' MUHAMMAD MUNIR KHAN, J.-- This Criminal Appeal No, 88 of 1986, Murder Reference No, 19 of 1986 and connected Criminal Revision No, 114 of 1986 for enhancement of sentence of Tariq appellant, arise from the judgment of learned Additional Sessions Judge, Bahawalnagar, whereby he, on 30- 9-1986, convicted Fazal Elahi (25) and Tariq (20) under section 302/34, P.P.C. For the murder of Abdul Karim (23) and sentenced them as under:-
(i) Fazal Elahi to death and a fine of Rs,5,000 in default thereof one year's R.I. Tariq, imprisonment for life and a fine of Rs,5,000 in default thereof, one year's R.I. With a direction that the fine, if recovered, half of the same be paid to the legal heirs of the deceased.
2. The occurrence took place on 27-8-1985 at 4-00 p.m. In Killa No, 25 of rectangle No,45/13 on a road in Chak No, 175/7-R at a distance of 17 kilometres from Police Station Fort Abbas. F.I.R. Exh.P.G.
Was lodged by Abdul Ghafoor P.W.7, brother of the deceased, on the same day at 6-45 p.m. And was recorded by Sana-ul-Haq, Inspector/S.H.O. P.W.9. The F.I.R. Was originally registered under section 307/34, P.P.C. Abdul Karim succumbed to the injuries on 28-8-1985, so section 307/34, P.P.C.
Was converted into 302/34, P.P.C. The appellants are related inter se.
3. Fazal Elahi appellant had divorced his wife Mst. Rasoolan Bibi, the first cousin of the deceased, about 6 months before the occurrence. Thereafter she came to the house of Piran Ditta, father of the deceased, and started living there. Piran Ditta asked the appellant to return the, dowry articles of Mst. Rasoolan Bibi. Fazal Elahi appellant refused to return the same and also felt annoyed. Hence this occurrence.
4. As for the main occurrence, it has been stated that at the eventful time, Abdul Karim deceased was going towards bungalow Yateemwala on a motorcycle. Abdul Ghafoor P.W.7 and Nemat Ali P.W. (not produced) were following him at a distance of about one Acre. When the deceased reached near the land of Muhammad Boota Jat in Chak No, 175/7/R, the appellants stopped him, and overpowered him. Fazal Elahi appellant gave knife blow in his belly. Tariq appellant gave Chhura blows on his chest. He fell down. Abdul Ghafoor and Nemat Ali rushed towards the place of occurrence. The occurrence was also seen by Mushtaq Ahmad P.W.B. The appellants ran away taking the weapons with them. Abdul Karim was removed to Tehsil Headquarters Hospital, Fort Abbas. He was medically examined and first aid was given to him. He was then removed to B.V.
Hospital, Bahawalpur on hospital ambulance for further treatment but he succumbed to the injuries on the way. So his dead body was brought back to Tehsil Headquarters Hospital, Fort Abbas where Dr. Muhammad Mushtaq Tahir P.W.3 conducted post-mortem examination on 28-8-1985 at 10-00 a.m. He found the following injuries on his person:-
(1) An incised wound of (sic) c.m. x 5 c.m. Intestines coming out with clotted blood and faecal matter. A visible cut seen on the intestine with corresponding cut on Nepha of Shalwar, wound is just below the umbilicus. In the midline edges clear cut.
(2) An incised wound 2 c.m. x 2 c.m. With depth 12 c.m. With clear cut margins, on left side of chest 9-1/2 c.m. Below and, medial to left nipple, 3-1/2 c.m. Lateral to xiphisternum with corresponding cut on Kameez and Bunyan.
(3)An incised wound 5 c.m. x 1-1/2 c.m. Depth is 8 c.m. Wound is 10 c.m. Below and medial to right nipple, 5 c.m. Right to the epigastrium corresponding cut is present on the Qameez and Bunyan on lower chest.
(4) An incised wound 2 c.m. x 1-1/2 c.m. Medial to injury No,3, depth is 81/2 c.m. With corresponding cut on Qameez and Bunyan.
(5)A scratch with abrasion 2 c.m. x 1-1/2 c.m. On right side of lower chest with corresponding cut on Qameez and Bunyan.
(6) An 'incised wound 2-1/2 c.m. x 2 c.m. Depth 9 c.m. On right iliac fossa with corresponding cut on Shalwar Nepha.
