' On 2-10-1982 at about 7 a.m. Nazar Hussain complainant P.W.4, Muhammad Siddique P.W., Shaukat Ali P.W. And Waris deceased were proceeding from their village for Gujranwala. When they had covered a distance of about 10 Acres from village, all of a sudden Muhammad Boota, Muhammad Idrees, Nazar Ali armed with sticks, Barkat Ali armed with Balam, Nazir armed with pistol and Munir Ahmad armed with gun stood up from the paddy field. They shouted Lalkara.
Munir accused fired but no one was hit. Barkat gave Balam blow on the right bleep of Waris deceased whereafter Idrees gave stick blow on his right elbow, Waris fell down. Barkat, Idrees, Nazar and Boota accused gave repeated blows with their respective weapons to Waris deceased.
Thereafter Munir accused fired at Shaukat P.W. He was not hit. The alarm attracted Abdul Rashid and Faqir Muhammad P.Ws. Out of fear of accused, Nazar complainant, Siddique P.W. And Shaukat P.W. Started running towards the village. Munir and Nazir accused fired ineffectively at Waris deceased. The accused then after a chase caught hold of Shaukat P.W. Near the village and caused injuries with their respective weapons. Mst. Irshad Bibi and Mst. Balqis Bibi P.Ws. Also reached there. They tried to help Shaukat P.W. The accused caused injuries to Mst. Irshad Bibi and then left the spot.
' The motive was stated to he that about 1-1/2 years before present occurrence Munir accused suspected Shaukat P.W. Of having illicit relations with his daughter Mst. Nasim Akhtar. This had resulted in quarrel between them on two or three earlier occasions.
' Shaukat and Waris were being taken to hospital. Waris died in the way on account of the injuries.
Shaukat was admitted in Civil Hospital Gujranwala, whereafter Nazar Hussain P.W.4 went to Police Station Wahndo, District Gujranwala, about 12 miles from the place of occurrence and lodged F.I.R.
On the same day at 2-20 p.m. Recorded by S.I. Amjad Karim P.W.14.
2. The dead body of Waris Ali aged about 24 years was sent for postmortem examination which was conducted by Dr. Anjum Javed P.W.5 at 10-30 a.m. On 3-10-1982. The medical officer on external examination noted 19 injuries on the dead body. Injuries Nos.4, 5, 10, 13, 14 and 15 on right arm, left buttock and right leg were by sharp-edged weapon and remaining injuries were by blunt weapon. Injury No, 16 was lacerated wound 2 c.m. x 1 c.m. x bone deep with fracture of underline bone of left leg front upper part. Injury No,17 was a lacerated wound 2 c.m. x 1 and half c.m. x bone deep alongwith fracture of left leg front upper part about 3 c.m. Below injury No,l(. Injury No, 18 was a contusion 3 c.m. x 2 c.m. With fracture of underline patella of left knee cap. Injury No,19 was a swelling 10 c.m. x 8 c.m. Front of left thigh lower part alongwith fracture of underline bone. These 4 injuries were grevious in nature and caused by blunt ' existed on the grass along the bank of the Rajbah at a spot at a distance of 65 Karams further on upstream from the second line of dragging. I also took into possession blood-stained grass from this spot."
