JAVID IQBAL, J.--Lakhu alias Lakhi, aged 28 years and his brother Muhammad Yar alias Mammoon, aged 30 years, both sons of Gahra, and Sajwara son of Gehna, aged, 32 years, their relative, have been convicted and sentenced vide judgment dated the 7th of July, 1973, of the Additional Sessions Judge, Sahiwal as follows : Lakhu was convicted under section 302 P. P. C. For the murder' of Murid and was sentenced to death plus fine of Rs. 5,000 or in default to undergo three years R. I. The fine if realized was to be paid to the heirs of the deceased. Sajwara was convicted under section 325/34 P. P. C. For causing injuries to Mst. Jannat (P. W. 16) and Khan Muhammad (P. W. 17) and was sentenced to three years R. I. Plus fine of Rs. 500 and in default to undergo further six months R. I.
Likewise, Muhammad Yar alias Mammoon was convicted under section 325/34 P. P. C. For causing injuries to A.I Muhammad (P. W. 18) and Ghulam (P. W. 15) and was sentenced to three years R. I.
Plus fine of Rs. 500 and in default to undergo further six months R. I. Their three co-accused, namely, Fazil alias Fazi, Ghazi (real brother's of Lakhu and Muhammad Yar) and Piroo alias Piri, their relative were acquitted. The appeal of the convicts as well as reference for the confirmation of death sentence awarded to Lakhu are being taken up and disposed of together by this judgment.
2. The occurrence took place on the night between 16/17th of March, 1971, in the area of Chah Athwalwala Dakhli. Chak No. 26/K. B. At a distance of seven miles from Police Station Qabula, District Sahiwal. F. I. R. (Exh. P. A.) was lodged by Yar Muhammad (P. W. 13) cousin of the deceased at 4-00 a.m. On the 17th of March, 1971, and it was recorded by Muhammad Ibrahim A. S. I. (P. W. 20) at Police Station Qabula.
3. The motive for crime as set up by the prosecution is that Lakhu appellant had illicit relations with Mst. Naziran, wife of Dholer, brother of the deceased. Nine months prior to the occurrence Mst.
Naziran had ban married to this Dholar. However, three months thereafter, Lakhu appellant abducted her and kept her with him for three months. Eventually she was restored to her husband through the deceased and others. Lakhu appellant and his relatives i.e. The other appellants as well as acquitted co---accused wanted Mst. Naziran to return to them as Dholar was a simpleton.
Anyway, to avoid her re-abduction the deceased had sent Mst. Naziran and her husband to village Farid, District Bahawalnagar to live with their relatives. Three days prior to the occurrence they had come to the village in order to participate in the circumcision ceremony of the son of the deceased. However, after attending the ceremony they had gone to Mauza Tibi Lal Beg to spend some time with relations of Mst. Naziran. Lakhu appellant who resided in this village on coming to know about the presence of Mst. Naziran, planned to abduct her with the assistance of his companions and in order to accomplish this object he and his companions came to the deceased.
This resulted in the occurrence.
4. The prosecution has produced six eye witnesses of the occurrence out of which five were injured.
The injured are Allah Ditta (P. W. 14), cousin of the deceased, Ghulam (P. W. 15) also cousin of the deceased, Mst. Jannat (P. W. 16) sister of the deceased, Khan Muhammad (P. W. 17) another cousin of the deceased, and A.I Muhammad P. W. Father of the deceased. Yar Muhammad (P. W. 13) cousin of the deceased who lodged F. I. R. And was also an eye-witness of the occurrence had not sustained any injury.
5. Lakhu, Sajwara and Muhammad Yar appellants were arrested by Farooq Ahmad S. I. (P. W. 19) on the 21st of March, 1971, Fazil alias Fazi acquitted co-accused was arrested by the same police officer on the 22nd of March, 1971, whereas Ghazi and Piroo alias Piri acquitted co---accused were arrested by him on the 2nd of June, 1971. Three 12-bore crime empties P.6/1-3 were picked up from the spot and taken into possession vide memo Exh. -P. G., dated the 17th of March, 1971. The attesting witnesses are Nazar Muhammad (P. W. 12) cousin of the deceased, Goma (not produced) and Muhammad Ibrahim A. S. I. (P. W. 20). Two 32-bore crime empties P. 7/1-2 were picked up from the lane near the spot and taken into possession vide memo Exh. P. H., dated the 17th of March, 1971.
