1. ' RASHID AZIZ KHAN, J.--- Muhammad Rasheed (28), Muhammad Saeed (24), Muhammad Latif (37) with their father Muhammad Sharif (70) were sent up by Police Station, Kupp, Multan, for trial for offences under section 302/307/34, P.P.C. Additional Sessions Judge, Multan. Vide judgment dated 13-8-1986 convicted and sentenced Muhammad Rashid, Muhammad Saeed and Muhammad Latif under section 302/34, P.P.C. To death with a fine of Rs,10,000 each, or in default two years R.I. Each.
2. Muhammad Sharif was sentenced under section 302/34, P.P.C. To imprisonment for life with a fine of Rs,3,000 or in default two years R.I. All of them were further convicted under section 307/34, P.P.C.
3. And each of them was sentenced to five years' R.I. And a fine of Rs,5,000 each or in default R.I. For six months each. It was further directed that the fines, if recovered, one half of it shall be paid to the legal heirs of the deceased as compensation. The sentences were directed to run concurrently.
4. Muhammad Rashid, Muhammad Saeed and Muhammad Latif were further convicted for an offence under section 13 of Arms Ordinance XX of 1965, and each of them was sentenced to two years' R.I. The convicts have appealed. The case is also before us for the confirmation of death sentence. All these matters will be disposed of by this judgment.
2. The prosecution story, in brief, as disclosed in the F.I.R. Exh.PA. Lodged by Muhammad Idrees alias Manna, is to the effect that he with his family lived in a house situated inside Lohari Gate. The upper portion of the house was in occupation of his paternal uncle Muhammad Sharif with his sons Latif, Rashid and Saeed. The waterpipe coming from the portion of his uncle was out of order, therefore, the water coming from it used to damage the room of the first informant. On 30-9-1985 at about 8 a.m., the first informant with his younger brother Muhammad Sabir asked his uncle and his sons to have the pipe repaired. This led to exchange of hot words. The first informant with his wife Mst.
5. Khurshidan intervened and forbade his brother Muhammad Sabir. He also requested his uncle and cousins whereupon they went upstairs. While going, they said that Muhammad Sabir thought too much of himself, and in due course would be taught a lesson. On the same day at 9-30 a.m., his uncle with his three sons Latif, Rashid and Saeed, armed with daggers, came down. Muhammad Sabir, at that time, was standing outside his house in the lane. They raised a Lalkara and then Rashid and Saeed gave a dagger blow each, which landed on the chest of Muhammad Sabir. The first informant with his another younger brother Muhammad Akhtar came to the spot, whereupon Muhammad Latif gave a dagger blow in the left flank of the first informant which was followed by Muhammad Sharif whose blow landed on the left thigh. Rashid and Saeed gave injuries to Muhammad Sabir on his abdomen and right arm. Muhammad Sabir fell down. Mst. Khurshidan, wife of the first informant, in order to save Muhammad Sabir, lay on him. Whereupon, the assailants gave her injuries as well. In spite of being injured, she kept on lying on Muhammad Sabir, therefore, the assailants started injuring Muhammad Sabir from sides. Muhammad Akhtar, younger brother of the first informant, raised alarm, whereupon Latif and Rashid gave him injuries on his right hand and forehead. The commotion attracted many people who witnessed the occurrence from the roofs of their houses. The assailants left the spot thinking Muhammad Sabir and Mst.Khurshid Bibi had died. The first informant with the help of others took Muhammad Sabir and Mst. Khurshid Bibi to Nishtar Hospital, who were alive. Muhammad Sabir died later becuase of the said injuries.
6. ' The occurrence in this case had taken place on 30-9-1985 in front of the house of the first informant and the accused persons, situated inside Lohari Gate, at a distance of two furlongs from Police Station Kupp.
7. ' F.I.R. Exh.P.A./1 was registered by Mchr Ali Shah, Moharrir/H.C., P.W.1, on 30-9-1985 at 10-50 a.m..On the receipt of statement Exh.P.A. Made by Muhammad Idrees, P.W.2 at Nishtar Hospital the same day at 10-30 a.m. Which was recorded by Muhammad Afzal, Inspector/S.H.O., P.W.13.
