' Tariq son of Nazir Ahmed, Muhammad Ajmal son of Muhammad Sharif and Sardar Muhammad son of Imam Din were tried by learned Sessions Judge, Toba Tek Singh, on a charge under section 302/109/34, P.P.C. For having committed the murder of Humayun (deceased).
' Vide judgment dated 1-2-1987, the appellants Tariq and Muhammad Ajmal were found guilty on the charge under section 302/34 while Sardar Muhammad having not been found guilty under section 302/109, P.P.C. Was acquitted. The appellants Tariq and Muhammad Ajmal were convicted and sentenced to undergo life imprisonment each and to pay a fine of Rs.1,000 each or in default to suffer rigorous imprisonment for a term of one year each. It was further directed that under section 544-A, Cr.P.C. Each of the appellant shall pay Rs.15,000 as compensation to the heirs of the deceased or in default thereof to suffer simple imprisonment for a term of six months each. The amount of compensation was ordered to be recovered as arrears of land revenue.
3. Aggrieved by their conviction, the appellants have filed appeal (Criminal Appeal No.153 of 1987) while Mst. Naziran mother of the deceased has filed revision petition praying that the sentence of life awarded to the appellants be enhanced to death. This judgment shall dispose of both the appeal and the revision.
4. The occurrence resulting into the death of Humayun (deceased) took place on 9-6-1986 at 9 a.m. In the house of Muhammad Shah, a given up P.W., in Chak No.296-JB situated at a distance of 1-1/2 k.m. From Police Station City Gojra. The first information report was lodged by Mansoor Ahmed, P.W.14, a maternal-uncle of the deceased at 9-30 a.m. And it was recorded by Talib Ali, S.I./S.H.O., Police Station City Gojra, P.W.16.
5. In brief, the first informant Mansoor Ahmed, P.W.14, in the F.I.R. Exh.P.T. Stated that he was a resident of Chak No.316/JB and was agriculturist by profession while his sister Mst. Naziran widow of Abdul Ghani lived in Chak No.296/JB. A day before Eid-ul-Fitr, the complainant along with his nephew Munawar Hussain visited the house of Mst. Naziran in Chak No.296/JB. On the fateful day, after offering Eid prayer, the complainant along with his nephew was proceeding to the house of Mst. Naziran while the deceased Humayun was also walking ahead of the complainant. When the deceased reached near the house of one Muhammad Shafi, the appellant Tariq armed with a hatchet while Muhammad Ajmal armed with a Sota launched an attack on the deceased while raising Lalkaras that they had come to avenge the murder of their brother Muhammad Naeem.
Appellant Muhammad Ajmal inflicted Sota blow on the chest of the deceased near the left flank.
The deceased in order to save himself, tried to enter into the house of Muhammad Shafi but the appellant Tariq inflicted a hatchet blow on the back side of the neck of the deceased Humayun.
The complainant along with others and Mst. Naziran, the mother of the deceased, entered the house of Muhammad Shafi to intervene. The aforesaid Muhammad Shafi snatched Sota from Muhammad Ajmal, appellant while Humayun (deceased) fell down. Appellant Tariq again inflicted a hatchet blow from its blunt side on the right side of the head of the deceased. Appellant Muhammad Ajmal picked up a brick and hit the same on the head of the deceased. The appellants then brandishing the hatchet and while remarking that they had avenged the murder of their brother Muhammad Naeem escaped from the scene of occurrence. Humayun (deceased) was taken to hospital while the complainant proceeded to police station for lodging F.I.R.
6. The motive for the commission of crime, as stated in the F.I.R. Was that 10/12 years, Babar the brother of the deceased alongwith Abdur Rashid had killed Muhammad Naeem brother of Tariq, appellant. Consequently, Babar and Abdur Rashid were sentenced to undergo life imprisonment and thus, with a view to avenge themselves of the murder of Muhammad Naeem the appellants had killed the deceased. The complainant also stated that Sardar Muhammad acquitted co- accused, had also conspired with the appellants and at his instance, the murder was committed.
The deceased remained under treatment in the hospital and was operated but died on 16th of June, 1986.
7. Dr. Syed Shoaib Shah, P.W.13, Demonstrator, Department of Forensic Medicine, King Edward Medical College, Lahore, conducted the post-mortem examination on the dead body of Humayun and the following injuries were noticed:--
(1) A stitched wound 10 c.m. Long with 10 silk sutures intact was placed at left temporal region of scalp 1.5 c.m. In front of left ear.
(2) Stitched wound 2.5 c.m. Long with two stitches placed 4.5 c.m. Above left ear on the temporal region.
(3 Stitched wound 4.5 c.m. Long with four intact silk sutures placed at the back of left parietal bone 6 c.m. Above and behind left ear.
