1. ' RASHID AZIZ KHAN, J.---Muhammad Nawaz (19) and Zulfiqar (26) were sent up by Police Station Gerh Maharaja, Tehsil Shorkot, District Jhang, for trial for an offence under section 302/34, P.P.C. The Additional Sessions Judge, Jhang, vide his judgment dated 4-1-1987 found both of them guilty for the murder of Zulfiqar, and sentenced each of them under section 302/34, P.P.C. To death and a fine of Rs,5,000 each or in default two years' R.I. Each. It was further directed that the fine, if recovered, shall be paid to the legal heirs of the deceased. Both the convicts have appealed to this Court. The case is also before us for the confirmation of death sentences. Beth the matters will be disposed of by this judgment.
2. The prosecution story, in brief, as disclosed by Shamir was to the effect that he was an agriculturist. On 26-8-1985 at noon time his son Zulfiqar went t have a round of cotton crop. The first informant with Muhammad Nawaz an Murid followed him as the first informant wanted to go to his maternal-uncle' house. When Zulfiqar reached near the cotton crop of one Shabbir, Muhamma. Nawaz armed with knife, and Zulfiqar, empty handed, emerged from the sai crop.
2. Zulfiqar son of Allah Yar raised a Lalkara to Zulfiqar, son of the first informant, that he would not be spared that day and they would teach him lesson for disgracing them. Thereafter, he caught hold of Zulfiqar, son of the firs informant. Muhammad Nawaz gave three knife blows to him which landed on hi flank, the other on behind his left ribs and the third landed on the left side of the chest. The eye-witnesses came running to the spot. The accused also receive injuries from Shamir, the first informant.
3. ' The motive as given in the F.I.R. Was that the first informant suspected illicit relations of accused Zulfiqar with his wife Mst. Gullan. A few days earlier, at evening time, Zulfiqar son of Allah Yar, and Muhammad Nawaz were roaming about near the Dhari of the first informant when his son Zulfiqar reprimanded them as well as gave beating to Muhammad Nawaz.
3. Complaint Exh.P.F. Was made by Shamir, P.W.9, which was recorded by Abdul Shakoor, A.S.I. P.W.11, in the bazar of the town Gerh Maharaja at 6.45 p.m. On 26-8-1985 with regard to an occurrence which had taken place the same day at noon time. The distance between the place of occurrence and the Police Station Gerh Maharaja was five K.M. F.I.R. Exh.P.F./1 was recorded the same day at 7- 10 p.m. By Ghulam Hassan, RC., P.W.3.
4. ' Abdul Shakoor, A.S.I., F4.11, after recording the complaint Exh. P.F., proceeded to the hospital and enquired from the doctor vide application Exh. P.J. If the injured was in a fit state to make statement. The doctor replied in the negative vide Exh.P.J./1. Thereafter, he went to the spot and secured bloodstained earth vide memo Exh.P.I. He recorded the statements of the witnesses. On 27-8-1985 he learnt about the death of Zulfiqar, therefore, he came to the hospital and prepared inquest report Exh.P.L. And sent the dead body for postmortem examination. He also received medico-legal reports Exh.P.C. And P.D. In respect of both the appellants. He arrested Muhammad Nawaz on 28-8-1985, who while in custody on 7-9-1985 led to the recovery of knife P.2 from the house of Zulfiqar appellant, which was secured vide memo Exh. P.H. He got the site-plan Exhs.P,G.
5. And P.G./1 prepared from the Patwari and gave his notes in red ink thereunder. He arrested Zulfiqar appellant on 17-9-1985. After the completion of the investigation, he submitted the challan.
6. ' Dr. Abdullah Shah Hashmi had initially examined Zulfiqar son of Shamir on 26-8-1985 at about 5 p.m. And found three stab injuries on his person. Since the said doctor was not available, therefore, medico-legal report Exh. PA. Was proved by Ghulam Jillani, P.W,1, who had worked as Dispenser of said doctor and was fully familiar with his hand-writing. The said doctor had also conducted the postmortem examination Exh.P.B. On the dead body of Zulfiqar on 27-8-1985. According to him, stab wound 2 c.m. x 2 c.m. x chest cavity below the fold of left axilla was found grievous. In his opinion, the death had occurred due to shock and haemorrhage, as a result of injury No, 1 which was sufficient to cause death in the ordinary course of nature. Injuries Nos. 2 and 3 were simple in nature. All the injuries were antemortem and caused with a sharp-edged weapon.