3. Dr. Muhammad Yousaf, Registrar, Nishtar Hospital, Multan (P.W.3) received Muhammad Sabir in an injured condition in Emergency Ward at 10 a.m. Who died at 10-30 a.m. The same day. On the same day, the police had made an application enquiring if Muhammad Idrees, injured, was in a fit state to make a statement, which he replied in the affirmative.
8. ' Dr. Iqbal Ahmad Sheikh, M.O., Nishtar Hospital, Multan (P.W.4) examined Muhammad Sabir on 30- 9-1985 at 9-40 a.m. And found the following injuries:-
(1) Incised wound 2 c.m. x 1 c.m. Transversely oblique on left illiac fossa. Depth was kept under observation. Bleeding was present.
(2) Incised wound 2 c.m. x 1 c.m. Vertically oblique on the right scapular region on the back of chest.
9. Depth was kept under observation. Bleeding was present.
(3) Incised wound 1-1/2 c.m. x 1 c.m. Transversely present on the front of right knee, lower part. It was skin deep.
(4) Incised wound 3 c.m. x 1 c.m. Transversely oblique on right side front of chest, in the interior axillary line. Depth was kept under observation. It was also bleeding.
(5) Incised wound 2 c.m. x 1 c.m. Vertically oblique left side front of chest, upper part in the interior axillary line. Depth was kept under observation. It was also bleeding.
(6) Incised wound 3 c.m. x 2 c.m. Longitudely present on the left axilla, Depth was kept under observation. It was bleeding.
(7) Incised wound 4 c.m. x 2 c.m. Longitudely placed on the interior surface mid of right upper arm.
10. It was muscle deep, and it was bleeding.
(8) Incised wound 3 c.m. x 2 c.m. On the outer surface of mid of left upper arm. It was muscle deep.
11. It was bleeding.
12. ' According to his opinion, collectively all the injuries were dangerous to life. Injuries Nos.7 and 8 were declared simple while the others were kept under observation. All the injuries were fresh and caused with a sharp-edged weapon. On the same day, he also examined Muhammad Idrees and found the following injuries:-
(1) Incised wound 4 c.m. x 2 c.m. Longitudely placed on front of left thigh at lower third. It was muscle deep and was bleeding.
(2) Incised wound 4 c.m. x 1/2 c.m. On the left side of abdomen on outer surface. It was skin deep.
13. An incised wound on the palmer side of right index finger 1-1/4 c.m. x 1/4 c.m. x skin deep 4-1/2 c.m.
14. Below the tip of finger.
(3) Incised wound 1/2 c.m. x 1/4 c.m. Transversely placed on the left side back of chest. It was muscle deep. On the same day at 1.10 a.m., he examined Mst. Khurshid Bibi and found the following injuries:-
(1) Incised wound 2 c.m. x 1 c.m. Vertically oblique on the left side back of chest at the lower one- third near the posterior axillary line. Depth was kept under observation. Bleeding was stopped, but it was oozing on touch.
(2) Incised wound 1 c.m. x 1/2 c.m. Transversely oblique on the palmer surface of distal phalynx. It was muscle deep.
(3) Incised wound 4 c.m. x 1/4 c.m. Transversely placed on the Thenar eminence of right hand. It was superficial.
(4) Incised wound 2 c.m. x 1/2 c.m. On the right scapular region. It was vertically oblique. Depth was kept under observation, and it was oozing.
(5) Incised wound 2 c.m. x 1 c.m. Vertically oblique in the right axilla in the posterior axillary line.
15. Depth was kept under observation and the wound was oozing.
16. ' Injuries Nos.,2 and 3 were declared simple, while injuries Nos.1, 4 and 5 were kept under observation. All the injuries were fresh and injuries Nos.1 to 5 were caused with a sharp-edged weapon. Injury No,1 was declared grievous while the rest were declared simple.
