SH. KHIZAR HAYAT, J: -- Ahmad Sher aged 34 years, his brother Gulzar Ahmad aged 29 years, caste Jhabel, and their friend Riaz aged 24 years, residents of Mauza Fateh Shah, Police Station Luddan, District Vehari, have been convicted by learned Sessions Judge, Bahawalpur under section 302/34, P.P.C., for the murder of their co-villager, Khadim Hussain aged 35 years. The learned trial Court sentenced Ahmad Sher to death and the rest to imprisonment for life and a fine of Rs.10,000 each and in default thereof to further suffer R.I. For two years. It was further directed that the fine, if recovered, shall be paid to the heirs of the deceased as compensation and the sentences awarded in default of payment of fine would run consecutively. The convicts have filed joint appeal against their convictions and sentences (Criminal Appeal No.85 of 1987) and the learned trial Court has submitted the proceedings of the trial to this Court under section 374, Cr.P.C. For confirming the death sentence of Ahmad Sher appellant. Muhammad Hayat, complainant in the case, has preferred (Criminal Revision No. 44 of 1987) for enhancing the sentences of Riaz and Gulzar to that of death. We propose to dispose of all these matters by this single judgment.
2. The occurrence had taken place within the revenue limits of village Palla at a distance of three miles from Police Station Hasilpur, District Bahawalpur. It was reported by Muhammad Hayat, complainant, (P.W.8) father of the deceased at 3-00 a.m. (midnight) on 27-11-1986 to S.I. Abdul Razzaq (P.W.12) vide statement Exh.P.E,/1 when the latter reached the Civil Hospital Luddan receiving a wireless message about the incident from Luddan Police Station. Formal F.I.R. Exh. P.E. Was prepared on the basis of statement of Muhammad Hayat Exh.P.E./1 at Police Station Hasilpur by A.S.I., Mukhtar Hussain (P.W.4), the same day at 4-30 a.m.
3. The motive for the occurrence was stated to be that Ahmad Sher (appellant) suspected Khadim Hussain (deceased) of having illicit connections with his were, hence this occurrence.
4. At the fateful time, Muhammad Hayat, complainant, (P.W.8) was present at a distance of one square from his Basti where his sons, Khadim Hussain (deceased) was cutting Sarkanda (reed) at Peshiwela. Ahmad Sher and Gulzar Ahmad, appellants armed with hatchets and Riaz appellant, armed with a stick suddenly emerged from a nearby Khata (watercourse) and Ahmad Sher, appellant, opened the attack by inflicting a hatchet blow on the head of the deceased, who in order to save his life started running but the appellants encircled him and gave him injuries on the head, legs and other parts of his body, as a result of which he fell down. Muhammad Hayat raised alarm which attracted Ghulam (P.W.9) a0d Muhammad Ashraf (P.W.10), who were present at a little distance in their field supervising the picking of cotton, and had seen the occurrence. The accused/appellants succeeded in decamping from the scene alongwith their. Respective weapons threatening the P.Ws. Not to get near them. The P.Ws. Placed Khadim Hussain on a cot as he was still alive and carried him to the Pacca road and then having hired a wagon, took him to Luddan Hospital. The doctor after examining Khadim Hussain declared him dead. Muhammad Hayat leaving the dead body in the custody of the P.Ws. Repaired to Police Station Luddan for lodging the report but the Thanedar told him that the place of occurrence lay within the jurisdiction of Police Station Hasilpur, sent the complainant back to the Civil Hospital promising that he would inform Police Station Hasilpur about it. S.I. Abdul Razzaq (P.W.12), it appears, reached Civil Hospital Luddan from Police Station Hasilpur learning about the occurrence on wireless and took down the statement of Muhammad Hayat (Exh.P.E./l) as indicated above.
5. S.I. Abdul Razzaq (P.W.12) sent the statement of Muhammad Hayat (Exh.P.E./1) recorded by him to Police Station Hasilpur for registration of a formal F.I.R. Where the same was drawn vide Exh.P.E. He noted the injuries of the deceased and having prepared inquest report (Exh. P.C.) despatched the dead body for post-mortem examination under police escort to the mortuary., He recorded the statements of the witnesses and then visited the spot from where he removed blood-stained earth and secured it under memo. Exh. P.G. He also picked up sickle (P.4) belonging to the deceased from the spot and seized it under memo. Exh. P.H. On 5-12-1986, he arrested all the three appellants. On the same day Ahmad Sher, appellant, while in custody led to the recovery of blood-stained hatchet (P.5) from his house, which was secured under memo. Exh. P.J. He also got recovered blood- stained clothes, shirt (P.6) and Chadar (P.7) which were seized under memo. Exh. P.K, Gulzar (appellant) got recovered blood-stained hatchet (P.8) from his house, which was seized under memo. Exh. P.L and Riaz (appellant) got recovered Sota (P.9) from his house, which was seized under memo. Exh. P.M. All these recoveries were witnessed and attested by Riaz (P.W.11) besides the Investigating Officer, Abdul Razzaq S.I. (P.W.12). It may be noted here that the aforesaid weapons and clothes recovered from the accused/appellants, according to the Chemical Examiner and Serologist's reports, were found to be stained with blood of human origin.
