1. SARDAR MUHAMMAD DOGAR, J.-- Musthaq Ahmad, aged 19/20 years and Ghulam Muhammad, aged 27 years, were tried by Sessions Judge, Mianwali for having murdered Ghulam Sadiq, on 4-10- 1983, at 5-30 p.m. In the street, in Mohallah Alam Khel, at a distance of two furlongs from Police Station City Mianwali, alongwith Muhammad Zaman, aged 40/45 years. The learned trial Judge convicted Mushtaq Ahmad and Ghulam Muhammad 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 three years each. The learned trial Judge also directed them to pay Rs.10,000 each, as compensation to the heirs of the deceased in default whereof to suffer R.I. For six months, wide judgment dated 9--8-1988. Their co-accused Muhammad Zaman was acquitted vide the same judgment.
2. The learned trial Judge has made reference for confirmation of death sentences. The convicts have filed appeal. The complainant has filed criminal revision seeking enhancement of the amount of compensation and retrial of the acquitted accused. As all the matters arise from the same judgment, they are being disposed of by the ensuing judgment.
3. F.I.R. (Exh.P.A.) was registered at Police Station City Mianwali by Muhammad Anwar Khan, M.H.C.
2. (P.W.9), at 7-30 p.m. On. 4-10-1983, on the statement of Ghulam Jaffer (P.W.1), brother of the deceased.
3. According to the F.I.R., the complainant .Alongwith his brother were returning to their home after visiting a hotel on Billu Khel Road. When they reached in the street of Mohallah Alam Khel, they were confronted by the appellants armed with Chhuras accompanied by acquitted accused Muhammad Zaman empty handed. Muhammad Zaman exhorted his co-accused to finish both the brothers to avenge the insult and took the complainant into clasp. Thereafter, both the accused gave one Chhura blow each on the right nipple, of the deceased, as a result of which he fell down. Both of them caused successive blows to Ghulam Sadiq on different parts of his body.
4. Ghulam Abbas (P.W.2) and Ghulam Sabir (P.W.3), who per chance were coming in that street, reached the spot and witnessed the occurrence. The accused ran away raising Lalkaras.
5. Motive for the occurrence was the suspicion of the accused against complainant of having illicit relations with Mst. Ghulam Bashiran maternal-- uncle's daughter of Musthaq and niece of Ghulam Muhammad accused. Two and a half years/three years prior to the occurrence also maternal- uncle of Mushtaq had caused injuries to the complainant with knives on this very account.
6. Ghulam Sadiq was taken to Civil Hospital, Mianwali, in injured condition, where he was admitted after medical examination. He died on 5-10-1983.
4. The investigation of the case was handed over to Walter Masih, S.I. (P.W.10). On the same day, he visited the spot and collected blood-stained earth from there vide memo. Exh.P.D. The statements of Ghulam Abbas and Ghulam Sabir P.W. Were recorded by him. He then went to D.H.Q. Hospital, Mianwali and recorded the statement of Ghulam Sadiq injured, after- obtaining opinion (Exh.P.G./1) on application (Exh.P.G.); from the doctor, that he was fit to make a statement. (This statement was tendered in evidence during trial as Exh.P.N.).
7. He again visited the hospital on 5-10-1983, on receiving information at 10 a.m. About the expiry of Ghulam Sadiq. He prepared injury statement (Exh.P.O.) and inquest report (Exh.P.Q.) and entrusted the dead body to Muhammad Ashraf Constable (P.W.5).For post-mortem examination.
8. All the accused were arrested by him on 6-10-1983. Blood-stained shirt (P.4), Bunyan (P.5) and Shalwar (P.6) worn by Mushtaq accused at the time of his arrest, were got removed by him and taken into possession vide memo. Exh.P.C.
9. On 18-10-1983, Mushtaq led to the recovery of Chhura (P.7) from his house, which was taken into possession vide memo. Exh.P.E.
10. After completion of necessary investigation challan wds submitted to Court.
11. 5.Statements of ten P.Ws. Were recorded at the trial.