(7) An incised wound 2 c.m. x 1 c.m. x 1-1/4 c.m. On lateral aspect of little finger of left hand. In his opinion the cause of death was shock and haemorrhage due to injuries 1, 2, 3, 4 and 6 which were sufficient to cause death in the ordinary course of nature. All the injuries were caused by sharp- edged weapon. Time between injuries and death was about 8-9 hours and between death and post-mortem was about 10-11 hours. In cross-examination the doctor stated that Abdul Karim was brought to Tehsil Headquarters Hospital at 7-45 p.m. Small intestines, spleen, liver and diaphragm were ruptured. There were no chances of survival of the deceased.
5. The appellants were arrested by Sana-ul-Haq, S.H.O. P.W.9 on 31-8-1985. On 3-9-1985 Fazal Elahi got recovered his blood-stained Shalwar P.5 and blood-stained shirt P.6 from his house which were taken into possession vide memo. Exh.P.G. Attested by Bashir Ahnia'd P.W.4 and Abdul Hamid (not produced). On the same day, he led to the recovery of blood-stained knife P.4 from his house which was taken into possession vide memo. P.F. Attested by the same witnesses.
6. On the same day, Muhammad Tariq appellant got recovered bloodstained Shalwar P.8 and blood-stained shirt P.9 from the residential Ahata of Fazal Elahi appellant which was taken into possession vide memo. Exh.P.J. Attested by the same witnesses. On the same day, Muhammad Tariq led to the recovery of blood-stained Chhura P.7 from Dhara Mawaishyan which was taken into possession vide memo. Exh.P.H. Attested by the same witnesses. The Serologist's report Exh.P.O.
Shows that blood-stained Shalwar P.5, blood-stained shirt P.6, blood-stained Shalwar P.8, blood- stained shirt P.9, blood-stained Chhuri P.4 and blood-stained Chhura P.7 were stained with human blood.
7. To prove its case, prosecution produced 9 witnesses. Abdul Ghafoor P.W.7 and Mushtaq P.W.8 had given the ocular account of the occurrence. They claim to have seen Fazal Elahi armed with Chhuri and Muhammad Tariq armed with Chhura giving injuries to the deceased at the time of occurrence. Mst. Rasoolan Bibi P.W.2 and Abdul Ghafoor P.W.7 have supported the alleged motive of the appellants to kill the deceased. Bashir Ahmad P.W. 4 and Sana-ulHaq S.H.O. P.W.9 have supported the recovery of blood-stained clothes and weapons from the appellants. Dr. Muhammad Musthaq Tahir P.W.3 has proved the medico-legal report prepared by him at the time of examination of the deceased Abdul Karim when he was brought to the hospital in injured condition and also post-mortem examination report. The rest of the evidence is of formal nature.
8. When examined under section 342, Cr.P.C. The appellants denied all the incriminating circumstances. They raised plea of false implication. Fazal Elahi stated that Mst. Rasoolan had left his house 7/8 years before the occurrence of her own accord. He wanted to get her back but her maternal-uncle was not prepared to send her. The appellants did not give evidence in disproof of charges against them. No witness was produced in their defence.
9. Believing the motive, the ocular evidence, medical evidence and the incriminating recoveries, the trial Court has convicted and sentenced the appellants as stated above.
10. Learned counsel for the appellants contended that the prosecution has failed to prove its case against the appellants beyond reasonable doubt; that no independent witness has been produced to prove the alleged motive; that no Panchayat was ever held to settle the dispute with regard to the return of the dowry articles; that no suit for the recovery of dowry articles was filed by Mst.
Rasoolan against Fazal Elahi appellant before the occurrence; that it was a blind murder, Abdul Ghafoor P.W.7 and Mushtaq P.W.8 had not seen the occurrence; that the story of the prosecution is not probable; that there is inordinate delay in lodging the F.I.R. And that the F.I.R. Was in fact lodged after preliminary investigation; that the recovery of the blood-stained clothes and weapons after about 6 days of the occurrence is not believable; and that Bashir Ahmad P.W.4 is inimical towards the appellants; that the recoveries were effected from an open place and that the prosecution has not been able to prove the exclusive possession of the weapons of offence by the appellants.
