' Appellants James Irshad and Samson Irshad alias Billu, who are brothers inter se, were tried by Mian Muhammad Akram Baitu, Additional Sessions Judge, Kasur, on the charge of committing murder of their uncle Shahbaz Masih on 23-4-1984 at 8 a.m. In the area of village Clarkabad, Tehsil and District Kasur and, vide his judgment dated 22-4-1986, they were convicted under section 302/34, P.P.C. And sentenced to imprisonment for life and a fine of Rs,5,000 or in default to undergo three years' R.I. The fine, if realised, was directed to be paid to the legal heirs of the deceased by way of compensation. Both the convicts were given the benefit of section 382-B, Cr.P.C.
2. The prosecution story in brief is that father of Shahbaz (deceased), who was grandfather of the appellants, owned 12 squares of land in the area of village Clarkabad and while distributing his land amongst his sons, he gave two acres more to Shahbaz (deceased) than to the father of the appellants as he along with his wife resided with him. This caused annoyance to the appellants.
3. In the above background, on 23-4-1984 at about 8 a.m. When Shahbaz (deceased) accompanied by his wife Mst. Venus (P.W.) and two daughters Mst. Musarrat and Mst. Razia was going to Lahore to attend the marriage of his niece and reached near the Chowk of the village, he saw the appellants reeping wheat crop from his land. He asked them to desist from doing so but they did not stop. They flared up and attacked him. Opening the attack James Irshad appellant inflicted Chhuri blow on his chest, followed by Samson Irshad alias Billu appellant and both of them gave a number of blows on different parts of his body as a result of which he fell down and when he was so lying they inflicted one blow each. His wife and daughters entreated the assailants to spare the life of the victim and eventually fell over the injured. The appellants then left the spot and took away their respective weapons with them. The injured breathed his lost then and there.
4. Mst. Venus, the widow of Shahbaz (deceased), leaving Jallal (P.W.) and others to watch over the dead body, and accompanied by Chuni Lal (P.W.) left for the police station to lodge the report but near the bridge of Ghuniki she came across Zafarullah Khan, S.I. To whom she recorded her statement (Exh.P.C.).
5. S.I. Zafarullah Khan (P.W.), after recording the statement of Mst. Venus complainant and sending the same to the police station for the registration of the case, accompanied her to the spot.
Reaching there he prepared injury statement and inquest report of the dead body and despatched the same to the mortuary for post-mortem examination. He collected the blood-stained earth from the spot and also took into possession a bundle of wheat crop lying reaped. On the following day Abdul Rashid, Constable, who had escorted the dead body to the mortuary, gave him the last- worn clothes of the deceased which were given to him by the doctor after the post-mortem examination. On 27-4-1984 he arrested James Irshad appellant and took into possession his blood-stained clothes. He arrested Samson Irshad appellant on 30-4-1984 who led to the recovery of bloodstained sickle (P.7) from his house. On the same day James Irshad appellant got recovered blood-stained Chhuri from heap dried up dung. He deposited the parcels in the police Malkhana. In this way completing the investigation, he submitted the challan.
6. On the commencement of trial the appellants were charged under section 302 read with section 34, P.P.C. And on their pleading not guilty the prosecution produced as many as 11 witnesses.
7. To be a little more precise, Abdul Majeed Shahid, Revenue Patwari (P.W.1) proved the site plans (Exh.PA.) and (Exh.PA./1). Abdul Rashid, Constable (P.W.2) deposed about the safe escort of the dead body from the spot to the mortuary and later handing over the last-worn clothes of the deceased to the Investigating Officer. A.S.I. Nishat Ahmad (P.W.3) had recorded the formal F.I.R.
(Exh.P.C./1) on the receipt of complaint (Exh.P.C.) and kept parcels pertaining to this case in safe custody before their transmission to the relevant office at Lahore. He deposed accordingly. Abdul Qadoos, Constable (P.W.4) testified about the safe transmission of parcels from Police Malkhana to the concerned office at Lahore.
8. David (P.W.5) deposed that on 27-4-1984 James Irshad appellant, who was produced before the police by Hari Masih produced blood-stained pant (P.5) and shirt (P.6) which was seized by the Investigating Officer after making them into sealed parcel. According to him, on 30-4-1984, Samson Irshad alias Billu appellant led to the recovery of sickle (P.7) from itis residential house.
