ABDUL JABBAR KHAN, J.---Ilam Din aged 40 years, Allah Din aged 38 years, sons of Chiragh Din and Jafar son of Ilam Din, were tried by the learned Additional Sessions Judge, Kasur, under sections 302/34, P. P. C. For the double murder of Ibrahim and Abdul Ghani sons of Muhammad Din.
Vide his judgment dated 11-12-1973 the learned trial Judge while acquitting Jafar accused, convicted and sentenced Ilam Din and Allah Din accused, to death under section 302/34, P. P. C.
With a fine of Rs. 1,000 each or in default to undergo further one year's R. I. Each in case the death sentence awarded to them is not confirmed by the High Court. Ilam Din and Allah Din have filed a joint appeal against their convic--petition and sentences and there is also a Murder Reference before us under section 374, Cr. P. C. For the confirmation of their sentence of death. We will dispose of both, the appeal as well as the Murder Reference by a single judgment.
2. The occurrence took place during the night between 25/26-5-1972 in the house of the deceased situated in Mauza Khanke More, at a distance of 31-miles from Police Station Bhai Pheru, District Lahore. F. I. R. EA. P.A. Was lodged by Muhammad Yousaf P. W. 15, a maternal cousin of the appellants and paternal uncle of the deceased, at Police Station Bhai Pheru on 26-5-1972 at 3 a.m., immediately after the occurrence. The F.1. R. Was recorded by Muhammad Iqbal S. H. O. P.-W. 16.
3. The facts of the case as narrated by Muhammad Yousaf P. W. In the F. I. R. Exh. P. A. Are that both the deceased and the appellants used to live in the same haveli situated in village Khanke More.
There used to be a constant quarrel between the deceased and Allah Din appellant over the shares claimed by them regarding this haveli and ultimately a partition wall was erected In order to bifurcate the portion in possession of Allah Din appellant from that of the possession of the two deceased. It is alleged that Muhammad Shafi Lambardar was instrumental in effecting the partition of this ihata. It is stated that Allah Din appellant did not accept this division as fair and according to him the land allocated was much less than his actual share. Being dissatisfied with this settlement he was anxious to move the wall one karam further to the side of the deceased.
Despite this insistence the deceased refused to meet his demand. This adamant attitude of the deceased was highly resented by him and thus be started nursing grudge against the two deceased and their brother Ismail. 11 was further stated that there was a well in this ihata and on which a luj and a leather bucket (boka) was hanging on this well which was provided by both the deceased brothers. Two days earlier Allah Din appellant removed the luj and threw the boka into the well. For this aggressive act of Allah Din appellant, Ibrahim and Abdul Ghani deceased admonished him. This led Allah Din, Dam Din appellants and their co-accused Jafar son of Ilam Din to make an assault on the deceased but situation was saved by timely intervention of Barkat Mochi, Mian Noor Muhammad and Ghulam Muhammad. While departing after this altercation the appellants declared that they will take revenge of this insult.
On the fateful night Muhammad Yousaf complainant F. W. 15, heard hue and cry at the dead of night and ran towards the house of his nephews (deceased). He found Ibrahim and Ilam Din deceased lying murdered on their respective cots with deep injuries on their necks with some sharp-edged weapons. He learnt from Mst. Bhagan Bibi P. W. 13, the mother of the deceased, Mst.
Rashida Dibi wife of Ibrahim deceased and Mst. Khurshid Bibi wife of Abdul Ghani deceased that Allah Din and Barn. Din appellants after committing the murders of Abdul Ghani and Ibrahim deceased, had made good their escape from the place of occurrence. These ladies further informed him that they had fully identified both the culprits in the light of the moon and attributed toka in the hand of Allah Din appellant and hatchet in the hand of Ilam Din appellant, who had murdered Abdul Ghani and Ibrahim deceased with their respective weapons of offence.
4. Muhammad Iqbal S. H. O. P. W. 16, after recording the F. I. R. Exh. P. A: at the instance of Muhammad Yousaf complainant, read oven the same to him who admitted it correct and signed ft in token of its correct--ness. He then left for the place of occurrence. On reaching the spot he prepared injury statement Exh. P. F./1 and inquest report Exh. P. G. In respect of the dead body of Ibrahim deceased. Similarly he prepared injury statement Exh. P. H. And inquest report Exh. P. J.
