SARDAR MUHAMMAD DOGAR, J.-Muhammad Yaqub, SI, on receipt of Ruqa (Ex.PC) from Dr. Muhammad Athar, M.O. Civil Hopital,Okara,submitted application (Ex.PA) on 27-9-1980,to the Assistant Commissioner/M.S.30,Okara, for recording dying declaration of Muhammad Rafiq, resident of Chak No.5/4-L, admitted in hospital. Mr. Iqbal Ahmad Bossan, Assistant Commissioner, directed MrA.Y.Khalid, MIC, to attend to the matter vide Ex.PA/5, at 11.40 p.m. On the same day. On the latter having expressed inability to do the needful on account of being seriously ill, the Assistant Commissioner himself proceeded to the hospital to record the statement of Muhammad Rafiq alias Billo. After obtaining opinion (Ex.PA/2) of Dr.Muhammad Athar, SMO, that Muhammad Rafiq was fit to make a statement, he recorded the statement (Ex.PA/8) of Muhammad Rafiq alias Billo, son of Allah Din, aged 23 years, at 11.57 p.m. On 27-9-1980.
Dr. Muhammad Ather vide ExPA/3 attested that Muhammad Rafiq was fit and had remained conscious throughout while making statement. The Assistant Commissioner after'recording the statement, handed over the same to the S.I. Muhammad Yaqub, who despatched the same to the police station for registration of case. Faqir Hussain, MHC, recorded-FIR (EX.PA/1) on 28-9-1980,at 12.30 a.m. During night, on receipt of the statement (Ex.PA/8) of Muhammad Rafiq. In that Muhammad Rafiq stated," I was given injuries by Muhammad Amin alias Mccna and Bhola who were armed with Khanjars.Initially Muhammad Amin gave a Khanjar blow on the back side of my chest. Then Bhola gave a Khanjar blow on the left side of my chest. Ashraf was saying._____________________ Anwar was witnessing the occurrence. The occurrence had taken place at quarter to ten." The Assistant Commissioner noted that, Muhammad Rafiq did not state anything else."
2. Muhammad Yaqub,SI after despatching the statement of Muhammad Rafiq to the police Station for registration of case, recorded statements of Allah Din, Muhammad Din and Jan Muhammad under section 161 CR.P.C. Blood-stained clothes of Muhammad Rafiq (P.Ito 3) which were produced before him in the hospitial by the Medical Officer were taken into possession by him vide memo.
Ex.PK.He was still in the hospital when he was informed vide Ruqqa (Ex.PF) about the expiry of Muhammad Rafiq at 1.30 a.m. On 28-9-1980 whereafter, he perepared injury statement(Ex.PN) and inquest report (Ex.PO) of Muhammad Rafiq deceased and entrusted the dead body to Muhammad Din F.C. For post-mortem examination. He proceeded to the spot in the company of PWs Muhammad Din, Jan Muhammad and Anwar, wherefrom he collected blood-stained earth vide memo. Ex.PM, statement of Muhammad Anwar was also recorded by him there at the same time.
Yaseen alias Bhola was arrested by him on 14-10- 1980. Muhammad Amin could not be arrested. He was declared proclaimed Offender. Muhammad Ashraf co-accused was shown to have been arrested while being on bailAfter completion of necessary investingation challan was submitted to court against Muhammad Yaseen alias Bhola and Muhammad Ashraf. Muhammad Amin was shown as absconder in the report drafted under section 173, Cr.P.C.
3. Yaseen alias Bhola and Muhammad Ashraf were tried by Sh. Muzaffar Hussain, Sessions judge, Okara.
The learned trial Judge vide judgment dated 30-9-1984 convicted Muhammad Yaseen alias Bhola under section 302 PPC and sentenced him to death, plus to pay a fine of Rs. 5,0007- in defauIt whereof to undergo R.I. For two years. Half of the fine, on realization, has been directed to be paid as compensation to the heirs of the deceased. Muhammad Ashraf co-accused of Yaseen was acquitted vide the same judgment.
4. The convict filed CrAppeal No.486 of 1984. The learned trial Judge made reference (M.R.220/84) for confirmation of sentence of death of Yaseen.
