' MUHAMMAD AMIR MP LIK, J.--- Barkat Ali complainant (P.W.3) is married to Mst. Husna Bibi, sister of Muhammad Shall. Mst. Sughran Bibi, the acquitted accused, is the wife of Muhammad Shall.
Muhammad Ali appellant is their son. The house of the complainant is just on the south of the house of Muhammad Shafi and Muhammad Ali appellants in Chak No, 10/1 A.L. At a distance of five miles from Police Station Renala Khurd. Ashraf, Aslam and Akbar, the sons of Barkat Ali complainant, were injured at the house of Shall at Ishawela on 21-7-1983. The former two soon expired at the spot while Akbar, in an injured condition, was taken to the hospital at Renala Khurd where he was medically examined by Dr. Nasim Ahmad (P.W.9) on 22-7-1983 at 1-00 p.m. And referred to the District Headquarters Hospital, Okara, where he expired and the post-mortem examination was performed by Dr. Aliz-ur-Rehman (P.W.13) on 30-7-1983.
2. Muhammad Shafi, his wife Mst. Sughran alongwith their son Muhammad Ali and Ilyas and Mohsab appellants were tried for the said murders by the learned Addl. Sessions Judge, Okara, who vide judgment dated 31-3-1986 acquitted Mst. Sughran but convicted the appellants and sentenced Muhammad Ali, Ilyas and Mohsab to death and a fine of Rs,5,000 or in default thereof one year's R.I. Each while Muhammad Shall was sentenced to imprisonment for life and the same amount of fine. Half of the fine, if realized, was ordered to be paid to the heirs of the deceased as compensation.
3. The case is before us under section 374, Cr.P.C. For confirmation of the death sentence (Murder Reference No, 133 of 1986). Ilyas and Mohsab have come up in appeal--Criminal Appeal No, 302 of 1986--while Muhammad Ali and Muhammad Shall appellants have preferred a separate appeal (Criminal Appeal No,31 of 1986). Barkat All complainant has moved Criminal Revision No,626 of 1986 for the enhancement of fine and for awarding independent compensation. All the matters are being disposed of by this single judgment.
4. Mohsab All has died during the pendency of the case and so the appeal abates on his behalf.
5. The learned trial Judge recorded a general order of conviction for the offence under section 302/34, P.P.C. With the sentences, as indicated above. He failed to record a specific order as to the sentence on three counts, there being three murders. For correction of the omission, in case the conviction was maintained, notice was issued to the learned counsel for the appellants who accepted the same.
6. The occurrence, as indicated above, took place at Ishawela on 21-7-1983 and the F.I.R. (Ex.P.D.) was recorded by Raja Muhammad Anwar, S.H.O. (P.W.14) at the Police Station on 22-7-1983 at 2 a.m., on the statement of Barkat Ali complainant (P.W.3). The version given by him was that he had married his son Aslam deceased to Mst. Majidan, the sister of Muhammad Ali appellant and a son, aged two and a half years, was the outcome. About one and a half years back Mst. Majidan eloped with Dilshad alias Shada of the accused party, and Aslam deceased reported the matter to the police. She was recovered and through Panchayat of the village there was compromise, she was returned to Aslam and the case was got cancelled. In spite of it, she continued her liaison with Shada and next year again eloped with him. Again she was restored through the Panchayat of Ch. Khushi Muhammad of the village. Still she continued with her evil ways and was, therefore, divorced by Aslam deceased a month before the occurrence. The version proceeds that on the very day of occurrence, i,e, on 21-7-1987 Mst. Majidan went to Renala Khurd along with her mother from where she left with Shada, and this fact was known in the village. At Digarwela Mst. Husna Bibi, the wife of the complainant, and Mst. Sughran accused quarrelled, and when this fact was known to Muhammad All appellant, he abused Mst. Husna and threatened to take revenge for the insult with the help of Shada party as Aslam had taunted his (appellant's) mother about the sending of her daughter Mst. Majidan as Muqlawah, and thus had brought bad name to them. At lsha prayer time when Aslam was returning to the house and passed from in front of the gate of the appellant's (Muhammad Shafi) house, he was caught hold of by Muhammad Ali, Ilyas alias Lachha and Mohsab accused and taken inside the house. His alarm attracted his brothers Muhammad Ashraf and Akbar deceased who scaled over the intervening wall and entered the courtyard of the house of Muhammad Shall appellant. The complainant also reached from the gate side. Inside the house Muhammad Ali appellant gave a Chhuri blow on the front chest of Aslam deceased, followed by a Toki blow on his head by Shafi and another blow was also given by Muhammad Ali appellant on the back of Aslam. When Akbar and Ashraf intervened to rescue their brother, Ilyas appellant gave a dagger blow on the back of Ashraf while Mohsab gave two chhuri blows to Akbar. The complainant was caught hold of in Japha by Mst. Sughran accused. It is also in the F.I.R. That in this struggle the accused party were also slightly injured. The alarm had also attracted Abdul Rashid (P.W.4) and Muhammad Umar (given up P.W.) from the adjoining house who also witnessed the occurrence.