The above statement was not challenged in cross-examination. The presence of dragging marks on the ground and recovery of blood from various points coupled with the fact that the deceased and injured P.Ws. Had a large number of abrasions on their backs lend substantial support to the view that the occurrence had taken place in the same manner as narrated by the aforesaid eye- witnesses. In this case one person was murdered and as many as 5 were injured. The deceased had 14 injuries caused by fire-arm, sharp and blunt weapons. Injury No,13 consisted of multiple abrasions all over the back. Ramzan P.W. Had 10 injuries of sharp and blunt weapons. Rahim Bakhsh had 23 injuries caused by sharp and blunt weapons. Injury No,8 consisted of multiple bruises all over the back. Muhammad Bakhsh had 3 simple injuries, caused by blunt weapons. Pehlwan had 20 injuries caused by fire-arm and blunt weapons and Rahim Bakhsh had 26 injuries of firearm and sharp and blunt weapons. Injury No,26 consisted of multiple abrasions on the back. Such a large number of injuries on a large number of persons would indicate that a large number of persons armed with fire- rams, blunt and sharp weapons had attacked the members of the complainant party in pursuance of a design. We see no substance in the finding of the trial Con: t that the 'inception of the occurrence is shrouded in mystery' or that 'pre-concert of the accused-- is not as such proved and the individual part played by the accused has to be determined--' The number and nature of injuries and act of dragging as many as 5 persons to the tub well situate at a distance of 4 Acres lend material support to the view that it was a determined attack and the assailants had come to the spot with full preparation. The attack by its very nature was such that a group of persons was required to carry it out.
15. The members of the accused party did not suffer even a scratch during the occurrence which would further indicate that it was a one sided affair in which the members of the complainant party were taken unaware. The plea raised by Muhammad Afzal accused that the complainant party armed with fire-arms etc. Came to his tubewell at night and started firing in result of which he was injured has been proved to be false. He tried to take undue advantage of the injury which he had actually suffered more than 3 years prior to the present occurrence. Dr. Riaz Hussain Medical Officer Civil Hospital, Jahanian, examined him on 29-81976 and besides other injuries found a lacerated wound on the right cheek. This injury was caused by fire-arm. According to the doctor a pellet at right maxilla opposite the first upper tooth was seen. Dr. Abdul Khaliq examined this accused on 3-10-1979 at the request of Si-1.0., Police Station Jahanian. The accused was having pain in the head, right cheek and over the body. He was advised X-Ray. On X-Ray examination, two small rounded discrete radio opaque shadows were seen in the right frontal region and right cheek area. The doctor could not give the duration of this injury because there was no visible injury except that he could feel the presence of some hard substance in the cheek. The plea raised by Muhammad Afzal appellant has, therefore, no substance at all.
16. Admittedly the mother of Muhammad Aslam Mali accused was murdered in the year 1975 for which Abdul Aiiz deceased, injured P.Ws. Karim Bakhsh, Muhammad Ramzan, Sultan complainant and given up P.Ws. Rahim Bakhsh and Pehlwan were prosecuted. Karim Bakhsh, Rahim Bakhsh and Pehlwan were convicted and sentenced to imprisonment for life. Mumtaz alias Taja, Muhammad Nawaz, Muhammad Afzal and Mukhtar accused (sons of Hassan Muhammad) are real brothers of aforesaid Muhammad Aslam Mali, therefore, each one of them had a strong motive to do away with the deceased. Being brothers inter se, they were expected to join hands for mounting the assault on the deceased and injured P.Ws.
17. Muhammad Aslam Mali accused was declared innocent during the investigation and shown in column No,2 of the challan. However, the opinion of the police officer is not relevant for the purpose of determining the innocence or guilt of the accused. This appellant maintained that at the time of occurrence, he was present in the District Courts, Multan; he had taken the plea of alibi which was verified by the Investigating Officer and he was declared innocent. He examined Manzoor Hussain Shah, Advocate and Maqbool Ahmad Record-keeper Sessions Court, Multan, in his defense.
Manzoor Hussain Shah, Advocate stated that on 1-9-1979 Muhammad Aslam accused met him at 7-00 a.m. In his chamber. He attested a bond executed by him as surety for one Jafar who was involved in a case pending in the Court of Additional Sessions Judge, Multan. The witness further stated that he appeared before the concerned Court at about 9-10 a.m. On the same day and that he made such statement before different Investigating Officers. In cross-examination he admitted that Aslam accused was known to him since his childhood because he owned land in Chak No, 127/10-R i,e, Chak of Aslam accused. This Chak is at a distance of 35/40 miles from Multan City. It will be noted that the case was firstly investigated by Muhammad Arshad S.H.O. And then by his successor Muhammad Iqbal S.H.O. The witness admitted that he never appeared before any of them to plead alibi for Aslam accused. For the first time he appeared before Abdul Karim D.S.P.