(4) Stitched wound 4 c.m. Long with four silk sutures placed 4.5 c.m. Above right ear on right temporal bone.
(5) A gaping wound 3 c.m. Long with dressing and scab formation around at the back middle of neck. In the opinion of the doctor, the death occurred due to sub-dural haematoma (more than 500 c.c.) and damage to the left temporal region of the brain. Injuries 1 to 4 were collectively sufficient to cause death in the ordinary course of nature.
8. On 11th June, 1986, the appellants were arrested by Talib Ali, S.I./S.H.O., P.W.16. On 12-6-1986, appellant Tariq while in custody, led the police and got recovered blood-stained hatchet P.3 from his house vide memo. 'Exh.P.O. Attested by Muhammad Siddique P.W.10, Mansoor Ahmed, P.W. And Bashir Ali (not produced) besides the Investigating Officer, Talib Ali, S.I./S.H.O., P.W.16. Sota P.4, which was snatched by Muhammad Shafi, a given up P.W., from Muhammad Ajmal, appellant, was produced before the Investigating Officer and the same was taken into possession vide memo.
Exh.P.V. Attested by Mansoor Ahmed, P.W.14, Karam Din P.W.15, and Talib Ali, the Investigating Officer, P.W.16. Brick P.2 was taken into possession vide memo. Exh.P.O. From the house of Muhammad Shah where the occurrence had taken place, attested by Muhammad Siddique, P.W.10 and Muhammad Shafi (not produced) besides the Investigating Officer Talib Ali, P.W.16.
' The hatchet P.3, recovered at the instance of appellant Tariq, was blood- stained and was sent to Chemical Examiner who opined that it had stains of blood. The Serologist, vide its report, opined that it had stains of human blood.
9. To prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by Mansoor Ahmed, P.W.14 (informant) and Karam Din, P.W.15. Muhammad Shafi, in whose house, the occurrence took place, Mst. Naziran, the mother of the deceased and Munawar Hussain, the nephew of the first informant, were given up. The prosecution also placed reliance upon the evidence as to the motive and recoveries to corroborate its case.
10. When examined under section 342, Cr.P.C. The appellant Muhammad Ajmal denied the charge and stated that he had been falsely invovled. It was further stated by him that his relations with Sardar Muhammad, acquitted co-accused, were strained as in the year 1984, his brother had divorced the daughter of co-accused Sardar Muhammad.
' The appellant Tariq admitted the occurrence and made the following statement:-- "Shortly before the occurrence, my sister was passing from near the house of P.W. Muhammad Shafi and deceased Humayun held her arm and dragged her inside the house of P.W. Muhammad Shafi. The deceased Humayun was doing an effort to take Mst. Shahnaz inside the room of the house and on her alarm, I was attracted and on seeing the deceased I lost self-control and under sudden and grave provocation, I picked up a brick lying nearby and gave injuries on the head of the deceased and other parts of the body. Co-accused Ajmal was not present at that time.
Deceased Humayun was an addict and at the time of occurrence, he was under the influence of liquor."
' It was thus stated by him that he had committed the murder after having lost self-control and under sudden and grave provocation. The appellants declined to be examined under section 340, Cr.P.C.
11. With the assistance of the learned counsel for the appellants and the complainant I have carefully perused the record and I have also heard the various contentions raised by the learned counsel for the parties.
12. It was vehemently argued by the learned counsel for the appellants that the complainant Mansoor Ahmed, P.W.14 hailed from a different village and he was not present at the time and scene of occurrence in Chak No.296/JB, because the occurrence took place on Eid-ul-Fitr and on such occasions and festivals, the complainant could not have been present in the Chak of his sister Mst. Naziran. It was also argued that even if it be believed that he had gone to see his sister in connection with Eid, he should have returned to his own Chak to celebrate Eid with his own family. It was further argued that the stay of the complainant for the night preceding Eidul Fitr, is against the natural conduct. It was next argued that the complainant could not have gone to his sister to give Eidi because Mst. Naziran was married long before the complainant had attained the age of discretion. It was added that the absence of Mansoor Ahmed, P.W.14 from the scene of occurrence also finds support from the statement of Karam Din, P.W.15, recorded by the police under section 161, Cr.P.C., with which, he was fully confronted.
