' RIAZ AHMAD, J.--- The appellants Shahadat and Yousaf both brothers sons of Nadir were tried by the learned Sessions Judge, Okara on a charge under section 302 read with section 34 of the Pakistan Penal Code on three counts for having committed the murder of Mst. Gullan, Malla and Anwar alias Saeed (deceased).
' Vide judgment dated 15th of February. 1986, the learned Sessions Judge found both the appellants guilty on the aforesaid charge and accordingly, the appellants were convicted and sentenced to death on all the three counts and to pay a fine of Rs,10,000 on each of the count or in default of the payment of fine to suffer R.I. For a term of six months on each of the charges. The learned Sessions Judge further directed that half of the fine, if realized, shall be paid to the heirs of the deceased.
' Aggrieved by their conviction, the appellants have preferred Criminal Appeal No,148 of 1986 and the case has also been referred to us under section 374, Cr.P.C. This judgment shall dispose of the appeal as well as the reference.
2. The tragic incident resulting into three deaths took place on 17th of August, 1984 at 3 p.m. At the Dhari of Syed Murtaza Dakhli, Mata Proka situated at a distance of two miles from Police Station Gogira in District Okara. The first information report Exh.P.E. Was lodged at the police station on the day of occurrence at 3-45 p.m. By Muhammad Ali P.W.5 and the same was recorded by Rehmat Khan Sub-Inspector, P.W.10.
' In brief, the prosecution case as disclosed in F.I.R. By the complainant Muhammad Ali, P.W.5 was that he was an agriculturist and was a resident of village Jhok Khiali and on the fateful day, he, his father Anwar alias Saee,, his brother Malla and Mst. Gullan wife of Malla along with Muhammad Ashraf and Jehangir had visited the house of Shahadat for settling the marriage of Ahmad Ali, a brother of the complainant. The complainant further stated that they reached the Dhari of Murtaza Shah Dakhli Mata Proka in the morning and after taking the meals at noon time, the father of the complainant, Anwar alias Saee and Malla, brother of the complainant lay on cots to take rest under a Sheesham tree. Under another Sheesham tree, situated nearby, the complainant and Muhammad Ashraf and Jehangir who were accompanying the complainant party sat on cots and were gossiping with each other. At about 3 p.m. Appellant Yousaf armed with a Kassi and Shahadat appellant armed with a Datar came out of their Kotha and launched an attack on the complainant side. Appellant Yousaf inflicted four blows with the Kassi on the person of Malla deceased hitting his forehead and mouth. Anwar alias Sate father of the complainant tried to get up when appellant Yousaf inflicted Kassi blows on the neck and below the left ear of deceased Anwar. Gullan deceased the wife of Malla deceased came out of Dhari and raising hue and cry reached the scene of occurrence but Yousaf appellant felled him down and Shahadat appellant inflicted a Datar blow on her throat. The complainant and his companions, Muhammad Ashraf and Jehangir raised hue and cry and went forward to rescue the victims of attack but both the appellants threatened them with dire consequences and being empty handed, they did not proceed further.
3. The motive for the commission of offence as disclosed in the F.I.R. Was that 15/16 years before the occurrence, Malla deceased had abducted Mst. Gullan deceased his wife who was sister of the appellants. The appellants kept on nursing grudge against Malla deceased and their sister Gullan.
It was also stated by the complainant that cunningly, appellant Shahadat compromised with the complainant side and got his son Akbar married with Shahnaz, the niece of the complainant and in exchange of the said marriage, he agreed to give the hand of his own daughter Mst. Sharifan in marriage to Ahmed Ali brother of the complainant and on that pretext, Shahadat had invited the complainant side to his house where both the appellants in furtherance of their common intention killed the father, brother and the wife of the brother of complainant.
4. On 18th of August, 1984 at 2-45 p.m. Dr. Nazir Hussain, P.W.9, conducted the post-mortem examination on the dead body of Anwar alias Saee and noted the following injuries:--
(1) An incised wound 14 c.m. x 3 c.m. On the back of head, extending from the left ear backwards.
Superficia Find deep muscles on the back of neck were cut.
(2) An incised wound 6 c.m. x 1 c.m. Skin deep on the left side of neck 1.5 c.m. Below the left car.