5. During the pendency of Murder Reference and the appeal filed by Muhammad Yaseen, Muhammad Amin alias Mccna, who had been arrested, was tried by Mehr Muhammad Nawaz Khan, Sessions judge, Okara. He was also convicted under section 302 PPC by the learned trial judge vide judgment dated 16-11-1987, and sentenced to death, plus to pay a fine of Rs.5,000/-,in defauIt whereof to undergo R.I. For two years. Fine, on realization, was directed to be paid as compensation to the heirs of the deceased. Muhammad Amin convict filed CrAppeal No. 223/88.
The learned trial judge made reference (M.R. 63/88) for confirmation of the sentence of death awarded to Muhammad Amin.
6. The learned Chief Justice directed that the record of M.R. 63 of 1988 and Cr.A. 223 of 1988 be printed expeditiously and the appeals filed by Yaseen and Amin against their convictions vide judgments dated 30- 9-1984 and 16-11-1987 respectively be heard together: Murder reference No.220 of 1984 and Cr Appeal No.486/84, Murder Reference No.63 of 1988 and Cr.Appeal 223 of 1988 are, therefore, being disposed of together.
7. Eleven prosecution witnesses were examined at the trial of Muhammad Yaseen alias Bhola and acquitted accused Muhammad Ashraf. Statement of Muhammad Rafiq deceased, on the basis of which FIR was recorded by Assistant Commissioner, was tendered in evidence as dying declaration.
Dr.Muhammad Athar, who had medically examined Muhammad Rafiq deceased during life time at 10.50.p.m.On 27-9-1980 and had performed autopsy on the dead body was examined as PW-4. He had noted following injuries on the body of the deceased at the time of medical examination.
(1) An incised wound, 2"x 3/4''into muscle deep on the front of right high 6" below the anterior superior Illiac spine.There was cut on the Shalwar.
(2) an incised wound,l/2"x 1/4" into muscle deep on the front of right thing two inches medial to injury No.1. There was cut on the Shalwar.
(3) An incised wound,l/4"xl/6" into skin deep on the front and middle one-third of left thigh.
(4) An incised wound,2"x 1/2" into mucle deep on the right glutial region in its middle of it.
(5) An incised wound,2"x 1" into chest cavity deep. Air was coming out in the right axillary line 3 1/2" above the right Illiac crest.
(6) An incised wound, 1 3/4" x 3/4" x chest cavity deep, on the right side of the chest in the auxiliary line 8" above the illiac crest. Air was coming out from the wound.
(7) An incised wound, 3/4" x 1/4" x skin deep on the left auxiliary line 6 1/2" above the illiac crest.
(8) An incised wound, 1 1/4" x 1/2" x muscle deep on the back of left chest 2" below the inferior angle of scapula.
(9) An incised wound, 2" x 1" in the chest cavity deep, on the back of left chest. Air was coming out 3 1/2" below the inferior angle of the left scapula.
Injuries No. 5,6 and 8 were declared grievousAIl injuries were opined to have been caused by a sharp-edged weapon.
He had noted the same injuries in the same sequence at the time of post-mortem examination.
According to his opinion, the deceased had died due to shock and haemorrhage, resuIting from injuries No. 5,6 and 9 collectively and individually. He also stated that he had informed the police vide Ruqa (Ex.PC) and had confirmed the same on phone that Muhammad Rafiq son of Allah Din was admitted in the hospital in injured condition and that his statement recorded. He also verified the fact of having tendered opinion to the Assistant Commissioner before he recorded the dying declaration of Muhammad Rafiq of being fit to make a statement and of having expressed opinion that Muhammad Rafiq had remained fit and conscious while making statement.
8. Anwar Ali (PW 7), Jan Muhammad (PW 9) and Muhammad Din (PW 10) deposed the ocular account. All of them stated of having seen Bhola and Meena causing injuries with Khanjars to Muhammad Rafiq on the exhortion of Ashraf (acquitted accused) at 9.45 p.m., on the day of occurrence. They stated that they could not intervene due to fear. According to them, Anware Ali, after the occurrence, went to the house of Allah Din, father of Muhammad Rafiq,to inform him about the occurrence, while they had remained there & had accompanied Muhammad Rafiq to the hospital. In spite of lengthy cross-examination, the defence could not elicit anything favourable to Muhammad Yaseen alias Bhola, nor anything was brought on record to prove that anyone of them was related to the deceased. The suggestion made to each of them of having not witnessed the occurrence was denied emphatically by them.
