A.S.I arrested the appellant Adalat Khan. On 25th of August, 1983 appellant Adalat Khan, while in police custody, led the police and got recovered a blood-stained hatchet P-3, which was taken into possession vide Memo Exh. PH attested by Muhammad Inayet PW-9 and Muhammad Iqbal (not produced) besides the Investigating Officer Ghulam Muhammad PW-11.
9. On 26th of August, 1983, appellant Muhammad Azam led the police, and got recovered a blood- stained hatchet P 5, which was taken into possession vide Memo Exh. PM attested by Muhammad Khan PW-12 and Sardar Khan (not produced) besides the Investigating Officer PW-11.
10. Both the hatchets recovered from the appellants were sent to the Chemical Examiner and the Serologist, vide report of the Serologist Exh. PQ, both the hatchets were opined to be stained with human blood.
11. To prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by Hakim A.I PW-7 a close relative of the deceased, and Muhammad Aslam PW-8 a brother of the wife of the deceased. Besides the ocular testimony, the prosecution also placed reliance upon the recovery of blood-stained hatchets from the appellants as corroborative evidence, and also the evidence as to the motive.
12. In their examination under section 342, Cr.P.C., both are appellants denied the charge against them, and stated that they had been implicated on account of enmity with the complainant side. It was also asserted that the disputed land belonged to the entire village community and was not owned by the deceased. The appellants declined to be examined under section 340-A Cr.P.C. In, their defence, they produced a judgment Exh. DB dated 7th of November, 1966 delivered by an Additional Sessions Judge, Gujrat, according to which, twelve persons, namely, Suba, Barkat, Rehmat, Inayet, Ahmad, Sajawal, Balo, Allahdad, Inayet, Lal, Hakim A.I and Ghulam Qadir were tried on the charge under section 302 P.P.C. Read with section 148/149 P,P.C. For the murder of Lal deceased, and for having committed a murderous assault on Mian Khan, Bahadur, Akbar, Sardar Khan and Rehma PWs. According to the aforesaid judgment, all the twelve accused named above were found not guilty, and were thus acquitted.
13. With the assistance of the learned counsel for the appellants, and the State, we have carefully perused the record of this case, and we have also heard both the learned counsel at length.
14. It was strenuously argued that the prosecution evidence in this case was inimical, therefore, the same could not be relied upon. The evidence as to the recoveries of blood-stained hatchets at the instance of the appellants was also criticised, and it was urged that both the witnesses, namely, Muhammad Inayet PW-9 and Muhammad Khan PW-12 proving the recovery of hatchet from appellants Adalat Khan and Muhammad Azam respectively could not be safely relied upon, as both these witnesses were also partymen of the complainant side thus one tainted piece of evidence could not corroborate the other.
15. It was next contended that bone of contention viz. The land allegedly owned by the deceased, where the appellants used to tether his cattles was not owned by the deceased, but actually, the same was the property of the entire village community, therefore, the claim as sought to be set up by the complainant was unworthy of belief.
16. It was further argued, that it was an unwitnessed crime, and the appellants on account of enmity were roped in. Learned counsel for the appellants also stated that in fact the deceased attempted to take the forcible possession of the said land, and the owners thereof had attacked the deceased and caused him injuries, and on account of background of enmity the appellants were conveniently implicated.
17. We have carefully examined the statements of the eye-witnesses in this case. Muhammad Aslam PW-8 the brother of the wife of the deceased was 37 years of age on the date of his examination in Court. He was cross-examined at length about the previous murder case resulting into the death of Lal deceased. Muhammad Aslam PW-8 was examined in Court on 17th of April, 1985. Although he denied all the questions put to him with regard to the previous enmity, but his cross-examination shows that his father Bahadur Khan and Rehmat and Suba his uncles were PWs in the said case. The witness further stated that a compromise had been effected between his father and uncles. We have carefully considered this aspect of the case, and we are not prepared to believe that it was such a bitter enmity, which would have motivated the complainant side to falsely implicate the appellants in this case, because the occurrence was very old, and a compromise had also taken place. It is well settled law that inimical evidence has to be scrutinised with care and caution, and the corroboration thereof has also to be looked into while relying upon the same. It is further apt to mention, that it is also a well-established principle of law, that in a fit case inimical evidence can be relied upon even without corroboration. However, we need not further dilate upon this issue, because in this case, the ocular testimony stands amply corroborated in the form of the recovery of blood--stained hatchets recovered from the appellants. The evidence of PW-9 Muhammad Inayet which proved the recovery from Adalat Khan and evidence of Muhammad Khan PW-12 proving the recovery from Muhammad Azam appellant is above board, and there is not even an iota of evidence to cast doubt upon it. Thus, in our view, in this case the prosecution has proved to bring on record the satisfactory corroborative evidence tending to connect the appellants with the commission of crime.
