SARDAR MUHAMMAD DOGAR, J.-- F.I.R. (Exh.P.H.) was registered at Police Station Chunian by Nazir Hussain Shah, A.S.I. (P.W.11), at 6--10 a.m. On 2-3-1981, on the statement of Mst: Rashida Bibi (P.W.7).
According to the F.I.R., complainant's father owned 13 Acres of land. He had constructed a residential Haveli at the Dhari near the Rajbah. The Haveli consisted of two residential rooms and one room for cattle. The complainant, her sister, Mst. Fahmida, her deceased brother Haji Muhammad were residing there alongwith their father. Akbar, her step-brother and his son Ashraf (appellants) were residing alongwith others in Kot Lala (both the Abadis are Dakhlis of village Jandwala). The father of the complainant had deprived Akbar from the property because of his nefarious activities and had transferred 13 Acres of land in the name of Haji Ahmad (deceased). He had also purchased 13 Acres of land in the name of Haji Ahmad (deceased). Akbar and Ashraf were aggrieved on that account. They often used to press the deceased (Nadir A.I) to give them land, but he did not concede. On account of that, Akbar and Ashraf became enemies of the family.
They were looking for opportunity to finish father and brother of the complainant to get the property.
On the night of occurrence, the complainant, her deceased father and Mst. Fahmida went to sleep in a room after chaining the door from inside. Haji Muhammad, her brother, slept in the other room.
Ashiq (C.W.1) slept near the cattle. Somebody knocked the door at 2-30 a.m. On being asked, he replied that they were travelers and were feeling cold. They demanded match-box. Father of the complainant got up. He lit the lantern hanging on the wall and stepped out of the door after opening the same. Akbar and his son Ashraf were present there alongwith two other persons. Akbar called out one of them as Majha. She gave the description of the fourth person and claimed that she will be able to identify them. They caught the father of the complainant. He raised a noise. The complainant and her sister came to the door. Ashiq also came there. Majha and the unknown culprit felled their father on the ground and held him from both the arms. Akbar caught him from legs. Ashraf after holding him from the hair, cut his throat in a slaughtering manner with the Chhura. Haji Muhammad came there on hearing noise. He ran back to the room on seeing his father lying bleeding. All the four accused chased him to the room. The complainant and her sister also followed them and beseeched them not to murder him. Majha pushed her away. When Mst.
Fahmida went ahead, he slapped her and tore away ring from her right ear; as a result of which her ear was injured. They then dragged Haji Muhammad from beneath the cot, where he had hidden.
The companions of Akbar and Ashraf felled him on the ground by holding him from the arms.
Akbar caught his legs while Ashraf slaughtered him after holding his hair. While writhing in pain, Haji Muhammad received injuries on the chin and ear also. The assailants then ran away. Both died at the spot. After some time Sardar A.I son of Jamil, uncle of the complainant, and some other persons arrived there. At about sunrise time she left for the police station alongwith Sardar A.I, her uncle, to lodge the report.
2. Nazir Hussain Shah, A.S.I. (P.W.11), after recording the F.I.R. Reached the spot. He prepared inquest reports (Exhs.P.M. And P.N.) of Nadir deceased and Haji Muhammad deceased, and collected blood-stained earth from two places. Lantern hanging on the wall inside the room was also taken into possession by him vide memo. Exh.P.O. The dead bodies were sent to the mortuary for post- mortem examination. He recorded the supplementary statement of the complainant at the spot, wherein she stated. That seven persons had participated in the occurrence and not four. She, however, did not name any of the additional three persons. The receipt produced by Mst. Fehmida about the purchase of ear-rings was taken into possession vide memo. Exh.P.K.
Rao Maqsood Ahmad, S.H.O. (P.W.12), who had partly investigated the case, arrested Akbar on 4-3- 1981. Siddique son of Sardar was also arrested by him on the same day. Muhammad Ashraf was arrested by him on 7-3-1981. On 10-3-1981, he led to the recovery of blood-stained Chhuri (P.1), which was taken into possession vide memo. Exh.P.E. Muhammad Rafiq, Akbar son of Qasim and Meraj Din alias Majha were arrested by him on 15-3-1981. Muhammad Rafiq, on the same day, led to the recovery of ear-ring (P.7/1), which was taken into possession -vide Exh.P.S./1. Meraj Din led to the recovery of one ear-ring (P.7/2) from Chak No. 4-L, District Okara, which was taken into possession vide memo. Exh.P.D. Akbar son of Qasim got recovered Lathi (P.8) and torch (P.3), which were taken into possession. The ear-rings recovered from the two accused were identified by Mst.
