KHALIL-UR-REHMAN RAMDAY, J.--- Muhammad Sher, his brother Allah Bakhsh and their father's brothers, namely, Karam Ali and Ali were tried by a learned Additional Sessions Judge of Sargodha for the murder of one Abdul.
2. All four of them were found guilty of the said charge: They were all convicted under section 302/34, P.P.C. And while Allah Bakhsh was sentenced to death, the other three convicts were punished with imprisonment for life. Each one of them-was further ordered to pay a fine of Rs.5,000 and further directed to pay an amount of Rs.10,000 as compensation to the heirs of the deceased or to suffer six months' imprisonment in default of the payment of the said compensation. This amount of compensation was made recoverable as arrears of land revenue.
3. Murder Reference No.6 of 1989 seeks confirmation of the sentence of death imposed on Allah Bakhsh convict. All the said convicts have filed Criminal Appeal No.1159 of 1988 to challenge the above-mentioned conviction and sentence recorded against each one of them.
4. Criminal Revision No.167 of 1989 prays for enhancement of the sentences of imprisonment for life awarded to Muhammad Sher, Karam Ali and Ali, to punishments of death. The State has filed Criminal Appeal No.224 of 1989 challenging the acquittal of Allah Bakhsh convict of the charge under section 13 of the Arms Ordinance of 1965 which acquittal was recorded by a learned Magistrate at Sargodha.
5. All these matters are being disposed of together through this single judgment.
6. It may be mentioned at the very outset that Ali appellant is stated to have died after filing the above-said appeal before this Court and in this view of the matter, the learned counsel for the appellants has elected not to press the said appeal to the extent of this appellant.
7. Criminal Appeal No.1159 of 1988 to the extent that it challenges the conviction and sentences recorded against Ali appellant is, therefore, dismissed, as not pressed.
8. The occurrence in question had been reported at Police Station Saddar, Sargodha on 17-5-1987 at 9-20 p.m. By one Ali son of Manak who is a PHUPHIZAD and a HAM-ZULF of Abdul deceased.
9. He had alleged that on 17-5-1987 he had gone to Ajnala and was returning home in the evening when he was joined by Abdul deceased, Zaman (P.W.7) and Allah Yar (given up, P.W.) who were also returning from Ajnala to Abdul deceased was stated to be carrying his
10. The complainant had alleged that while they were all going along the metalled Nasirabad Road and just its they had reached near the DERA of one Mehmand. Muhammad Sher armed with a double barrel .12 bore gun, Karan: Ali armed with a single barrel .12 bore gun, Allah Bakhsh and Ali armed with CHAVVIES, emerged there and after a LALKARA raised by Shera, that they had come to avenge the murder of his father, Muhammad Sher fired a shot which hit the left shoulder of Abdul deceased. He was followed by Karam Ali whose fire hit the deceased behind his left ear. After receipt of these fire-arm injuries, Abdul deceased fell on the ground whereafter, Allah Bakhsh and Ali inflicted injuries on the person of the deceased with their respective CHAVVIES. Having thus injured the deceased, the said assailants were stated to have escaped from the place of occurrence and while escaping, Allah Bakhsh appellant took away the licensed gun of Abdul deceased.
11. Ali complainant has further disclosed that about 7/8 years prior to the present occurrence, one Muhammad who was the father of Muhammad Sher and Allah Bakhsh appellants and a brother of Karam Ali and Ali appellants, had been murdered, in respect of which murder, one Muhammad Ismail, a real brother of Abdul deceased and his other relatives had been challaned and sentenced. The complainant had-claimed that it was to avenge this murder that the four assailants had done Abdul deceased to death.
12. During the course of investigation, Muhammad Sher and Allah Bakhsh appellants were arrested on 18-5-1987 while Karam Ali and Ali appellants were arrested on 22-5-1987.
13. After their arrest, Allah Bakhsh appellant led to the recovery of a blood-stained CHAVVI P.5 and the licensed gun P.6 of Abdul deceased on 19-5--1987. On the same day, Muhammad Sher led to the recovery of his licensed gun P.7 whereas, Karam Ali appellant led to the recovery of his licensed gun P.9 on 2-6-1987.
14. On being confronted with the prosecution case, all the accused persons denied their participation in the occurrence in question and attributed their false involvement to enmity and suspension.
15. Canvassing the acquittal of the three appellants before us, the learned counsel for the appellants argued that both the eye-witnesses of the occurrence in question were inimical, interested and chance witnesses; that the medical evidence contradicted the ocular testimony; that the occurrence in question was an unwitnessed occurrence and the eye-witnesses had subsequently been planted as such and finally that the occurrence in question had perhaps taken place while the deceased was lying asleep in his house and the deceased had not been injured at the place alleged by the prosecution:
16. Zaman (P.W.7) is not related to the deceased. It was claimed by the defence that he was one of the accused persons in the murder case of Muhammad above-mentioned alongwith Ismail, the brother of Abdul deceased. This fact was, though admitted by Ali complainant, but was denied by Zaman P.W. During the course of his cross-examination. The defence could have very conveniently proved this fact through documentary evidence such as, the F.I.R. Or the judgment etc., of the said Muhammad's murder case but no such steps were taken by the appellants at the trial.