' According to the learned counsel for the appellants, Karam Din, P.W.15, in his aforesaid statement did not mention the presence of Mansoor Ahmed P.W.14 at the time and scene of occurrence. It was also contended that there was a conflict between the ocular testimony and the medical evidence, inasmuch as, the dimension of injury No.2, an incised wound, is only 2.5 c.m., which could not have been caused with a hatchet. It was further contended that Karam Din, P.W.15, is a chance witness, his house is situated at the end of the Abadi of the Chak and on Eid day, he could not have been present at the scene of occurrence. It was next argued that real brothers of Karam Din, P.W.15, namely, Akram and his son Taj Mehmood were co-accused with Rana Bashir in a murder case while Sardar Muhammad acquitted co-accused was P.W. In the above murder case. It was added that acquitted co-accused Sardar Muhammad is maternal-uncle of Tariq appellant and due to family friction, the appellants have been falsely involved on account of enmity of Rana Bashir. It was also contended that Karam Din has deposed against the appellants under the influence of Rana Bashir because admittedly Karam Din, P.W.15, is a tenant under Rana Bashir.
13. The recoveries in this case were also assailed and it was stated that recovery memo does not show that the hatchet recovered at the instance of Tariq appellant, was blood-stained. It was next contended that the prosecution has failed to set up any motive against Muhammad Ajmal appellant. In addition thereof, it was contended that best possible evidence has been withheld by the prosecution by its failure to produce Muhammad Shafi, the owner of the house in which the occurrence took place, Mst. Naziran the mother of the deceased and Munawar Hussain, a nephew of the first informant. It was thus contended that an inference adverse to the prosecution should be drawn.
14. After anxious consideration, I find no substance in the contention that on Eid day, Mansoor Ahmed, P.W.14, could not have been present in the Chak of his sister Mst. Naziran. It is too well- known that in our society, a widow sister has been consoled, on festivals like Eid and, therefore, there is nothing wrong with the statement of the complainant that a day prior to Eid, he had gone to offer Eidi to his widow sister and on her request he stayed for the night.
15. The occurrence had taken place at 9 a.m. While the report was lodged after 1/2 hour at the distance of 1-1/2 k.m. From the Chak. The F.I.R. Being prompt leaves no room to doubt. Mansoor Ahmed, P.W.14, could not have been imported from his Chak to be cited as an eye-witness. In my view, the prompt F.I.R. Clearly establishes his presence at the spot. The deceased was son of his widow sister and hence, I am not prepared to believe that the complainant would substitute the appellants with the real culprits.
16. As far as Karam Din, P.W.15, is concerned, he is a tenant under Rana Bashir, who was involved in a murder case, alongwith the brothers of Karam Din. In the aforesaid case, Sardar Muhammad, the acquitted co-accused had been cited as P.W. After careful consideration of this aspect of the case, I find no substance to brush aside the testimony of Karam Din, P.W.15 because the previous murder case would only show, enmity between Rana Bashir and Karam Din P.W. On one hand and Sardar Muhammad, acquitted accused on the other hand. Karam Din, P.W. Is not related and no enmity worth the name has been brought on record to show that he had no motive to falsely implicate the C appellants. The trend of cross-examination and the suggestion given also show that Karam Din P.W. Was in fact present. No adverse inference can be drawn on account of the failure of the prosecution to produce Mst. Naziran, Muhammad Shafi and Munawar Hussain. The prosecution is under no obligation to produce other witnesses. The appellants could have very well summoned these persons in their defence.
17. As far as the prosecution is concerned, it has produced eye-witnesses whose presence cannot be doubted. The house of Karam Din P.W.15 is at the end D of the Abadi of the same Chak, and, therefore, his presence cannot be doubted because he is a resident of the same village.
18. There is hardly any conflict between the medical evidence and the ocular testimony. The hatchet blow was inflicted on the head of the deceased from its wrong side which fractured the skull. The other injury received by the deceased also corroborates the prosecution version. The dimension of incised wound in this case is hardly relevant because it would depend upon the angle and manner of attack and the posture of the assailant and the victim, hence this argument is also repelled.
19. The recovery of hatchet has been proved through the evidence of Muhammad Siddique P.W.10, and Mansoor Ahmed, P.W.14, the complainant, F besides Police Officer. The statement of P.W.10, Muhammad Siddique, inspires confidence and the police has no axe of its own to grind by planting a hatchet. The absence of the words 'blood-stained hatchet' in the recovery memo is also immaterial because at the most, it can be considered as an omission. Same explanation can be offered in respect of the absence of name of Mansoor Ahmed, P.W.14, complainant, in the statement of Karam Din, P.W.15, recorded under section 161, Cr.P.C. Karam Din, P.W. Had no enmity, therefore, his statement cannot be brushed aside.
20. Adverting to the statement made by Tariq appellant, under section 342, Cr.P.C. In which it was alleged that he had committed the murder under grave and sudden provocation, I find no substance in it. This is just an afterthought. The occurrence admittedly took place in the house of Muhammad Shall from where the blood-stained earth was collected. Had the version of Tariq appellant been true, many persons would have come forward to depose about his innocence. The