17. ' Dr.Riazud Din, Senior Medical Officer, Civil Hospital, Multan (P.W.5), on 1-10-1985 medically examined Muhammad Latif and found the following injuries:-
(1) A lacerated wound on the left side of head 3 c.m. x .2 c.m. x skin deep, about 7 c.m. From eyebrow and 10 c.m. From ear parallel to midline.
(2) An abrasion 1/4 c.m. x 1/4 c.m. On the back of left palm.
(3) An abrasion 3/4 c.m. x 1/2 c.m. On the upper most part of left palm.
(4) An abrasion 1/3 c.m. x .2 c.m. On the upper most part of left palm near injury No,3.
(5) An abrasion 1/4 c.m. x 1/4 c.m. On the inner side of right middle finger about 1-1/2 c.m. Below the tip of finger.
18. ' All the injuries were simple in nature.
19. ' On the same day, he also examined Muhammad Rasheed, aged 27 years, and found: ' The injury was caused with a sharp-edged weapon and was simple in nature.
20. ' On the same day, he also examined Muhammad Saeed, aged 24 years, and found the following injuries:-
(1) A lacerated wound on back of right side of head 1-1/2 c.m. x 1/4 c.m. x skin deep about 12 c.m.
21. From ear and 16 c.m. From eye-brow.
(2) An abraded bruise on the palmer side of left thumb 4 c.m. x 1-1/2 c.m. About 3/4 c.m. Below the tip.
(3) Four small linear scratches 1/4 c.m. Long each on the outer side of left wrist joint.
(4) A laceration 1/4 c.m. x 1/4 c.m. On the right side of upper lip.
(5) A bruise 4 c.m. x 3 c.m. In front of left pinna. All the injuries were simple in nature caused with a blunt weapon.
22. ' Dr.Iftikhar Hussain Qureshi, C.M.O., Civil Hospital, Multan (P.W.9), on 30-9-1985 at 3 p.m. Conducted the post-mortem examination on the dead body of Muhammad Sabir and found the same injuries that have been discussed earlier. In his opinion, the death had occurred due to shock and hemorrhage as a result of injuries Nos.1, 2 and 3 collectively. These injuries were sufficient to cause death in the ordinary course of nature.
4. Muhammad Afzal, Inspector/S.H.O. (P.W.13), on 30-9-1985 on receiving the information reached Nishtar Hospital, Multan. He recorded the statement of Muhammad Idrees and sent the same for registration of a case. At the Hospital he learnt about the death of Muhammad Sabir, therefore, prepared his inquest report Exh.P.BB. And injury statement Exh.PAA., and then sent the dead body for autopsy. He also took into possession blood-stained clothes of Muhammad Idrees and of Mst.Khurshid Bibi vide memos Exhs.P.O. And P.Q., respectively. Thereafter, he reached the spot and collected blood-stained earth vide memo Exh.P.S. He recorded the statement of Muhammad Akhtar, P.W., and took into possession his blood-stained shirt vide memo. Exh.P.R. On 30-9-1985 he arrested Muhammad Latif, Saeed and Rashid, appellants. He found them wearing blood-stained clothes, therefore, he took them into possession vide memos Exhs.P.D., P.U. And P.V., respectively. On 1-10-1985 he got Muhammad Latif, Saeed and Rasheed medically examined.
23. ' Rashid appellant while in custody, on 2-10-1985 got recovered bloodstained Khanjar P.14 from a box lying in his residential room, which was secured vide memo Exh.P.W. Muhammad Saeed appellant also got recovered his bloodstained Khanjar P.15 from his room lying in a matress on a cot which was secured vide memo Exh.P.X. Muhammad Latif on the same day also got recovered bloodstained dagger P.16 lying undermnth the bricks on the roof of his house, which was secured vide memo Exh.P.Y. He got all the memos attested from the witnesses.
24. ' He arrested Sharif appellant on 2-10-1985 who was produced by Mian Khan, A.S.I., and Talib Hussain. He got prepared site-plans Exhs.P.CC. And P.CC./1-2 from the draftsman and gave his notes in red ink thereunder. After completion of the investigation, he challaned all the accused.
