KHIZAR HAYAT, J.-- Shamir (47) and Farid (43) sons of Khan and their nephews Iqbal (24) and Nawaz (19) sons of Amir, were tried by Additional Sessions Judge, Multan, for the murder of Ghulam Akbar (40) committed at 9-30 p.m., on 18-5-1983, in the revenue limits of village Baqirpur, Tehsil Kabirwala, District Multan (now Khanewal). Learned trial Court vide its judgment, dated 29--11-1984, convicted them under section 302/34, P.P.C. And sentenced Muhammad Iqbal to death and the rest to imprisonment for life plus fine of Rs.3,000 each or in default to undergo 1 year's R.I., each. Half of the, fine, if realised, was ordered to be paid to the legal heirs of the deceased as compensation under section 544--A, Cr.P.C. Feeling aggrieved thereby the convicts have filed joint appeal (Criminal Appeal No.271 of 1984). Besides it, a reference (Murder Reference No.132 of 1985) under section 374, Cr.P.C., is also before us for' confirmation of the death sentence of Muhammad Iqbal.
This judgment shall dispose of both these matters.
2. Ghulam Akbar, deceased, owned two shops in the village. He had given these shops to Farid and Iqbal, appellants, for running their business. 2/3 months prior to the occurrence Ghulam Akbar, deceased, asked them to vacate his shops but they refused to do so and there arose a dispute between the parties. Consequently, security proceedings under section 107/151, Cr.P.C., were taken by the local police against the deceased's brothers and father on one side and Iqbal and Shame, appellants, on the other, vide copy of report Exh.P.O.
3. On the fateful day, at about Maghribwela, Muhammad Ramzan (P.W.7) and Allah Ditta P.W. (not produced) came to Amir, complainant, at Chah Inayatwala and asked him to accompany them to the house of the deceased for purchasing bullock from hint. Amir, complainant, went with them to deceased's house where they met him and his son Ghulam Abbas (P.W.6). At Ishawela, they were settling the bargain sitting in the courtyard when Shamir appellant, called the deceased, who went out of the house. A little afterwards the witnesses heard alarm raised by the deceased and rushed there and saw the appellants, armed with Sotas had encircled the deceased. Muhammad Iqbal, appellant, shouted that they had come for teaching the deceased a lesson for asking them to vacate the shops and simultaneously he inflicted two Dang blows on his head. Farid appellant gave two Dang blows on his chest as a result of which the deceased fell down. Thereafter Shamir and Nawaz appellants also inflicted blows to him and then all the appellants ran away towards east carrying their weapons. The witnesses brought the deceased to his house and gave him first- aid and later took him to Ci6l Hospital Sirai Sidhu for treatment, where Dr. Muhammad Ajmal (P.W.9) examined him at 4 a.m. And admitted him as indoor patient. He noted the following injuries on his person:- (1)Contused wound 6 c.m. x 1/2 c.m. Skull bone visible with swelling in the area of 8 c.m. All around the wound on back and right side of head. It Ls 8 c.m. Away from right ear.
(2)Contused wound 5-1/2 c.m., skull bone visible on left side of forehead, 1/2 c.m. Above the left eyebrow.
(3)Swelling 4 x 3 c.m. On chin.
(4)Swelling 2 x 1/2 c.m. On right forearm.
(5)Swelling 5 x 2 c.m. On left forearm over wrist joint.
(6)Swelling 5 x 3-1/2 c.m. On back of left hand.
(7)Abrasion 8 x 1 c.m. On left chest.
(8)Contusion with swelling 6 x 6 c.m. On front of chest.
Ghulam Akbar died at 5-45 a.m. Due to these injuries.
4. Amir complainant (P.W.5) went to Police Station Sarai Sidhu (at a distance of about 6 miles from the place of occurrence) and lodged report Exh.P.C. Which was recorded by S.I. Azam A.I Shah (P.W.10) at 6 a.m.
