' SARDAR MUHAMMAD DOGAR, J--Muhammad Shafi (40), his brother Sabir Hussain (26) were tried by Additional Sessions Judge, Sargodha, along with their father Lal Khan (70), Maliboob (48), the son, and Muhammad Boota (22), for having murdered Muhammad Akram (25) at Peshiwela on 30-4-1982 within the village Abadi of Chak No, 62 /SB, at a distance of ten miles from Police Station Sillanwali. The learned trial Judge convicted Muhammad Shaft and Sabir Hussain under section 302/34, P.P.C. Vide judgment dated 11-6-1984 and sentenced each of them to death, plus to pay a fine of Ks. 2,000 each, in default whereof to suffer R.I. For one year each. Fine, on recovery, has been directed to be paid as compensation to the heirs of the deceased. Their co-accused were acquitted vide the same judgment.
2. The convicts have filed appeal. The complainant has filed criminal revision (Cr. R. 113/84) against the acquittal of Lal Khan, Mahboob and Muhammad Boota, with prayer for retrial. Learned trial Judge has made reference under section 374, Cr. P.C. For confirmation of death sentences.
' As all the three matters arise from the same judgment, they are being disposed of by the ensuing judgment.
3. F.I.R. (Ex. P.C.) was registered by Sher Muhammad, S.I. (P.W. 8), on the statement of Muhammad Aslam (P.W. 6) at 6.30 p.m. On 30-4-1982.
According to the F.I.R. Muhammad Yousaf, husband of paternal-aunt of the complainant had purchased nine acres of land from Muhammad Sadiq situated in their Chak (No, 62/SB,) three years before the occurrence. The land was in cultivating possession of Lal (acquitted accused)
Muhammad Yousaf repeatedly made demands for share of produce from Lal etc. But neither they gave the Batai nor relinquished the possession. A year before the occurrence, Muhammad Yousaf tried to take the possession of the land. In that process arm of Muhammad Hussain father of the complainant, was fractured by Lal etc. As a result of which a case under section 325, P.P.C. Was registered against Lal etc. The accused were acquitted. Another occurrence took place eight months before the present occurrence. In that Lal Khan and his sons Mahboob (acquitted accused) and Sabir (appellant) suffered injuries, as a result of which a case under section 307, P.P.C. Etc. Was registered against the complainant, his father Muhammad Hussain, Muhammad Yousaf, his paternal-aunt's husband, Muhammad Akram deceased and three others. Muhammad Akram deceased and the complainant returned home after release on bail. The other accused were also admitted to bail.
' On the day of occurrence, complainant alongwith his brother Muhammad Akram deceased came out of the mosque after saying Jumma prayer. They were confronted by Muhammad Shafi appellant, armd with a Kulhari, Sabir Hussain appellant, armed with a Dangori, accompanied by Mahboob, Lal Khan and Muhammad Boota, armed respectively with Dangori, Sota and Dangori. Lal raised a Lalkara that Muhammad Akram be murdered for taking revenge of the earlier occurrence.
Whereupon, Muhammad Shafi gave a blow on the right upper-arm of Muhammad Akram with the wrong side of Kulhari. Sabir gave a blow on the head of Akram with Dangori. Akram fell down.
Muhammad Boota, struck him a Dangori on the right arm. Whereafter, Muhammad Akram was dragged by Muhammad Shaft and Sabir to their Baithak, where Mahboob and Lal gave him successive blows with the Dangori and Sota hitting him on the right and left side of ribs, back and thigh. Mushtaq Shah (given up P.W.) and Wali Muhammad (P.W. 7) reached the spot and witnessed the occurrence, on the noise raised by the complainant. They saved Muhammad Akram by beseaching the accused. The accused ran away towards east raising Lalkaras. Akram was shifted to Civil Hospital, Sillanwali, where he succumbed to the injuries at 5 p.m.
4. Sher Muhammad, S.I. (P.W. 8), after recording the F.I.R. Visited Civil Hospital and despatched the dead body of Muhammad Akram for post-mortem examination, after preparing injury statement (Ex. P.J.) and inquest report (Ex. P.K.). He reached the spot same night but postponed the spot inspection till morning due to darkness. On spot inspection, he collected blood-stained earth from the place where the deceased was given injuries vide memo. Ex. P.D. The appellants and acquitted accused Mahboob and Boota were arrested by the S.L, on their appearance before him, on 9-5- 1982. Lal Khan was arrested on 12-5-1982 on his appearing before the Si.
