' KHALIL-UR-REHMAN RAMDAY, J.--- Falak Sher, his brother Noor Muhammad, their cousin Amir and his brother Naseer were tried by a learned Additional Sessions Judge of Sahiwal for the murder of Muneer Ahmad. Through his judgment, dated 1-7-1989, the said learned Court acquitted Noor Muhammad and Naseer but finding Falak Sher and Amir guilty of the charge under section 302/34 of the P.P.C., punished each one of them with death and wtih a fine of Rs,10,000 or two years' R.I. In default, in addition whereto, each one of them had also been ordered to pay an amount of Rs,10,000 to the heirs of the deceased or to undergo six months' S.I. In default thereof.
2. Murder Reference No,193 of 1989 seeks confirmation of the said sentences of death while Criminal Appeal No,168 of 1989 filed jointly by both the above-mentioned convicts impugns the above- noticed conviction and sentences recorded against them. Both these matters are being disposed of together through this single judgment.
3. The occurrence, which is the subject-matter of the present proceedings, had taken place on 5- 6-1987 at about 9-00 a.m. Near Chah Ramzan Luck on a metalled road in the area of Chah Luckanwala, Dakhali Harrapa about two K.Ms. Away from Police Station Harrapa. The said occurrence had been reported at the said police station by one Mumtaz Hussain who had stated that he was a student of 10th Class and that his father Allah Yar and his brothers Muneer (deceased of the present case) and Haneef had been tried, convicted and punished with twenty- five years imprisonment for the murder of one Muhammad who was the father of Amir appellant and Naseer accused and the uncle of Falak Sher appellant and Noor Muhammad accused. He had added that about four years prior to the present occurrence, his father and brothers had got acquitted.
4. The said complainant had further reported that on the day of occurrence he and his deceased brother Munir Ahmad had gone to Harrapa on a bicycle to purchase vegetables at about 8-00 a.m. And when they were returning home and just as they had reached near the Chah of Ramzan Luck which Ramzan Luck is the father of Muhammad deceased of the occurrence of motive, Falak Sher armed with a Chhura, his brother Noor armed with a gun, Amir armed with a Chhura and his brother Naseer empty-handed came on to the metalled road and stopped the complainant and his deceased brother.
5. He had further alleged that on seeing the said assailants, he left the bicycle and went towards the Eastern side while Munir deceased who was driving the bicycle got down from the same and ran towards the Western side. He had further claimed that Noor accused fired a shot at Muneer deceased who, however, averted the same by falling on to the ground whereafter all the four assailants of Muneer took him towards the field and that in the meantime, Mudassar P.W. And Manzoor (given up) who were coming from Harrapa side also reached the place of occurrence and on their attempt to stop the said assailants from doing any damage, Noor accused pointed his gun on them and commanded them not to intervene. He had added that Falak Sher appellant then inflicted a Chhura blow in the abdomen of Muneer deceased who was followed by Amir appellant who dealt a Chhura blow on the chest of the deceased; Naseer accused held the deceased from his legs whereafter, Falak Sher appellant slaughtered the deceased with his Chhura. The complainant had further reported that Muneer deceased had also received injuries on his eyes during the struggle and had died at the spot.
6. The complainant had further disclosed that it was on account of the murder of Muhammad abovementioned and the subsequent acquittal of Muneer deceased, that the said deceased had been done to death.
7. During the course of investigation besides the blood-stained earth, the I.O. Had also taken into possession a pair of shoes belonging to the deceased P.5/1-2; the above-mentioned bicycle P.6 and a bag P.7 which he had found lying at the spot. Falak Sher and Amir appellants had been arrested by Bashir Ahmad, S.I. (P.W.12) on 8-7-1987 and since this I.O. Had not been able to collect any evidence connecting Noor and Naseer accused with the commission of the offence in question, he did not arrest them. They had, however, been taken into custody by Khalid Masood S.I.
(P.W.5) on 21-12-1987 as a result of the reinvestigation of this case. No weapon of offence had been recovered from or at the instance of Noor and Naseer accused whereas, Falak Sher and Amir appellants had, on 15-7-1987, led to the recovery of blood-stained Chhuris P3 and P.4, respectively, which had been seized vide memos. Exh.P.G. And Exh.P.H. Respectively.
8. On being confronted with the prosecution case, both the appellants as also the two acquitted persons had denied their involvement in the occurrence in question and had pleaded that none had witnessed the said occurrence and that they had been implicated on account' of previous enmity which existed between the parties.
9. The learned counsel for the appellants canvassed their acquittal on the ground that the eye- witnesses were closely related to the deceased and were inimical towards the appellants. He further argued that the eye-witnesses had not witnessed the occurrence in question and had been subsequently imported and planted as such. To substantiate this submission, he contended that no injury in the abdomen of the deceased existed, the infliction of which had been specifically alleged by the two eye-witnsses; that their statements with regard to the arrival of the police at the place of occurrence and the duration of their stay at the spot were discrepant and contradictory to each other and that the claim of both the eye-witnesses that the deceased had been dragged from the road into the fields before being done to death, was also being belied by the fact that no marks of dragging had been found either on the body of the deceased or on the ground. He also argued that the F.I.R. Had been recorded after consultation and was a result of concoction and fabrication.