5. The prosecution in support of its case produced 13 witnesses in all. The doctors who had examined the injured and conducted the post-mortem examination have already been discussed.
25. Mehr Ali Shah, H.C., P.W.1, drafted formal F.I.R. Exh.P.A./1 on 30-9-1985. The ocular account was furnished by Muhammad Idrees and Khurshid Bibi, P.W.2 and P.W.12, respectively. Shamsher Ali, Constable, P.W.7 was handed over the seven sealed parcels for onward transmission to the office of Chemical Examiner, Lahore, on 6-10-1985 which he delivered on 7-10-1985. Muhammad Rafique, P.W.8 had witnessed the recovery of blood-stained clothes of Muhammad Idrees and Mst.Khurshid Bibi, P.Ws. He had also witnessed the recovery of blood-stained clothes of Muhammad Rashid, Muhammad Saeed and Muhammad Latif, appellants. He had signed the recovery memos.
26. ' On 2-10-1985, he had witnessed the recovery of Khanjars P.14, 15 and 16, at the instance of Rashid, Saeed and Latif, appellants. He had signed all the memos. Mian Khan, A.S.I., P.W.10, had got the appellants examined. Shaukat Hayat, P.W.11, had prepared site-plans Exh.P.CC. And Exh.P.CC./1-2 on the direction of the police. Muhammad Afzal, S.H.O., P.W.13, had investigated the case.
27. ' The Public Prosecutor tendered in evidence the report of the Chemical Examiner Exh.P.HH. And that of the Serologist Exh.P.GG. And closed the case of the prosecution.
28. ' The appellants at the conclusion of the prosecution evidence were examined without oath, wherein they refuted the prosecution allegations and pleaded innocence. Muhammad Rashid in answer to a question stated that he was not even present at the spot. Muhammad Sharif appellant in answer to a question stated that on the fateful day he was disgraced by the deceased, who spit on his beard. His sons Saeed and Latif lost self-control, and under grave and sudden provocation as well as in the right of private defence caused injuries to the P.Ws. As well as to the deceased.
29. Appellants Muhammad Latif and Muhammad Saeed while refuting the prosecution allegations also pleaded right of private defence as well as grave and sudden provocation.
6. It was contended by learned counsel for the appellants that the defence plea may be accepted as it appears to be nearer the truth, because both the parties were closely related and lived together for the last 25 years without there being any unpleasant incident, therefore, something most extraordinary must have happened which .Enraged the appellants and prompted them to commit the offence. It was argued that Muhammad Rafique, P.W.8, the recovery witness, may not be relied upon being a close relation of the P.Ws. It was asserted that the ocular account may not be relied upon because they did not come with the whole truth. From the evidence it appeared that only one incident had taken place and not two, as asserted by the eye-witnesses. The contentions were controverted by learned counsel for the State as well as for the complainant. According to them, the occurrence had taken place in front of the house of the witnesses, therefore, they were natural witnesses and their presence would not be doubted because they were found injured.
7. - We have heard the learned counsel at length and gone through the evidence. The prosecution in order to establish its case relied upon the ocular account corroborated by the recovery of blood- stained daggers and the report of the Serologist. The ocular account has been furnished by Muhammad Idrees and Mst. Khurshid Bibi, P.Ws.2 and 12, respectively. Muhammad Idrees in his statement corroborated the version given by him in the F.I.R. He also gave the motive. He was cross-examined at length. After having gone through his statement carefully, we have come to the conclusion that he is a truthful witness and can safely be relied upon for the reason that the occurrence took place in front of his house in the morning. His presence at the spot is natural and no exception to the same could be taken. He was injured and his injuries lend corroboration to his statement to the effect that the same were caused with a sharp-edged weapon. In cross- examination he admitted that the appellants were very closely related to him. He also stated that they had been living together in the same house for the past 25 years without there being any unpleasant incident. In these circumstances, any motive or ill-will on the part of this witness can safely be ruled out. It was also in his evidence that on the fateful day he with his younger brother Muhammad Sabir, deceased, requested their real paternal-uncle to get their drain-pipe repaired as it used to damage their household belongings. It seems that it was not received with due consideration, therefore, hot words were exchanged. This witness with his wife Mst.Khurshid Bibi requested his uncle and cousins, and the matter ended. While he with his wife was in the room and his younger brother Muhammad Sabir was standing outside, the appellants armed with daggers came and launched an attack on Sabir. The narration given by this witness is convincing and finds corroboration from the medical evidence as well. B In the absence of any hostility being brought on the record, we hold that complete reliance on his statement can be placed.