' On 13-5-1982, Muhammad Shall led to the recovery of blood-stained hatchet (P. 4) from his Baithak, which was taken into possession vide memo. Ex. P.E. On the same day Sabir Hussain led to recovery of Dangori (P. 5) from the ceiling of his Baithak, which was taken into possession vide memo. Ex. P.F. Muhammad Boota led to the recovery of Dangori (P. 6) on the same day from shrubs near school building of Chak No, 62/SB. It was taken into possession vide memo. Ex. P.G. The memos. Were attested by Muhammad Aslam (P.W. 6) and Sher Muhammad S.I. (P.W. 8). Mushtaq Shah, who also attested the recovery memos. Was given up as won over. Sota (P. 7) was got recovered by Lal Khan on 14-5-1982 from underneath the wooden manger lying in the cattleshed, which was taken into possession vide memo. Ex. P.H. Attested by the same P.Ws.
' After completion of necessary investigation, challan was put to Court.
5. Statements of nine prosecution witnesses were recorded at the trial.
' Dr. Muhammad Aitaf, who had performed autopsy on the dead body of Muhammad Akram appeared as P.W.1. He had noted following injuries on the body of the deceased:-
(1) A contused swelling 14 cm x 8 cm on the right side of head.
(2) A lacerated wound, 2 cm x 1/2 cm x bone deep on the back left side of the head.
(3) A contusion 6 cm x 3 cm on the back and outer aspect, left upper arm, middle part, with the fracture of humorous bone.
(4) A contusion 8 cm x 3 cm on the outer aspect of right upper arm, lower part.
(5) Multiple contusion of different size and in different directions, uncountable, on the back and outer aspect of right chest and back of right shoulder.
(6) Multiple contusion of different sizes in different directions, on the back of left chest and shoulder.
(7) Three contusions 12 cm x 2 cm, 11 cm x 3 cm and 8 cm x 3 cm on the outer aspect of right hip, upper part.
(8) Four contusions in area 24 cm x 12 cm on the outer side of right knee and thigh.
(9) Multiple abrasion on the back of chest and back.
' On dissection right parietal bone was found fractured. Right fifth to ninth ribs were found fractured under injury No, 5.
' Death was opined to have occurred due to shock and haemorrhage (internal), caused by injuries 1, 3 and 5 collectively, or by injuries Nos. 1 and 5, which were individually sufficient to cause death in the ordinary course of nature.
6. Muhammad Aslam complainant (P.W. 6) and Wali Muhammad (P.W. 7) furnished the ocular account.
' Muhammad Aslam repeated the facts given by him in the F.I.R. The only alteration, he made, was, that Muhammad Boota was a party man of the other accused. He also stated about having witnessed the taking into possession of blood-stained earth from the spot and of having witnessed the recoveries of weapons of offence from the appellants Boota, and Lal acquitted accused.
' During cross-examination, he admitted that he had not mentioned the fact of Muhammad Boota being a party man of the accused in the F.I.R. (Ex. P.C.). He also conceded that Muhammad Boota was a witness against him, deceased and his other relatives in the case registered under section 307, P.P.C. In answer to another question, he stated that the appellants, acquitted accused Lal and 'Vfahboob were named as accused in case under section 325, P.P.C. Mentioned in the F.I.R. And that the said case was pending at the time of murder of Akram. He stated that the accused were at a distance of two karams when they had noticed them for the first time. He denied the suggestion that the occurrence had taken place in the morning and they had changed the time to Jumma prayer time. The suggestion that Sabir appellant had come out of the mosque at 10/11 a.m. On the day of occurrence and Muhammad Akram deceased on seeing him had coughed mischievously and Sabir had objected to that and that both had exchanged abuses, was denied by him. He also denied the suggestions that the deceased had chased Sabir when he had run to his Baithak and had assaulted him there and that it was there that Sabir had picked up a Sota from the Baithak and had given injuries to the deceased. The suggestion that the other accused had not participated in the occurrence was refuted by him. While answering questions about his association with the recoveries of weapons of offence from the accused, he stated that he was summoned by the police from his house through Siddique Chaukidar to the school where police had camped.