James Irshad appellant got recovered Chinni (P.8) from the underneath heap of dung in his preseu-e and he attested the recovery memoranda. Jan Sarfraz (P.W. 6) testified about the collection and seizure of blood-stained earth and a bundle of wheat crop from the spot by the police. David Jan (W.P. 7) was the identifier of the dead body and he deposed accordingly.
9. Mst. Venus (P.W. 8) and her (laughter Mst. Razia (P.W. 9) gave the eyewitness account of the occurrence. It finds reflection in the above narration of the prosecution story. It shall be subjected to detailed appraisal, where necessary, in due course.
10. Dr. Saeed Ahmad, (P.W. 10) who at the relevant time was Medical Officer, D.H.O. Hospital, Kasur, deposed that on 24-4-1984 at 10-00 a.m. He conducted post-mortem examination on the dead body of Shahbaz after it was identified by Chuni Lai and David Jan (P.Ws.) and on external examination he found 2s many as 31 injuries on different parts of the body, all caused by a sharp- edged weapon, out of which 11 were incised wounds, 18 were stab wounds, one was abrasion and one was a lacerated wound, with corresponding cuts on the shirt, vest and 'Dhoti'.
11. On internal examination he found left and right anterior cranial fossa fractured under injuries Nos.3 and 4, and membrane and right and left lobes of the brain injured. He noticed 4th rib and lower end of third rib below injury No, 12, 5th rib below injury No, 13, left 6th rib below injury No, 14, and right 6th rib under injury No, 17, 11th left rib under injury No, 19 and Exiphi-sternal below injury Nos. 15 and 16 fractured. 'He noticed left 9th and 10th rib at costochoirderal junction cut under injury No,
29. He found pleura punctured below injuries Nos. 12 to 17, 19 and 29, right lung injury due to injury No, 17 and left lung injured under injury Nos. 13, 14, 15 and 29. Left strium of the heart stood perforated due to injury No, 12 and right ventricle punctured below injuries Nos.16 and 17 and left ventrical perforated under injury No,
29. In the abdomen, peritoneum stood injured under injuries Nos.15, 17 to 22 and diaphragm perforated below injuries Nos.16 and 17 while stomach stood perforated under injuries Nos.18 and 19 and it was empty. Small intestine was perforated at three places and large intestine at one place. Left lobe of the liver was found injured at two places under injuries Nos.16 and 17. The bladder was empty. Cut mark was present on the right ulna bone.
12. In the opinion of the doctor, the death, in this case, occurred due to hemorrhage and shock as a result of injuries Nos.3, 4, 12 to 22 which injured brain, lungs and intestine and these injuries were individually as well as collectively sufficient to cause death in the ordinary course of nature. All the injuries, according to him, were caused by a sharp-edged weapon excepting injuries Nos.7 and 11 which were caused by a blunt object, within the duration of 24 to 28 hours. All these injuries were antemortem resulting in instantaneous death. He proved the post-mortem report (Exh.P.J.) and the diagram of injury (Exh.PJ./1.)
13. The last witness was S.I./S.H.O. Zafar Khan (P.W.11). The part played by him as an Investigating Officer has already been outlined. Asmatullah D.DA. Gave up Mst. Musarrat, Jalal, Dayyal Masih as being unnecessary and Fateh Masih and Chuni Lal as having been won over. He tendered in evidence the report of Chemical Examiner (Exh.P.O.) and (Exh.P.O.) and those of Serologist (Exh.P.B.) and (Exh.P.S.) and closed the prosecution case.
14. The appellants, when examined under section 342, Cr.P.C. Denied all the incriminating circumstances figuring against them in the prosecution evidence. They declined to make statement on oath under section 340, Cr.P.C. They, however, produced defence. On the conclusion of his statement, James Irshad, appellant brought on the file the certified copy of the order dated 5-8-1984 (Exh.D.B.) of the High Court passed in Writ Petition No,3476 of 1989, certified copy of affidavit of Mst. Venus (Exh.D.F.) attached to the writ petition, certified copy of the letter dated 20-6- 1984 (Exh.D.G.), certified copy of the application of Mst. Venus (Exh.D.H.), copy of Khasra Girdawari (Exh.D.C.) and copy of Jamabandi of 1980-81 (Exh.D.D.).