10. It is true that Mumtaz P.W. Was a brother of Muneer deceased and that the other eye-witness, namely, Mudassar P.W. Was his Mamunzad. But it would be noticed that Mudassar P.W., besides being a Mamunzad of the deceased, was also a Khalazad of Amir appellant and Naseer accused whereas, Falak Sher appellant and Noor accused were also related to him. This relationship of Mudassar P.W. With the appellants' party had not been challenged nor could the defence bring anything on record to demonstrate any animosity or ill-will on the part of this eye-witness which could have prompted him to falsely implicate the present appellants for the murder of Muneer deceased. Bald and vague suggestions had been made to him with regard to the pendency of some civil litigation between the father and the mother of Mudassar P.W. On the one hand and some members of the appellants party on the other. The defence had, however, mentioned no details or even the nature of the said litigation or the dispute between the Mudassar P.W.'s family and the appellants family nor did the defence bring any document on record to prove such a litigation. Mudassar P.W. Is, thus, an independent eye-witness of the occurrence in question who is equally closely related to both the parties and whose house is only about one square away from the place of occurrence and he is thus, even a witness of the locality. No reason exists on record as to why his testimony vis-a-vis the appellants should not be believed and even the learned counsel for the appellants was at a loss to offer any reason justifying the rejection of his testimony. He fully supports the complainant and corroborates him on all material aspects of the case.
11. As has been noticed above, it had been submitted by the learned counsel that none had seen the occurrence in question; that the eye-witnesses had been summoned after the dead body of the deceased had been spotted at the place of occurrence; that thereafter, the I.O. Inspected the spot and that it was after lengthy deliberations and consultations that the F.I.R. Was finally recorded sometime at night. Medical evidence had been pressed into service to falsify the eye- witnesses by pointing out that the abdominal injury on the person of the deceased as claimed by the two eye-witnesses, did not exist on the body of the deceased.
12. The above submission of the learned counsel is self-destructive. The occurrence in question had taken place at 9 o'clock in the morning. Both the eye-witnesses had claimed that an injury had been inflicted even on the abdomen of the deceased which, however, had not been found to exist by the doctor. The inquest report Exh.PJ. Prepared by the I.O. Also makes no mention of any abdominal injury on the person of the deceased. If the two eyewitnesses had not seen the occurrence and if the F.I.R. Had been recorded after inspection of the spot and after deliberations extending over a period of about twelve hours, then an injury which did not exist on the person of the deceased could not have found mention in the F.I.R. And nor could the F.I.R. Contain such an injury which had not even been mentioned in the inquest report. The possibility of the F.I.R. Having been recorded after such a delay and after such-like consultations thus, stands ruled out. The two eye-witnesses had seen the two appellants inflicting Daeger blows on the person of the deceased from a distance and the possibility of their belief that an injury had been caused even in the abdomen of the deceased, thus, could not be ruled out. The same, however, does not belie the eye-witnesses but in fact points towards their truthfulness and the absence of any prior deliberations before the F.I.R. Had been recorded. The discrepancy between the two eye-witnesses regarding the exact time of the arrival of the police at the spot and the duration of their stay at the place of occurrence is also a fact which cannot be treated as fatal to the prosecution case and which could not be sufficient to hold that the eyewitnesses had not seen the occurrence.
13. The motive for the present occurrence is another factor which fully corroborates the eye-witness account. It was not denied that Munir deceased was one of the persons who had been challaned and tried for the murder of Muhammad who was the father of Amir appellant and an uncle of Falak Sher appellant. Having been convicted by the learned trial Court and sentenced, he had been acquitted at some appellate stage. The appellants thus, did have a definite motive to avenge the murder of their elder. The fact that the deceased had been living in the village for about four years after his release from jail and that no member of the appellants' party had made any attempt on his life on any earlier occasion, is no ground to hold that the appellants party had no motive to mount an assault on the deceased. No limitation exists with regard to taking of revenge and no definite rule can be laid down with respect to various individuals and the human nature with regard to the time and occasion at which, such a revenge is manifested and implemented.
14. The result is that Mudassar P.W. Is an independent witness of the occurrence in question who supports the complainant and the ocular testimony is being corroborated even by the motive alleged by the prosecution. No exception can, therefore, be taken to the finding of guilt recorded by the learned trial Court against the two appellants. The injury on the throat of the deceased had been specifically assigned to Falak Sher appellant. He literally slaughtered the deceased when he was lying helpless on the ground after receiving other injuries on his person. The conduct of Falak Sher appellant thus, disentitles him to any concession or leniency.
15. Consequently, the sentence of death awarded to Falak Sher appellant IS CONFIRMED.
16. Amir appellant was 19 years of age at the time of occurrence and was the son of Muhammad deceased of the occurrence of motive. We, thus, do not feel inclined to confirm the sentence of death awarded to him and it is ordered accordingly. He shall instead suffer imprisonment for life under section 302/34 of the P.P.C. He shall be allowed the benefit of the provisions of section 382-B of the Cr.P.C. It is further directed that the entire amount of fine shall also be paid to the heirs of Muneer deceased, as compensation, in addition to the amount already directed to be paid to them under section 544-A of the Cr.P.C.
17. Murder Reference No,193 of 1989 and Criminal Appeal No,169 of 1989 are disposed of accordingly.