' MUHAMMAD ZUBAIR, J.--- Ghulam Hassan and his nephew Feroze Khan were tried under section 302/34, P.P.C. By the learned Sessions Judge, Jhelum, for the murder of Muhammad Yousaf, who vide his judgment, dated 118-1981 acquitted Ghulam Hasan of the charge but convicted Feroze Khan under section 304, Part II, P.P.C. And sentenced him to 10 years' R.I. And a fine of Rs,5,000 or in default two years' R.I. With the direction that if the fine is realized it would be given to the legal heirs of the deceased as compensation. The convict Feroze Khan has challenged his conviction through Criminal Appeal No, 174 of 1981 whereas the State has challenged the acquittal of Ghulam Hasan as well as the conviction of Feroze Khan through Cirminal Appeal No, 97 of 1982 praying that they be convicted under section 302, P.P.C. And sentenced accordingly.
2. Mst. Zulaikhan the first informant has filed Criminal Revision No, 47 of 1982 for setting aside the impugned judgment and for convicting the respondents under section 302, P.P.C. This revision petition was ordered to be heard alongwith Criminal Appeal No, 174 of 1981. All the three matters shall be disposed of by this judgment.
3. The occurrence in this case took place on 6-10-1980 at 4 p.m. In the area of Thhoa Bahadar which was at a distance of 10 miles from Police Station, Chakwal where F.I.R. Exh.P.F. Was lodged by Mst. Zulaikhan widow of Muhammad Yousaf (dectased) the same day at 6-00 p.m. The prosecution case is that on 6-10-1980 Muhammad Yousaf deceased was ploughing the land known as Chhach, in the area of village Thhoa Bahadar. The complainant went to supply him water. The deceased had finished his work. Both the husband and wife thereafter started towards their house. When they reached on a thoroughfare, in the area of Thhoa Bahadar, Ghulam Hasan and Feroze Khan armed with hatchets, were ambushing themselves behind a bush, on the way.
When they reached near the bush, both the accused, armed as stated above, emerged from there.
Ghulam Hasan shouted a Lalkara whereupon the deceased started running but the accused chased him. Feroze Khan appellant gave a hatchet blow with its right side on the left shoulder of Muhammad Yousaf, thereafter Ghulam Hasan gave 3/4 hatchets blows one after the other with the right side of hatchet to Muhammad Yousaf which hit on his left upper arm on the back of left shoulder. Muhammad Yousaf fell down. Both the accused gave him more blows when he was lying on the ground which landed on his left buttock, left thigh, sacral area and on the back of the ankle of left leg. On the alarm of Mst. Zulaikhan complainant, Mehboob Khan and Muhammad Javaid were attracted to the spot who were coming at some distance from them and witnessed the occurrence. They tried to rescue the deceased but both the accused ran away with their respective weapons. Muhammad Yousaf died at the spot after a few minutes.
4. The motive as alleged was that about 4/5 years ago, Ghulam Hasan accused had given beating to Muhammad Yousaf who in retaliation had injured Ghulam Hasan. A case was registered against the deceased but he was acquitted on the basis of compromise. It is alleged that Ghulam Hasan had nursed a grudge and as such he along with his co-accused who is also his son-in-law had murdered Muhammad Yousaf with their common intention.
5. Muhammad Ashraf (P.W.10) the then S.I./S.H.O., Police Station Chakwal after recording the F.I.R.
Proceeded to the spot and reached there at 730 p.m. He prepared the injury statement Exh.P.H. And inquest report Exh.P.H./1 and dispatched the dead body to the mortuary for post-mortem examination. He collected the blood-stained earth from the spot vide memo. Exh.P.C. He also took into possession the last worn clothes of the deceased vide memo. Exh.P.B.
6. Ghulam Hasan was arrested on 12-10-1980. He got recovered blood- stained hatchet P.5 from his residential house vide memo. Exh.P.E. Which was attested by Muhammad Feroze (P.W.7), Muhammad Amir (G.U.) and Ch. Muhammad Ashraf S.I. (P.W.10). Feroze Khan was arrested on 2240-1980. He also got recovered hatchet P.6 on 24-10-1980 vide memo. Exh.P.G. Which was attested by Mahboob Khan (G.U.) Muhammad Javaid (P.W.9) and Ch. Muhammad Ashraf S.I.