7. Dr. Nasim Ahmad (P.W.9) medically examined Akbar while alive, on 22-7-1983 at 1 p.m. And observed the following injuries on his person:--
(1) An incised wound 4 c.m. x 2 c.m. x skin deep on the front of right forearm, 9 c.m. Below right elbow joint.
(2) An incised wound 1-1/2 c.m. x 1 c.m. x skin deep on the inner side of right forearm, 5 c.m. Below right elbow joint.
(3) An incised wound 2 c.m. x 1 c.m. x bone deep below the right knee joint.
(4) An incised wound 2 c.m. x 1 c.m. x viscera deep on the left of abdomen, 10-1/2 c.m. Below left nipple.
' Injuries 3 and 4 were kept under observation and advised X-ray while the rest were declared simple. All the injuries had been caused within a duration of six hours with sharp-edged weapon.
He was referred to the District Headquarters Hospital, Okara, on the application of the police.
8. The same doctor performed the post-mortem examination on the dead body of Aslam deceased the same day at 5 p.m. The following injuries were observed on the dead body:
(1) An incised wound 3 c.m. x 2 c.m. x bone deep on the inner side to the left nipple, 2 c.m. From it.
(2) An incised wound 1-1/2 c.m. x 1 c.m. x bone deep on the back of right chest, 27 c.m. Below the middle of base of neck and shoulder.
(3) An incised wound 1-1/2 c.m. x 3/4 c.m. x bone deep on the right and back of neck 2 c.m. From the middle of neck.
(4) An abrasion 3 c.m. x 1 c.m. On the back and inner side of right elbow joint.
' The injuries were ante-mortem, by a sharp-edged weapon and had resulted in death within about five minutes while the time between death and post-mortem examination was stated to be within 12 to 14 hours.
9. He also conducted autopsy on the dead body of Ashraf deceased on the same day at 6 p.m.
And observed the following injuries:
(1) An incised wound 3 c.m. x 1 c.m. x bone deep on the left side of chest on the back middle of chest, 16 c.m. Below the medial tip of left scapula.
(2) An abrasion 8 c.m. x 1 c.m. On the back of left hand.
' In the opinion of the doctor injury No,1 was ante-mortem, by a sharp-edged weapon and sufficient to cause death in the ordinary course of nature. The death occurred in about one hour and the time between death and post-mortem was given as 12 to 15 hours.
10. This very doctor medically examined Muhammad Shafi appellant. Aged 60/62 years, on the application of the police, on 24-7-1985, who was having the following injuries:-
(1) An abrasion 5 c.m. x 1/6 c.m. On the right side of chest, 7 c.m. Inner to right nipple.
(2) An abrasion 3/4 c.m. x 1/10 c.m. Below the middle joint of left ring finger on its back.
(3) An abrasion 1/2 x 1/6 c.m. On the back of left index finger.
(4) An abrasion 1/2 c.m. x 1/10 c.m. On the back of left hand.
(5) An incised wound 1-1/4 c.m. x 1/10 c.m. x skin deep on the inner side of right thumb.
' All the injuries were simple, caused within a duration of three days. Injury No,5 was by sharp- edged weapon and the rest by blunt weapon.
11. Muhammad All appellant was also examined by the same doctor and the following injuries were observed on his person:--
(1) Swelling in an area of 2 c.m. x 2 c.m. On the head in the middle.