Fehmida to be her property.
Meraj Din, Akbar A.I son of Qasim and Muhammad Rafiq, who had been sent to jail, were put to identification parade on 19-4-1981, under the supervision of Muhammad Akram Cheema, M.I.C.
(P.W.13). Mst. Fehmida (P.W.8), identified all the three accused correctly. Mst. Rashida (P.W.7) correctly identified Muhammad Rafiq and Meraj Din. She could not identify Akbar A.I son of Qasim.
Ashiq correctly identified all the three accused.
After completion of necessary investigation challan was put to Court against six persons, i.e. Akbar son of Nadir, Muhammad Ashraf son of Akbar (appellants). Muhammad Siddique, Muhammad Rafiq, Meraj Din and Akbar A.I son of Qasim. Sooba, the seventh accused was shown as absconder.
3. The learned Additional Sessions Judge vide judgment, dated 5-3-1986 convicted Akbar son of Nadir and Muhammad Ashraf son of Akbar under section 302/34, P.P.C. And sentenced both of them to death, plus to pay a fine of Rs.10,000 each, in default whereof to undergo R.I. For two years each. The rest of the accused were acquitted vide the same judgment.
4. 13 P.Ws. Were examined at the trial. Statement of Muhammad Ashiq, named as a witness in the F.I.R. Was recorded as C.W.1, after the statements of the accused had been recorded under section 342, Cr.P.C. Statement of one D.W. Was also recorded. It may be mentioned here that the statements of all the P.Ws., statements of the accused, statement of C.W. And part statement of D.W.1 was recorded by Mr. Javid Iqbal Siddiqi, Additional Sessions Judge. On his transfer the remaining statement of D.W.1 was recorded by Haji Muhammad Ashraf Butt, Additional Sessions Judge. The judgment was delivered by him after hearing the parties.
5. Dr. Muhammad Ashraf, who had performed autopsies on both the dead bodies appeared as P.W.1. The post-mortem on the dead body of Nadir was performed by him at 3 p.m. On 2-3-1981. He had noted two cut wounds in front and both sides of neck, extending upto cervical spine. Blood vessels on both sides were found completely cut. Soft tissues, i.e. Trachea, oesophagus and muscles were also found cut. Stomach contained semi-digested food. The bladder contained four ounces of urine.
Death was opined to have resulted due to shock and haemorrhage, resulting from the injuries, which were opined to have been caused by a sharp---edged weapon. Duration between death and injuries was opined to be immediate while time between death and post-mortem was opined to be 12 to 24 hours.
Post-mortem on the dead body of Haji Muhammad was performed on the same day at 4 p.m.
Following injuries were noted on his body:- (1)Multiple cut wound in front and both sides of neck cutting the whole thickness of the neck upto spine. Blood vessels on both sides were cut through.
(2)Cut wound 8 c.m. x 1 c.m. x bone deep, left side of face in front of ear.
(3)Cut wound 4 c.m. x 1/2 c.m. x skin deep on the lower lip, left side.
(4)Two cut wounds 1 c.m. x 1/2 c.m. Skin deep and 1.5 c.m. x 1/2 x skin deep, in front of chin.
Trachea was found cut. Stomach contained semi-digested food and bladder contained four ounces of urine.
Death was opined to have resulted due to shock and haemorrhage, resulting from injury No.1. All the injuries were opined to have been caused by a sharp-edged weapon. Duration between injuries and death was opined to be immediate while time between death and post-mortem was opined to be 12 to 24 hours.
He had also examined Mst. Fehmida P.W. On the same day, on application (Exh.P.C.) submitted by the police. He had noted a lacerated wound tearing away the lobol of the right ear. The injury was opined to be simple caused by a blunt weapon, between 12 and 24 hours.
During cross-examination, the doctor admitted that M.L.R. (Exh.P.C./1) was not on regular medical form but was on the paper on which application (Exh.P.C.) had been written by the police. He, during cross-examination, also expressed the opinion that it takes 2 to 3 hours to convert the food into semi---digested form.
6. The ocular account was deposed to by Mst. Rashida complainant (P.W.7) and Mst. Fehmida, her sister (P.W.B).
Mst. Rashida repeated the facts given by her in the F.I.R. However, instead of mentioning four persons as culprits, as narrated by her in the F.I.R., she stated that seven persons had committed the occurrence. In that, she explained that she had missed to mention the presence of three other culprits due to shock and so had made. Supplementary statement about them at the spot when the police had reached there. The other noticeable change made by her in the statement, is, that she named four persons specifically (acquitted accused) whom she had not named specifically both in the F.I.R. And the supplementary statement. She also claimed to have identified Muhammad Rafiq and Meraj Din during identification parade held in District Jail Kasur. The statement made by her about the Use of torch by the accused was not found recorded in the F.I.R.
