QURBAN SADIQ IKRAM, J.-On 27.5.1981 at about Degarwela Fateh Muhammad PW was proceeding on a bicycle on a Katcha Road in village Chhabriwala to visit his land at Band Bahuwala. When he reached near the Dhari of Karim Dad accused, all of a sudden Lai accused armed with hatchet, Abdul Razzaq, Aslam and Karim Dad accused armed with sticks got up and shouted Lalkara. Lai accused gave hatchet blow on the head of Fateh Muhammad who got injury on his left ear. Abdul Razzq accused and Aslam accused gave stick blows on the head of Fateh Muhammad whereafter Karim Dad gave a stick blow on his right finger and right calf. Fateh Muhammad raised alarm which attracted Allah Wasaya deceased, Sarang PW, Katu PW and Lalu PW. They tried to rescue Fateh Muhammad. At this Lai accused gave hatchet blows from blunt side on the head of Allah Wasaya deceased. Two more blows were given by Abdul Razzaq on the head of Allah Wasaya who was given stick blows on head by Aslam and Karim Dad accused. He fell down. Sarang PW tried to help Allah Wasaya deceased. He came forward. Lai accused gave hatchet blows on the head of Sarang who fell down. Abdul Razzaq accused gave stick blows on his head. Katu and Lalu PWs also tried to help their companions. They were given blows by Lai, Abdul Rassaq, Aslam and Karim Dad accused with their respective weapons on different parts of their bodies. The accused then left the spot-with their respective weapons. The injured were removed to hospital where All th Wasaya died as a resuIt of injuries before any medical aid could be rend ' d to him.
The motive was stated to be that the accused suspected Mst. Sakina wife of Lai accused of having illicit relations with Fateh Muhammad accused.
Kaura PW9 after getting medico legal certificates from hospital went to police station Saddar Dera Ghazi Khan, about 7 miles from the place of occurrence and lodged FIR Ex. PPC at 7.30 P.M. On the same day recorded by ASI Muhammad Siddique PW14.
2. The dead body of Allah Wasays, a middle aged man with good physique, was sent for post mortem examination which was conducted on 28.5.1981 at 9.30 A.M. By PW.5 Dr. Naseer Ahmad. The medical officer on external examination found six lacerated wounds of various dimensions on left and right sides of head of the dead body. On dissection the skull was found fractured under injuries 1 to 5. The membrane was lacerated corresponding to these injuries. The cranial cavity was full of blood. All injuries had been caused by blunt weapon. Injury No.6 was simple. Injuries No. 1 to 5 were grievous and dangerous to life. The death was due to shock and haemorrhage as a resuIt of injuries 1 to 5 which were individually and collectively sufficient to cause death in the ordinary course of nature. The time between injuries and death was 1 to 4 hours and post mortem was conducted in about 12 to 15 hours of death.
PW.6 Dr. Abdul Shakoor on 27.5.1981 at about 7 P.M. Medically examined Sarang PW and found 5 injuries of various dimensions on the middle of fore-head, on the middle anterior part of head, on left side of head and posterior surface of head. Injury No.5 on back surface of head was by blunt weapon while the remaining four injuries were by sharp edged weapon. Injuries No.3 and 4 on left side of head by sharp edged weapon were grevious in nature. All injuries had been caused within about 2 to 3 hours of examination.
At about the same time, the same medical officer examined Fateh Muhammad PW and noted 8 injuries of various dimensions on different parts of his person. Injury No. 1 on left ear was by sharp edged weapon whereas the remaining injuries were by blunt weapon. All injuries were simple in nature and of about 2 to 3 hours duration.
At about the same time the same medical officer examined Katu PW and noted six blunt weapons simple injuries of 2 to 3 hours duration on his person.
At about the same time the same medical officer examined Lalu PW and found 2 simple blunt weapon injuries of 2 ^ to 3 hours duration on his person.
PW 3 Dr. Musarat Abbas on 3.6.1981 medically examined Lai accused at about 9. A.M. And found 5 simple blunt weapon injuries of one week duration on his person.
3. ASI Muhammad Siddiqu PW.14 on 28.5.1981 during inspection of the place of occurrence collected blood stained earth vide memo Ex. PS where Allah Wasaya deceased had received injuries. He also took in possession becycle P.18 vide memo Ex. PT belonging to Fateh Muhammad PW in presence of Wahid Bakhsh PW.8 and Jalloo Pw not examined.
