' SARDAR MUHAMMAD DOGAR, J.-- Munawar Hussain, aged 18 years and Muzaffar Hussain, aged 20 years, were tried by Sessions Judge, Gujranwala, for having murdered Nur Muhammad on 21-9- 1985 at 12-30 p.m., in the street, in front of Madrassa Darul Aloom Chistia, Sabria Sirajia. Chah Qazianwala, at a distance of three furlongs from Police Station Hafizabad, District Gujranwala. The learned trial Judge convicted both of them under section 302, P.P.C. Vide judgment dated 5-4-1986 and sentenced them to death, plus to pay a fine of Rs,5,000 each in default whereof to undergo R.I.
For one year each. They have also been directed to pay Rs,20,000 each as compensation to the heirs of the deceased in default whereof to suffer R.I. For six months, each.
2. Munawar Hussain has filed Criminal Appeal No, 266 of 1986 while Muzaffar Hussian has filed Criminal Appeal No, 270 of 1986. The reference made by the trial Judge for confirmation of the death sentences is also before us. Since all the matters arise from the same judgment, they are being disposed of by the ensuing judgment.
3. F.I.R. (Exh.P.B.) was registered at Police Station Hafizabad on 21-9- 1985 at 1-10 p.m., by Pervaiz Akhtar, M.H.C. (P.W.2) on the statement (Exh.P.B./1) of Muhammad Rafiq (P.W.9), recorded by Yousaf Ali, S.I. (P.W.12) on the same day at 1 p.m. In Rail Bazar, Hafizabad.
' According to the F.I.R. Nur Muhammad (deceased) real paternal-uncle of the complainant, had set up Madrassa Darul Aloom Chistia Sabira Sirajia since 20/21 years, at Chah Qazianwala, near Sem Nullah bridge, adjacent to Railway Line. He used to impart religous education to the children.
Four days prior to the occurrence, the deceased told the complainant at the residence that when he returns home after closing the Madrassa at 9 a.m., some vagabond boys play cards and gamble in the courtyard of the Madrassa by scaling over the wall. He further told him that on that day when he had gone to the Madrassa at Zohar prayer time he had found two boys sitting there and playing cards, and that he had admonished them. The boys in turn had abused him and had threatened that they will murder him. He also disclosed the names of the boys as Muzaffar Hussain son of Ghulam Hussain, caste Gujjar and Munawar Hussain son of Muhammad Sarwar, caste Machi (accused). The complainant told the deceased that he will talk to them and that he should not worry about that. The complainant on the same day met Muzaffar Hussain and Munawar Hussain at 6 p.m. And asked them as to why they had insulted his uncle. Whereupon, they replied that he stops them going that way every now and then and also threatened to get them arrested and that he had insulted them on that day and so they are going to avenge that insult. The complainant stated that they left after telling him that.
' On the day of occurrence, the complainant went to the Madrassa to talk to the deceased about some private matter. Haji Abdur Relunan (P.W.10) and given up P.W. Ghulam Muhammad were sitting with the deceased. When the complainant told the nature of the private affair to the deceased, he started with him for home and came out in the street. The two P.Ws. Were also with them. When they came out in the street, Muzaffar armed with a knife and Munawar armed with a Kulhari appeared from the western side of the street and raised a Lalkara that Maulvi will not be spared today. Munawar gave a Kulhari blow to the deceased on the left upper arm. He fell down.
Muzaffar gave three knife blows on the back of the right shoulder, on the back of left shoulder and on the left flank. The fourth blow given by him struck the deceased on the right flank. Thereafter, Munawar Hussain gave a Kulhari blow on the back side of the left shoulder. He then gave him two more blows on the upper side of left upper arm. Muzaffar again gave him a knife blow on the left thigh, followed by a blow by Munawar with the Kulhari on the left buttock and a Kulhari blow on the right upper arm. On the noise raised by the complainant and other witnesses, the accused ran away. Nur Muhammad died at the spot.
' He started for the police station. The S.I. Met him on way in Rail Bazar. He recorded his statement.
4. Yousaf All I aian, S.I. (P.W.12) reached the spot after recording statement (Exh.P.B./1). He prepared injury statement (Exh.PJ.), inquest report (Exh.P.H.) and despatched the dead body for post- mortem examination. Bloodstained earth was also collected by him from the spot. The investigation thereafter was taken up by Mansabdar, Inspector/S.H.O. (P.W.11).