5. After registering FIR, S.I. A/am A.I Shah (P.W.10) reached the local hospital and having prepared injury statement and inquest report of the deceased sent the dead body under police escort to mortuary for post-mortem examination. He then visited the place of occurrence and secured blood-stained earth from there under memo. Exh.P.D. He arrested all the accused on 19-5-1983. On the same day Iqbal appellant produced blood-stained Sota (P.3) while Farid appellant produced blood-stained Sota (P.4) which were secured under memos. Exhs.P.E, and P.F. Respectively. Shamir and Nawaz appellants also produced Sotas P.5 and P.6 (not stained with blood) which were secured under memos. Exhs.P.G. And P.H. Sotas P.3 and P.4 are found to be stained with human blood vide Chemical Examiner's report Exh.P.P. And that of Serologist Exh.P.Q.
6. Dr. Muhammad Saleem Arshad (P.W.8) conducted post-mortem examination on the dead body of the deceased on 19-5-1983 and noted almost the same injuries mentioned above. On dissection, he detected fracture of parietal bone and 9th rib. He opined that all the injuries were anti-mortem caused with blunt weapon and death occurred due to shock and haemorrhage. The head injury, in the opinion of the doctor, was sufficient to cause death in the ordinary course of nature.
7. At the trial the prosecution examined 10 witnesses in support of its case. Amir complainant (P.W.5), Ghulam Abbas (P.W.6) and Muhammad Ramzan (P.W.7) have stated about the motive and also narrated about -the occurrence. Besides this the prosecution has relied on medical evidence and recovery of weapons, deposed to by Ghulam Abbas (P.W.6) and Investigating Officer (P.W.10).
8. The appellants in their statements under section 342, Cr.P.C. Denied the allegations and professed innocence. They did not produce any evidence in defence.
9. Learned trial Court believed the ocular testimony observing that presence of Ghulam Abbas son of the deceased at his house was natural and so was the presence of Amir and Ramzan P.Ws. Who visited him for purchasing the bullock. It also believed the motive part of the story and the recovery of weapons and held the appellants guilty of the offence of murder and awarded death penalty to Iqbal as the injuries attributed to him proved fatal and lesser penalty to rest of the appellants.
10. Learned counsel for the appellants contended that not only the eye--witesses are closelv related to the deceased but their evidence suffers from improbabilities and material discrepancies as well, therefore, their testimony is not worth reliance. He argued that the injury found on the back of the head of the deceased, according to the P.Ws., had been caused by the assailant while - sanding in front of the deceased which is not possible, therefore, claim of P.Ws. That they were present at the time of occurrence is belied. Next contended that the motive is weak and the learned trial Court has erred by treating it as corroborative evidence. About recovery of sticks from the appellants, learned counsel submitted that, it was fake and that the sticks recovered from Muhammad Nawaz and Shamir, appellants which are not stained with human blood are of no consequence. Dealing with the medical evidence, he emphasized that according to prosecution the deceased died at 5-45 a.m. Dr. Saleem Arshad (P,W.8) opined that the deceased had died within half an hour of the receipt of injuries which means that the deceased received injuries at 4 or 4-30 a.m., whereas the P .Ws. Stated that occurrence took place at 9-30 p.m. The ocular evidence being in q conflict with medical evidence is thus rendered untrustworthy. Learned State counsel has, however, defended the impugned order of conviction as well as the sentence awarded to the appellants. We have carefully considered the contentions of the learned counsel of the parties and also perused the record with their assistance.
11. Amir complainant (P.W.5) is real uncle of the deceased and Ghulam Abbas (P.W.6) is real son of the deceased. Allah Ditta (given up P.W) is son of the sister of the complainant and is tenant of Ramzan (P.W.7). The house of Ramzan P.W. Is situated at Chah Pathanwala, two miles away from the spot while the complainant lives at Chah Inayatwala at a distance of four Acres from there. The place of occurences is a few Karams away from the house of the deceased which is not disputed.