4. Lai 28, Razzaq 27, Aslam 20 and Karim Dad 80, accused were arrested by ASI Muhammad Siddique PW.14 on 2.6.1981. At the time of arrest Lai accused was found wearing blood stained clothes P.19 to P.
21. These were taken in possession vide memo Ex. PU by ASI Muhammad Siddique PW.14 in presence of Wahid Bakhsh PW 8 and Jalloo PW not examined. Razzaq accused was found wearing clothes P.23 to P.25 and Aslam accused was found wearing shirt P.26. These were respectively taken in possession vide memo Ex.PV and PW in presence of same witnesses.
5. On 2.6.1981 Muhammad Aslam accused while in police custody led to the recovery of blood stained Dang P.29 vide memo Ex. PAA; Karim Dad accused led to the recovery of blood stained Dang P.30 vide memo Ex. PBB; Lai accused while in police custody led to the recovery of blood stained hatchet P.27 vide memo Ex. PY and Abdul Razzaq accused while in police custody led to the recovery of blood stained Dang P.28 vide memo Ex.PZ in presence of ASI Muhammad Siddique PW- 14, Wahid Bakhsh PW 8 and Jalloo PW not examined.
The clothes and the crime weapons of the accused were found stained with human blood vide report of chemical Examiner Ex.PGG and that of Serologist Ex. PMM.
The accused were challaned after completion of investigation.
6. In support of its case prosecution examined 14 witnesses in all. PW.9 Kaura, PW.10 Fateh Muhammad, PW.Ll Katu, PW-12 Sarang and PW.13 Lalu were examined as eye witnesses of the occurrence. The medical evidence was furnished by PW3 Dr. Musarat Abbas, PW.5 Dr. Nazir Ahmad and PW.6 Dr. Abdul Shakoor as given in detail above. PW.8 Wahid Bakhsh witnessed incriminating recoveries from the place of occurrence and the accused. The case was investigated by ASI Muhammad Siddique PW-14. The evidence of the rest of witnesses was of formal nature.
Karim Dad and Aslam accused denied their presence at the spot at the time of occurrence. Lai and Razzaq accused admitted their presence at the time of occurrence. They both set up counter version of self defence. It was stated by them that Allah Wasaya deceased along with Katu, Sarang and Lalu PWs came to their Dhari to forciblly abduct Mst. Sughran, a sister of Razzaq accused. There was resistence by them which resuIted in injuries to Lai accused and also injuries to the complainant party. They examined Mst. Sughran DW1 in defence.
The trial was held by learned Additional Session Judge Dera Ghazi Khan. He accepted the evidence furnished by the injured eye witnesses and Kaura complainant. He accepted the evidence on motive, and incriminating recoveries from accused. The learned Additional Session Judge, therefore, vide the impugned judgment dated 7.11.83 sentenced Lai, Abdul Razzaq and Muhammad Aslam accused to death and fine of Rs.5000/- or in defauIt one year R.I. Each under section 302/34 PPC. Karim Dad was sentenced to imprisonment for life plus fine of Rs.5000/- or in defauIt one year R.I. Under section 302/34 PPC. They were further ordered to pay Rs.5000/- each as compensation to heirs of the deceased or in defauIt to suffer six months R.I. All four accused were sentenced to 5 years R.I. And fine of Rs.1000/- or in defauIt six months R.I. Each on four counts under section 307/34 PPC for murderous assauIt on Sarang, Katu, Fateh Muhammad and Lalu PWs. They were ordered to pay Rs.1000/- each on each count or in defauIt six months R.I. As compensation to the injured witnesses.
Lai accused filed Crl. Appeal No.255 of 1983, Abdul Razzaq accused filed Crl. Appeal No.256 of 1983, Muhammad Aslam accused filed Crl. Appeal 257 of 1983 and Karim Dad accused filed Crl. Appeal 258 of 1983 to challenge their respective convictions and sentences. The three accused having been sentenced to death, the proceedings are also before us for confirmation of their sentence.
Kaura complainant filed Crl. Revision No. 147 of 1986 for enhancement of sentences of the convicts.
This revision was not admitted and ordered to be heared along with the connected appeals. This judgment will dispose of all the above matters together.
7. We have heard the learned counsel appearing for the parties and have carefully gone through the record.
8. Karim Dad accused is father of Lai accused and uncle of Razzaq and Aslam accused.
Kaura PW is father of Lalu PW and brother of Fateh Muhammad PW. He is cousin of Allah Wasaya deceased. Similarly Katu and Sarang PWs are cousins of Allah Wasaya deceased.
