SH. IJAZ NISAR, J. -- Asghar Ali, 38, Shaukat Ali, 25, Muhammad Arshad, 30, Muhammad Yasin, 35 and their father Muhammad Rafiq, 75 were tried for the murder of Muhammad Yaqub,
50. By judgment dated 29-9-1987 the learned Sessions Judge, Khanewal convicted them under sections 148 and 302/149 P.P.C. Asghar Ali appellant was sentenced to death while the others were sentenced to imprisonment for life plus a fine of Rs.2,000 each or in default to undergo one year's R.I. With a further direction to pay Rs.3,000 each as compensation to the heirs of the deceased or in default to undergo imprisonment for a period of six months. Under section 148, P.P.C. All of them were sentenced to undergo three years' R.I. Each.
The convicted accused have filed appeal while the learned trial Court has made a reference for confirmation of the death sentence of Asghar All. Muhammad Anwar complainant has filed a revision for the enhancement of the sentence of Shaukat Ali, Muhammad Arshad and Muhammad Rafiq. All the matters shall be disposed of by this judgment.
2. The prosecution case is that Muhammad Rafiq appellant had purchased 13 Acres of land. Akbar, Fateh Din and Khushi Muhammad, etc. Filed a pre-emption suit against him. Muhammad Yaqub deceased used to pursue the case as attorney of the pre-emption which caused annoyance to Muhammad Rafiq and his sons.
3. On 7-12-1984 at 8-00 a.m. Muhammad Anwar P.W.7 and Sultan P.W.8 were proceeding to their village from their laced. Their brother Muhammad Yaqub deceased was going ahead of them on a cycle. When he reached near the land of Muhammad Rafiq all the 5 accused armed with sticks came out of a cotton crop field. Muhammad Yasin appellant gave a Sota blow on the head of Muhammad Yaqub deceased. Asghar Ali appellant followed the deceased and gave stick blows on his right arm and eye. The other accused also inflicted Sota blows on him. After the deceased had fallen injured the appellants fled away. After reaching his house Asghar Ali appellant took out a .12 bore shot gun and fired three shots which did not hit anybody.
4. Initially a case under section 148/307/325/149, P.P.C. Was registered at Police Station Mian Channu and when Muhammad Yaqub died in Nishtar Hospital, Multan on 21-12-1984 section 302, P.P.C. Was also added.
5. Muhammad Anwar P.W. l reported the matter to tae police by making F.I.R. EXh.P.E. On 7-12-1984 at 11-00 a.m. After recording it Muhammad Yaqub S.I. P.W.10 proceeded to Civil Hospital, Mian Channu and recorded the statement Exh.P.Q. Of Muhammad Yaqub deceased who was then injured. He then proceeded to the spot and secured blood stained earth from there. He also took into possession cycle P.2 of the deceased. Three empties P.3/1-3 were also secured from the spot.
During investigation Asghar Ali appellant produced his licensed gun P.4 alongwith three live cartridges. He also produced blood-stained Sota P.7 through memo Exh.P.K. On 7-12-1984.
Muhammad Arshad appellant produced blood-stained Sota P.8 while Shaukat Ali appellant produced blood-stained Sota P.9. Muhammad Yasin appellant led to the recovery of Sota P.10 while, Muhammad Rafiq got recovered Sota P.11 both not blood-stained.
6. On the death of Muhammad Yaqub deceased, Muhammad Yaqub S.I. Prepared his Inquest report Exh.P.S. And injury statement Exh.P.T.
7. The empties recovered from the spot and the gun P.4 of Asghar Ali were sent to the Forensic Science Laboratory for comparison. The Fire-arm Expert vide his report Exh.P.BB. (page 30 of the printed paper book) found that the empties had been fired from the said gun. The sticks of Asghar Ali, Muhammad Arshad and Shaukat Ali were found to be stained with human blood by the Serologist vide report Exh.PAA. (page 28 of the printed paper book).