The details given by her at the trial about her father marrying thrice and issues born from each wife were also not found to have been given by her in the F.I.R., on confrontation. Although she denied that she was married to Yasin and her sister Fehmida was married to Amin sons of their uncle Wahga; and she also denied that they had filed suit for dissolution of their marriages, but the filing of suits for dissolution of marriages against Yasin and Amin was admitted by Mst. Fehmida (P.W.8).
She denied that she was not in her house at the time of occurrence and had gone to village Boongi since 2/3 days prior to the occurrence alongwith Mst. Fehmida and had returned from there on receipt of information about the occurrence alongwith one Farzand son of Nizam Din and other relatives from the maternal side. She denied that she had made statement to the police in consultation with Farzand and others. Although she admitted that Farzand had engaged a counsel to represent her but denied her illicit intimacy with him.
Mst. Fehmida (P.W.8) corroborated the narration given by Mst. Rashida (P.W.7) about the commission of offence. Like her, she named both appellants specifically and five other culprits. She claimed to have identified Rafiq, Meraj Din and Akbar (acquitted accused) during the identification parade held in Kasur jail. She admitted that after more than one year of the occurrence, she had entered into marriage with Ahmad A.I brother of Farzand while her sister had married Farzand. She denied that both of them had developed illicit relations with them prior to the occurrence and that her father and other relatives were annoyed over that. She also stated of having identified her ear- rings removed by the culprits at the time of occurrence. She denied the suggestion that she had not witnessed the occurrence and had made a false statement.
The evidence of recovery of Chhuri (P.1) at the instance of Ashraf from his Jhuggi was deposed to by Ghulam Akbar (P.W.5). His statement in this regard has been corroborated by R.I Maqsood Ahmad, S.I. (P.W.12).
Nazir Hussain Shah, A.S.I./S.I., who had registered the case appeared as P.W.11. After giving the account of registration of case and inspection of spot done by him, he stated that Mst. Rashida in the supplementary statement made at the spot had stated that instead of four seven persons including the appellants had participated in the occurrence. He denied the suggestions that the case had been registered after preliminary investigation and that he had involved innocent persons in connivance with the complainant party.
R.I Maqsood Ahmad, S.I., who appeared as P.W.12 deposed about the arrest of the appellants and the acquitted accused. He also stated about Muhammad Ashraf having got recovered Chhuri (P.1) from his Dhari. He denied the suggestion that he had fabricated a false case in connivance with one Farzand.
Muhammad Akram Cheema, M.I.C., who had supervised the identification parade appeared as P.W.13 and deposed about identification of accused by P.Ws. Mst. Rashida, Mst. Fehmida and given up P.W. Muhammad Ashiq, who was later examined as C.W.1.
7. The appellants during their statements under section 342, Cr.P.C. Denied the prosecution case and pleaded innocence. They admitted their relationship inter se as well as with the deceased and P.Ws. Akbar appellant stated as follows in answer to the question, `why this case against you':- "My name was not present in the F.I.R. And the police has involved me with ulterior motive."
Ashraf appellant also stated the same.
They also examined Dost Muhammad son of Nizam Din as D.W.1. He stated that he was married to Mst. Nur Bibi, daughter of Mst. Jewu Bibi, who was maternal-grandmother of Mst. Rashida and Mst.
Fehmida. Mst. Nur Bibi, according to him, had died 13 years prior to the occurrence. According to him, Mst. Fehmida and Mst. Rashida were in village Bongi on the day of occurrence with Mst. Jewu, their grand-maternal-aunt, where he had also come to see her. According to him, on the day of occurrence, information was received in the morning that a dacoity had taken place in the house of Nadir, wherein both Nadir and his son were murdered. He stated that he alongwith Mst. Rashida, Mst. Fehmida and some other persons had gone to the place of occurrence, where Ashiq told them that a dacoity had taken place during night and the dacoits had murdered Nadir and his son.
During cross-examination, he denied that he was real maternal-uncle of Ashraf appellant. He expressed inability to tell the names of other persons who had told them about the murders of the deceased by dacoits. He admitted that he had not informed the higher authorities about the falsity of the case. He denied that he had made a false statement.