The parties of this case had no previous interse enmity before this occurrence.
The only motive set up by the prosecution was that the accused suspected Fateh Muhammad PW of having illicit relations with Mst. Sakina wife of Lai accused. On the other hand it was stated by the accused that Mst Hani sister of Kalu a cousin of Fateh Muhammad PW, was married to Mubarak many years earlier. The said Mubarak was step brother of Karim Dad accused. At that time Karim Dad had no daughter. He promised that if ever a daughter was born to him, he would give her hand in exchange of Mst. Hani to her brother Kalu. He backed out from the said promise and for that reason on the day of occurrence Allah Wasaya deceased along with Katu, Sarang and Lalu came to their Dhari to forcibly abduct Mst. Sughran Bibi a sister of Razzaq which resuIted in the present occurrence. Besides these counter allegations there was no enmity between the parties before this occurrence. We have carefully examined the contentions on behalf of the parties. It was stated by PW.9 Kaura that he had heard about the general rumour in the illaqa that the accused were suspecting Fateh Muhammad of his illicit liaison with Mst. Sakina. He was unable to name any person who had conveyed him the said suspicion on behalf of the accused. It was stated by him that he did not approach the accused to verify this fact nor had asked Fateh Muhammad to be careful for his safety. He did not enquire from Fateh Muhammad PW if he had any such relations with Mst. Sakina or not. Fateh Mihammad who had returned from Dubai only 15 days before this occurrence after spending 8/9 years there denied his such relationship with Mst. Sakina. It was stated by PW.10 Fateh Muhammad that "there is no house of the accused near the place of occurrence. There is one cattle shed near the place of occurrence. The accused had migrated to village Aleechiwala where their families were putting up for the last 3 years prior to the occurrence.
As they had been ejected from the land near the place of occurrence, 15 days earlier, so they had abandoned that place and shifted their cattle to Band Aleechiwala which is towards west of the place of occurrence at the distance of 3 miles". Similar statements were made by Katu PW-11, Sarang PW-12 and Lalu PW-13. This means that the accused or their families were not residing at the place of occurrence since about at least 15 days before the present occurrence. As such the statement of PW.9 Kaura that about 8/10 days prior to the occurrence there was general rumour in the Illaqa about illicit relations between Fateh Muhammad and Sakina cannot be considered as correct. There is no direct evidence to support the evidence on motive. It was stated on behalf of the accused that Mst. Hani a sister of Kalu and cousion of Fateh Muhammad PW was married to Mubarak some years ago. Karim Dad accused was to give any of his daughter in marriage, in exchange, to Kalu. He backed out from the said promise on account of which the complainant party came to forcibly abduct Mst. Sughran which resuIted in the present occurrence. It was admitted before us by learned counsel for the appellants that at the time of marriage of Mst. Hani with Mubarak aforesaid Karim Dad accused had no daughter. It therefore, does not seem probable that after many years the complainant party would try to forcibly abduct Mst. Sughran DW who was neither directly involved in the said promise nor her hand was promised to be given in exchange to Kalu a brother of Hani. The eye witnesses consistantly made statement during trial that the family members of the accused party had shifted their residence, from the Dera where this occurrence took place, to Aleechiwala about three years earlier. They removed their cattle from that place about 15 days before the present occurrence. There is no evidence that the family members of the accused were residing at the said Dera at the time of present occurrence. Mst.
Sughran Bibi did not receive any injury on her person during the occurrence. If the complainant party had tried to forciblly abduct her, she must have received injuries on her person. The injuries on the person of Lai accused were not on vita! Parts of the body. Those were simple in nature and there is nothing to show that he received those injuries during the occurrence. If the complainant party had gone to forciblly abduct Mst. Sughran, they must have carried some weapons resuIting in more damage to the accused party. In our view prosecution has failed to prove motive against the accused. Similarly the defence version set up by the accused regarding abduction of Mst.
Sughran can also not be accepted. It appears to us that Fateh Muhammad PW was proceeding on his bicycle on a Katcha Path. He passed from near the Dhari of the accused who launched an attack on him for some reason which is not borne out from evidence on record. Allah Wasaya deceased and other witnesses came forward to rescue Fateh Muhammad and were assauIted by the accused.