(P.W.10). The S.I. Got prepared the site plans Exh.P.D., Exh.P.D./1 and Exh.P.D./2 from Jamshaid Ali Patwari (P.W.6). After completing the legal formalities the S.I. Submitted the challan in the Court of law.
7. Dr. Asghar Hamid Qureshi, Senior Medical Officer, Chakwal (P.W.1) had conducted the post- mortem examination on the dead body of Muhammad Yousaf deceased on 7-10-1980 at 9-00 a.m.
And found the following injuries on the dead body:-
(1) An incised wound 4" x 2" x 2-1/2" deep on outer part of left buttock. The muscles, vessels and iliac bone underneath were cut. The bone was cut and fractured. This was vertical.
(2) An incised wound 1-1/2" x 3/8" x muscle deep, on the back and outer side of upper 1/3rd of left thigh. It was horizontal.
(3) An incised wound 3-1/2" x 3/4" x bone deep, on upper part of left buttock near the sacral area. It was cut and fractured.
(4) Two incised wounds each 3-1/2" x 2-1/4" x joint deep, joint together, making one large wound on 'back of left knee joint (poplitial fossa). The muscles, tendons, main vessels were cut and knee joint was cut and bones were fractured. It was horizontal.
(5) Two incised wounds 1-1/2" x 3/8" x 1" deep and 3" x 1/2" x muscles deep on back and lower part of left shoulder and scapular area. The muscles . Were cut.
(6) Two incised wounds 2" x 1/2" x 1" deep, 1-1/2" x 1/4" x skin deep on the back of left arm close to axilla.
(7) An incised wound 2-1/2" x 3/4" x bone deep on outer part of upper part of left arm. It was horizontal. The humerus bone underneath was cut and fractured.
(8) An incised wound 1-1/4" x 1/2" x bone deep with swelling and deformity in area 6-1/2" x 5" on outer part of middle of left arm. The humerus bone underneath was cut and fractured.
(9) Two hard abrasions 1" x 3/4", 3/4" x 1/2" on outer side of left chest below middle. The third, fourth and fifth ribs underneath were fractured.
(10) Hard abrasion 1" x 1/3" with swelling 3" x 3" on back and outer side of lower part of left chest.
Tenth and eleventh ribs underneath were fractured.
' The doctor was of the opinion that the death was due to bleeding and shock from the cut main poplitial vessels and cut vessels inside cut buttock, multiple fractured ribs on left side namely, 3rd, 4th, 5th, 6th, 10th and 11th and injury to left pleura due to injuries Nos.4, 1, 9 and 10 respectively.
Injuries Nos. 4 and 1 were fatal individually as well as collectively and injuries Nos. 9 and 10 were collectively fatal. These were sufficient to cause death in the ordinary course of nature. Injuries Nos.
3, 7, 8, 9 and 10 were grievous and Nos. 2, 5 and 6 were simple. Injuries Nos. 9 and 10 were caused by blunt weapon and injuries Nos. 1 to 8 by sharp-edged heavy weapon. The probable time that elapsed between injuries and death was a few minutes and that between death and post-mortem was within 12 to 24 hours.
8. Ghulam Hasan in his statement under section 342, Cr.P.C. Stated that on the day of occurrence he was present in demarcation proceedings which were being conducted by Said Ahmad retired Girdawar and the Patwari Shamsher Ali, near village Thhoa Bahadur, in the land of Muhammad Ashraf, his close relative and Musthaq Hussain. Javaid P.W. Was also present there alongwith other persons. It was there that they received the news of the murder of Muhammad Yousaf deceased.
He had also stated that he had been roped in this case due to suspicion and enmity with the P.Ws.
9. Feroze Khan appellant had also stated that he had been roped in this case due to suspicion and enmity. He had also stated that during the days of occurrence he was serving with Mr. Abdul Karim, Advocate, at Sheikhupura.