12. Dr. Muhammad Akram Khan, who had medically examined the deceased during lifetime on 4-10- 1983 at 6-20 p.m. Appeared as PWA He had noted following injuries on his person:- (1)An incised wound 8 c.m. x 3-1/2 c.m. Bone deep on right side front of chest, 1 c.m. Below right nipple. Air bubbles were coming out of the wound.
13. (2)An incised wound, 2-1/2 c.m. x 1/2 c.m. Bone deep 2 c.m. Below injury No.1.
14. (3)An incised wound, 3 c.m. x 1 c.m. On inner side of right arm, at the middle.
15. (4)An incised wound, 4 c.m. x 1 c.m. Skin deep -on the back of right shoulder.
16. (5)An incised wound, 1 c.m. x 1/2 c.m. On the back of right shoulder, 3 c.m. From injury No. 4.
17. (6)An incised wound, 2 c.m. x 1 c.m. On right buttock.
18. (7)An incised wound, 1-1/2 c.m. x 1/4 c.m. Bone deep on front of left first finger, tendons were cut under the injury.
19. (8)An incised wound, 3 c.m. x 1/4 c.m. Half muscle cut (deep) on front of left second matacarpal bone (left palm) tendons were cut under the injury.
20. He had noted corresponding cut marks on the shirt, Bunyan and Shalwar. All the injuries were opined to have been caused by a sharp-edged weapon. The duration was opined to be fresh.
21. Injuries Nos. 7 and 8 were declared grievous, injuries Nos. 1 and 2 were kept under observation, while the rest were declared simple.
22. He also verified the fact of having expressed opinion about the fitness of Ghulam Sadiq to make a statement, vide Exh.P.G./1, on an application submitted in this regard by the S.I.
23. He had examined Mushtaq appellant also at 8 p.m.- on the same day on being brought by Ghulam Ahmad son of Ghulam Hassan. Following injuries were noted by him on his person:- (1)A lacerated wound, 2-1/2 c.m. x 1/2 c.m. Skin deep on left side of forehead, 3 c.m. Above eyebrow.
24. (2)Swelling 4 c.m. x 2 c.m. On top right side of head.
25. (3)A bruise 8 c.m. x 2 c.m. On the back of left forearm at middle.
26. (4)A bruise 4 c.m. x 1 c.m. On front of right thigh.
27. Injury No. 1 was kept under observation while the rest were declared simple. The injury kept under observation was also declared simple later. The injuries were opined to have been caused with a blunt weapon, and the duration was opined to be fresh.
28. On Court question, he explained that by fresh he meant that injuries were suffered tvithin 1 to 3 hours. He observed that possibility of the injuries suffered by Mushtaq appellant at friendly hands could not be ruled out.
29. During cross-examination, he admitted that Muhammad Akram son of Haji Suleman was related to him but denied that he had come to the hospital alongwith Sadiq. He expressed lack of knowledge about Akram having donated blood to Sadiq, During re-examination, he stated that his relations with Muhammad Akram were strained and that he was not on speaking terms with him.
30. Dr. Tajamal Qadeer Ahmad, who had performed autopsy on the dead body of Ghulam Sadiq at 2- 15 p.m. On 5-10-1983 appeared as P.W.7. He had noted the same injuries on his body, as noted by Dr. Muhammad Akram Khan (P.W.4) at the time of medical examination on 4-10-1983. During internal examination, he had found 4th, 6th and 7th ribs cut on the junction of the chest. Middle lobe was also found injured. Right diaphragm was found punctured.
31. Death, according to his opinion, had resulted from shock and haemorrhage from injuries 1 and 2, which had damaged right lung. All the injuries were opined to have been caused with a sharp- edged weapon. Duration between death and injuries was opined to be 16 hours and between death and post-mortem was opined to be 4/5 hours.