The attesting witnesses are the same. One 12-bore crime empty P. 8 was picked up from near the dead body of the deceased and taken into possession vide memo Exh. P. J., dated the 17th of March, 1971. The attesting witnesses are the same. Gun P. 3 was recovered at the instance of Lakhu appellant alongwith two live cartridges P. 4/1-2 and taken into possession vide memo Exh. P. D., dated the 23rd of January, 1971. The attesting witnesses are Basara (P. W. 11) close relative of the deceased, Sadbu (P. W. 10), also close relative of the deceased and Farooq Ahmad S. I. (P. W. 19).
Blood-stained dang P. 2 was recovered at the instance of Sajwara appellant and taken into possession vide memo Exh. P. C. Dated the 21st of March, 1971. The attesting witnesses are the same Soti P. 1 (not blood-stained) was recovered from Muhammad Yar appellant and taken into possession vide memo Exh. P. B., dated the 31st of March, 1971. The attesting witnesses are the same.
No recoveries were made from the acquitted co-accused.
According to he report of the Serologist Exh. P. D., scrapings from dang P. 2 recovered from Sajwara appellant were found to be stained with human blood. According to the statement of Malik Gad Sher (P. W. 2) Firearms Expert, crime empties Exh. P. 6/1-3 were found to have been fired through gun P. 3 recovered from Lakhu appellant. His report is at Exh. P. W. 2/2.
6. The appellants in their statement before the trial Court totally, denied having participated in the occurrence. They disowned recoveries made from them and stated that they had been falsely implicated due .To enmity. They led no defence.
7. In the F. I. R. The occurrence is reported to have taker place in tile following manner. On the fateful night when every one was asleep Yar Muhammad (P. W. 13) woke up suddenly at about 1-00 a.m.
On hearing fire report. He at once rushed towards the corner of the kutha of Allah Ditta (P. W. 14). It was a moonlit night. He saw Lakhu alias Lakhi appellant and Fazil alias Fazi acquitted co-accused armed with 12-bore guns, Ghazi acquitted co-accused armed with revolver, Muhammad Yar alias Nammon appellant armed with a dang, Piroo alias Piri acquitted co---accused armed with a hatchet and Sajwara appellant armed with a dung standing in front of the kotha of the deceased.
The deceased had also woken up on account of fire report and had come out of his kothu. Then Fazil, Ghazi and Lakhu all of them opened fire at him through guns and revolver. The deceased fell down. His sister Mst. Jannat (P. W. 16) came out making roula. Lakhu appellant thought that she was Mst. Naziran wife of Dhular and, therefore, got hold of her and dragged her aside. But on finding out that shy was in fact Mst. Jannat P W. Let her go. Thereafter, Sajwara appellant gave a blow to her with his dang which fell on her hand. In the meantime, A.I Muhammad (P. W. 18) father of the deceased came out to see as to what was happening. He was given a dung blow. Muhammad Yar alias Mammoon appellant and Piroo alias Piri acquitted co-accused gave him hatchet blows on the head. He also fell down. Then Allah Ditta (P. W. 14) came out of his kotha and he was given hatchet blows by Piroo alias Piri acquitted co-accused. Ghulam (P. W. 15) came out of his kotha. He was fired at by Ghazi acquitted co-accused through his revolver. The shot hit at the wrist of Ghulam P. W. Then Khan Muhammad (P. W. 17) came out from his kotha and he received a dang blow on his shoulder given by Sajwara appellant. On the hearing of alarm Saddu (given up as unnecessary) came out from his kotha, who out of fear did not advance although he witnessed the occurrence from a distance. Since Yar Muhammad (P. W. 13) and Saduu were empty handed watched the occurrence in the moonlit night while biding. The appellants and the acquitted co-accused resided nearby and, therefore, were known to the complainant-party very well. When they had left Yar Muhammad p. W. And Saddu went towards the deceased but found him lying dead whereas Allah Ditta, A.I Muhammad, Muhammad Khan, Ghulam and Mst. Jannat P. Ws. Ware lying in. An injured condition. On their alarm many other people had also gathered at the scene of crime. Leaving behind Goma Lambardar (not produced) to guard the dead body, Yar Muhammad P. W. Went to lodge the report.