9. The accused were arrested on 2.6.1981. Lai, Razzaq and Muhammad Aslam accused were found wearing blood stained clothes which were got remov'd and sent for chemical analysis. The recovery of blood stained clothes from the three accused seems improbable. The occurrence took place on 27.5.1981 and the accused were arrested about 5 days thereafter. It was not expected of them to continue to wear blood stained clothes during all this period.
All the four accused on the day of arrest led to the recovery of their respective blood stained crime weapons. These recoveries were witnessed by PWs Wahid Bakhsh a First cousin of Kaura complainant. Though related, Wahid Bakhsh had no enmity to falsely depose against the accused.
He had no direct or in-direct enmity against the accused. He made consistant statement to support the incriminating recoveries at the instance of the accused. It is correct that other residents of the locality were neither associated nor cited as witnesses to support the recovery of crime weapons from the accused but it is now well known that people do not come forward to support one or the other party in such like serious cases to avoid future enmity. The recoveries of crime weapons at the instance of the accused lend corroboration to the ocular account of the case.
10. In support of its case prosecution examined Kaura PW.9, Fateh Muhammad PW.10, Katu PW.Ll, Sarang PW12 and Lalu PW13 as eye witnesses of the occurrence. Excepting Kaura the remaining 4 witnesses were injured. The presence of these witnesses specially those who were injured could not be disputed. Two of the accused namely Lai and Razzaq admitted the presence of Katu, Sarang and Lalu PWs at the spot at the time of occurrence. It was stated by them that these witnesses along with Allah Wasaya deceased has come to forcibly abduct Mst. Sughran Bibi DW which resuIted in the present occurrence. The defence version as set up by the accused is not supported by any direct or indirect or circumstantial evidence on record. If the complainant party had gone to the place of occurrence to forcibly abduct Mst. Sughran then as held above they all would have carried some weapons with them. Secondly, in that situation Mst. Sughran must also have received injuries on her person or at-least her clothes must have been torne. Out of the two accused who admitted their presence at the spot at the time of occurrence Lai received 5 minor and insignificant injuries on his person. These injuries could have been received by him during the occurrence when he and his co-accused were inflicting injuries on the person of deceased and injured eye witnesses. It was, therefore, not necessary for the eye witnesses to explain his injuries during evidence. The eye witnesses though inter-related had no enmity to falsely involved the accused in this case. They were consistant in their statements to support the prosecution case during trial. In fact the learned counsel for the appellants did not have much to say against these witnesses specially because the presence of some of the witnesses was admitted by at least two of the accused.
11. Karim Dad accused is aged about 80 years. It appears to us that he may be present along with his co-accused at the spot at the time of occurrence but did not cause any injury to the deceased or the witnesses. We, therefore, as an abundant caution, keeping in view his old age give him benefit of doubt.
12. As a resuIt of the above discussion Crl. Appeal No. 258 of 1983 on behalf of Karim Dad accused is accepted. He is acquitted from all the charges. He is on bail. His bail and surety bonds shall stand discharged.
The case against Lai, Abdul Razzaq and Muhammad Aslam accused has been proved beyond reasonable doubt. We accordingly maintain their convictions under section 302/34 P.P.C. Their convictions under section 307/34 PPC on four counts are also maintained. We have held above that the prosecution has failed to prove motive against the accused. Even if the motive set up by the prosecution is accepted then also it would mean that the accused acted under sustained provocation because of illicit relations between Fateh Muhammad PW and Mst. Sakina. We, therefore, aIter their sentences of death into imprisonment for life each. Lai, Razzaq and Aslam accused are sentenced to imprisonment for life and fine of Rs.5000/- or in defauIt one year R.L each under section 302/34 PPC. They are directed to pay Rs.5000/- each or in defauIt to suffer six months R.I. Each as compensation to heirs of Allah Wasays deceased. Their convictions and sentences under section 307/34 PPC on four counts are maintained. All the sentences of imprisonment shall run concurrently. They will be allowed benefit of section 382-B Cr.P.C. Their sentences of death ARE NOT CONFIRMED
13. Subject to above modification Crl. Appeal No.255 of 1983 on behalf of Lai Crl. Appeal No.256 of 1983 on behalf of Abdul Razzaq and Crl. Appeal No. 257 of 1983 on behalf of Muhammad Aslam are dismissed.
14. As a resuIt of the above decision in appeals the connected Crl. Revision No. 147 of 1986 is dismissed in limine