' The appellants were arrested by P.W.11 on 22-9-1985. On the same day, Munawar Hussain led to the recovery of blood-stained hatchet (P.3) from hedge near the tower, which was taken into possession vide memo. Exh.P.E. Knife (P.4) was recovered at the instance of Muzaffar Hussain from his house and it was taken into possession vide memo. Exh.P.E.
' After completion of necessary investigation, challan was submitted to Court.
5. At the trial statements of 12 P.Ws. Were recorded.
' Dr. Captain Muhammad Arif, who had performed autposy on the dead body of Nur Muhammad at 7-45 a.m. On 22-9-1985 noted following injuries on the body of the deceased:-
(1) Incised wound 8-1/2 c.m. x 1 c.m. x skin deep oblique in direction on the outer side of right upper arm, upper fourth.
(2) Incised wound 10 c.m. x 1/8 c.m. x skin deep, on the front of right upper arm, lower half.
(3) Incised wound 3 c.m. x 3/4 c.m. x chest cavity on right side of chest on the level of nipple 10 c.m.
Lateral and outer to the nipple transversely placed.
(4) An incised wound, 8-1/2 c.m. x 1/4 c.m. x skin deep, on the lower part left scapular region, transverse in direction.
(5) An incised wound 8-1/2 c.m. x 1/4 c.m. x skin deep on the outer side of the left upper arm middle third transversely placed.
(6) The parallel skin deep incised wounds 7-1/2 c.m. x 1/4 c.m. On the top of left shoulder, each about 2-1/2 c.m. Apart.
(7) Incised wound 8 c.m. x 1/4 c.m. x skin deep on the front and outer side of the left upper arm middle third.
(8) Abrasion, 4-1/2 c.m. x 1/4 c.m. On the inner side of the left forearm, near the wrist joint.
(9) Oblique incised wound, 2-1/2 c.m. x 1 c.m. On the back of chest left part 8 c.m. Away from midline, and 8 c.m. Down to the lower angle of the left scapula.
(10) Oblique incised wound, 2-1/2 x 1/2 c.m. x chest on the back uppermost part of left lumbar region 3 c.m. Away from midline, and 15 c.m. Down and inner to the injury No,9.
(11) Oblique incised wound 2 c.m. x 1/2 c.m. x chest deep on the back of chest on right side, inner to the medial border of the right scapula.
(12) Oblique incised wound 2-1/2 c.m. x 1/2 c.m. On the right side of the abdomen on back, 20 c.m.
Away and down and out to injury No,11, on the uppermost part of the lumbar region.
(13) Incised wound 2 c.m. x 1/2 c.m. x 3-3/4 c.m. Deep, muscle cutting, on the left buttock, about the middle of left buttock.
(14) Incised wound on the back of left thigh, upper part, 2 c.m. x 1/2 c.m. x 4-1/2 c.m. Deep.
' Except injury No, 8, the rest of the injuries were opined to have been caused by sharp-edged weapon. Death was opined to have resulted from injuries Nos. 3, 9, 11 and 12. These injuries were opined to the sufficient to cause death in the ordinary course of nature collectively as well as individually. Injury No,13 was opined to be grievous while the rest were opined to be simple. Time between death and post-mortem was opined to be between 18 to 24 hours.
' During cross-examination, the doctor stated that injuries Nos. 3, 9, 11, 12 and 13 could not have been caused by hatchet, as it appeared from the dimensions of the injuries and size of the Kulhari.
6. The ocular account was deposed to by Muhammad Rafiq complainant (P.W.9) and Abdur Rehman (P.W.10). Ghulam Muhammad another eye-wtiness was given up as unnecessary.
Muhammad Rafiq renarrated the facts given by him in the F.I.R. During cross-examination he admitted that Abdur Rehman P.W. Was Pir Bhai of the deceased. According to him, the deceased, after demise of his wife and marriage of his only daughter, had started living in the Madrassa, but he used to go to the house of his brother to take meals. According to him, there was a Haveli and inhabited houses around the place of occurrence. He disclosed that he had not informed his uncle about the reply given by the appellants on his having asked them as to why they had threatened and misbehaved with the deceased. He denied the suggestion that Munawar used to work in the premises of Raj Mahal Cinema, and that on his (witness) having teased a girl, he was beaten by Munawar accused and others.