Jan Muhammad and Muhammad Din PWs also stated of having witnessed the taking into possession of blood-stained clothes of the deceased by the S.I. In the hospital and of having witnessed the taking into possession of blood-stained earth from the spot. Allah Din, father of the deceased, appeared as PW'-3. He slated that Anwar PW and one Sher had come to his house and had told him that Muhammad Amin and Yaseen alias Bhola had Killed his son Muhammad Rafiq alias Billo with daggers, whereupon he reached the sopt and found his son in senses. The son told him on query that the two accused, named above, had Killed him, at the instance of Muhammad Ashraf, who was raising Lalkaras that he (deceased) be killed. He added that he removed his son to the hospital, where Assitant Commissioner, Okara came and recorded his statement.
The motive for the occurrence given by him was that 7/8 days before the occurrence, his deceased son had quarrelled with one Akbar, a friend of Ashraf(acquitted accused) and that Ashraf had provided a gun to Akbar to murder his son, of which his son had told him before the present occurrence. During cross-examination, he admitted that he was a Clerk of Sardar SuItan Ahmad Landlord, but had left his service two years prior to the occurrence. He expressed lack of knowledge about PWs Anwar, Jan Muhammad and Muhammad Din being employees of said Sardar SuItan Ahmad. Most of the cross examination conducted on him pertained to strained relationship between the above named Sardar SuItan Ahmad and Ashraf (acquitted accused).He also admitted in cross-examination of having been challaned in certain cases and also being a witness in some cases. He, however, denied the suggestion that he had made a false statement.
Mr.Iqbal Ahmad Bossan, Assistant Commissioner, who . Had recorded the dying declaration (Ex.PA/8) of Muhammad Rafiq, at 11.40 p.m. On 27-9-1980 appeared as PW-8. He gave the account of having been approached by the S.I. For recording the statement of Muhammad Rafiq, who was admitted in the hospital in critical condition. He stated that the statement was recorded without oath, but it was read out to the deceased and he admitted the same to be correct and had thumb-marked the same. He also stated that Dr. Muhammad Athar, on query, had opined before the recording of statement, that Muhammad Rafiq was fit to make a statement and that he had given opinion after the statement also that the injured had remained conscious while making the statement.
Muhammad Yaqub, SI, who had investigated the case and arrested the accused, appeared as PW- 11, gave the account of registration of case and the investigation conducted by him. He denied the suggestion that he had implicated the accused falsely in the case at the behest of said Sardar SuItan Ahmad.
Muhammad Ali Shah, D.S.P., who had partly investigated the case, was examined as C.W.1. He stated that he forwarded the challan by placing the name of Muhammad Ashraf in column No. 2.
AIthough he stated that some persons at the spot had stated before him that Mecna was only the real culprit, but he admitted during cross-examination that neither he had recorded their statements nor had noted in. Case diaries that Muhammad Yaseen was innocent.
9. Muhammad Yaseen appellant during statement under section 342 Cr.P.C, denied the prosecution case as a whole and pleaded innocence.
10. Statement of thirteen PWs were recorded at the trial of Muhammad Amin alias Mecna. In that Dr.Muhammad Athar, who had medically examined the deceased during life time on 27-9-1980 and had performed autopsy on the dead body on the following day was examined as PW-12. He gave the same number of injuries, which he had found on the deceased at the time of medical examination during life time and at the lime of post-mortem examination, that he had given while appearing as PW-4 in the trial against Muhammad Yaseen. The weapon with which the deceased suffered injuries and the cause of death were also given by him to be the same as given earlier. He also verified of having tendered opinion about fitness of the deceased before making the statement and while making statement.
Statements of Muhammad Din, Jan Muhammad and Anwar Ali, who had witnessed the occurrence, were recorded as PWs, 2,3, and 4 respectively. They made similar statements, as they made at the time of trial of Muhammad Yaseen. All of them charged Muhammad Amin alias Meena of having caused injuries to the deceased with a dagger along with Yaseen alias Bohla. Nothing particular was brought out during cross-examination from any of them. Most of the questions and answers were the same as put to them during the trial of Muhammad Yaseen. The dying declaration of Muhammad Rafiq, recorded by Mr.Iqbal Ahmad Bossan, Assistant Commissioner was also tendered in evidence.
Munsif Khan,Inspector, who had arrested Muhammad Amin alias Meena as proclaimed Offender, was examined as Pw-11. He verified the facts of having arrested Muhammad Amin as Proclaimed Offender and of having submitted challan to the court.