17. In the circumstances, it is not possible for us to hold that Zaman P.W. Was amongst the assailants of the murder of the father of Muhammad Sher and Allah Bakhsh appellants and in the absence of such a Finding, Zaman P.W. Continues to be an independent witness of the occurrence in question.
18. Ali complainant is PHUPHIZAD of Abdul deceased and thus also a PHUPHIZAD of Ismail who had been challaned and punished for the murder of the father of Muhammad Sher and Allah Bakhsh appellants but the defence failed to demonstrate any involvement of Ali complainant in the murder of Muhammad above-mentioned or any enmity or animosity on his part towards the appellants. Even if the appellants had demonstrated orally or documentarily that the murder of Muhammad above-mentioned had been committed on account of some dispute involving the families of the two parties, it could have been assumed that Ali complainant might also have had some ill---will against the appellants. But no such thing had, however, been brought on record, in the absence of which, it cannot be presumed that Ali complainant had any motive to falsely implicate the appellants in the occurrence in question.
19. The present occurrence had taken place on a public thoroughfare and in the circumstances, only wayfarers could have witnessed the same and each such wayfarer would be a chance witness.
20. Therefore, the ocular testimony cannot be discarded only on the ground that they were chance witnesses of the occurrence in question, provided their testimony otherwise, inspires confidence:
21. The contradiction between the medical evidence and the ocular testimony as highlighted by the learned counsel for the appellants was that injuries Nos.2 and 3 which stood attributed to Allah Bakhsh and Ali and which had been alleged to have been caused by CHAVVIES which are obviously sharp-edged weapons, had been described as lacerations by Dr. Muhammad Aslam P.W. Who had conducted the post-mortem examination of the dead body of Abdul deceased.
22. Howsoever the said two injuries may have been described by the said doctor, the fact remains that he had declared not only at the trial but even at the very outset i.e. In the post-mortem examination report (Exh.P.C.) that the said injuries had been caused by sharp-edged weapons.
This opinion of the said doctor had never been challenged by the defence as he had not been cross-examined on this question. Be that as it may, a perusal of the details of these injuries would reveal that both these injuries were cut wounds which result could have been possible only through sharp-edged weapons. In this view of the matter, we find that no contradiction exists between the medical evidence and the eye-witness account offered by P.W.6 and P.W.7. The learned counsel for the appellant has not been able to point out any material on record which could have suggested (hat the occurrence in question had not taken place near the Dera of Mehmand on Nasirabad Road and had in fact taken place in the house of the deceased. The blood-stained earth had been collected by the Investigating Officer from the place of occurrence as alleged by the prosecution and neither the said Investigating Officer nor the witnesses who had witnessed the recovery of blood-stained earth had been challenged on this question. No material exists on record which could have indicated that the occurrence in question had taken place at night when the deceased could have been done to death while he was asleep.
23. The submissions of the learned counsel that the occurrence had taken place in the house of the deceased and not at the place of occurrence as alleged or that the deceased had been done to death while asleep, are submissions which are bald and unsubstantiated.
24. Having thus examined the material available on record; we are led to the inference that no exception can be taken to the conviction of the three appellants recorded under section 302/34, P.P.C.
25. The quantum of sentence deserved by. Allah Bakhsh appellant does, however, need reconsideration.
26. He had been attributed the CHAVVI blows found on the person of the deceased and the two such blows which had been found to be fatal had been declared to have been collectively fatal. Ali convict (since, dead) who was the other assailant saddled with such an injury, had been punished with imprisonment for life. No reason exists for a differential treatment to Allah Bakhsh appellant, especially when it is not the prosecution case that the injury attributed to Allah Bakhsh appellant was the one solely responsible for the death-of the deceased.
27. Consequently, the punishment of death awarded to Allah Bakhsh appellant is NOT CONFIRMED.
He shall instead suffer a sentence of imprisonment for life.
28. The judgment of the learned trial Court does not direct any imprisonment in default of payment of fine imposed on the appellants. It is, therefore, directed that each one of the three appellants shall undergo six months' R.I. In default of payment of fine ordered to, be paid by them.
29. It is also directed that the entire amount of fine, if realised, shall also be paid to the heirs of the deceased alongwith the compensation.
30. All the three appellants shall be allowed the benefit of the provisions of section 382-B of the Cr.P.C.
31. The result is that Criminal Appeal No.1159 of 1988 is dismissed, subject to the modification that Allah Bakhsh appellant shall suffer imprisonment for life instead of punishment of death and with a further modification that each of the three appellants shall suffer six months' R.I. In default of payment of fine.
32. For the reasons above recorded, Criminal Revision No.167 of 1989 is dismissed.
33. The learned counsel for the State has elected not to press Criminal Appeal No.224 of 1989. The same is dismissed as not pressed.
34. Murder Reference No.6 of 1989 is answered in the negative.
Death sentence NOT CONFIRMED N.H.Q./M 271/L