(3) An incised wound 5 c.m. x 3/4 c.m. Skin deep on the left side of face 2 c.m. Below and in front of injury No,2.
' The left side of the neck on the back was cut and the wound was deep upto the spinal cord. The first cervical vertebra was cut through and through alongwi h spinal cord. In the opinion of the doctor, the death had occurred due to shock aid haemorrhage as a result of injury No,1, which was sufficient in the ordinary course of nature to cause death. The injury was caused with sharp-edged weapon.
' On the same day at 3-30 p.m. The said doctor, conducted the postmortem examination on the dead body of Mst. Gullan and the following injury was noticed:-- "An incised wound 30 c.m. x 7 c.m. Extending from left side of neck 2 c.m. Below the left ear along the lower border of mandible and right ear to the right side of neck up to 3 c.m. Behind the right ear."
' The wound was deep cutting larynx, esophagus, muscles, blood vessels of the neck and the nerves were cut. The wound was going upto the vertebral column which was cut at the level of second cervical vertebra. Spinal cord was also cut. In the opinion of the doctor, the death had occurred due to shock and hemorrhage as a result of the injury which was sufficient in the ordinary course of nature to -cause death. The injury was caused with a sharp-edged weapon.
' The same day, the said doctor also conducted the post-mortem examination on the dead body of Malla and noted the following injuries:--
(1) An incised wound 9 c.m. x 2 c.m bone deep, bone cut underneath on the right side of skull, 3 c.m.
Above the right eyebrow.
(2) An incised wound 19 c.m. x 3.5 c.m. Bone cut underneath extending from middle of forehead over the right eye, cheek and mandible. The eye was injured on the right side and maxilla and mandible were cut.
(3) An incised wound 13 c.m. x 3.5 c.m. Bone deep, across the right side of face extending from the bridge of nose right cheek and mandible crossing the injury No,2. Bones are cut underneath.
(4) An incised wound 9 c.m. x 1/4 c.m. Skin deep across the right side of face.
(5)
An incised wound 7 c.m. x 5 c.m., on the right side of neck. The superficial and deep muscles and blood vessels were cut.
(6) An incised wound 1 c.m. x 1/2 c.m., skin deep on the right side of neck, 2 c.m. Below the injury No,5.
(7)
An incised wound 9 c.m. x 2 c.m. Extending from mid of upper lip outwards to the right side of face.
Bones were cut. Right parietal and frontal bones were fractured. The right maxillary and mandibular bones were also fractured. In the opinion of the doctor, death had occurred due to shock and haemorrhage, as a result of injuries Nos. 1, 2, 3, 5 and 7 to cause death in the ordinary course of nature. The injury was caused with a sharp-edged weapon.
5. On 21-8-1984, the appellants were arrested by Rehmat Khan, Sub-Inspector, P.W.10, and at the time of the arrest, the clothes of both the appellants were found having bloodstains. The Chaddar of Shahadat, appellant, P.18 having bloodstains was got removed and was taken into possession vide memo. Exh.P.J. Attested by Sher Muhammad, P.W.8, and Yousaf (not produced) besides the Investigating Officer Rehmat Khan, S.I. P.W.10. The shirt of appellant Yousaf, P.19 and Chaddar P.20, both blood-stained were got removed and were taken into possession vide memo. Exh.P.K. Attested by Sher Muhammad P.W.8 and Yousaf (not produced) besides the Investigating Officer Rehmat Khan, S.I. P.W.10. The Investigating Officer also took into possession blood-stained cot P.17 vide recovery memo. Exh.P.H. And also the blood-stained earth from three different places i,e, the places of murders of three deceased.
' On the same day, the appellant Yousaf in custody led the police and got recovered the blood- stained Kassi from heap of mud in the courtyard of his residential house and the same was taken into possession vide recovery memo. Exh.P.L. Attested by Sher Muhammad P.W.8, and Yousaf (not produced) besides the Investigating Officer Rehmat Khan, S.I., P.W.10.