32. During cross-examination, he stated that there was profuse internal haemorrhage in this case.
6. The ocular account was deposed to by Ghulam Jaffer (P.W.1), Ghulam Abbas (P.W.2) and Ghulam Sabir (P.W.3).
33. Ghulam Jaffer repeated the facts given by him in the F.I.R. He also deposed that Mushtaq Ahmad was arrested from D.H.O. Hospital three days after the occurrence and stated about having witnessed the taking into possession of blood-stained shirt (P.4), Bunyan (P.5) and Shalwar (P.6), worn by Mushtaq, by the S.I. Vide memo. Exh.P.C. During cross-examination he stated that the S.I.
34. Had remained in the hospital for 15 minutes on the night falling 4-10-1983. He admitted that when Mushtaq was arrested from hospital, he was admitted there in injured condition. In answer to another question he stated that Mst. Ghulam Bashiran, with whom he was suspected of having illicit relations, was married to his cousin Faiz Muhammad, a year before the occurrence and that she was residing with him in village Rokhri, at a distance of 5/7 miles. He conceded that Ghulam Abbas P.W. In this case was a witness in the case in which he had suffered injuries at the hands of maternal-uncles of Ghulam Sabir. He admitted that Akram Khan Alam Khel had accompanied him to the hospital and that he had remained generally with him during investigation of the case. He stated that Zaman was holding him at a distance of two paces from the place where the deceased was being injured but the two other accused had not given him any injury. He denied the suggestion that he had not witnessed the occurrence or that it had come to their knowledge that deceased had caused injuries to Mushtaq Ahmad and that Mushtaq had given him injuries in self- defence.
35. Ghulam Abbas and Ghulam Sabir (P.Ws. 2 and 3) corroborated the statement made by Ghulam Jaffer. They stated that they had gone to the hotel of Muzaffar Khan to inquire about the complainant and the deceased and that they had reached the: place of occurrence on being informed by Muzaffar Khan that the complainant and deceased had gone home that way.
36. Ghulam Abbas also verified the fact of having witnessed the taking into possession of blood- stained Bajri and earth from the place of occurrence and recovery of Chhura (P.7) at the instance.
37. Of Mushtaq Ahmad 12 days after the occurrence.
38. The same statement was made by Ghulam Sabir also. He, during cross--examination, admitted that the deceased was son of his paternal uncle and that he was married to the sister of the deceased.
39. Both the witnesses during cross-examination stated that they were at a distance of 15/16 Karams when the accused had attacked the deceased. According to them, the deceased was going ahead of Ghulam Jaffer. Ghulam Abbas stated that Zaman had run to Ghulam Jaffer to take him into clasp. In answer to another question, he stated that he had learnt 2/3 days after the occurrence that Mushtaq was admitted in the hospital. While answering questions about the recovery of Chhura at the instance of Mushtaq, he stated that they had gone to the police station at 2 p.m. And had left the police station for recovery at 3 p.m. The recovery proceedings, according to him, were completed in one hour.
40. Ghulam Sabir denied the suggestion that the earlier occurrence in which Ghulam Jaffer was injured had taken place on a dispute over the boundary wall. He gave the distance of their house from the place of occurrence as one mile.
41. Both the witnesses denied the suggestion that they had not witnessed the occurrence and that nothing was recovered from Mushtaq Ahmad.
42. Walter Masih, S.I. Who appeared as P.W.10, gave the account of investigation, the statement of the deceased recorded by him under section 161, Cr.P.C. And the recovery of Chhura (P.7) at the instance of Mushtaq. During cross-examination, he admitted that as a result of the investigations conducted by two different D.S.Ps., at intervals, Ghulam Muhammad was not only declared innocent but also his name was placed in column No.2 of the two reports prepared under section 173, Cr.P.C. According to him, he had reached the hospital at 11 p.m. He admitted that after recording Exh.P.N. Of the deceased, he had not noted the words(--------- --------------- ------- ----------- ------). He also admitted that he had noted the presence of Muhammad Akram son of Haji Suleman Khan in the inquest report prepared by him. He also admitted that Mushtaq accused on first interrogation had taken up the defence that he had infected blows to the deceased in self-defence when the deceased had attacked him with a Soti. While answering questions about the recovery of Chhura (P.7), he stated that the witnesses had reached the police station at 11 a.m. And the recovery was effected at 12 noon.