10. The learned trial Court, disbelieved the ocular account, the evidence of motive and the recovery of weapons of offence, yet concluded that the occurrence took place on account of some dispute, with respect to which there is no evidence, and convicted Feroze Khan appellant under section 304 (II), P.P.C. And sentenced him to 10 years' R.I. And fine of Rs,5,000 or in default two years' R.I., as indicated above.
11. The trial Court gave following reasons for disbelieving the statement of Mst. Zulaikhan (P.W.8):-- In our villages, the wives of the Zamindars usually go to the fields at noon time to provide drinking water or Lassi and meals to their husbands, working in the fields. In the present case Mst. Zulaikhan has stated that she went to provide water to her husband at Peshiwela. It has come in the evidence of Mst. Zulaikhan that the deceased had taken water and the bread with him when he went out of his house to work in the field, at about sunrise time. The deceased had sufficient water and he had not asked his wife Mst. Zulaikhan to supply water to him in the afternoon. She has concocted the story of supplying water to her husband at Peshiwela in order to make her presence natural at the spot.
(ii) Mst. Zulaikhan had not shown broken pieces of earthen pot in which she had brought water to her husband to the police at the spot, nor the police had taken the broken pieces of earthen pot of Mst. Zulaikhan, in which she had taken water to her husband.
(iii) It has not been proved on the record whether the deceased had actually gone to the field at sunrise time on the day of occurrence. If he had gone to his field Chhachwali land for ploughing it, the police would have secured plough from there where the deceased is alleged to have worked before the occurrence. When the police had visited the spot, neither Mst. Zulaikhan nor Muhammad Javaid P.W. Had shown the place where the deceased had ploughed his field before the occurrence.
(iv) Mst. Zulaikhan has admitted in her statement that she had witnessed the occurrence from a distance of seventeen Karams. If she had been present at the time of occurrence, she would have tried to save her husband from the accused and would have received injuries. She would not have stood as a stone and would not have left her husband at the mercy of the accused."
12. The learned trial Court disbelieved Mst. Zulaikhan complainant for the reason that the wives of Zamindars usually go to the fields at noon time to provide drinking water or Lassi and meals to their husbands working in the fields. She need not have gone to the fields as admittedly the deceased while leaving for the fields in the morning had taken his meals and had taken along the water. The broken pieces of earthen pot in which she had taken water to her husband had not been taken into possession from the spot, nor the plough had been taken into possession nor the ploughed field shown by the two eye-witnesses to the investigator at the spot. It was also held by the learned trial Judge that had the complainant seen the occurrence, as claimed by her, from a distance of 17 Karams, she must have received injuries and would not have stood aside leaving her husband at the mercy of the accused. The presence of Javed P.W. Was also doubted.
13. The learned State counsel has assailed the observation of the learned trial Court, and correctly so, that there is no hard and fast rule covering the conduct of the villagers, particularly the womenfolk as to when they may visit the fields to take meals and water/Lassi to their folks. The occurrence took place in the month of October which is a very busy month for working in the fields for the preparation of land in our part of the country. The deceased had left with his plough in the morning and the field where he was working was about one mile from the village. Even if he had taken along the water in the morning, while working till noon the same must have been exhausted and so if Mst. Zulaikhan complainant took the water for her husband late in the day, then it is rather most natural. Muhammad Ashraf, S.I. (P.W.10) admitted that he had not inspected the spot minutely and so if he had not cared to see some broken pieces of the pot at the spot or taken the same into possession, then for this the testimony of the two eye-witnesses cannot be thrown out. Similarly, the investigator had not gone to the place where the land had been ploughed, and on account of the negligence of the Investigating Officer, the prosecution case cannot be thrown out if otherwise believable. Mst. Zulaikhan complainant was a lady and if on seeing the assailants coming out of the ambush from behind the bushes the deceased started running away and was injured while the lady stood aside and could not reach the actual place where her husband had fallen to the ground, it cannot be said that the conduct was not expected of the wife. Everybody is not of the same disposition as to interfere when the blows are being showered upon a near relative. This conduct would not detract her veracity, particularly when it is appreciated that the deceased would have started running away chased by his assailants and in such a situation the lady would not have been able to reach them so as to physically intervene. People having real touch with the rural life would be conscious of the fact that on way back the bullocks and cattle tend to and do reach their original place of tethering and the witnesses have not been cross-examined as to where the bullocks with the plough had gone when the deceased was ambushed on way to the village.