(2) An abrasion 3 c.m. x 1/3 c.m. On the outer side of left ankle joint.
(3) An abrasion 2 c.m. x 1/3 c.m. On the left side and back of head.
' All the injuries were simple in nature, by blunt weapon and within a duration of three days.
12. He also medically examined Ilyas appellant on the same day, i,e, 24-7-1983, who was having an abrasion 1/2 c.m. x 1/10 c.m. On the left side of the nose. This injury was simple, by a blunt weapon and, within a duration of three days.
13. On that very day, he medically examined Mst. Sughran accused, who was having the following injuries:-
(1) A lacerated wound 3 c.m. x 1/2 c.m. x scalp deep on the right side of head, 7 c.m. Above right ear.
(2) Swelling on back of left hand.
(3) Complaint of pain in left shoulder joint.
' All the injuries were simple, by blunt object and opined to be within a duration of three days.
14. On the application (Exh.P.N.) by the police the doctor made the report that Akbar was not fit to make a statement and on the next day, i,e, 23-7-1983, he referred him to the hospital at Okara.
15. Dr. Aziz-ur-Rehman (P.W. 13) performed the post-mortem examination on the dead body of Akbar on 30-7-1983 at Sahiwal and observed the same injuries as were observed by Dr. Nasim Ahmad at the time of medico-legal examination, as well as an operational wound.
16. Raja Muhammad Anwar, S.H.O. (P.W.14), after recording the F.I.R. Claimed to have reached the spot. He prepared the injury statements and inquest reports of Aslam deceased (Exhs.P.Y. And P.Z.) and of Ashraf deceased (Exhs.P.AA and P.BB) and despatched the dead bodies to the mortuary for post mortem examinations. He collected blood-stained earth from the courtyard vide memo.
Exh.P.K. And sealed it into a parcel. He also recovered a plank of the door (P.10) from the house of Shah appellant vide memo Exh.P.L. The S.H.O. Arrested all the accused on 23-7-1983. Muhammad Shafi, Muhammad Ali, Ilyas and Mst. Sughran were injured and were got medically examined. He moved an application on 22-7-1983 inquiring from Dr. Nasim Ahmad whether Akbar was capable of making a statement. Akbar expired in the hospital and he prepared his inquest report (Ex.P.DD) and got the post-mortem done. He also got prepared site plans (Exhs.P.J., P.J./1 and P.J./2) from Abedullah Khan, Draftsman (P.W.6) and gave his notes thereon. On 5-8-1983 Muhammad Shafi and Muhammad All appellants respectively got recovered blood-stained Toki and Chhuri (P.2 and P.3) from the residential Kothas which were taken into possession vide memos. Exhs.P.B. And P.C.
And sealed into parcels. The S.H.O. (Raja Muhammad Anwar) associated Abdul Karim (P.W.2) in this recovery. On that very day, Mohsab and Ilyas accused had got recovered blood-stained chhuri and dagger (P.8 and P.9) from a ditch near Rajbah 1/AL which were secured vide memos Exhs.P.G.
And P.H. The weapons were sealed into separate parcels. The investigator associated Imdad Hussain (P.W.5) who witnessed the recovery. The reports of the Chemical Examiner and the Serologist (Exhs.PJJ and P.KK) were also tendered indicating that the weapons recovered from the accused were stained with human blood.
17. At the close of the trial Muhammad Ali appellant gave the defence plea which was adopted by his co-accused. He gave the details of the occurrence to the effect that his sister Mst. Majidan was married to Aslam deceased ten years back. She was abducted by Ilyas appellant, his brother Irshad alias Shada, their mother Mst. Zubaida and cousin Munk, against whom Aslam got an F.I.R.
(Exh.D.E) lodged on 5-11-1982. After her recovery by the police Mst. Majidan did not support the F.I.R.
And the case was cancelled being false. Barkat Ali complainant and his sons were annoyed with them over the conduct of Mst. Majidan. However, she was sent to the house of her husband Aslam.