Respecting the dead body of Abdul Ghani deceased. He then secured the blood-stained earth from the place of occurrence from underneath the cot of Ibrahim deceased vide memo. Exh. P. K.
He also took into possession some blood-stained earth from underneath the cot of Abdul Ghani deceased vide memo. Exh. P. L. After completing these documents he sent the dead bodies of the deceased to the mortuary for post-mortem examination, under the escort of Muhammad Sultan and Khan Muhammad F. Cs. He examined Mst.Khurshid Bibi, Mst. Rashida Bibi, Mst. Bhagan Bibi, Muhammad Shafi Lambardar, Reham Din, Ghulam Muhammad, Imam Din, Abdul Aziz, Muhammad Din and one Haji. He recorded their statements under section 161, Cr. P. C.
On 29-5-1972 he arrested both the appellants alongwith War acquitted accused. He removed blood-stained shirt P. 2 from the person of War co-accused and secured it vide memo. Exh. P. C.
Blood-stained toka P. 3 was recovered from the house of Jafar co-accused concealed under a stake of chaff in a kotha, which was taken into possession vide memo Exh. P. D: Allah Din appellant was wearing blood-stained vest P. 1 which he got removed from his person and secured it vide memo Exh. P. B. This memo was attested by Muhammad Yousaf P. W. 15, Muhammad Shafi Lambardar (not produced) and Muhammad Iqbal S. H. O. P. W.
16. On interrogation Allah Din appellant led to the recovery of toka P. 4 from inside a thara of wheat which was secured vide memo Exh, P. E. This toka was found stained with blood. Ilam Din appellant while in police custody led to the recovery of blood-stained hatchet P. 5 from inside the thara of wheat and the same was taken into possession vide memo Exh. P. F. He also got prepared site plan Exh. P O. And Exh. P. O./1 from the Draftsman. He also prepared a site plan Exh. P. W. 16/A relating to the place of recovery of weapon of offence from Jafar co-accused and Exh. P. W. 16/B relating to the place of recovery of weapons of offence from Ilam Din and Allah Din appel--lants. He also prepared sketches of the weapons of offence as Exh. P. D./1. Exh. P. E./1 and Exh. P. F./1 regarding Jafar, Allah Din and Ilam Din accused, respectively.
5. Dr. Abdul Khaliq P. W. 2 performed the post-mortem examination on the dead body of Ibrahim deceased on 26th May 1972. At 3 p.m. And found the following injuries on his person :-
(1) Incised wound 4-- x 1'' x bone cut on the lower part of back of head with underneath vertebrae also cut (first anti second).
(2) Incised wound 1'' x --'' about --'' above the injury No. 1.
(3) Incised wound 5'' x 1-- x bone cut on the left side of the face cutting the angle of the mendable and extending into the left side of neck.
(4) Incised wound 3--'' x --'' on the right side of the lower part of neck.
(5) Incised wound 3-- x --'' on the top of right shoulder.
On the same day this doctor performed autopsy on the dead body of Abdul Ghani deceased and found the following injuries on his person :-
(1) Incised wound 7'' x 5'' on the lower part of left side and back of neck with corresponding blood vessels muscles and vertebrae cut.
(2) Incised wound 3'' x 1--'' on the left side of the face near the angle of mendable.
(3) Incised wound on the left of neck, below the injury No. 1.
(4) Incised wound --" x --'' on the nail of right index finger.
(5) Incised wound --'' x --" on the nail of right middle finger.
(6) Incised wound --'' x --'' on the back of right ring index finger near the bed of nail.
(7) Abrasion 1'' x --'' on the left side of the face if below the left ear.
(8) Abrasion --'' x --'' on the upper part of back of left shoulder blade.
6. Both the appellants as well as their co-accused Jafar, denied both their participation in the crime and the recoveries made at their instance and claimed that they had been falsely implicated in this case due to suspicion and enmity with the P. Ws. They did not lead any defence to substantiate their assertion. .