18. Adverting to the ocular testimony, we are of the view, that both the eye--witnesses although related, but are truthful witnesses. Merely relationship is no ground to discard their testimony.
Above all, they are residents of the same village, and their houses are also situated nearby, and the occurrence had taken place at Peshi Vela and in the village like Dittewal, they would have been attracted to the scene of occurrence. Therefore, we are not prepared to believe that this was the case of false implication, nor we are prepared to believe that was an unwitnessed crime and the persons other than the appellants were responsible-for the commission of crime. There would have been an uproar in the village, if the persons other than the actual assailants had been involved in a daytime occurrence. Hence, we repel the contention of false implication raised by the learned counsel for the appellants.
19. As far as background of this occurrence is concerned, we cannot be unmindul of the following portion of the cross-examination of PW-7 Hakim A.I. In cross-examination, he stated as follows: "Muhammad Azam accused had tethered his cattle 10/15 days before the occurrence. I was present at the time when he had tethered his cattle for the first time. He had tethered his cattle at 12 noon, and Muhammad Khan untethered them at Peshi Vela. No altercation or fight had taken place between Muhammad Azam and Muhammad Khan deceased on that day. No report was lodged with the police by Muhammad Khan on the first day. Then, again after 8/10 days, he tethered his cattles. On the second time the occurrence had taken place."
20. The preceding portion of the cross-examination of PW-7 Hakim A.I clearly shows that the piece of land in front of the house of Muhammad Azam appellant was a bone of contention, and both sides claimed right of ownership over it. However, there is nothing on the record to determine its exclusive ownership. We are, therefore, of the view, that the appellants had not reacted so sharply as they did on the second occasion, when their cattles were driven out. In our view, it was a sudden affair, in which, the deceased was injured.
21. The next crucial question is the appraisal of the medical evidence of this case. PW-7 Hakim A.I stated that Adalat Khan appellant had raised Kulhari over and above his head, and then he delivered the blow with full force. He further submitted that the Kulhari got stuck in the head of the deceased and thereafter, he took it out. According to PW-7, appellant Adalat Khan delivered the blow while standing in front of Muhammad Khan deceased. Azam appellant delivered the blow in the manner in which Adalat Khan had struck. He also struck him from the front. On the other hand, PW-8 Muhammad Aslam stated that blow given by appellant Adalat Khan had hit the right side, while the second blow had hit the top of the head. According to PW-8 both blows were given simultaneously. In the light of these statements, if injuries are examined, the deceased has received the injuries of the following description:
(a) Injury No.1 of the post-mortem: 12 x 2-1/2 cm x bone deep incised wound linear in direction in right parietal area of skull.
(b) Injury No.3 of the post-mortem.
6 x 8 cm x skin deep at right angle to injury No.1. Edges are incised.
From both the above injuries, it is evident, that injury No.3 a skin deep injury on the right angle of injury No.1 was caused, the same was declared as simple, while injury No.1 was declared as grievous. The discrepancy as to the mode and manner of attack in the statements of witnesses is not material, because in a sudden affair, it is really difficult to notice the precise locale and manner of injuries caused.
22. In our view, as already observed, that this was a sudden affair which took place over the driving out of the cattle belonging to Azam appellant by deceased. We are further of the view that it was not a premeditated or preconcerted attack, so as to attract applicability of section 34 P.P.C. In our view, both the appellants would be liable for their own act. In this view of the matter, we hold appellant Adalat Khan guilty under section 302 P.P.C. But since, the occurrence was sudden and unpremeditated, therefore, we do not find it expedient in the interest of justice to exact the maximum penalty. Accordingly, we set aside the sentence of death awarded to the appellant Adalat Khan and alter it into life imprisonment. Sentence of fine awarded to the appellant Adalat Khan is however maintained. Fine, if recovered from him, shall be paid as compensation to the heirs of the deceased Muhammad Khan.
23. Adverting to the case of appellant Muhammad Azam, he had caused simple injury, therefore, he would be liable under section 324 P.P.C. He remained as an under trial prisoner for about two years, and after his conviction, his E sentence was not suspended for two years. However, on statutory ground only, his sentence was suspended on 5th of March, 1988. In this way, he remained behind the bars for four years. Therefore, we are of the view, that the sentence already undergone by appellant Muhammad Azam would meet the ends of justice under section 324 P.P.C. He is also directed to pay Rupees one thousand as fine, or in default whereof, to suffer rigorous imprisonment for three months. The amount of fine, if recovered, shall be paid to the heirs of the deceased. The appellant shall deposit the amount of fine within one month.
24. With these observations, the appeal preferred by the appellants Muhammad Azam and Adalat Khan is hereby dismissed. Death sentence awarded to the appellant Adalat Khan is not confirmed, and the same is altered into life imprisonment. Reference is answered accordingly.
S.A./A-769/L