30. ' Mst.Lthurshid Bibi, P.W.12, also corroborated the version given by Muhammad Idrees, P.W.2. She stated that she was in the room when the appellants, armed with daggers, came and launched an attack on Muhammad Sabir, her brother-in-law. They caused him injuries, whereupon he fell down.
31. In order to save him, she rushed and lay on him but the assailants caused her injuries as well. She was also cross-examined in detail but the defence could not bring anything on the record to suggest that on the fateful day she was not present in her house; she had any strained relations with the appellants or had any motive to falsely implicate them. The manner in which she narrated the (c incident inspires confidence. Her statement finds corroboration from medical evidence, as the doctor found her injured and the injuries were caused with a sharp-edged weapon. In these circumstances, we hold that she can safely be relied upon.
32. ' Muhammad Rafique, P.W.8, had witnessed the recovery of blood-stained daggers at the instance of Muhammad Rashid, Muhammad Saeed and Muhammad Latif, appellants. All of them while in custody got recovered bloodstained daggers from their residential house from different places.
33. The witness was cross-examined at length but the defence could not make his testimony doubtful or create any doubt which could prompt us to hold that the statement of this witness is not worth reliance. It has come in evidence that he was related to the prosecution side, but that would hardly be a consideration for discarding his evidence because both the parties are so closely related that the relation of one side would equally be related to the other. The defence did not suggest any motive on the part of this witness for deposing falsely. Therefore, while relying upon the testimony of this witness, we declare that the recovery of blood-stained daggers at the instance of the appellants, except for Sharif, is proved. The said blood-stained daggers were sent for examination to the Chemical Examiner who found them stained with blood and thereafter the Serologist opined that the blood was of human origin.
34. ' There appears to be some force in the contention of the learned counsel for the appellants that Muhammad Sharif appellant, who was about 70 years of age at the relevant time, may not have participated in the occurrence. No dagger was secured from his possession. It is in evidence that the fight originated when Muhammad Idrees, P.W., requested Muhammad Sharif to have his drain- pipe repaired. It is prosecution's case that the sons of Muhammad Sharif came and started abusing the prosecution witnesses and not Muhammad Sharif. He might have been present at the spot but his participation is exremely doubtful, because there could not have been any occasion for a man of 70 years of age to actively take part in the fight when three young men on his side, armed with daggers, were there. In these circumstances, as an abundant caution, we accept his appeal and set aside his conviction. He shall be released forthwith if not required in any other case.
35. ' As far as the remaining appellants are concerned, we hold the prosecution has been able to prove its case against them beyond any doubt. The contention of the learned counsel for the appellants that it was not a case of extreme penalty, requires consideration. It is admitted that there was no background of hostility between the parties, and they were living amicably. It is also in evidence that the dispute arose on a very insignificant matter which led to the unfortunate incident. Since they were closely related to the deceased, and in the absence of any background of enmity, we feel something must have happened which prompted them to commit the occurrence.
36. In these circumstances, we feel the sentence of imprisonment for life will adequately meet the ends of justice.
37. ' For what has been discussed above, while dismissing the appeal of Muhammad Rashid, Muhammad Saeed and Muhammad Latif, we convert their sentence of death to imprisonment for life. The sentence of fine shall, however, be maintained. The sentences recorded under section 307/34, P.P.C. Are also maintained. Both the sentences shall, however, run concurrently. They shall also be given the benefit of Section 382-B, Cr.P.C. The death sentence is not confirmed.