7. Ghulam Muhammad appellant during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence.
43. Mushtaq Ahmad also denied the prosecution case as a whole. He denied that anything was recovered at his instance. He stated as follows in answer to the question, `Have you anything else to say?'
44. "Three years before this occurrence, Ghulam Jaffer P.W. Was injured at the hands of Latif etc., over the dispute of a boundary wall. The parties patched up the matter, but the deceased took an oath that he would take revenge of the injuries of his brother Ghulam Jafar P.W. On the day of occurrence at about 6 p.m, I was going to the southern deserted place from the clinic of Hakeem Zahid, where I am employed to weed out herbs. For use in the clinic, I was having a Chhuri. On passing through the lane, I was confronted by Ghulam Sadiq deceased, who was armed with a Dang and he attacked me and infected injuries on my person. In order to save myself, as I apprehended death at the hands of the deceased, inflicted injuries under this impulse in self- defence. None of the P.Ws. Was present at the time of occurrence. I was aged about 16 years at that time. I tender the copy of the age certificate Exh.D.E. In this respect. I am innocent."
8. Learned counsel for the appellants, after taking us through the evidence, contended that the prosecution has failed to prove the motive, that the eye--witnesses in this case are not only related, interested and inimical, but are also chance witnesses. Learned counsel argued that the version put forth by the appellant Mushtaq is nearer the truth and more probable than the version put forth by the prosecution. Learned counsel cited Malik Waris Khan v. Ishtiaq alias Nanga etc. PLD 1986 SC 335 in support of the argument that an accused cannot be expected to weigh and assess the extent of the danger on being attacked.
9. Learned counsel for the complainant controverted the arguments of the learned counsel for the appellants and pleaded that there is no reason to discard the testimonies of the eye-witnesses and that the case of the prosecution stands proved against the appellants.
10. The prosecution case is that the appellants were aggrieved against Ghulam Jaffar for having cultivated illicit relations with Mst. Bashiran cousin of Mushtaq Ahmad and niece of Ghulam Muhammad. According to them, the paternal-uncle of Ghulam Sabir had attacked Ghulam Jaffer three years prior to the present occurrence on that very account and a case was registered but the same was withdrawn as a result of compromise. It is thus the prosecution own case that the matter had earlier been patched up and nothing had transpired during past three years. It is on record that said Mst. Bashiran had been married to a cousin of the complainant and she was living with him and he had not met I her during this period. In the circumstances, we are of the view that even if there was such a grievance, that must have ended, otherwise, Mst. Bashiran would not have been given for marriage to cousin of Ghulam Jaffer. On the other hand, if the appellants were having such grievance, they would not have spared him, if he had been present at the spot. It is Ghulam Jaffer's own case that he was being held by Zaaian, at a distance of two paces from the point where the deceased was IB being given injuries by the appellants. Had he been within the reach of the 1 appellants, and that too in a helpless manner, they would have definitely attacked I him and caused injuries.
11. The other two witnesses, i.e. Ghulam Abbas and Ghulam Sabir, are closely related to the deceased as well as the complainant. The explanation given by them for being at the spot, is, that they had gone to the hotel of Muzaffar 1C Khan to inquire about the deceased and the complainant and that they had come to the spot on coming to know from Muzaffar Khan that they had gone home by I that way. None of them stated as to what for, they had gone to the hotel of Muzaffar Khan? No urgency or requirement even is mentioned in this connection. Ghulam Jaffer, on the other hand, merely stated that they had witnessed the occurrence as they were also passing by that way. If the two witnesses, as stated by them, were following the deceased and the complainant, at a short distance, i.e. 15/16 Karams, the appellants might not have dared to open the attack, even if they had come there for that purpose, because they would have known that they will be three versus four. Moreover, the witnesses would not have spared Zaman, who was empty handed, and even if they were not in a position to cause him injuries, they at least would have detained him.