6. Dr. Muhammad Younis Sohail (P.W.2) conducted the post-mortem examination on the dead body of Khadim Hussain (deceased) on 27-11-1986, and noted following injuries on it:-- (1)An incised wound on right side of scalp 3 c.m. x 0.5 c.m. x muscle deep.
(2)A lacerated wound on left side of front of scalp 3 c.m. x 1 c.m. x underlying skull bone was fractured.
(3)A lacerated wound on left parietal region of scalp 10 c.m. x 2.5 c.m. Skull is fractured underneath.
(4)Compound fracture of right ring finger.
(5)Both lower legs had compound fractures of the bones and were crushed at the fracture sites.
The doctor opined that all the injuries were ante-mortem, injury No.1 was caused with sharp-edged weapon, the rest by blunt weapon, and death had occasioned due to head injury which caused fracture of skull bone and intra cranial haematoma of the crush injuries of both lower legs, involving compound fractures. All the injuries caused acute haemorrhage, acute shock and crush syndrome and were sufficient to cause death in ordinary course of life.
7. The prosecution in support of its case examined 12 witnesses. Of them, Muhammad Hayat (P.W.8), Ghulam (P.W.9) and Ashraf (P.W.10) narrated the occurrence as well `as the motive; Riaz (P.W.11) deposed to the incriminating recoveries and Abdul Razzaq, S.I. (P.W.12) stated about the investigations made by him in the case. Dr. Muhammad Younis Sohail (P.W.2) furnished the medical evidence. The accused/appellants when examined under section 342, Cr.P.C. Denied the allegations. They also denied the motive as well as the recovery of blood-stained weapons and clothes, made from them. They however did not appear in disproof of the allegations as required under section 340(2), Cr.P.C. Nor did they produce any defence evidence. Learned trial Court on consideration of the material on record and believing the prosecution case convicted and sentenced them, as indicated above. It may be mentioned that Ahmad Sher only is awarded the extreme penalty of death because he `had opened the attack and delivered the fatal blow to the deceased on his head', as observed by trial Court.
8. Learned counsel appearing on behalf of the appellants submitted that the eye-witnesses in this case are the close relatives of the deceased, and that they appear to be the procured witnesses as the F.I.R. Was lodged with delay. Further argued that these witnesses contradicted each other while giving reasons for their being present at or near the place of occurrence inasmuch as Muhammad Hayat (P.W.8) stated that they were cutting grass at the time of occurrence near the spot whereas Ghulam and Ashraf, P.Ws., stated that they were present in their cotton field supervising the picking of cotton, and that if these witnesses were present at the time of occurrence then Luddan Police would have not failed to communicate their particulars to the Hasilpur Police on wireless while informing them about this occurrence. Learned counsel vehemently urged that it appears to be an unseen occurrence hence, the appellants deserve acquittal. Lastly he submitted that the reason for imposing extreme penalty of death on Ahmad Sher (appellant) is not justified particularly because the medical evidence does not show that the solitary incised injury on the person of the deceased, attributed to Ahmad Sher, had proved fatal. Again the motive given by the prosecution itself shows that the offence was perpetrated to vindicate the family honour as the deceased was suspected of carrying on with the were of Ahmad Sher, appellant. Learned counsel appearing on behalf of the State as well as the complainant's counsel have defended the impugned order, however they did not press the Criminal Revision (No.44 of 1987) with any amount of seriousness.
9. We have carefully considered the facts and circumstances of the case in the light of the arguments advanced by the parties' counsel and have also perused the record. The prosecution has relied on the evidence of motive, the ocular testimony and incriminating recoveries besides the medical evidence.
10. The place and time of occurrence as well as the factum of death of the deceased by violence, are not disputed. To our mind, the ocular evidence in this case is of vital importance. The question, therefore, is whether the eye-witnesses really saw the occurrence? Muhammad Hayat, complainant in the case, is the father of the deceased. He admitted that Ghulam (P.W.9) and Ashraf (P.W.10) are related to him. It is not denied that Ghulam and Ashraf P.Ws. Are residents of Mauza Fateh Shah like Muhammad Hayat, complainant. Ghulam P.W. Stated that he lived at a distance of 4/5 acres from the spot and at a similar distance situate the residence of Ashraf P.W.