Mr.Iqbal Ahmad Bossan, A.C., who had recorded the dying declaration of Muhammad Rafiq, appeared as PW-13. He gave the facts in the same sequence as he had given at the trial of Muhammad Yaseen about recording of.Statemcnt of Muhammad Rafiq deceased.
Allah Din, father of the deceased, appeared as PW-1. He also made the same statement, which he had made at the trial of Muhammad Yaseen.During cross-examination nothing particular has been elicited favourable to the accused.
Appellant Muhammad Amin alias Mccna during statement under section 342, Cr.P.C, denied the prosecution case as a whole and pleaded innocence.
10. We have gone through the evidence with the assistance of the learned counsel for the appealants and have perused the impugned judgments.
11. Before proceeding to adjudicate the contentions of the learned counsel for the appellants in both the appeals, we would like to mention here that Allah Din, father of Muhammad Rafiq deceased, had submitted two separate applications, in each of the appeals filed by two appellants, that he had compromised with them and had forgiven them. His statement was recorded on 5-11-1988, wherein he reiterated the fact of having compromised with the two appellants and of having forgiven them. He stated that his wife had died before the murder of his son and that the wife of his son had re-married after his murder and that he had no other son or daughter and that the only heirs of the deceased apart from him are three minor children of the deceased, the eldest of whom is now aged 8 years while the youngest is 4 years old. He stated that he had forgiven the appellants in the name of Allah.
Learned counsel, for the appellants in both the appeals, did not challenge the conviction of both of them on merits. The only plea advanced on their behalf is, that since father of the deceased had compromised with them and had forgiven them, the sentences of death awarded to them may be aItered to imprisonment for life and they may be given the benfit of the provisions of section 382- B,Cr.P.C.
13. Notwithstanding the fact that learned counsel for both the appellants has not challenged the conviction of any of them on merits, we have examined the record and assessed the prosecution evidence in the light of the statements made by the appellants.
14. The ocular account in this case has been deposed to by three witnesses who arc neither related to the deceased nor Inimical to any of the appellants. They arc independent witnesses by all means. The assertions made at the trial and the suggestions put to the witnesses that Anwar PW had not witnessed the occurrence, stand diluted by the statement made by Allah Din father of the deceased that it was Anwar PW who had come to inform him about the occurrence and had told him about the appellants having caused injuries to his son and that on going to the spot he had seen his son lying there in injured condition, and that his son had told him that he was given injuries by Yaseen alias Bhola and Muhammad Amin alias Mccna (appellants).
Muhammad Din and Jan Muhammad PWs were present in this hospital, when the police arrived there. They had witnessed the taking into possession of blood-stained clothes of the deceased and had attested memo. Ex.PK. These clothes were removed during life time of the deceased, They had accompanied father of the deceased when he had taken him to the hospital from the spot. They had gone along with the S.I. To the spot and had pointed out to him the place of occurrence and had also attested the recovery memo, vide which blood-stained earth was collected from there.
Their claim, therefore, of being present at the time of occurrence cannot be doubted by any means. The suggestions put to them as such that had not witnessed the occurrence possess no force.
The statements of the eyewitnesses are fully corroborated by the dying declaration of the deceased which was recorded by Mr. Iqbal Ahmad Bossan, Assistant Commissioner. In fact, the deceased made two dying declarations, one verbally to his father, Allah Din, and the other recorded by the Assistant Commissioner. Allah Din while appearing as a witness, narrated the statement made by the deceased to him. The two statements, i.e. The one made to him and the other recorded by the Assistant Commissioner, are corrobrative of each other. They were made at two different places with a short interval. In the circumstances, no exception can be taken to the statement recorded by the Assistant Commissioner for any reasons. These two dying declarations are fully corroborative of the ocular account furnished by the eyewitnesses.
The evidence of motive and the attending circumstances, also are corroborative of the prosecution case. In the circumstances, convictions of both the appellants recorded vide two different judgments under section 302/34 PPC are maintained.Thc sentences of death awarded to each of the appellants, are however aItered to imprisonment for life, as the parties have compromised, following the rule laid down in Muzaffar Mustafa alias Zafar Ali vs. Slate (1982 SCM R 695).The sentences of fine arc maintained. Instead of half, the whole of the fine, on recovery from Yaseen appellant, shall be paid as compensation to the heirs of the deceased. They shall also be given the benefit of the provisions of section 382-B,Cr.P.C.