But some days thereafter she again eloped with Shada and tiled a suit for dissolution of marriage in the Court of Senior Civil Judge, Rahimyarkhan. The complainant and Aslam deceased used to appear in the Court and even asked his (Muhammad Ali's) parents to prevail upon Mst. Majidan to come to live with her husband, but this could not be arranged. She continued living with Irshad and this caused grudge to the complainant family who developed hostility, hatred and enmity towards them. On the fateful night Aslam deceased, armed with a chhuri and Ashraf and Akbar deceased with dangs, trespassed into their house by scaling over the wall when he (Muhammad Ali), his father and mother were present. On seeing them (the deceased) they entered their Kotha, closed the door from inside, but the plank (P.10) was broken and Aslam injured Shafi with chhuri while Ashraf and Akbar also injured him (Muhammad Ali) and his father with sotas. He picked up a chhuri from the Kotha and injured the three deceased to save himself as well as his parents. He asserted that none of the eye-witnesses was present at the spot and he had acted in the exercise of right of self-defence of his own person and property. He further submitted that their family was estranged with Ilyas and Mohsab accused due to the abduction of Mst. Majidan by Shada, so they could not join hands in the same occurrence.
18. Muhammad Shafi and his son Muhammad Ali appellants, as indicated above are very close relatives of the complainant. Abdul Rashid (P.W.4) and Umar (given up P.W.) are real brothers and sons of Rahim, the real brother of Abdul Karim (P.W.2). Abdul Karim and Rahim are the brothers of Shafi appellant. Their sister Mst. Husna is the wife of the complainant and so the mother of the three deceased as well as Muhammad Akram (P.W.1). Another sister of Shafi appellant, Mst. Hafizan, is the mother of Imdad Hussain (P.W.5) and her daughter Maryam was married to Ashraf deceased. Except the affair of Mst. Majidan which is stated by the P.Ws. And also adopted by the appellants, there was no other estrangement or even a trivial affair between the members of the unfortunate two families. However, Ilyas appellant is the brother of Shada while Mohsab (the deceased appellant) is their relative. They are Syed by caste and also the residents of the same village. The house of the complainant is just on the north of the house of Shafi and Muhammad All appellants, separated by five and a half feet high wall while the house of Abdul Rashid and Umar P.Ws. Is just on the south of the house of Shafi appellant. According to the complainant, the house of Ilyas and Mohsab was about two acres on the north of his house. The complainant could not say as to where Shada along with Mst. Majidan was living at the time of occurrence, which clearly shows that they were not in the village. Muhammad All appellant claimed, as indicated above, that Ilyas and Mohsab accused could not join hands with them as they were estranged with each other due to the affair of Mst. Majidan but his assertion that Ilyas and Mohsab were not involved in the occurrence rather shows that Muhammad Ali and his parents had reconciled with the situation, i,e, divorce/dissolution of marriage of Mst. Majidan by Aslam deceased and her living with Shada, the brother of Ilyas appellant. Hence Barkat Ali and Abdul Rahid, the two eyewitnesses, who gave the ocular account of the occurrence, had no enmity with Shafi and Muhammad All appellants. The eye-witnesses can be said to have ill-will against Shada and so Ilyas and Mohsab accused as well, but had they intended to falsely involve somebody, then Shada would have been the most natural choice. The occurrence admittedly took place at the house of Shall appellant at night time and so the complainant and Abdul Rashid were the most natural witnesses. Hence they can be relied upon and were correctly relief upon by the learned trial Judge to answer the charge against the appellants.
19. There are two versions of the occurrence: one stated to by the eyewitnesses and the other by the appellants. These are to be kept in juxtaposition and appreciated so as to see whether the one given by the appellants is probable, so as to determine if any benefit (of doubt) can be extended to them. It is in the F.I.R. That in the struggle the accused had also received ordinary type of injuries.
These have been stated to by the doctor, as noticed above. The injuries are of very minor type and had the three deceased assaulted, armed with chhuri and Bangs, and that too at night when the inmates were leisurely present, the injuries to them would have been very serious and the three deceased would not have allowed themselves to be injured, what to say of being seriously injured with Chhuris and dagger. The defence version does not seem to be probable. Hence, an this account, no benefit of doubt can be extended to them.