15. Fateh Masih appearing as (D.W.1) testified that he was Lambardar of village Clarkabad to which the parties belonged and about two years and nine months ago a Punchait had been convened in the village wherein Jalal, the father of Shahbaz (deceased), had distributed his landed property measuring 12 acres among his sons, giving three acres of his land to his son Sardar, three acres to Shahbaz (deceased), three acres to the father of the appellants, and remaining three acres he retained for himself. Similarly, according to him, the Haveli was divided into three shares, each falling to the lot of Sardar, Shahbaz and Jalal. He further deposed that two acres of the land was subject to a mortgage charge of Rs,6,000 with him and it was decided by the Punchait that out of the mortgage amount, half will be received by Sardar and the remaining half shall be divided into equal shares by Jalal and Shahbaz (deceased). He testified that a Punchaitnama (Exh.D.J.) was scribed to give effect to this decision of the Punchiat and he signed it as a Lambardar. He deposed that the appellants had been falsely implicated in this case as the actual culprits were Hari, Sardar and Bashir. The next witness was Sardar Khan (D.W.2). He stated that Shahbaz (deceased) was his younger brother and in the years 1983 their father had convened Punchait, wherein he had distributed his landed property. He gave the same detail of the property and its distribution as given by Fateh Masih (D.W.1), He, however, alleged that he took possession of the share of the agricultural land but possession of 1/3rd of the Ihata was not given to him by the deceased.
According to him, the appellants were innocent and what had actually happened was that on the day of occurrence Shahbaz (deceased) had met him and asked him that he was to harvest the wheat crop from the field not under his cultivation but he refused to permit him to do so and it led to an altercation between them.
' He deposed, that meanwhile Bashir, his son, had started grappled with Shahbaz (deceased) as he was abusing him and in that process Hari gave Chhuri' blow to the deceased while Bashir snatched sickle from him (deceased) and they inflicted blows on him and later he reported the matter to Fateh Masih, Lambardar (D.W.1). Denial (D.W.3) stated that about two years back the appellants had insulted Rashid priest in the presence of Bishop but the matter was patched up and five or six days after this incident he came to know from a report in the newspaper that Shahbaz (deceased) had been killed. According to him, one or two months after the occurrence when he came to village Clarkabad and met Mst. Venus PW, she told him that the appellants had been falsely implicated by her at the instance of Rashid priest and actual culprits were not challaned. She also told him that she had filed a writ petition as well in this respect.
16. The learned trial Judge on the conclusion of the trial and by the judgment now under challenge, convicted and sentenced the appellants in the manner aforesaid and aggrieved by it they came up in appeal.
17. It is argued on behalf of the appellants:
(a) that somebody killed Shahbaz Masih in the early hours of the morning and the occurrence remained unwitnessed because, according to Mst. Razia P.W. He had taken breakfast an hour or so prior to the occurrence but, as per statements of the doctor conducting post-mortem examination, his stomach was empty; (I)) that Mst. Venus and her daughter Mst. Razia P.Ws. Made false statements as eye-witnesses as they were never present at the time of occurrence because had they been present, Mst. Venus would not have stated in the F I R that Samson Irshad alias Billu appellant had used sickle while at the trial she attributed Chhuri' to him.
(c) that the real culprits were Sardar, Bashir and Hari and Mst. Venus complainant continued to so assert before different forums, including High Court in her writ petition and before the higher police authorities in her application but during the course of her statement before the trial Court she falsely disowned all these documents;
(d) that the police registered the case after preliminary investigation;
(c) that the motive for the crime, as alleged by the prosecution, was not proved and it was so held even by the trial Court; and
(I) that the so-called recoveries were witnessed by Jan Sarfraz PW who was related to the deceased and was an interested witness.
18. As regards the first contention of the learned counsel for the appellants, I do not see much substance in it. Mst. Razia P.W., the daughter of the deceased, had stated that her father had taken bread and 'dal' in the breakfast prepared by her elder sister Mst. Pervain at 6-7 a.m. The occurrence took place at about 8-9 a.m. Thus there was an interval of 2-3 hours between the eating of breakfast by the deceased and time of occurrence and if the quantity of food taken by him was smaller it could be digested. Besides, according to the doctor conducting postmortem examination, the stomach of the deceased stood perforated at two places. This being so, the food, if any, in the stomach could have leaked out from the perforated portion till the time of post- mortem.