' Wali Muhammad (P.W. 7), corroborated the statement made by Muhammad Aslam complainant (P.W. 6) about actual occurrence. During cross-examination, he admitted that he alongwith the complainant and others were challaned under section 307, P.P.C. For having beaten Lal, Sabir and Mahboob accused two and a half months before the occurrence.
' Sher Muhammad, S.I. (P.W. 8) gave the details of the investigation, the arrest of the accused and the recoveries effected from them. In this regard he has corroborated the statement made by Muhammad Aslam complainant (P.W. 6).
7. The appellants during their statements under section 342, Cr. P.C. Denied the prosecution case as a whole, and pleaded innocence and false involvement due to enmity. They denied the recoveries of weapons of offence. Both of them admitted that nine acres of land of Muhammad Sadiq, which was under cultivation of their father Lal Khan, had been purchased by Muhammad Yousaf Phupha of Muhammad Aslam complainant. They also admitted the occurrences as a result of which separate cases under sections 325, P.P.C. And 307, P.P.C. Were registered inter se the complainant party and them. Sabir Hussain gave his own version in answer to the question, "Is it a fact that after this you and Muhammad Shall your co-accused dragged Muhammad Akram deceased from near the door of mosque to your Baithak where Mehboob and Lal Khan your co-accused gave Dang blows to Muhammad Akram deceased which hit him on his left and right ribs, back and thigh", as follows:- "On the day of occurrence, in the morning I was coming in the bazar when Muhammad Akram deceased taunted me by giving out a cough (Khangora) to which I felt and thereafter there was an exchange of abuses and an altercation between deceased and me. The deceased chased me up to my Baithak. From there, I picked up a Sota and injured deceased in self-defence."
8. Learned counsel for the appellants after taking us through the evidence criticised the impugned judgment and contended that the prosecution has failed to prove the motive, that the only two eye-witnesses examined at the trial were interested and inimical, as such their testimonies are not worth reliance. Leained counsel vehemently argued that the eye-witnesses, in fact, had not seen the occurrence. The medical evidence, according to him, is contradictory to the ocular account. In that he pointed out that no dragging marks were found on the body of the deceased while according to the eye-witnesses the deceased was dragged from near the mosque upto the Baithak of appellants. The evidence of recoveries of weapons of offence, according to him, also cannot lend corroboration to the ocular account as the same has also been deposed to by the eye-witnesses and so the witnesses cannot corroborate themselves. Lastly, learned counsel submitted that even if the conviction of the appellants under section 302/34, P.P.C. Is maintained, it is not a case of maximum penalty of death, as the prosecution has not been able to clearly establish as to who was the author of the injury/injuries which proved fatal. He cited Saee etc. v.
State (1984 SCMR 1069), Faiz Muhammad v. State (1986 P Cr. U 973) and Sibtain Shah etc. v. State (1978 P Cr. L J 490) in support of his argument.
9. Learned counsel for the State/complainant defended the judgment of the trial Court and contended that the prosecution have proved the motive squarely and that the presence of the eye-witnesses at the spot was natural and so their testimonies cannot be discarded for any sound reason. The evidence of recoveries, according to them, apart from the complainant, was corroborated by Sher Muhammad, S.I. (P.W. 8) against whom no malice was alleged.
10. Learned counsel appearing for the complainant while arguing the revision petition filed against the acquittal of Lal Khan, Mahboob and Muhammad Boota contended that learned trial Judge has acquitted them on erroneous assumptions and that their case was not distinguishable from the appellants who stand convicted for the same offence.
11. The tug-of-war between the parties started three years before the occurrence. In that Muhammad Yousaf a Phupha of the complainant purchased nine acres of land from one Sadiq, which was being cultivated by Lal Khan acquitted accused etc. Yousaf started pressing Lal Khan etc. For giving him share from the crop or relinquish the possession. Lal Khan etc. Resisted; as a result of which, a year before the present occurrence, the arm of Muhammad Hussain, father of the complainant and the deceased was fractured. A case under section 325, P.P.C. Was registered against the appellants, their father Lal Khan and their brother Mahboob (acquitted accused). The said case was pending at the time of the present occurrence. The accused were acquitted after the present occurrence. Another occurrence took place some eight months before the present occurrence, in which Lal Khan, Mahboob (acquitted accused) and Sabir appellant suffered injuries.
A case under section 307, P.P.C. Was registered against the complainant, deceased, their father Muhammad Hussain and Muhammad Yousaf who had purchased the land and three others. The present occurrence had taken place two and a half months after the deceased and the complainant had returned home on being released on bail.