Muhammad Ashiq, named as an eye-witness in the F.I.R. Was examined as C.W.1 on the request of the appellants. He made a contradictory statement to the prosecution case and stated that the deceased had been murdered by the dacoits who had broken in during night of occurrence.
According to him, both Mst. Rashida and Mst. Fehmida were not in the house on the night of occurrence and they had come there on being summoned. He stated that they had reached the spot at 10 a.m. Alongwith their maternal-uncle, one Farzand and 10/12 other persons. He stated that Thanedar thereafter recorded the statement of Mst. Rashida in consultation with them. He admitted of having participated in the identification parade and of having identified three acquitted accused, but set up the plea that he had been able to do so as the accused had been shown to him prior to the identification parade.
8. Learned counsel for the appellants after taking us through the evidence criticised the impugned judgment and contended, that the motive alleged, is incorrect, that there is sufficient material on record to believe that the two ladies were not in the house at the time of occurrence; in that learned counsel made reference to site plan (Exh.P.D.), wherein the presence of the cots is not mentioned in the room where they claimed to have slept during the night of occurrence, that even if it be granted that they had-witnessed the occurrence, no weight can be given to their testimonies, as they could not have identified the culprits because of darkness; that the F.I.R. Was lodged against two appellants and two unidentified persons while three others were later involved, which shows that the whole exercise was done under the advice of some other interested persons, that the medical evidence is contradictory to the ocular account; that evidence of recovery of Chhuri (P.1) is not believable--, and that the injury on the ears of Mst. Fehmida seemed to be fabricated.
9. Learned counsel for the State defended the judgment of the trial Court.
10. The two deceased in this case were father and son. Out of the two appellants, one, i.e. Akbar is son of Nadir deceased while Ashraf is his grandson. The two eye-witnesses are daughters of Nadir A.I deceased and sisters of Haji Muhammad deceased. They are also step sisters of Akbar appellant. The case, therefore, before us is of patricide, in which the eye-witnesses are also blood relations of the deceased and the appellants.
11. The motive for the occurrence given is that Nadir deceased had deprived Akbar of his right of inheritance and had transferred the whole property in the name of Haji Muhammad deceased.
Although the two appellants in a general manner have denied the prosecution case in this regard, but no specific statement was made to counter the prosecution case that Nadir deceased had transferred 13 Acres of land owned by him in the name of Haji Muhammad deceased and had also purchased another 13 Acres of land in his name. In fact, no suggestion even was put to the witnesses during cross-examination. The appellants had entered into defence. If this fact had been incorrect, they could have countered this fact by producing copy of Jamabandi or any other relevant document to show that the land was in the name of Nadir deceased at the time of occurrence and the prosecution case of the same having been transferred to Haji Muhammad deceased was false. In the circumstances, there is nothing to consider that the prosecution had failed to prove the motive.
12. The argument that Mst. Rashida and Mst. Fehmida were not in the house on-the night of occurrence does not possess any weight. If the two ladies had not been in the house, the occurrence could not have been reported so promptly. The stance of the defence that the two ladies had reached the spot on being called at 10 a.m. And the F.I.R. Was recorded one and a half hours thereafter, after consultations, stands contradicted by the fact that the F.I.R. Was recorded at the police station at 6-10 a.m.
13. The reference made by the learned counsel to Exh.P.D. That no cots of the two eye-witnesses have been shown in the site plan is factually correct, but that, in our view, is not enough to discard the claim of the eye-witnesses being present on the night of occurrence in the house, for the reason that the draftsman had not even shown the presence of the cots of the two deceased, who definitely were in the house during the night and had slept there. It is not the case of the defence that the deceased were not done to death in the said house or that, they had not slept there. The failure of the draftsman to note the presence of the cots of the two P.Ws., in the light of the fact that he had also failed to record the' presence of the cots of the two deceased, loses any significant importance, the benefit of which could be given to the defence.
14. It is of course an admitted fact that in the F.I.R. Apart. From the two appellants, participation of two other persons is also mentioned and as a result of the supplementary statement made by the complainant later and the statement made by Mst. Fehmida (P.W.8), the challan was submitted against seven persons including the appellants, showing one of the accused as absconder. But the fact remains that the stand of the two eye-witnesses regarding participation of the appellants in the occurrence remained consistent at all stages. The motive has also been assigned to them.
Major parts in causing the death of two deceased have also been assigned to them in the F.I.R. And in the statements made at the trial. Therefore, no extra advantage can be given to the appellants on account of the two eye-witnesses having made allegations against other persons also having participated in the occurrence.