8. Dr. Iftikhar Hussain Qureshi, P.W.11 conducted post-mortem examination on the dead body of Muhammad Yaqub deceased on 22-12-1984 at 2-00 p.m. And found the following injuries thereon:-
(1) Healed scar of injury No.1 (mentioned in medico-legal Report No.106/84 is present on left side of head).
(2) There was fracture of left patella bone under injury No3 of medico-- legal Report No.106/84.
(3) Stitched non-healing wound 10 c.m. x 2 c.m. x bone deep situated over the front of left leg lower part. Actually injury No.4 of M.L.R.106/84 had been extended during the operation by the surgeon.
There was fracture of left fibula, bone under this injury.
(4) A non-healing lacerated wound 3 c.m. x 1.5 c.m. x bone deep situated over the front upper part of right leg. Corresponding to injury No.8 of M.L.R.106/84.
(5) A non-healing lacerated wound 3 c.m. x 1 c.m. x bone deep situated over the front middle part of right leg corresponding to injury No.9 of M.L.R.1"84.
(6) At the side of injury No.10 of M.L.R.106/84 there was an operation wound 12 c.m. In length bearing six stitches (on front of right forearm), on disection there was fracture of right radious bone, repaired by nail plate.
(7) An operation wound stitched (8 c.m. In length bearing five stitched situated over the inner lower part of right forearm.) On disection right ulna bone was found fractured. It corresponded to injury No.11 of M.L.R.106/84.
(8) A healed scar corresponding to injury No.6 of M.L.R.106/84 was present over the back of left elbow joint.
(9) There was fracture of right clavical bone (acromial end) under injury No.15 of M.L.R.106/84.
(10) There was fracture of right middle cranial fossa of base of skull under injury No.12 of M.L.R.106/84. Fading scar of the injury was present over the right temporal region of head.
Death occurred due to traumatic and hypovolaemic shock as a result of injuries Nos.2., 3, 6, 7, 9 and 10 collectively. Injury No.10 was individually sufficient to cause death in the ordinary course of life.
Injuries Nos.2, 3, 6, 7 and 9 were grievous. All the injuries were ante-mortem and caused by blunt weapon. The duration between injuries and death was ten to fifteen days while that between death and post-mortem was twelve to twenty-four hours.
9. The appellants denied the prosecution allegations and attributed the case to enmity. Asghar Ali and Muhammad Yasin appellants led defence evidence. They examined Dr. Abdul Ghaffar Senior Medical Officer, Civil Hospital, Mian Channu as D.W.1. According to the said doctor he had examined Asghar Ali appellant on 8-12-1984 and found the following injury on his person.
"Fire-arm wound 1/4" x 1/4" x into going forward under the skin 3-1/2" deep (forward from the wound of entrance) on the outer side and middle of right foot (directed towards the little toe). Margins of the wound lacerated and inverted, the anterior margin (only) is blackish the posterior margin is not black. The whole foot was swollen but not contused."
The injury was caused by a firearm within 24 to 36 hours of the examination. Vide X-Ray report a metallic foreign body was seen in the right foot under the skin at the base of right little finger (toe).
The injury was simple and was skin deep only. In the cross-examination the doctor did not rule out the possibility of the injury having been self-suffered to create defence version. He added that the injury could be caused by a friendly hand. Dr. Khuda Bakhsh Malik, D.W.2 stated that he had examined Muhammad Yasin appellant on 8-12-1984, for, he complained of pain in the chest. Dr. Elahi Bakhsh D.W.4 stated that he had examined Muhammad Yasin appellant on 6-12-1984 as he complained of chest pain. According to him he got Yasir; admitted in the hospital and he remained there from 6-12-1984 (A.N.) to 8-12-1984 (F.N).
10. The prosecution case rests on the evidence of Muhammad Anwar P.W.7, Sultan P.W.8, the eye- witnesses, Shaukat Ali P.W.9 and S.I. Muhammad Yaqub P.W.10, the recovery witnesses. The dying declaration Exh.P.Q. Of the deceased recorded by S.I. Muhammad Yaqub in the hospital on 7-12- 1984 was also taken into consideration.