' On the same day, the appellant Shahadat, in custody led the police and got recovered blood- stained Datar P.22 from behind a box lying in his residential Kotha and the same was taken into possession vide recovery memo. Exh.P.M. Attested by Sher Muhammad, P.W.8, and Yousaf (not produced) besides the Investigating Officer Rehmat Khan, S.I., P.W.10.
6. To prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by Muhammad Ali complainant (P.W.5) and Muhammad Ashraf (P.W.6) while Jehangir named in the F.I.R. Was given up as having been won over by the accused. In addition to the ocular testimony, the prosecution also placed reliance upon the corroborative evidence in the form of the recovery of blood-stained weapons at the instance of the appellants and the blood-stained clothes removed from the persons of the appellants at the time of their arrest. The prosecution also placed reliance upon the medical evidence and the evidence as to the motive.
7. When examined under section 342, Cr.P.C. The appellant Shahadat stated that Gullan deceased was his sister and had been married to one Ramzan but she developed illicit relations with Malla deceased and eloped with Malla deceased. Mst. Gullan abandoned her three children born out of the wedlock with Ramzan. Mst. Gullan deceased then gave birth to four children as a result of unlawful union with Malla deceased. In July, 1984, Shahnaz, a daughter of Mst. Gullan deceased, born out of the wedlock with Ramzan was abducted by Sher and Ahmed sons of Anwar along with others, who had also been committing Zina with Mst. Shahnaz with her consent. As the police did not register the case, therefore, in November, 1984, a complaint was filed in respect of the abduction of Mst. Shahnaz which was pending adjudication in the Court of Mr. Nazeer Ahmed Ansari, Additional Sessions Judge, at Okara. One Amir involved in the abduction case was still in jail.
' The appellant Shahadat further stated that Nikah of said Shahnaz was performed with his son Akbar and appellant Yousaf was living in Chak No,34 and was not living with him. According to the appellant Shahadat, after elopement of Mst. Gullan deceased with Malla deceased, their family had shifted to village Mata Proka. On the fateful day, the appellant Shahadat stated that he had gone to irrigate his fields and his daughter Mst. Sharifan was all alone in the house. Anwar alias Saee and Malla deceased were hiding themselves in some crop while Mst. Gullan deceased enticed Mst. Sharifan daughter of Shahadat appellant and she was joined by the other two deceased. When they tried to abduct Mst. Sharifan, she raised hue and cry and thus tne appellant reached there and killed all the three deceased with a Kassi which was in his hand to be used in irrigating the fields.
' It may be stated here that the appellant Yousaf denied the charge, also his presence and adopted the statement of Shahadat. In defence Mushtaq Rasool, Secretary Union Council-V, Saddar Gogira was produced as D.W.1 who produced the original record regarding the Nikah of Akbar son of Shahadat appellant with Shahnaz daughter of Ramzan and a copy of the said Nikahnama attested by the witnesses was placed on the record.
8. With the assistance of the learned counsel for the appellants and the State, we have carefully perused the evidence on the record and we have also heard the learned counsel at length.
9. The learned counsel for the appellants argued that the ocular testimony in this case was not worth reliance, inasmuch as, according to the prosecution the appellant Shahadat had invited the complainant party to settle the marriage of his daughter Shahnaz with Ahmed Ali, a brother of the complainant. According to the learned counsel, if it were so, there were no signs at the spot about such ceremony and furthermore, the complainant side was not accompanied by other tives, which was a normal course to be adopted while going to settle a match or betrothal ceremony. It was further argued that the prosecution case cannot and on its legs because the narration as to the motive was fanciful and had been concocted. It was also contended that Mst. Gullan eloped 14/15 years before the occurrence with Malta, deceased, and the matter had been patched up, that's why, Asto Gullan's daughter Shahnaz born out of the wedlock with Ramzan was married with Akbar son of Shahadat appellant and thus, there was hardly any occasion to take revenge and to commit murder, out of the spite of such elopement. It was thus contended that in fact, the appellants had never invited the ,complainant side by practicing deceit in the settlement of the marriage of Ahmed Ali with the daughter of Shahadat appellant. But the complainant side had in a clandestine manner, reached the Dhari of the appellant with a view to abduct Mst. Sharifan, daughter of Shahadat, complainant and such attempt was foiled on account of the timely intervention of Shahadat appellant, who was attracted to the scene of occurrence, after having heard the hue and cry raised by Mst. Sharifan his own daughter and, therefore, in order to save her, Shahadat appellant was justified to kill all the three deceased. It was next contended by the learned counsel for the appellants that P.W.6 Ashraf is a liar and had no business to accompany the complainant side as alleged by them. It was added that the manner of attack in this case was doubtful because if Ashraf ind Jehangir P.Ws. Had been present, the crucial question is as to why they di-1 not intervene when the attack was launched by the appellants.