7. The prosecution case rests on the ocular testimony provided by Mst. Khurahid Bibi P. W. 11, widow of Abdul Ghani deceased, Mst. Rashida Bibi P. W. 12, widow of Ibrahim deceased, and Mst. Bhagan Bibi P. W. 13, the mother of both the deceased, all inmates of the house where the deceased were murdered. Muhammad Yousaf complainant P. W. 15 has claimed that he reached the place of occurrence immediately and learnt the details of the account from the above-mentioned P. Ws.
Imam Din Y. W. 14 has provided wajtakkar evidence by stating that he saw the appellants alongwith Jafar co---accused emerging out of the house of the deceased persons, armed with their respective weapons of offence. The evidence regarding the motive for this crime has been narrated by Muhammad Yousaf P. W.15 in detail while Mst. Bhagan Bibi, Mst. Khurshid Bibi, and Mst.
Rashida Bibi have attested regarding the bad blood existing between the deceased and the appellants over the dispute of common wall in the ihata. The evidence of recoveries of weapons of offence from the appellants on which blood stains of human origin were found by the Serologist, has been provided by Muhammad Yousaf P. W. 15, the complainant in this case, corroborated by Muhammad Iqbal P. W.
16. Dr. Abdul Khaliq P. W. 2 has proved the post-mortem reports conducted by him on the persons of the deceased.
8. We have heard the learned counsel for the appellants as well as the learned counsel for the State and have perused the entire record of the case carefully with their assistance. The learned counsel for the appellants has raised the following contentions :-
(i) that the witnesses did not see the occurrence and have come forward to support the prosecution version as being the close relations of the deceased persons ;
(ii) that the testimony of Mst. Khurahid Bibi P. W., the only eye--witness of the occurrence runs contrary to the medical evidence on the record. The other two witnesses Mst. Rashida Bibi and Mst.
Bhagan Bibi, have attributed no specific injuries to the appellants and have claimed that they identified them, as the assailants whom they saw leaving the house after committing the crime.
According to the learned counsel they were hardly in a position to identify the culprits at that hour of night ;
(iii) that the evidence of recovery of toka and hatchet suffers from material discrepancies and have been only attested by Muhammad Yousaf P. W. 15, a close relation of the deceased who was inimical towards the appellants although there were a number of independent persons in the village available to testify the recovery memos but none has been produced ;
(iv) that there was no motive at all for the appellants to commit the murders of the deceased persons as the dispute over the common wall of the theta was amicably settled through the good offices of Muhammad Shafi Lambardar, thus the appellants had no cause of grievance against the deceased;
(v) lastly he has submitted that Mst. Khurshid was betrothed to some person in district Sheikhupura before she was married to Abdul Ghani deceased. Thus the possibility of her previous fiance of plann--ing or committing the crime, could not be excluded. He has relied on the admission of Muhammad Din P. W. 14 in this respect who in his cross-examination had admitted that Mst.
Khurshid Bibi P. W. Was first betrothed to a person in village Jatri in district Sheikhupura. According to the learned counsel this was a case of blind murder which occurred during the middle of night when inmates of the house were sound asleep and could not see who actually committed the murders. When they woke up they found the deceased lying murdered and in collusion with Muhammad Yousaf P. W., an erstwhile enemy of the appellants, falsely implicated them alongwith Jafar co-accused, mainly on suspicion.
9. We have given our anxious thoughts to all the contentions raised by the learned counsel for the defence and will firstly discuss his criticism levelled against the evidence of motive as provided by the prosecution in this case. Muhammad, Yousaf P. W. 15 has stated in the F. I. R. As well as in the statement before the trial Court that the basic trouble developed between the parties over their respective claims regarding their possession of the land lying within the four walls of a common haveli which although was outwardly settled through the mediation of Muhammad Shafi Lambardar, yet the appellants felt themselves an aggrieved party. He has also mentioned of some altercation which resulted regarding the act of the appellants in carrying away the luj and throwing away the boka in the well which was hoisted by the appellants. The learned trial Court has attached little significance to the later events of altercations between the parties as accord--ing to it the evidence of witnesses like Barkat A.I P. W. 9 and Ghulam Muhammad P. W. 10, did not inspire confidence. However, the trial Court has accepted that the erection of common wall was a factually a bone of contention which motivated the appellants to commit this unfortunate double murder. It is significant to note that even the defence does not completely deny that the dispute over the wall did not exist or there was no such wall which had brought the parties to loggerheads.