11. On the other hand, the learned A.A.-G. Assisted by the learned counsel for the complainant has supported judgment of the trial Court.
12. Mr. Ijaz Ahmad Chaudhary, learned counsel for the petitioner in the connected revision argued that since Muhammad Tariq had also inflicted injuries which were sufficient to cause death in the ordinary course of nature, therefore, there was no justification in awarding lesser sentence to him.
13. We have anxiously attended to the arguments of the learned counsel for the parties and have carefully reviewed the entire evidence that has been produced by the prosecution, statements of the appellants recorded under section 342, Cr.P.C. And the circumstances appearing in the case.
We have not been able to persuade ourselves to agree with the learned counsel for the appellants.
We find that the occurrence took place at 4-00 p.m. On 27-8-1985 and the F.I.R. Was recorded within 3 hours. There is nothing in evidence to show that F.I.R. Exh.P.G. Was not recorded at the time and place as it purports or it was recorded on the spot after preliminary investigation. Since Mushtaq Ahmad P.W.8 did not remember whether the police had obtained thumb-impressions on the statement of Abdul Ghafoor complainant recorded on the spot, therefore, it cannot be said with certainty that the statement, if any recorded on the spot, was F.I.R. Exh.P.G. And no other statement.
It may be noted here that Sana-ul-Haq Inspector/S.H.O. Was not cross-examined in this respect. So we are convinced that the F.I.R. Exh.P.G. Is a genuine document and there was no delay in recording of the same. Mst. Rasoolan Bibi has supported the alleged motive. Abdul Ghafoor has stated in cross-examination that about 15 days before the occurrence, they had gone to the house of Fazal Elahi appellant to repeat their demand of dowry articles and dispute had arisen between them.
14. Adverting to the ocular evidence we find that Abdul Ghafoor had no motive to involve the appellants falsely in the case. His statement cannot be discarded on account of his relationsip with the deceased. He has given plausible cause of his presence on the spot at the time of occurrence.
His name is mentioned in the promptly lodged F.I.R. The F.I.R. Was lodged within three hours of the occurrence. Abdul Karim was removed to Tehsil Headquarters Hospital, Fort Abbas at a distance of 17 kilometres from the place of occurrence and was examined by Dr. Muhammad Musthaq Tahir on the same day at 7-45 p.m. So there was no sufficient time to procure false witnesses or to concoct false story in order to involve the appellants. Mushtaq is neither related to the deceased nor had any enmity with the appellants. He is natural witness of the occurrence. He was grazing animals near the place of occurrence. The two eyewitnesses have successfully faced the test of cross- examination. Their evidence is in consonance with the probabilities and materially fits in with the rest of the evidence. The statements made by them do not suffer from infirmities such as material contradictions, major discrepancies or dishonest improvements.
15. Bashir Ahmad recovery witness had no enmity with the appellants to involve them falsely in the case. He is Chairman, Ushr Zakat Committee. His house is at a distance of 2/3 Acres from the place of recoveries. No doubt he is the maternal-uncle of the deceased but his statement cannot be rejected on that ground alone. Sana-ul-Haq has supported the incriminating recoveries. His evidence cannot be disbelieved because of the office he holds. He had no motive to plant the recoveries upon the appellants. The learned trial Court has appreciated the evidence in accordance with the guiding principles laid down by the superior Courts. We do not see any legal infirmity in the judgment of the trial Court.
16. For all these reasons, we are convinced that the appellants have rightly been convicted under section 302/34, P.P.C. For the murder of Abdul Karim.
17. This brings us to the question of sentence. We have considered this question with utmost care on our part. We do not see any mitigating circumstance in favour of Fazal Elahi for lesser penalty.
As for Muhammad Tariq, although he had given one of the fatal injuries on the person of the deceased yet we do not feel inclined to enhance his sentence of life imprisonment to death on the ground that he had no direct motive against the deceased. He is related to Fazal Elahi appellant.
He is younger in age and as such there is reasonable possibility of his having acted under the influence of his co-accused.
18. The upshot of the above discussion is that there being satisfactory basis to uphold the convictions and sentences of the appellants, the appeal is dismissed. The death sentence awarded to Fazal Elahi appellant by the trial Court is CONFIRMED. The connected revision for enhancement of the sentence of Muhammad Tariq is dismissed.
19. Sentence of death is confiremed.