14. The trial Court disbelieved the ocular evidence of Javaid (P.W.9) on the ground that he is a close relation of the deceased and the reasons advanced by him for his presence at the scene of occurrence, that he had gone there to graze cattle at 11-00 a.m. To Banghaziwali are highly improbable and ludicrous, in the presence of the admission of Mst. Zulaikhan (P.W.8), that water of Ghaziwali Ban was not fit for human consumption and that there was no sufficient water in Ghaziwali Ban, and he had not shown his cattle to the Investigating Officer.
15. Javaid (P.W.9) claimed that he had been grazing cattle and if after grazing for the whole day in the late afternoon he was near the village (the place of occurrence being just about half a mile or so from the village Abadi) then it is also not something unbelievable. We are, therefore, inclined to agree with the learned State counsel that both Mst. Zulaikhan and Javaid were natural witnesses and their testimony has been discarded for ridiculous and flimsy grounds by the learned trial Judge. The motive, as indicated above, given in the F.I.R. Was that about 4/5 years back Ghulam Hussain, the acquitted accused, had given a beating to the deceased over cattle trespass and in turn the deceased had injured the former with Soti and a case was registered and challaned to the Court, but there was compromise. But in spite of it, grudge seems to have been nursed by Ghulam Hassan and his nephew and son-in-law Feroze Khan appellant. The two eyewitnesses have supported the motive part of the story which is even admitted by the appellant and his co- accused in their statements at the close of the trial. Ghulam Hassan admitted that there was criminal litigation between him and his family on the one hand and the deceased and his family on the other, but in the year 1975 all the criminal cases (four in number) pending in Courts were compromised and thereafter there was no litigation of any kind between them. This very plea was adopted by the appellant. But we cannot lose sight of the fact that in spite of this compromise the relations of the parties did not become cordial inasmuch as the complainant had amditted in cross-examination that the family of the accused was their enemy No,1 in the village. So, the two eye- witnesses cannot be believed unless there is independent corroboration. The corroboration is forthcoming on the record. The place of occurrence is admittedly half a mile from the village Abadi and had taken place at about 4 p.m., so complete substitution would have been a very difficult affair. The investigator when cross-examined denied that he had colluded with the complainant family and was not cross-examined that he attempted any sort of substitution. If there were other enemies of the complainant party in the village, someone from them could have been so involved in addition to the appellant and his co-accused. These factors can very properly be utilized as corroboration. Not only this, the F.I.R. Was very promptly lodged. The police station was at a distance of ten miles and within two hours and matter was reported to the police. This too is a strong corroborative factor.
16. The finding of the trial Court that the ploughed land was not shown to the Investigating Officer by the eye-witnesses, hence his statement be discarded is not of much force.
17. We are of the view, that this is not the permissible way of appreciating the ocular evidence in criminal cases. The ocular testimony coming from the mouth of natural and independent witnesses should not be discarded on the basis of conjectures and surmises. The trial Court conveniently ignored this aspect of the case, that occurrence took place in the broad daylight and if the Investigating Officer, in the presence of ocular evidence did not deem it fit to look for any other corroboration as mentioned above, which is of very insignificant nature, in the circumstances of the case, then prosecution case should not suffer due to the conduct of a not too far sighted police officer.
18. It is the common experience of the Courts, that substitution of the real culprit with innocent person is rare, phenomenon especially when occurrence takes place in broad daylight and identification of the culprit poses no difficulty. If Mst. Zulaikhan had gone to supply water to her husband at Peshiwela there was nothing unusual which would entail the consequence of disbelieving the lady on this score alone, when she is the inhabitant of the locality and natural witness of the occurrence.
19. We agree with the learned State counsel, that trial Court has not properly appreciated the ocular evidence furnished by the widow of the deceased, who had no ostensible motive to falsely implicate the innocent persons in this case, when her presence at the scene is established beyond any shadow of doubt. The trial Court by gross misreading of evidence has acquitted Feroze Khan without any justification which has resulted into miscarriage of justice.