20. Learned counsel for the appellants contended that there were two sets of accused, namely, Shafi, Muhammad All and Mst. Sughran on the one hand and Ilyas and Mohsab on the other. In view of the affair of Mst. Majidan they could not be expected to join hands, it was a night occurrence and in the darkness the details as to which of the appellants caused injuries to which of the deceased, as stated to by the eye-witnesses, could not have been given, in any case, the two eye-witnesses could not be believed being inimical, particularly when the complainant had made departures in his statement made at the trial from the version given in the F.I.R. And that the F.I.R.
Had not been recorded in the manner and at the time it purported to have been, and so the same could not be considered a corroborative piece of evidence.
21. Shall, Muhammad Ali and Mst. Sughran accused, as pointed out above, are the close relatives of the complainant family while Ilyas and Mohsab are not related to them. Of course, according to the two eye-witnesses, there was estrangement between the complainant family and that of Shall appellant over the affair of Mst. Majidan, but there seems to be no enmity or ill-will in view of the fact that there is no allegation nor any evidence to show that actually it was the family of Mst.
Majidan who were responsible for her abduction/elopement with Shada, rather after the first elopement she was restored to her husband, namely, Aslam deceased, but again she eloped and thus she alone was responsible for the trouble in the family. However, the two eye-witnesses were frank enough to concede that they were not on speaking terms with Shall appellant and his family members. This would not amount to enmity or interestedness of a nature so as to falsely implicate them in the murder case. So far as Ilyas and Mohsab accused are concerned, had the intention been to falsely implicate, Shada would have been the most natural choice. This was not attempted.
So, as concluded above, the two eye-witnesses are natural and believable as to their version of the occurrence. The appellants were well known to the P.Ws. And the identification when they were in close struggle would not have been a difficult affair at all. The witnesses were not cross-examined that they could not identify the assailants. Muhammad All appellant, while giving the defence plea, excluded the presence of Ilyas and Mohsab accused and had the two sets of the appellants/accused been estranged with each other, then he would not have tried to do so. In any case, this rather shows that after the divorce by Aslam deceased to Mst. Majidan, or might be the dissolution of marriage through Court, the family of Shall appellant had reconciled with the situation and that seems to be the reason that she was allowed to live with Shada. Barkat All complainant claimed to have told the investigator that Ilyas, Mohsab and Muhammad Ali had dragged Aslam deceased inside the room and denied to have stated to the police that they took him to the courtyard Of Shall appellant. On this aspect, he was properly confronted and contradicted. He even denied and departed from the F.I.R. That Ashraf and Akbar scaled over the intervening wall to enter the house of Shafi appellant. He was confronted and contradicted. He deposed that he told the investigator that when he reached the spot, Ashraf and Akbar were pushing the door which fell down and Aslam deceased also fell outside the door. This he had not done and so was confronted and contradicted. He also claimed to have told the investigator and stated in the F.I.R. That he lost his senses when Aslam deceased fell down. This he had not done, and was confronted and contradicted. He rather admitted that Ashraf and Akbar had dragged out Aslam. He also told that the accused had bolted their door after Aslam was dragged inside the room, but was frank enough to say that he was not then present. He is an aged person of 70/72 years and had lost his three sons, and that too at the hands of his near relatives. He seems to be confused, and lead by nose in cross-examination but so far as Abdul Rashid (P.W.4) is concerned, he has given a forthright account of the occurrence in line with the version given in the F.I.R.
22. However, it is a fact that the two eye-witnesses had reached on the alarm of Aslam deceased.
How he was pushed or dragged inside the house of the appellant (Muhammad Shafi), there is no direct evidence. The fact remains that it was inside the house of Shafi appellant that Aslam was injured. Argument has been raised by the learned counsel for the appellants that due to his wife having been divorced or she having obtained divorce through Court and having left with Shada, Aslam deceased felt to insult the family of Shaft appellant or to castigate them that she had gone on Muqlawa, but this can only be a possibility. We, therefore, cannot definitely say as to in what circumstances Aslam deceased was caught hold of/taken/dragged inside the house, or he himself entered the house. But in spite of it, the fact remains and the two eye-witnesses have told the truth that on the alarm of Aslam, Akbar and Ashraf scaled over the wall and thereafter they were injured.
In the circumstances, the argument of the learned counsel for the appellant is weighty that the start of the occurrence is not established or definitely known.