Ghulam and Ashraf at the relevant time claim to be present in their cotton field supervising the picking of cotton at a distance of 10/12 Karams from the spot and on hearing the alarm raised by Muhammad Hayat they reached there and saw the appellants inflicting injuries with hatchets and Dang to the deceased Khadim Hussain. After the departure of the assailants they had helped Muhammad Hayat in carrying the deceased to Luddan Hospital. No serious challenge had been thrown to the eye-witnesses particularly to falsify their claim that their cotton crop is situate a few Karams away from the spot where they had asserted to be present at the relevant time. The eye- witnesses arc no doubt related to the deceased but they do not have any / animus or motive to falsely implicate the appellants, therefore, they are not interested witnesses' in the strict sense of words, hence it is not essential to loo for any corroboration before acting upon their testimony. We have carefully gone through their statements, which are consistent and are free from any legal or other infirmity. Their testimony gets support from medical evidence as well since the injuries found on the person of the deceased are result of two types o weapons. Furthermore, the number of the injuries commensurate with the number of the accused. The fact that both legs of the deceased were crushed to pieces indicates that the repeated blows were caused with stick and blunt side o the hatchet by the assailants. It means that the assailants intended to kill the deceased and they also remained on the spot for quite some time. So the P.Ws. Had full opportunity to reach the spot and correctly identify the assailants, which took place in broad daylight.
11. As for the objection that the F.I.R. Was delayed, we would say that the delay stands satisfactorily explained. It is always the foremost desire of the relations of the injured to take him to hospital to save his life. In this case, the deceased was carried to Luddan Hospital being at nearer distance and after the doctor declared him as dead, his father rushed to Luddan Police Station, but his report was not recorded. It is common experience that the police avoids to register a case where the occurrence has not been committed in the territorial jurisdiction of their police station. It cannot, therefore, be said that story of taking the deceased to Luddan Hospital was introduced to supply explanation for delay because S.I. Abdul Razzaq (P.W.12) has clearly stated, and he also noted it down in the F.I.R., that on receipt of a wireless message from Police Station Luddan, he went to Luddan Hospital and at that- place he recorded statement (Exh.P.E./1) of the complainant.
Needless to say that it appears from the record that S.H.O. Luddan simply informed the Hasilpur Police on wireless that dead body of a person who was murdered in the area of Police Station Hasilpur was lying at Civil Hospital Ludden and the heirs of the deceased were also present there.
There was no occasion for S.H.O. Luddan to dictate an F.I.R. Giving details of the incident, particulars of the accused and the P.Ws. To Hasilpur Police on wireless. In this way the absence of name of the accused in the wireless message would not damage the prosecution case. The recoveries of the weapons of offence were allegedly made on 5-11-1986, i.e. About a week after the occurrence. Since we have believed the ocular evidence, therefore, these recoveries became superfluous. Although we do not see any legal defect in these recoveries but even if these recoveries are discarded it would not change the fate of the case.
12. For the above reasons we are satisfied that the conviction under section 302, P.P.C. Recorded by learned trial Court is correct and we would maintain the same. Next comes the question of sentence. Ahmad Sher appellant, has been awarded the death penalty whereas his co-appellants were awarded lesser penalty. The reason given by the learned trial Court for imposing extreme penalty on Ahmad Sher appellant, is that he had opened the attack by delivering the fatal blow to the deceased on his head. We find that besides the hatchet blow given by Ahmad Sher there are two lacerated wounds on the head of the deceased involving fracture of the skull. These two injuries seem to have been inflicted by the other two accused who have been awarded lesser penalty. In the circumstances, we think that the learned trial Court was not right in distinguishing the case of Ahmad Sher appellant, from his two co-appellants in the award o sentence.
Furthermore, it is admitted by the prosecution that the deceased was attacked and killed because he was suspected of having illicit connections with were of Ahmad Sher. In the circumstances we are of the view that Ahmad Sher, appellant, acted under provocation and the ends of justice would be amply met by awarding lesser penalty to him as well. Consequently, we uphold the conviction of the appellants under section 302/34, P.P.C. And while maintaining the sentence of 'Gulzar Ahmad and Riaz, appellants, we alter the sentence of Ahmad Sher, appellant, from death to imprisonment for life. The sentence of fine is, however, maintained. The death sentence awarded to Ahmad Sher is not confirmed. The appeal and the reference are disposed of accordingly.