12. It is apparent from the above sequence that unhappiness of Lal Khan and his sons started on account of purchase of land under their cultivation by the complainant party. They were then proceeded against under section 325; P.P.C. And they earned their acquittal after the murder of Muhammad Akram. In the occurrence, last preceding the occurrence of murder of Akram, Lal Khan, Sabir and Mahboob suffered injuries at the hands of the complainant party. The complainant party thus became a source of inconvenience and annoyance to Lal Khan and his sons three years prior to the occurrence. They must have been feeling at a loss and unhappy for all what the complainant party had been doing and would thus be looking for an opportunity to avenge that. In the circumstances, we are clearly of the view that the appellants had the motive against the complainant party.
13. The argument of the learned counsel for the appellants that Muhammad Asiam and Wali Muhammad do not appear to have witnessed the occurrence is based on two suppositions. One, that if they had been at the spot, they would not have allowed the accused to cause so many injuries to the deceased and would have definitely intervened. Second, that had they been present there, the accused would not have spared them alive or at least they would have suffered some injuries at the hands of the accused.
The occurrence had started when the deceased and the eye-witnesses had come out of the mosque after saying their Jumma prayer. Naturally none of them would have been armed with anything. The deceased was attacked at a short distance from the doors of the mosque and as such, there could not have been any time at the dispoal of the eye-witnesses to collect some weapons to resist the attack and intervene, because intervention without arm could have been dangerous for them. These witnesses could easily have imagined the way they would have been dealt with if they had intervened because of the hostile and strained relationship between them.
14. The argument that the accused would not have spared them alive or would have at least given them'some injuries, in our view, is not weighty enough to hold that these witnesses were not present there because we cannot imagine that the accused party had launched the attack with any idea of eliminating the whole family. They had chosen one person as their target and as they werejc allowed free hand to deal with him even in a cruel manner, they might not have) bothered about the others.
15. The contention that since no dragging marks were noted on the body of the deceased and so the medical evidence contradicts the ocular account is also without any force. It is not the case of the prosecution that deceased was dragged for a long distance; nor is it the case of the prosecution that the surface was hard. It is also possible that the deceased was dragged not fully lying on the ground in prostrate condition. The mere fact that the doctor had not noted any injury, k) resulting from dragging, cannot negate the authenticity of the ocular account.
16. The contention of the learned counsel for the appellants that no independent witness was produced in spite of the fact that there might have been persons, who would have witnessed the occurrence, and that no reliance can be placed on the testimonies of the eye-witnesses on account of their relationship has also been considered by us.
It is not a case where the complainant had excluded independent witnesses. In fact, the complainant had named one Mushtaq Shah to have witnessed the occurrence. He was given up at the trial for having been won over. No effort was made by the accused to have him examined as a defence witness or at least to have prayed for examining him as a court-witness. The parties were at E daggers drawn with each other for the last three years. Two occurrences with short intervals had taken place between the parties, resulting in injuries to one party and registration of a 'case against the other party. In the circumstances, it can well be imagined that nobody would have liked to become a party in the enmity between the parties.
' The contention that the testimonies of these witnesses be discarded on account of their being related and so interested, has not impressed us. The statements made by these witnesses cannot be brushed aside on account of their being related to the deceased. Of course, in the circumstances, one has to look for corroboration, which is available in this case.
17. Kulhari recovered at the instance of Muhammad Shafi and the dagger recovered at the instance of Sabir Hussain, both were, found stained with blood. The said recoveries were witnessed by Mushtaq Hussain Shah and Muhammad Aslam (P.W. 6). Mushtaq Shah was given up having been won over. No doubt, Muhammad A slam P.W. Is related and so interested, but his statement has been corroborated by Sher Muhammad, S.I. (P.W. 8), who is neither inimical to the appellants nor related or interested in any manner to the complainants in the matter of recovery.
' The discrepancy pointed out by the learned counsel in the statements of Muhammad Aslam and Sher Muhammad, S.I. About the latter having joined the former, according to our view, is not enough to discard their testimonies.
18. The net result of the above discussion is that the ocular account in this case stands corroborated from the evidence of motive as well as evidence of recoveries of weapons of offence.