' Abdur Rehman (P.W.10), corroborated the statement made by P.W.9. He added that he had witnessed the recovery of blood-stained earth from the spot. He admitted that he was working as Head Munshi in the paddy factory of Mehr All Ibrahim and Company, Hafizabad and that Mn7affar accused was also working there as Junior Munshi. He stated that he had taken up that job after creation of Pakistan but had given up the same 6/7 months prior to the occurrence, as his three sons had started working as Commission Agents in the Grain Market. He denied the suggestion that he had been removed from service on a complaint made by Muzaffar accused that he (witness) used to steal Bardana from the factory. He denied that he had got Muzaffar accused dismissed from service.
' Both the witnesses denied that one Dr. Saleem was joined as suspect in the investigation but was let off by the police after taking bribe. Both of them admitted that they alongwith others used to collect alms (Chanda) for the Madrassa of Nur Muhammad deceased. Both of them denied the suggestion that they had been misappropriating the Chanda. Both of them denied the suggestion that they had not witnessed the occurrence and had made false statements.
' The-evidence of recoveries of blood-stained hatchet (P.3) at the pointing out of Munawar appellant and knife (P.4) at the instance of Muzaffar appellant has been deposed to by Muhammad Sadiq (P.W.7) and Mansabdar, Inspector Police (P.W.11).
' Yousaf All Khan S.I., who had recorded the statement (Exh.P.B./1) of Muhammad Rafiq complainant appeared as P.W.12 and gave the account of the investigation done by him. He denied the suggestion that he had prepared the statement (Exh.P.B./1) after consultations and deliberations and that the inquest report was not written by him, on 21-9-1985 but was prepared on 22-9-1985.
' The statements of other P.Ws. Are more or less of a formal nature.
7. Both the appellants during their statements under section 342, Cr.P.C. Denied the prosecution case as a whole. They denied having led to the recoveries of weapons of offence. They denied that they had any connection inter se.
' Muzaffar appellant stated as follows in answer to the question, Why this case against you and why the P.Ws. Have deposed against you?'
"Mehar Din Ibrahim Company, Hafizabad runs the rice business. Abdur Rehman P.W. Was working as Head Munshi and I was as Junior Munshi under him. He used to steal the Bardana and other articles, therefore, I had made complaint against him. Abdur Rehman manoeuvered my termination from the factory and I was employed in Bismillah Rice Factory. Factory owners terminated the services of Abdur Rehman P.W. On my complaint. Abdur Rehman P.W. Falsely got me implicated in this case due to that grudge."
' Following reply was given by Munawar, in answer to the same question:- "Rafiq complainant had cut indecent jokes and molested ladies in the cinema house, where I used to sell fruit. Rafique was given beating by the management of the cinema house and I also joined them. Rafique and Abdur Rehman P.Ws. Used to collect funds for the Madrassa and misappropriate the funds. My father used to raise voice against them. For the said reason, I have been falsely implicated in this case. Noor Muhammad deceased was suspected of having desecrated the Holy Qur'an by setting fire to its leaves and was given injuries by an angry mob as a result of which he died."
' Both of them made statements under section 340, Cr.P.C. Therein, also, they pleaded innocence and denied to have participated in the occurrence.
' Appellant Muzaffar examined in defence Muhammad Younas son of Mehraj Din as D.W.1. He stated that Muzaffar had made a complaint to the Factory owners against Abdur Rehman for misappropriating Bardana, but added that the factory owners had not taken any action against him. He admitted that he had not made any complaint against Abdur Rehman for misappropriation.
8. Both the counsel for the appellants contended that the F.I.R. In this case was not recorded on 21- 9-1985, and was, in fact, recorded on 22-9-1985, after deliberations and consultations, that the prosecution have set up a false motive, that both the eye-witnesses do not appear to have witnessed the occurrence and that the evidence of recoveries of weapons of offence from the appellants was not worth reliance.
' Learned counsel for Muzaffar Hussain contended that the allegation against Muzaffar Hussain of having caused injuries with the knife is not borne out from the medical evidence, as none of the injuries on the deceased has been described as stab wound.
' Learned counsel for Munawar Hussain raised the plea that since the doctor, who had performed autopsy, admitted in cross-examination, that none of the four fatal injuries could have resulted from Kulhari, he cannot be burdened with the responsibility of having caused the death and so he should be dealt with leniently, in case his conviction under section 302, P.P.C. Is maintained and he be awarded lesser sentence of imprisonment for life instead of capital punishment.