20. Learned counsel for the respondents has pointed out some conflicts in ocular evidence and medical evidence and urged that it was an witnessed crime, the names of the respondents have been mentioned due to enmity and suspicion. We do not agree with the learned defense counsel for the reasons mentioned above, and the submission of the learned Advocate are devoid of force, hence repelled.
21. The eye-witnesses might have missed some injuries, on the person of the deceased, on account of the sudden attack. The eye-witnesses are not required to give each and every detail of the injuries sustained by the deceased, in a photographic manner. In view of our finding that presence of eye-witnesses at the scene of occurrence is established, hence conviction can be recorded, if there is sufficient corroboration of their version, coming from independent and unimpeachable source.
22. It appears that the trial Court without keeping in view the salutary principle of appreciation of evidence in criminal cases has discarded the evidence of rather independent witnesses which has occasioned the failure of justice, and their evidence gets support from the motive and promptly lodged F.I.R. And broad daylight occurrence.
23. The question of mistaken identification of the accused does not arise.
24. We agree with the submission of the learned counsel for the State that there is independent corroboration of the version of the eye-witnesses coming in this case in the form of motive, prompt lodging of the F.I.R., coupled with the abscondence of the accused for a considerable time, from the place of occurrence, without any justification, and the case against the accused respondents stood proved beyond reasonable doubt.
25. We find there is sufficient evidence on the record to connect Feroze Khan respondent with this crime. We have given our anxious consideration to this aspect of the case, as to what offence Feroze Khan respondent has committed. In the light of the evidence produced against him which has been believed by us, respondent Feroze Khan caused numerous injuries to the deceased who was unarmed at that time without any ostensible provocation on his part which resulted in his death. The injuries received by the deceased clearly show the intention of the assailant. The case against him falls within the ambit of section 302, P.P.C.
26. The evidence against Ghulam Hasan is not of that quality which would justify his conviction, because Jamsheid Ali, Revenue Patwari, Halqa Thhoa Bahadar, who has appeared as P.W.6, has admitted, 'that on 6-10-1980, he went alongwith Malik Saeed retired Girdawar for the demarcation of the land in the area of village Thhoa Bahadar. The demarcation was conducted between Muhammad Hussain and Mukhtar Khan on one side and Manzur Hussain on the other side. The demarcation was conducted from 3 p.m. To 5-30 p.m.' Jamshaid Ali, Revenue Patwari again admitted, 'It is correct that we came to know during the demarcation proceedings that Yousaf had been murdered. I had entered this fact in my Roznamcha Waqiati, on 6-10-1980. Fach.DA. Is the correct copy of Roznamcha Waqiati, dated 6-10-1980'.
27. This piece of evidence by itself is sufficient to cast doubt in the mind of the Court, particularly when he secured clean acquittal from the trial Court.
28. This Court would not like to disturb the finding of fact, unless the same H is unreasonable, improper and not borne out from the record.
29. In the present case, the perusal of the record would show that the trial Court had placed reliance upon some solid pieces of evidence for giving benefit of doubt to Ghulam Hasan on the basis of the evidence of Revenue Patwari (P.W.6), which has not been challenged by the prosecution before the trial Court.
30. The next point which has to be considered is what should be the appropriate sentence. Keeping in view the belated decision of this Government appeal, we find that after his acquittal from the charge under section 302, P.P.C. The respondent Feroze Khan acquired the hope of life, and relying upon the principle of expectancy of life, we refrain to impose upon him the normal sentence of death in the present case, suffice it to say, that in the circumstances of this case, the ends of justice would be met, if lesser sentence of imprisonment for life is imposed upon the respondent Feroze Khan and we impose the same and a fine of Rs,5,000 upon him also or in default two years' R.I. The fine if realized, it shall be paid to legal heirs of the deceased as compensation under section 544-A, Cr.P.C.
31. Feroze Khan respondent is on bail. It is directed that the District Magistrate, Chakwal shall take necessary steps for his arrest and committal to jail to serve out the remaining portion of his sentence.