7. ' The same doctor had also examined Zulfiqar son of Allah Yar appellant at 6 p.m. On 26-8-1985 vide M.L.R. Exh.P.C. And found five injuries. He had found two incised wounds; one on the back of the left shoulder, the other on the left wrist joint. The injuries were caused with a blunt weapon and the injuries were simple in nature. He had also examined Muhammad Nawaz appellant on the same day and found three lacerated wounds on his person, which were simple in nature.
4. The prosecution in support of its case produced 11 witnesses in all. P.W. 1 Ghulam Jillani, Dispenser had proved medico-legal report prepared by Dr. Abdullah Shah Hashmi, S.M.O. R.H.C., Gerh Maharaja. The report Exh.PA. Was of Zulfiqar son of Shamir, and thereafter, postmortem report Exh.P.B. The said witness also proved medico-legal report Exh.P.C. In respect of Zulfiqar appellant, and medico-legal report Exh.P.D. In respect of Muhammad Nawaz appellant.
8. ' Ahmad Bakhsh, H.C., P.W.5, received a sealed parcel containing bloodstained knife on 7-9-1985, which he sent to the Office of Chemical Examiner on 1-10-1985. Bahawal Bakhsh, F.C., P.W.6, had delivered a sealed parcel containing knife and blood-stained earth in the office of the Chemical Examiner, Lahore, intact. Noor Khan, Patwari, P.W.7, had prepared site plan Ddis.P.G. And Exh.P.G./1 on the pointation of the police. Noor Muhammad, P.W.8, had witnessed the recovery of knife P.2 from the house of Zulfiqar appellant at the instance of Muhammad Nawaz appellant. He had signed the recovery memo Exh.P.H. The ocular account has been furnished by Shamir and Murid Hussain, P.Ws.9 and 10, respectively. The case was investigated by Abdul Shakoor, A.S.I., P.W.11.
9. ' At the conclusion of the prosecution evidence, the prosecutor gave up P.Ws. Muhammad Nawaz, Allah Ditta, Ghulam Hussain and Ghulam Muhammad as unnecessary and closed the case of the prosecution after submitting the report of the Chemical Examiner Exh.P.N. And that of the Serologist Exh.P.O.
10. ' The appellants were examined without oath, wherein Zulfiqar in answer to a question stated that the deceased used to suspect him of having illicit relations with his mother. An evening before the occurrence, he saw him (appellant) in an objectionable condition with his mother but he managed to slip away. On the date of incident he (appellant) was coming back from the fields with his mother and Muhammad Nawaz appellant. They were carrying grass on their heads. When they reached near the place of occurrence, the deceased attacked them with hatchet, alongwith two-three persons who were armed with Dangs. The deceased pulled the Chaddar of his mother, who became naked, and wrapped it on his head. The appellant tried to get the Chaddar back when he was attacked with a hatchet by the deceased, and his companions also gave them danda blows. Thereafter he gave injuries to the deceased with a sickle which he was carrying, in order to save his life. Muhammad Nawaz appellant also made a similar statement.
11. Both the appellants, however, declined to produce defence evidence or appear on oath in their defence.
5. It was contended by learned counsel for the appellants that the prosecution had failed to prove its case because the motive, as alleged, would have been against the deceased. Argued that the eye-witnesses could not be present at the spot and at its best they were chance witnesses.
12. Submitted that the complainant was father of the deceased and thereby he was interested and inimical as well, and his statement could not be relied upon. Argued that the defence version if kept in juxtaposition with the prosecution case, appeared to be more plausible and the same should have been believed. The contentions were opposed by learned Assistant Advocate-General who submitted that the prosecution was able to prove its case beyond any doubt. Argued that the defence had also admitted the occurrence, and in such circumstances, the case of the prosecution stood proved.
6. We have heard the learned counsel and gone through the evidence with his assistance. The prosecution in order to establish its case has relied upon the ocular evidence corroborated by the recovery of knife at the instance of Muhammad Nawaz appellant, and the medico-legal reports.
13. Muhammad Nawaz appellant was arrested on 28-8-1985, and thereafter on 7-9-1985 while in custody he got recovered knife P.2 from the house of Zulfiqar appellant, which was secured vide memo Exh.P.H. The recovery was witnessed by Noor Muhammad and Abdul Shakoor, A.S.I., P.Ws.8 and 11, respectively. Noor Muhammad, P.W.8 deposed that he was a Councillor of the Village. He was going towards his land when the police made him join the investigation, and thereby he witnessed the recovery of knife P.2 from the house of Zulfiqar appellant. In cross-examination, he stated that he never appeared as P.W. In any criminal case. We have noticed that the defence has not suggested any enmity to this witness. He was not related to either side and was a Councilor of the village. In cross-examination, he also stated that he never appeared as P.W. In any case. In these circumstances, we hold that he is a truthful witness and his evidence inspires confidence.