23. We agree with the learned counsel for the appellants that the F.I.R. Was not recorded at 2 a.m.
And in the manner it purported to have been. Muhammad Akram (P.W.1), the son of the complainant, who is employed at Faisalabad, learnt about the occurrence at 8 a.m., reached his Chak at 1 p.m. But did not see the police or his father and reached Renala Khurd hospital where his brother Akbar was admitted. His father was also not there. He goes on to tell that he took his brother Akbar to Okara hospital and then to Sahiwal hospital in a jeep. He also told that he did not see the dead bodies of Ashraf and Aslam deceased on his arrival at the spot or in the Civil Hospital at Renala Khurd. The complainant simply stated that he reported the matter to the police at the police station, but at what time he did not say anything in examination-in-chief. In cross- examination he deposed that Akram P.W. Met him at Renala Khurd when he was taking the dead bodies of Ashraf and Aslam to Okara in a trolley and was informed about the whole occurrence. He further told that Akram P.W. Went to Civil Hospital, Renala Khurd to inquire about Akbar. He was candid enough to say that the case had not been registered by the time Akram P.W. Met him at 10 a.m. At Renala Khurd. When they reached Adda Kisan along with the dead bodies, Khushi Muhammad, Vice-Chairman, reached in a car and brought him back to Renala Khurd for the registration of the case, which was registered at 12 noon. He goes on to inform that after the registration of the case he along with the investigator came to Civil Hospital, Okara, at about 1 p.m.
The investigator inspected the dead bodies, prepared the necessary documents, handed over the dead bodies to the constable and himself left for the place of occurrence. He along with Rashid and Umar accompanied him to the spot, wherefrom he collected blood-stained earth and the broken door of the room of Shafi appellant. Yar Muhammad (P.W.8) deposed in cross-examination that Barkat complainant left for the police station at about 5 a.m. To get the case registered. He was not cross-examined further on the point. Khushi Muhammad Constable (P.W.11), who escorted the dead bodies of Ashraf and Aslam to the mortuary, told in cross-examination that the dead bodies were handed over to him at 5/6 a.m. And he escorted the same to the hospital on a trolley.
Raja Muhammad Anwar, S.H.O. (P.W.14) the investigator, claimed that he learnt from the statement of the complainant that Akbar, in an injured condition, had been admitted to hospital at Renala Khurd, which was only 2/3 furlongs from the police station, but he did not go there and rather left for the spot reaching there at about 5 a.m. He denied that he had gone to the spot, for the first time, on 22-7-1983 at about Peshiwela. Reading all the statements together, it seems particularly from the statements of the complainant and his son Akram, that the F.I.R. Was recorded somewhere in the day time and there is every possibility that the investigator did not go to the spot in the early morning, as claimed by him. Thus, the F.I.R. Cannot be treated to be a corroborative piece of evidence.
24. The upshot of the above discussion and conclusions is that the charge against the appellants for the three murders is proved beyond any shadow of doubt. They were, therefore, to be convicted on three counts, but the learned trial Judge committed a mistake in not recording sentence on each count. Due notice, as observed above, had been given to the learned counsel for the appellants to correct the mistake, in case the conviction was maintained, and the same had been accepted. The origin of the fight not being known, we decline to confirm the death sentence passed upon Muhammad Ali and Ilyas appellants. They are rather convicted under section 302/34, P.P.C. On three counts, and sentenced to imprisonment for life and a fine of Rs,5,000 or in default thereof to undergo further R.I. For one year each, on each count. Similarly, Muhammad Shafi appellant is also convicted under section 302/34, P.P.C. On three counts and sentenced to imprisonment for life and a fine of Rs,5,000, or in default thereof to undergo further R.I. For one year, on each count. The sentences shall run concurrently. The appellants would have the benefit of the provisions of section 382-B, Cr.P.C. The whole of the fine, if realized, shall be paid to the heirs of the three deceased as compensation. The reference and the appeals are disposed of accordingly.
25. Muhammad Ali and Shafi appellants are in such a financial condition that they could not even engage a counsel and rather appealed through jail.
' Hence the case does not call for the enhancement of fine or compensation. The revision petition, therefore, stands dismissed in limine.