The only plea taken by it was that after the mediation of Muhammad Shafi Lambardar and erection of the wall between the ihatas of the parties, the matter was settled once for all to the entire satisfaction of the parties. As against this we find that there is a consistent testimony of all the lady witnesses i.e. Mst. Bhagan Bibi, the mother, Mst. Khurshid Bibi and Mst. Rashida Bibi, wives of the two deceased, that the appellants were dissatisfied with the arrangement and desired that the wall should be removed one karam away to the house of the deceased. Their statements are corroborated by Muhammad Yousaf P. W. 15 in this respect. The learned trial Court has discussed all the aspects of this piece of evidence in pare. No. 9 of its judgment at page 58 of the Paper Book and has arrived at a positive conclusion that the appellants did nurse grudge over this dispute of wall as stated by the P. Ws. We agree with its finding which is based on good reasons.
10. While dealing with the ocular account as provided by Mst. Khurshid Bibi P. W. 11, Mst. Rashida Bibi P. W. 12 and Mst. Baghan Bibi P. W. 13 we are of the confirmed view that presence of these witnesses at the time of occurrence, cannot be considered doubtful because these persons being the inmates of the house, would be the most natural witnesses in this case. We have scanned their testimony with care and find that they have made their statements in a most straightforward manner and have given a most natural account of the events. They have stated what they saw and it is pertinent to note that two of them i.e. Mst. Rashida Bibi and Mst. Bhagan Bibi have not tried to claim that they saw the appellants inflicting blows on the deceased which they could have easily claimed if they had chosen to do so. It is only Mst. Khurshid Bibi P. W. Who has provided us the eye-witness account and has stated that she saw Allah Din and flam Din appellants) murdering her husband. The other two witnesses have only stated that when they awoke they only saw the appellants armed with respective weapon as leaving the scene of occurrence. They also claimed that they were able to fully identify them as the night was moonlit and they were previously known to them. If we look into the F. I. R. We find that this was what they told to Muhammad Yousaf P. W. 15 and aid not mention the name of Jafar (acquitted accused) of the appellants as one of their associates or culprits. This up-right and truthful attitude of these witnesses inspires immense confidence and goes to prove that the evidence provided by them does not suffer with any embellishment. We also find that out of them Mst. Khurshid Bibi P. W. Who claims that Allah Din appellant armed with toka and Ilam Din armed with a hatchet, were seen by her giving blows on the person of her deceased husband, stands fully corroborated by the medical evidence in this respect. The nature of the injuries on the person of both the deceased, shows that those could only be caused by the appellants while standing towards the sides of the deceased. We have taken into consideration the evidence of Dr. Abdul Khalia P. W. 2 and find that injuries on the D persons of Iorahim deceased was the result of hatchet and those on the person of Abdul Ghani deceased were the result of toka, the weapons as attributed and recovered at the instance of these appellants. We have also looked at the diagram and we are of the opinion that in fact injuries on the person of Abdul Ghani deceased although they were shown as six incised injuries yet there were either three or two blows inflicted on his person while lying asleep in the position in which he was stated to be and Injury Nos. 7 and 8 which have been described as abrasions and caused by a blunt weapon, would be suffered by the wooden handle of the toka which would naturally come in tact with this part of the body while its blade strikes the back of the neck. Similarly incised wounds of smaller dimension like --'' x --'' on the nail of right index finger and --'' x --'' on the nail of right middle finger, could easily be suffered if the person while asleep was keeping his hand near his face. Keeping all these facts in view, we do not find any force in the argument of the learned counsel for the appellants that the narration of events by Mst. Khurshid Bibi P. W. In any way, stands con--tradicted by the medical evidence on the record. Besides this eye-witness account of Mst.