10. We have carefully appraised the evidence on Ate record and we have also evaluated all these contentions. Unfortunately, we are not impressed by any of the contentions made by the learned counsel tor the appellants. We are not prepared to believe the defence plea that the complainant side in a clandestine manner had gone to the Dhari of the appellants to abduct Mst. Sharifan daughter of Shahadat appellant because in such orient, the complainant side would have prepared themselves and would have akin all precautions necessary to commit such crime. On the other hand, w- find that they were not even armed and, therefore, it is improbable that talc complainant side would have gone to abduct without having any weapon will them. We also find that all the three deceased were killed outside the Dha1 of the appellants and the blood-stained cot P.17 taken into possession by die Investigating Officer, takes bottom out of the defense plea. No win from the locality nor Mst. Sharifan was produced in defence to substantial. The plea raised by Shahadat appellant that his daughter Mst. Sharifan was being abducted when he was attracted to the scene of occurrence.
' It may be stated here that as per his own statement, Shahadat appellant, was irrigating his lands.
If he could have been attracted after hearing hue and cry raised bias own daughter, the other cultivators and residents would have also reached/the scene of occurrence and the truth if any in the defence plea would have Aawned. We also notice that not even a scratch was found on the person of the appellant because in an attempt to stop such abduction, the struggle would have ensued but we do not find even a scratch on the person of SI, appellant.
11. Adverting to the ocular testimony in this case, furnished by Muhamrna Ali, complainant, P.W.5 and Muhammad Ashraf, P.W.6, their version consistent. There is hardly any previous enmity motivating the eye-witnesses depose about the occurrence. As far as Muhammad Ashraf, P.W.6 is concerned his statement rings true and we are not prepared to believe that he had r: business to accompany the complainant side in connection with the arrangement of the marriage of Ahmad Ali, the brother of the complainant with Mst. Sharifr daughter of Shahadat appellant. It was also argued that he was a resident Faisalabad and, therefore, could not have visited the scene of occurrence with that, complainant side but we find no merits in this contention. On the other hand, wt. Notice that the medical evidence and the murder on cot corroborates the oculi testimony and lends strength to it and, therefore, as already observed, the story abduction of Mst. Sharifan has no legs to stand.
12 The location of injuries on the person of Anwar alias Saee would show that he received the injuries on his left side. Similarly, Mst. Gullan received; injuries on the neck and the injuries received by Malla are also on one side of his was felled down and face. It is, therefore, obvious that such injuries could have been caused while Anwar and Malla were lying on the cots and Mst. Gullan then slaughtered. The these injuries could not have been received if the victims of attack and the assailants were facing with each other.
12. The prosecution version in this case stands amply corroborated by the recovery of blood- stained Kasai and Datar at the instance of the appellants and the removal of blood-stained clothes from their persons at the time of their arrest, The weapons as well as the tithes were found to be stained with human blood. The recovery has been supported Sher Muhammad, P.W.8, who is an independent witness and had no anima with the appellants. The Investigating Officer Rehmat Khan, S.I., P.W.10, cot& not have planted these weapons and clothes and, therefore, we are of the view that prosecution has proved its case beyond any shadow of doubt.
' As far as the non-intervention on the pat of Muhammad Ashraf P.W.6, is concerned, the same has been explained in the F: R. The complainant stated that since they were empty handed, therefore, on act.
' As of fear, they did not intervene. We are of the view that there is nothing odd . Such explanation.
The reaction of each human being varies during an attack mitt , therefore, we also repel this contention.
' Resultantly, this appeal fails and is hereby dismissed. The-leathsenten awarded to the appellants is hereby confirmed. Reference .