19. This brings us to consider the defence version put forth by Sabir appellant. His statement that the occurrence had taken place at about 10/11 a.m. And that the complainants had advanced the same by stating that the occurrence had taken place after Jumma prayer is absolutely without any foundation. The duration of injuries given by the doctor is corroborative of the time given by the complainant. Moreover, there seems to be no reason to consider as to why the complainants would have advanced the time of occurrence from 10/11 a.m. To Peshiwela, as they could not have gained anything by this. Such things are done by the complainants to show the occurrence to have occurred in the day light. According to Sabir appellant, the occurrence had not taken place during darkness.
' The stand taken by him that the deceased had chased him upto his Baithak and he had caused him (deceased) injuries there, after picking up a Sota, is absolutely unbelievable. It can hardly be believed that the deceased would have chased Sabir appellant upto his Baithak, without being armed. Had he been armed, he would have caused injuries to Sabir appellant. Not only that, he was not found injured but he never claimed that he had suffered any injury at the hands of the deceased.
' The version seems to be without foundation from another point as well. In that apart from injuries Nos. 6 and 9, which were multiple contusions and abrasions, the deceased was noted to have suffered four contusions (as described against injury No, 8) and three contusions (as described against injury No, 7). The number of injuries thus totals to 15 apart from multiple injuries suffered by him enumberated against injuries Nos. 6 and 9. We have seen the diagram. The seats of multiple injuries show that the deceased was found to have suffered a number of injuries. We cannot believe, in fact, we cannot imagine that the appellant alone could have succeeded in causing such a large number of injuries without being assisted by anyone, and without suffering a single abrasion even. In the circumstances, the version put forth by the appellant (Sabir) is not worth anything at all.
20. For all the reasons given above, we are convinced that the prosecution has been able to prove the case against the appellants. Their conviction under section 302/34, P.P.C. Is, therefore, maintained.
21. The contention of the learned counsel for the appellants that it is not apparent either from the F.I.R. Or from the ocular account furnished by P.Ws. 6 and 7 as to who is responsible individually for the injuries, which proved fatal, is correct. The deceased had died as a result of injuries 1, 3 and 5.
Out of these, injuries Nos. 3 and 5 have not been specifically alleged to have been caused by any of the persons named in the F.I.R. Although the complainant had stated in the F.I.R. As well as at the trial that Sabir had inflicted a Sota blow on the head of the deceased, after Muhammad Shafi had inflicted a Kulhari blow on the upper part of the arm, it is not possible to discern as to which of the injuries 1 or 2 on the head was inflicted by Sabir appellant. Out of the two, injury No, 1 had been opined to be fatal collectively as well as individually. But as noted above, it is not possible to say as to whether injury No, 1 had resulted from the blow inflicted by Sabir or it was injury No,
2. The cases (1984 SCMR 1069), (1986 P Cr. L J 973) and (1978 P Cr. L J 490) cited by the learned counsel for the appellants, in the circumstances, lend support to his contention that sentence of death is not called for and sentence of imprisonment for life would meet the ends of justice. The sentence of death awarded to both of the appellants is, therefore, altered to imprisonment for life to each. The sentence of fine is maintained.
' The appellants shall be given the benefit of the provisions of section 382B, Cr. P.C. As well.
22. Coming to the revision petition filed by the complainant, it may be noted that Lal Khan was acquitted by the learned trial Judge considering the facts that he was 70 years of age and since three of his sons, according to the prosecution, had joined the assailants, he would not have been required any more and so might not have participated in the occurrence. About Mahboob, it has been observed by the trial Court that nothing was recovered from him, that he had not only pleaded alibi during investigation, but had also produced in defence Syed Asghar Hussain, Advocate, Khan Muhammad and Aziz Afzal, who had offered to take oath about his innocence and that in his case there was no corroboration of the ocular account.
Muhammad Boota was acquitted by the learned trial Judge observing that he had no motive to participate in the occurrence, that it was not alleged in the F.I.R. That he was a partyman of the other accused and that it was borne out from the record and accepted by the complainant party that he was a witness against them in a case under section 307, P.P.C. Got registered by the accused party. It was following these observations and conclusions that the learned trial Judge had acquitted the respondents, Lal Khan, Mahboob and Muhammad Boota. The observations about non-participation of these respondents in the occurrence and the conclusion drawn by him are based on facts on records, which we have not found on examination, to be calling for interference. The revision petition, therefore, is dismissed being without any merit. .