(C.W.1) who visited the spot for investigation on 9-10-1979 i,e, more than a month after the occurrence. Furthermore, the occurrence took place at about sunrise time i,e, at about 5-45 a.m., therefore, presence of Aslam accused at Multan at 7-00 a.m., does not necessarily show that he was not present at the spot at the time of occurrence.
18. The ocular evidence produced by Karim Bakhsh and Ramzan P.Ws. Finds substantial corroboration from the facts and circumstances detailed in paras. 13, 14 and 16 above and we are satisfied that the prosecution has brought home charges of rioting and murder against Muhammad Aslam, Mumtaz alias Taja, Muhammad Nawaz, Muhammad Afzal and Mukhtar appellants (sons of Hassan Muhammad).
19. At this stage we may observe that the evidence relating to recoveries is highly unsatisfactory and it has been rightly discarded by the learned trial Judge. According to Muhammad Iqbal Sub- Inspector the accused were arrested on 29-91979 whereas the recovery memos. Are dated 28-9- 1979. Furthermore the recoveries were allegedly effected 27 days after the occurrence. We are not inclined to believe that the accused had kept the weapons with them for such a long time.
20. Now, we proceed to consider the question of sentence. The occurrence took place more than nine years back and the appellants faced the trial for a period of more than six years. According to the doctor, death was due to fracture of the atlas axis vertebrae (injury No,14) which had been caused by blunt weapon. At a later stage he stated that death was due to origami shock, i,e, shock produced by deficiency in the volume of the blood. According to him, there was excessive blood loss from the body due to sharp weapon injuries causing fracture of wrist-joint, left radius ulna bones and left tibia fabula. This statement indicates that death was due to cumulative effect of the injuries which caused aforesaid fractures resulting in loss of blood. In the circumstances, sentence of imprisonment for life and fine of Rs,5,000 each awarded by the trial Court to aforesaid five convicts is maintained. Their appeal (Criminal Appeal No,50 of 1986) and Criminal Revision No, 110 of 1986 are dismissed.
' No appeal or revision has been filed by the State or the complainant against the acquittal of remaining accused regarding the charge of murder.
' Ashraf accused has been convicted under sections 148 and 326, P.P.C. He was sentenced to R.I. For two years and a fine of Rs,4,000 under section 326, P.P.C. And further ordered to pay Rs,4,000 as compensation to injured P.W. Pehlwan. He has challenged his conviction and sentences through Criminal Appeal No, 46 of 1986. His appeal must succeed for the simple reason that Pehlwan P.W.
Did not enter the witness-box to testify that he suffered injuries at the hands of this appellant. His conviction and sentence and order for payment of compensation are set aside. He is on bail. He shall be discharged from his bail bond.
' Karim Bakhsh appellant was convicted under sections 148 and 325, P.P.C. He was sentenced to R.I.
For six months and a fine of Rs,1,000 or in default to undergo R.I. For two months under section 325, P.P.C. He was further ordered to pay Rs,3,000 as compensation to be equally divided amongst Rahim Bakhsh, Ramzan and Pehlwan P.Ws.
' Rahim Bakhsh was convicted under sections 148 and 325, P.P.C. He was sentenced to R.I. For six months and a fine of Rs,1,000 under section 325, P.P.C. And was ordered to pay Rs,1,000 as compensation to Karim Bakhsh PW. It is in the impugned judgment that both of them remained in custody as under-trials since 28-9-1979. They were convicted on 1-3-1986 and their sentence was suspended by this Court on 8-4-1986. In this way they have undergone detention as under-trials for more than six years and five months and suffered R.I. For one month and eight days each. In the circumstances, their sentence is reduced to the term of imprisonment already undergone by them.
They shall be discharged from their bail bonds.