9. Learned counsel for the State/complainant defended the judgment of the trial Court and contended that nothing appears on the record to hold that the eye-witnesses had made incorrect and false statements and that there is sufficient evidence on record for maintaining the conviction and sentences of the appellants.
10. The contention of the learned counsel for the appellants that the F.I.R. Was not recorded on 21-9- 1985 and that inquest report was also not prepared on that day is based on the fact that the post- mortem examination was admittedly performed on 22-9-1985. Elaborating the point, learned counsel contended that if the occurrence had taken place at 12-30 p.m. And the same had been reported to the police at 1 p.m., there was no reason that the post-mortem should not have been performed on the same day.
' We have considered this contention in the light of the record. No doubt, the matter was reported to the police at 1 p.m. And the Investigating Officer had reached the spot soon thereafter, but it cannot be assumed that the Investigating Officer would have worked mechanically and finished the necessary requirements for despatching the dead body for post-mortem examination immediately. The occurrence had taken place in a thickly populated city. The deceased was a religious person. It can, therefore, be assumed that a number of persons would have come there. It would have taken some time by the S.I. To complete the necessary investigation and to prepare the necessary documents before despatching the dead body for post-mortem examination. The post-mortem, as is known, per rules, is not performed after sunset unless special orders are made by the Government. We, therefore, are of the view that the mere fact of the postmortem having been performed on the following day early morning, cannot lead to the conclusion that the F.I.R.
Was not recorded at the time stated at the trial.
' With regard to the preparation of inquest report, the doctor had been specifically asked during cross-examination and he had replied that he had received the inquest report alongwith the request for performing post-mortem examination. Some times the Police Officers indulge in delaying the preparation of inquest reports, but that is done in order to await the result of post- mortem examination, so that correct position about injuries and their nature is recorded in the inquest report. Herein it was never the case of the appellants that the inquest report had been prepared after the post-mortem examination. All that was suggested, during trial, was that the inquest report was prepared on the day following the day of occurrence.
' After analysis of the evidence, we feel no hesitation in saying that the argument is without force.
11. Learned counsel for the appellants while arguing that the prosecution has failed to prove the motive, submitted that since it is on record that the deceased used to reside in the Madrassa, the question of the appellants or for that matter any other person, entering the courtyard of the Madrassa after scaling over the wall for gambling does not arise.
' We have examined the evidence in this regard. We find that none of the witnesses had conceded that the Madrassa was being used as a residential house. All that has been stated by P.W.9 is that the deceased after the death of his wife and marriage of his only daughter used to live there, but he made it clear that the deceased used to go to the house of his brother to take food. It is also in evidence that the Madrassa used to function till 9 a.m. In the morning and thereafter, after Zohar prayer for some time in the evening. But for these timings, the Madrassa used to remain closed. In the circumstances, possibility of the courtyard of Madrassa being used by vagabond type of persons for playing cards and gambling cannot be ruled out, as that would be a safe hiding place for such activities. The incident of motive does not appear to have been mentioned after the occurrence. In fact, the background of the incident which motivated this occurrence, had been disclosed by the deceased himself to the informant four days prior to the occurrence and the information given by the deceased about the incident that had taken place between him and the appellants stood verified from the attitude and replies, with which the informant was confronted by the appellants on his having inquired from them.
' The contention of the learned counsel for the appellants, that, had such a thing, happened, the complainant or the deceased would have either reported the matter to the police or would have taken the matter to the Punchayat or at least would have lodged a complaint with the parents of the appellants, in our view, does not negate the statement made by the complainant about the information given to him by the deceased with regard to the conduct and behaviour of the appellants towards the deceased.
' 'The informant has very clearly stated that the deceased had informed him, that the appellants had shown abhorrence over his objection to their playing cards and gambling in the courtyard of the Madrassa and had threatened him to be finished. That being the position, the deceased might not have picked up courage to take the matter to the police or to any other person for fear of reprisals at the hands of the appellants. In fact, he appears to have informed his nephew about the manner in which he was dealt with by the appellants by way of taking him into confidence. Since the appellants repeated the threats on being asked by the complainant he might also not have picked up the courage for pursuing the matter. Moreover, the appellants did not give much time to the deceased and his nephew. The threats were issued four days before the occurrence.
Thereafter, the nephew of the deceased met and asked them and during a short span the occurrence took place.