11. It is contended that both the eye-witnesses are real brothers of tire deceased and were inimically disposed towards the accused and as such should not have been relied upon without independent corroboration. It is further stated that they have thrown the net too wide to involve the entire family of Muhammad Rafiq appellant. The motive is also assailed on the ground that on the day of occurrence, no pre-emption suit was pending against Muhammad Rafiq and that even Zar- e-Panjum had been got refunded by the pre-emptors. The complainant party had attacked Asghar Ali appellant and caused fire-arm injury, it is added.
12. As regards the defence plea that Asghar Ali appellant was wounded by the complainant party with a fire-arm, it would not be out of place to mention that Asghar Ali appellant himself did not raise this plea while making his statement under section 342, Cr.P.C. He was completely silent of having suffered any injury during the occurrence. No doubt, a fire-arm injury simple in nature was found on his person which according to the doctor could be self-- suffered. It was only skin deep.
He could not have dared to appear as his own witness under section 340(2), Cr.P.C. In this view of the matter we do not feel inclined to attach any importance to the defence plea raised by the learned counsel representing him.
13. No doubt, Muhammad Anwar P.W.7 and Sultan P.W.8 are real brothers of the deceased but in the absence of any serious background of enmity with the appellants they cannot be termed as interested witnesses so as to discard their testimony. They were the natural witnesses because they were following the deceased at the relevant time. The account of the occurrence A given by them is confirmed by the medical evidence. They stand supported by the recoveries of blood- stained Dangs at the instance of Asghar Ali. Muhammad Arshad and Shaukat Ali appellants.
Shaukat Ali P.W.9 who deposed about the recoveries is a disinterested witness having no axe to grind against the appellants. He has fully corroborated S.I. Muhammad Yaqub on the manner and mode of recoveries.
14. The dying declaration Exh.P.Q. Rings true and contains all the necessary details. It was immediately recorded by the Investigating Officer on leis arrival in the hospital. There is nothing to show that the deceased was being prompted by anybody to make the said statement.
15. As regards motive it has come in evidence that no pre-emption suit vas pending against Muhammad Rafiq appellant when the occurrence in question had taken place. The pre-emptors had even withdrawn the Zar-e-punjam. Muhammad Yaqub deceased was not one of the pre- emptors. In these circumstances the motive is uncertain and unclear.
16. The important question that falls for determination is as to whether all the rive accused had participated in the occurrence or their number has been exaggerated. Muhammad Rafiq appellant is father of the other appellants and is 75 years old. There appears to be no reason for his personal participation in the occurrence when his grown up sons were available to accomplish the mission.
Likewise, the participation of his son, Muhammad Yasin appears to he doubtful because from defence evidence led by him it is established that he was admitted in the hospital on the relevant date, being a heart patient. Moreover, the Dangs recovered at the instance of Muhammad Rafiq and Muhammad Yasin were not blood-stained. In view of these circumstances we entertain doubt about their participation in the occurrence. Accordingly, we accept their appeal, set aside their conviction and sentence and acquit them by giving them the benefit of doubt. They are present on bail and are discharged from the bail bonds.
However, the presecution case against Asghar Ali, Shaukat Ali and Muhammad Arshad stands fully established. Since the motive is obscure and uncertain, we alter the conviction of Asghar Ali from death to life imprisonment under section 302/34, P.P.C. Plus a fine of Rs.2,000 or in default to undergo one year's R.I. Shaukat Ali and Muhammad Arshad appellants are also convicted under section 302!34, P.P.C. And sentenced to imprisonment for life plus a fine of Rs.2,000 or in default to undergo one year's R.I. All of them are further directed to pay a compensation of Rs.3,000 each to the heirs of the deceased or in default to undergo six months' R.I. The fine, if recovered, shall also be paid to the legal heirs of the deceased. The conviction of the appellants under section 148, P.P.C. Is set aside.
The death sentence of Asghar Ali is NOT confirmed.
The appeal is disposed of in the above terms.
For the reasons stated above the revision filed by Muhammad Anwar complainant for the enhancement of the sentence of Shaukat Ali, Muhammad Arshad, Muhammad Yasin and Muhammad Rafiq fails and is dismissed accordingly.