15. The contention that the two ladies could not have identified the culprits because of the darkness also, in our view, in the circumstances of this case, does not possess much value. The reason being that even if the existence of the light of the lantern is excluded, the fact has to be granted that they being sisters of one appellant and aunts of the other could have easily identified them. It wasn't the occurrence of hit and run. This occurrence would have taken some time, as such they could have easily identified the appellants, being their own kith and kin.
16. The stance of the appellants at the trial that occurrence, in fact, was a dacoity-cum-murder, and they were involved in the case on the mechanization of one Farzand, has been considered by us after considering material on record. The F.I.R. In this case was recorded in the presence of Sardar A.I, a paternal-uncle of the complainant (his name is recorded m the Karwai police). Sardar A.I, who was uncle of the complainant, naturally was uncle of Akbar appellant also. His presence at the spot at the time of arrival of the police and thereafter too was never denied. No suggestion was given at the trial that Sardar A.I was inimical to the appellants in any manner or had any differences with them. Wahga was another uncle of P.Ws. And Akbar appellant. His association during investigation of the case also finds mentioned. These two brothers could not have been a party to the false involvement of their real nephew and his son in the case. Had the appellants been involved under the influence of anyone else, they would not have taken that down lightly.
They would have made hue and cry and would have come as witnesses at the trial. Moreover, if Farzand, or for that matter anybody else, had been at the back of registration of case, then the appellants alone would not have been specifically named in the F.I.R., but they would have got named specifically other persons also whom they would have considered their enemies. The post- occurrence conduct of the two ladies vis-a-vis their marriages, the suits filed by them for dissolution of their marriages against their cousins and of their having married other persons cannot be granted to throw away their testimonies. It is quite possible that after being left alone and stranded on the murders of their father and only brother, some persons might have been taking advantage of their helplessness to look after themselves.
17. The contention that the medical evidence is contradictory to the ocular account is based on the fact that the doctor, who had performed autopsy had mentioned that he had noted semi-digested food in the stomachs of both the deceased and also on the fact that the two eye-witnesses had stated that the deceased had taken food in the evening.
Both the eye-witnesses at the trial had mentioned the time of occurrence to be Ochi Sargi Wela, which means that the occurrence had taken place somewhere- in the second part of the night, i.e. Round about 1 a.m. The 2-1/2 O'clock night time given in the F.I.R., as time of occurrence, could not have been given by the complainant because she did not possess any watch nor could she have given nearest approximation of time by watch. This time must have been worked out by the A.S.I., who had recorded the F.I.R. Neither the doctor stated himself nor he was specifically asked as to what was the stage of the semi---digested food? The food becomes semi-digested because of process of digestion which starts alongwith intake of the food. Digestion state of the food remains till it is completely digested. The complete digestion takes place in about six hours. In that view of the matter, the mere fact of the semi-digested food having been found in the stomachs of the deceased is not enough to hold that the occurrence had taken place in the earlier part of the night.
Moreover, the complainant could not have benefited by giving the time of occurrence to be 2-30 a.m. During night if the same had taken place an hour or two earlier. She could only have been benefited if the occurrence had been reported to have taken place nearing day time so that problem of darkness should not have been a challenge to her in identification of the assailants.
18. The contention that the injury on the ear of Mst. Fehmida was fabricated in order to make her presence natural, is not in consonance with the medical evidence. It cannot be believed that any girl would think of such a device or would have allowed her face to be disfigured at the instance of anybody else. The contention, in our view, does not possess any weight.
19. The ocular account which finds support from the evidence of motive, evidence of recovery of Chhuri (P.1) at the instance of Akbar appellant and is also corroborated by the medical evidence, in our view, has sufficiently brought home the guilt to the appellants. The appeal filed by them is, therefore, dismissed and the death sentences awarded to them are confirmed.
20. Although it has not been specifically and categorically noted in the impugned judgment that they are convicted and sentenced on two counts, but purpose and purport is clear in that regard.
Learned counsel for the appellants has also not raised any objection in this regard. The appellants shall, therefore, be deemed to have been convicted on both the counts and awarded sentences also on both the counts.
21. Another fact which we would like to note here is that 70 years of age given by Akbar appellant at the trial does not seem to be correct because Nadir deceased, who admittedly was his father was also 70 years of age at the time of occurrence, as noted by Dr. Muhammad Ashraf (P.W.1). The son and father both could not have been of the same age. He must have been younger enough, to be son of a person aged 70.
H.B.T./M-1262/L