19. So far as the second contention of the learned counsel is concerned, that too carries no weight.
In the F.I.R., Mst. Venus complainant had no doubt alleged that Samson Irshad alias Billu had inflicted injuries to the deceased with sickle but during the course of her statement before the trial Court she deposed that, like co-accused, he was also armed with `Chhuri' and used it in causing injuries to her husband. In the first instance, there is not much difference between the kinds of two weapons but if she made a material departure at the trial regarding the kinds of weapons used by that appellant, she should have been confronted with her statement in the F.I.R. And variation should have been brought on the record but the learned defence counsel did not choose to do so.
She was, therefore, not afforded the opportunity to explain the variation in her statements and the appellants at this stage cannot be allowed to take advantage thereof for discrediting her testimony. There was, therefore, no good reason to say that Mst. Venus and her daughter Mst. Razia P.Ws. Did not see the occurrence. Both of them had asserted in her statements in the cross- examination that they had fallen on the injured and their clothes were stained with blood and they even showed the same to the Investigating Officer but he did not seize them. The contention of the learned counsel for the appellants that failure on the part of the Investigating Officer to seize their blood-stained clothes indicated that they were not bloodstained. No such presumption can be raised particularly when the Investigating Officer was asked question in this respect.
20. As regard the third contention of the learned counsel, Mst. Venus seems to have made some efforts to arraign Sardar, Bashir and Hari as accused in addition to the appellants and not in substitution for them. In that respect she seems to have allegedly filed a writ petition in the High Court and made application to the higher police authorities. However, she never alleged at any occasion that the appellants were innocent. If the Investigating Officer omitted to mention the aforesaid three persons as accused in the F.I.R. Or she failed to mention their names in the F.I.R. In addition to those of the appellants as assailants of her husband it did not mean that she had exonerated the appellants from the liability of killing her husband. From the start to finish she has consistently been blaming the appellants as the murderers of her husband on account of land dispute. In any case no fault can be found with the testimony of Mst. Razia P.W. Whose sole testimony against the appellants, who were her near relations, by itself was sufficient for their conviction.
21. An effort has been made by the learned counsel for the appellants to show that the police registered the case after holding preliminary investigation but it is not possible to give much weight to this aspect of the matter, particularly when Mst. Venus blamed the Investigating Officer for spoiling the murder case of her husband and even went to the extent of allegedly filing a writ petition against him. Fateh Masih DW was a prosecution witness. He chose to appear for the defence and in these circumstances no importance can be given to his statement, especially when he was condemned and given up by the prosecution as having been won over by the defence.
22. The next contention of the learned counsel also does not cut much ice. The case of the prosecution is that the father of Shahbaz (deceased) gave two acres of land more to the deceased than to the father of the appellants and this caused annoyance to them, ultimately constituting motive for the crime. Fateh Masih (D.W.1) has given different account of the distribution of the property by the father of the deceased among his sons and he has alleged a Punchaitnama claiming himself to be one of its witnesses, as already remarked. He is a won-over prosecution witness having been discarded by the prosecution and produced by the defence and for that reason no reliance can be placed on his testimony. In any case, whatever may the details of the distribution of the property made by Jalil, the father of the deceased and grandfather of the appellants, among his sons, the fact remains that there was a dispute between the deceased and the appellants regarding the land given to them by their predecessor. The motive, therefore, stood amply proved but if at all there was any infirmity in that respect, the appellants have already obtained concession in the matter of sentence and they deserve nothing more.
23. The recoveries were witnessed by Jan Sarfraz. He seems to be remotely related to the deceased but since the parties were closely related to each other, his relationship with the complainant party did not discredit his testimony as he was equally related to the appellants as well.
24. For various reasons stated above, I have come to the conclusion that the prosecution succeeded in proving the guilt of the appellants beyond any shadow of doubt by producing reliable ocular evidence coupled with the evidence of motive and recovery, further supported by the medical evidence which indicated vengeance of the assailants and presence of more than one person. The appellants were, therefore, rightly convicted under section 302/34, P.P.C. And ordinarily both of them should have been sentenced to death but the learned trial Judge showed undue leniency in the matter of their sentence. However, in the absence of any revisions petition, I have no alternative but to feel contented with the sentence awarded to them by the learned trial Judge.
25. In view of the above, there is no substance in the appeal and the same is dismissed.