45. There is another adverse factor which has effected the credibility of P.Ws. 2 and 3. In that learned trial Judge has not believed their testimonies E regarding the recovery of Chhura (P.7) at the instance of Mushtaq appellant. They had made absolutely discrepant. Statements about different aspects of the recovery proceedings. On examination, the reasons given by the trial Judge, in our view, do not call for any interference.
12. The statement of the deceased recorded by the Investigating officer under section 161, Cr.P.C.
46. Which was tendered in evidence as a dying declaration was ruled out of consideration being inadmissible by the learned trial Judge. We have gone through the reasonings in that regard and we are of the view that the said piece of evidence has been discarded for cogent and correct reasons.
47. Since the motive set up for the occurrence has not been found to be cogent, and the evidence of recovery of weapon of offence has been disbelieved. I while the so-called dying declaration has not been considered as admissibly evidence, the only evidence the prosecution can fall back upon is the ocular account furnished by the complainant and the two eye-witnesses. Their presence at the spot, for reasons recorded earlier, seems to be doubtful.
13. Mushtaq appellant was admitted to the hospital on the day of occurrence. He was medically examined at 8 p.m. And was found to have suffered four injuries. He was arrested from there. The clothes, which were stained with blood, as a result of the injuries suffered by him, were taken into possession by the Investigating Officer. The opinion expressed by the doctor that he might have IH suffered those injuries, at friendly hands, in our view, seems to be without any foundation. We are refraining to record any observation about the allegation levelled by the appellants at the trial that the doctor had expressed that opinion at the trial because of his interest in the case as a result of his relationship with Muhammad Akram, who was pursuing the prosecution case, as admitted by the complainant, and also for the reasons that doctor was living in the same Mohallah but we would still like to note that the doctor had not made any such note in the medico-legal report. He expressed opinion about the injuries having been suffered with friendly hands during examination- in-chief without being particularly asked. That rather showed his impatience. Be that as it may, we have I looked this fact from a different angle and that is that even according to the prosecution, the occurrence had taken place at 5-30 p.m. The deceased was admitted in the hospital. His relatives were also there. In spite of that Mushtaq appellant was taken to the hospital and admitted there. His medical examination at 8 p.m. Shows that he must have reached there some time prior to that. He did not run away after getting himself medically examined and remained there.. f the doctor had thought that the injuries suffered by him were minor and were with friendly hands, he would not have admitted him. Still another aspect is that we cannot imagine that Mushtaq, who was in teens at the time of occurrence, could have managed and planned, all that, in such a short time and made arrangements for suffering those injuries and reached the hospital. The nature and seats of the injuries also ---..Do not bear out the opinion expressed by the doctor that these must have been suffered at friendly hands.
48. The argument that Mushtaq appellant alone would not have been able to cause so many injuries, in our view, is not so sound. He had suffered four injuries while the deceased was found to have suffered eight injuries, out of which two were only grievous. In the cited case, reported at PLD 1986 SC 335, the appellant; who had taken the plea of self-defence also was found to have suffered five injuries while the deceased was found to have suffered ten injuries, four of which were stab wounds, three were cut wounds, two were contusions and one was abrasion. One of the stab wounds and one of the cut wounds, were on the chest of the deceased.
14. For all the reasons mentioned above, we are of the view, that the prosecution has not come up with true version .Of the occurrence and that the version put forth by Musthaq appellant appears to be more probable and nearer the truth. The conviction of the appellants under section 302/34, P.P.C. Is, therefore, set aside. Musthaq appellant is held guilty under section 304, Part 1, P.P.C. For having exceeded the right of private defence and is sentenced to undergo R.I. For ten years, keeping in view that after arrest he had remained in jail during the trial. He is also sentenced to pay a fine of Rs.5,000 in default whereof to suffer R.I. For one year. The amount of fine, on realization, shall be paid as compensation to the heirs of the deceased.
49. The appeal qua Ghulam Muhammad appellant is accepted. He is acquitted. Death sentence is not confirmed.