After having carefully considered all aspects, we do not feel convinced that such a story would have been concocted to set up the motive. The contention of the learned counsel for the appellants, therefore, that the prosecution had set up a false motive, in our view, is without any weight.
12. It is of course on record that P.W.9 is nephew of the deceased while P.W.10 is Pir Bhai of the deceased. The criticism of the learned counsel for the appellants to that extent is undeniable.
However, merely these connections cannot be considered enough to discard their testimonies.
' They had no enmity with any of the appellants. Apart from the fact that P.W.9 had categorically denied the suggestion that he had teased any girl in the cinema or that Munawar and others had given him beating, the other important aspect is, that it was never made clear as to when such an incident had taken place. Moreover, if such a thing had happened, the grievance of the informant would have been more directed against the relatives of that girl or the management of the cinema, in whose premises he had been insulted and beaten. He, instead of having brought in Munawar would have named those persons or at least would have reported against Munawar alongwith them. After all why should he have picked up Munawar alone?
' Similarly P.W.10 denied that any complaint was made by Muzaffar against him for misappropriation of Bardana of the factory, where he was serving. In fact, he denied the suggestion of having been dismissed on that account or having got Muzaffar appellant dismissed from service. Above all, there is the statement of D.W.1 that the factory owners had not taken any action against Abdur Rehman P.W. And that he had left the service of his own accord. The defence witness also claimed that he had also made a complaint of misappropriation against Abdur Rehman. If Abdur Rehman P.W. Was to bargain with the complainant, to involve a person at his asking for enlisting his support as P.W., he would not have spared this D.W. What appears is that the whole story has been manufactured to set up a plea for discarding the testimony of Abdur Rehman. Still another aspect is that if Abdur Rehman had been dismissed by the factory owners and that had aggrieved him, he could then have named one of them as well, but it is obvious that he did not do any such thing. The motives attributed to these witnesses, therefore, appear to be baseless.
' Their presence at the spot does not appear to be unnatural. The complainant being nephew had gone to talk to the deceased about private family affairs, hearing which the deceased decided to go home with him. The presence of Abdur Rehman with the deceased can also not be termed as unnatural because it is appellant's own case that he was Pir Bhai of the deceased and used to collect Chanda also for the running of the Madrassa. The witness, therefore, for obvious affinity reasons could have gone to meet the deceased. The houses of both the witnesses Were not far away from the Madrassa nor were the seats of their business far away that they could not have gone to the deceased.
In the circumstances, we do not find anything on record to hold that the two witnesses, who gave the ocular account, might not have witnessed the occurrence and might have made incorrect statements. Their statements find corroboration from the evidence of recoveries of weapons of offence, which, in turn were found stained with blood.
13. The contention of the learned counsel for Muzaffar Hussain that since none of the injuries has been defined to be stab wound, the statements of the eyewitnesses that he had caused the injuries with the knife is, therefore, contradictory to the ocular account, is based on incorrect reading of the medical evidence. Merely doctor's mentioning the injuries to be incised wounds and not stab wounds does not rule out, of their having been caused by a knife. The dimensions of the injuries and the damage done has to be a test for determining as to whether the injuries could have been caused with the weapons alleged to have been used. The damage that occurred beneath the seats of injuries Nos. 3, 11 and 12, which had proved fatal, along with injury No,9, and the damage that had occurred beneath injury No, 10 clearly speak that they were penetrating wounds.
Penetrating wounds could have only been caused by a sharp-edged pointed weapon. The knife surely is a sharp-edged pointed weapon. The argument advanced in this regard for Mnzaffar appellant, therefore, does not advance his case in any manner.
14. As a result of the above discussion and enunciation of the evidence, no doubt is left in our mind 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.
15. We, however, feel that the case for awarding lesser penalty of imprisonment for life in the case of Mwaffar Hussain appellant is made out, for the reasons that even according to the ocular account he had not caused any of the injuries which proved fatal, i,e, 3, 9, 11 and 12, and the doctor, who performed autopsy also stated during cross-examination that injuries Nos. 3, 9, 11 and 13 could not have been caused by a hatchet. The sentence of death awarded to him, therefore, is not confirmed. He is instead sentenced to undergo imprisonment for life. The sentence of fine and the direction for payment of compensation is, however, maintained.
' The sentence of death awarded to Munawar Hussain is confirmed. The sentence of fine and the direction for payment of compensation is also maintained.