The presence of Ghulam Abbas (P.W.6) at the relevant time is, therefore, quite natural as he lived with his deceased father. Amir complainant lives only four Acres away from there and his explanation that he alongwith Ramzan (P.W.7) visited the house of the deceased at latter's instance at relevant time for purchasing a bullock from the deceased also seems as probable.
They stated that the deceased had not yet taken his dinner when at Ishawela Shamir appellant called him out i.e., immediately before occurrence. Dr. A Sa1eem Arshad (P.W.8) who conducted post-mortem examination on dead body of the deceased stated that the deceased's stomach as well as large and small. Intestines were empty. This circumstance establishes presence of P.Ws) at the time of occurrence because if they were not present there then they would not have known whether the deceased had taken his meals or not.
12. Difference of opinion expressed by Dr. Saleem Arshad (P.W.8) and Dr. Ajmal (P.W.9) regarding the time lapsed between infliction of injuries to the deceased and his death needs serious attention. We have read their evidence with care. Dr. Ajmal (P.W.9) has positively stated that he examined the deceased at 4 a.m. When the deceased was still alive and noted eight injuries on his person which had been caused within about 6 hours and that he died at 5-45 a.m. This shows that occurrence took place at about 10 p.m. Dr. Saleem Arshad (P.W.8) who conducted post-mortem examination at 5 p.m., the same day, i.e., after about 12 hours of the death of the deceased, opined that the deceased died half an hour after receipt of injuries, which means that the deceased suffered injuries at about 4 a.m. But this is absolutely incorrect because the deceased was alive at 4 a.m. And Dr. Amjad (P.W.9) had examined him at that very time. Dr. Saleem Arshad (P.W.8), when cross-examined with permission of the Court by the Public Prosecutor, had to admit that, there occurred mistake `in the calculation of the duration' by him. In view of this admission by Dr. Saleem Arshad (P.W.8) the inconsistency stands resolved in favour of the prosecution. As far the contention that an assailant standing in front of the victim cannot cause injury on the back of the head of the latter has no force because the persons involved in a fight do not remain static rather they keep shifting their positions. Therefore, a blow given by the assailant from the front can land on hinder part of the head of the victim if the latter turns his head or the assailant drifts to a side even slightly.
The parties 1g are descendants of common ancestor, namely, Umara, therefore, there is no question of appellants' mistaken identity by the P.Ws.
13. According to the prosecution there existed a dispute on property (shops between the parties vide report Exh.P.O., dated 23-4-1983. Therefore, with this background of enmity, by way of abundant caution, we have looked for corroboration of ocular evidence for being doubly sure about participation of the appellants in the crime and the recovery of blood-stained Sotas P.3 and P.4 from Iqbal and Farid provides the required corroboration against them. But, it is not available against Shamir and Nawaz as the Dangs produced by them were not C stained with blood. In the circumstances, we would grant benefit of doubt to Shamir and Nawaz, appellants and accepting the appeal to their extent, their conviction and sentence is set aside and they are acquitted. They are on bail. They p are discharged of their bail bonds. Conviction of Iqbal and Farid, appellants as stated above has been recorded by the learned trial Court on the basis of ocular testimony, the evidence of motive and recovery of blood-stained Dangs, and the same being justified is hereby maintained.
14. This brings us to the question of sentence. Iqbal appellant inflicted two blows on the head of the deceased which proved fatal whereas injuries infected by Farid though grievous are neither on vital part nor fatal. The sentence of life B imprisonment awarded to Farid and sentence of death awarded to Iqbal, in the circumstances appear to be apt and appropriate and calls for no interference. The appeal is disposed of in the terms indicated above. Farid appellant, is on bail. His bail bonds are cancelled. He\ shall be arrested and sent to jail to serve out remaining portion of his sentence. Death sentence of Iqbal is confirmed.
SA./S-384/LDeath confirmed.