Khurshid Bibi P. W., the presence of the appellants at the place of occurrence armed with respective weapons stands fully proved by the statements of Mst. Rashida Bibi and Mst. Bhagan Bibi P. Ws. These witnesses besides being natural witnesses, did not have any motive to falsely implicate the appellants who were relations of their husbands, particularly in the absence of common background of long-standing emnity. The, failure of the prosecution to produce other independent evidence besides these inmates of the house in no way reflects on the veracity of its version. The murders took place within the four walls of the house. Thus if any body could reach the place of occurrence on the hue and cry of the women--folk or minor brothers of the deceased, they would not be in a position to depose anything regarding the actual occurrence as by that time the appel--lants had made good their escape. Undoubtedly there is an admission on the part of these witnesses that certain Christian family resided near their theta but as observed earlier they would be attracted only after the commis--sion of the crime and thus the prosecution was in no way obliged to burden its case by producing all the residents of the locality. Moreover, it is a matter of common knowledge that people do not want to come forward as witnesses with particularly when the trouble is among the relatives inter se F or the members of the same brotherhood. The deceased were done to death while they were asleep with hatchet and toka and thus the only person who would awake, would be lying near them, either by the sound of the infliction of injuries or mourning or cries of the deceased and not others who were sleeping in their own respective houses. If there would have been gun fires then the possibility of people being attracted while the crime was being committed, was there but it could not be in the instant case.
We are fully convinced by the testimony of these witnesses that none else but the appellants committed the murders of these two unfortunate young persons who had given them cause of annoyance over the dispute of a wall. The evidence of these witnesses stands fully corroborated by the recovery of human blood-stained toka and hatchet at the instance of the appellants. The learned counsel for the appellants has tried to condemn'' Muhammad Yousaf P. W. 15, the attesting witness of these recoveries, as an inimical and interested witness. There is nothing on the record to show except a suggestion that the appellants and Muhammad Yousaf P. W. Were proceeded against under section 107/151, Cr. P. C. Sometime prior to the occurrence. The suggestion has been completely denied by Muhammad Yousaf P. W. On the other hand it is on the record that Muhammad Yousaf P. W. Was a maternal cousin of the appellants. The defence has miserably failed to show anything against this witness in any manner what--soever that he had a motive to falsely implicate them in this case. The presence of this witness, immediately after the occurrence also cannot be ruled out for the obvious reason that he was the person who lodged the F. I. R. With the police without any delay and gave a faithful account of F, what he was told by the ladies in the house. It is only at the investigation stage that we find that Jafar son of Ilam Din (acquitted- accused) was involved on the strength of the testimony of wajtakkar witnesses and challaned but at the same time the facts stares in the face of the defence that the lady witnesses in this case did not involve Jafar co-accused even at the trial stage which they could have easily done under the influence of the Investigating Agency. This proves their metal and establishes them as truthful witnesses. Besides the evidence of Muhammad Yousaf P. W. The defence is confronted with the evidence of another independent witness, i.e. Muhammad Iqbal S. H. O. Who is as good a witness as any body also and when there is nothing on the record to show that he bas any personal axe to grind against the appellants.
It will be of importance to mention here that Mst. Rashida Bibi P. W. 12 has pointed out in her evidence that Allah Din appellant at the time of the occurrence was wearing vest P.
1. When Allah Din appellant was arrested he was found to be wearing vest P. 1 which was found to be stained with human blood by the report of the Serologist although these stains had been washed. The suggestion of the learned counsel that the possibility of these murders having been committed by some person who was alleged to have been betrothed with Mst. Khurshid Bibi P. W. Earlier to her marriage with Abdul Ghani deceased, it is sufficient to say that except a vague admission by Muhammad Din P. W. 4 there is nothing on the record to support this hypothesis. The defence had not even the courage to ask this question directly from Mst. Khurshid Bibi P. W. Or her father.
Therefore, we are of the firm opinion that the suggestion of this sort hardly deserves any consideration.
11. The not result of our discussion is that the prosecution in this case has established its case beyond any reasonable doubt, through the evidence of motive ; the ocular testimony; the evidence of recovery, supported by the medical evidence, that the appellants had committed double murder of Ibrahim and Abdul Ghani deceased .In a most dastardly and ghastly manner. We do not find any extenuating circumstance in their favour. Therefore, we dismiss their appeal ; maintain their conviction and sentences under section ?02/34, P. P. C. Awarded to them by the learned trial Court. The sentence of death awarded to the appellants, is hereby confirmed.