14. ' The ocular account has been furnished by Shamir and Murid Hussain, P.Ws.9 and 10, respectively.
15. According to Shamir, his son Zulfiqar was going towards his land when he was surprised by the appellants. Muhammad Nawaz was holding a knife, and Zulfiqar appellant was empty handed.
16. Zulfiqar challenged the deceased. Within his view, Muhammad Nawaz gave 2/3 injuries to the deceased, with the result of which he fell down. Zulfiqar appellant caught hold of the deceased. The witness was armed with a Kassi, therefore, he also caused some injuries with the same to the appellants who managed to slip away along with the weapon of offence. The witness was cross- examined at length. We have noticed that the defence has not been able to bring on record anything which could indicate that he was not present at the spot or was giving a false version. His statement also finds corroboration from the medico-legal report, according to which there were injuries on the person of the appellants as well. Since he was armed with a hatchet, therefore, there were two incised injuries on the person of Zulfiqar appellant, and the rest were with blunt weapon.
17. We are not impressed with the argument of the learned counsel for the appellants that at least two weapons were used in causing injuries to them. Blunt weapon injuries could also be caused with hatchet if wrong side was used. Murid Hussain, P.W.10, corroborated the statement of Shamir, P.W. In cross-examination, he admitted that his wife was cousin of Shamir PW's wife. According to him, they were at a distance of 10/11 karams when they saw the appellants causing injuries to the deceased. In answer to a question, he stated that he could not give the location of the injuries caused by Shamir P.W. To the appellants. The learned counsel for the appellants tried to make a capital out of it, but we hold, that the witness has very frankly and truthfully admitted that he could not give the location of the injuries on the person of the appellant, which proves that he is a truthful witness. If he was not present and had been imported as an eye-witness, he would have been tutored to an extent that he could give location of injuries on the person of the appellants. We have failed to notice anything which could even remotely suggest that he was not present at the spot or he had any enmity against the appellants. In these circumstances, we hold that the eye-witnesses were present at the spot; their statements inspire confidence and can safely be relied upon.
18. ' Keeping in view the defence version in juxta-position with the prosecution case, we are of the view that the defence version cannot be relied upon. Zulfiqar appellant in his statement stated that he alongwith his co-accused and his mother were coming towards the village while carrying grass when the deceased came and stripped off the Dhoti of his mother, thereafter, he wrapped the saiu Dhoti on his head. When he tried to take it back, he was injured and thereafter, he in self-defence caused injuries to the deceased. We have considered this statement but are not inclined to rely upon the same because it is unimaginable that a young man of 26 years of age would allow a boy of 18 years to strip off his mother's clothes in his presence and would not even attempt to resist. The appellant chose to keep quiet till the deceased wrapped the Dhoti on his head, and thereafter he went forward to take it back. This on the face of it is most unnatural. Even otherwise also, it is not possible to pull away a Dhoti without there being any resistance. The defence version of the appellants is also falsified by the statement of the Investigating Officer who did not find any grass near the spot. In these circumstances, we have no hesitation in holding that the defence version as put forth by the appellants is not worth reliance, therefore, the same is ruled out of consideration.
19. ' The last contention of the learned counsel for the appellants about the quantum of sentence needs consideration. We have noticed that their injuries were not explained in the F.I.R. So much so the weapon of offence is not mentioned therein at all. Kassi with which the appellants are alleged to have caused injuries was introduced before the Court for the first time. The motive, if at all, was with the deceased to open the attack as he suspected the appellant of having illicit relations with his mother. In these circumstances, we are of the considered view that the prosecution has not established the circumstance which I D originated the fight. In such cases, the sentence of imprisonment for life would adequately meet the ends of justice. Therefore, while holding that the prosecution r, has been able to prove its case successfully, we reduce the sentence of death of both the appellants to imprisonment for life. The sentence of fine shall, however, be maintained.
20. The appellants shall also be given the benefit of section 382-B, I F Cr.P.C. The death sentence of both the appellants is not confirmed.
21. Sentence reduced. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.