8. Dr. Muhammad Rashid Khan (P. W. I) conducted post-mortem examination on the dead body of the deceased at 6-00 p.m. On the 17th of March, 1971, and found on his person in all eight pellet injuries on the right axilla going inside the chest, right cheek in front of right ear, back of right elbow, left wrist and front of left leg. It may be mentioned here that in his post-mortem report there is no mention of the 9th firearm injury which was at the back of the deceased. However, this injury was mentioned iii the inquest report Exh. P. W. As well as noted in the sciagram Exh. P. N/1. The stomach contained small quantity of food. The bladder was 3/4 full of urine. In his opinion death occurred on account of shock clue to extensive bleeding from the damaged light lung. That injury alone was sufficient to cause death in the ordinary course of nature. The injury had been caused by firearm from well within the range but not close.
On the same day he medically examined Allah Ditta (P. W. 14) and found en his person two contused wounds on the right side of head and left ear. The injuries were simple and caused with blunt weapon.
On the same day he medically examined A.I Muhammad (P. W. 18) and found on his person contused wounds on the right side of forehead. Tile injury was simple and caused with blunt weapon.
On the same day he medically examined Mst. Jannat (P. W. 16) and found on her person a contused wound on the back of palm of right hand with swelling. Ring finger was found fractured.
The injury was caused with blunt weapon and wag declared grievous.
On the same day he medically examined Ghulam (P. W. IS) and found on his person a contused wound on the left forearm with swelling. The bone had fractured. The injury was declared grievous and was caused with blunt weapon.
On the 17th of March, 1971, he medically examined Khan Muhammad (P. W. 17) and found on his person a contused wound on the top of right shoulder. The injury was imple and caused with blunt weapon.
9. We have heard learned counsel for both the sides and carefully perused the record. Learned counsel for the appellants first argued that the recovery evidence in this case was not reliable. It was submitted that crime empties in this case were picked up and taken into possession on the 17th of March, 1971. However, gun P. 3 was recovered from Lakhu appellant alongwith two live cartridges on the 23rd of March, 1971; according to Malik Gul Sher P. W. (Firearms Expert), he received parcels of cringe empties on the 29th of March, 1971 whereas he received gun P. 3 on the 6th of April, 1971. According to Karamat Miran A. S. I. (P. W. S) eight sealed parcels pertaining to this case were kept in safe custody by him in the Malkhana and these were handed over in tact to Mahboob Hussain F. C. (P. W. 6) on the 23rd of March, 1971. - According to the statement of Mahboob Hussain F. C. P. W. He delivered seven parcels containing crime empties to the Forensice Science Laboratories, Lahore, on the 29th of March, 1971. According to the statement of A.I Muhammad F. C. (P. W. 7) he was handed over parcel containing gun P. 3 on the 4th of April, 1971, and he delivered the same in the office of Forensic Science Laboratories, Lahore, on the 6th of April, 1971. The reasoning of learned counsel was that gun P. 3 was recovered on the 23rd of March, 1971, whereas crime empties were sent to the Forensic Laboratories, and delivered there on the 29th of March, 1971. According to learned counsel, therefore, crime empties as well as gun P. 3 remained in the custody of the police together for six days before they were sent to the Forensic Science Laboratories. The argument was that during this period of six days gun P. 3 which had been recovered alongwith two live cartridges could have been tampered with by the police. It was also pointed out that the- attesting witnesses of the recovery memo of gun P. 3 were closely related to the deceased and all the attesting witnesses of this recovery who were independent were not produced by the prosecution. They were given up as won over. It was, therefore, argued that the recovery of gun P. 3 from Lakhu appellant was not reliable. Likewise respecting the recovery of human blood-stained dang P. 2 from Sajwara appellant, it was submitted that the attesting witnesses of this recovery were also closely related to the deceased and no independent witness was produced. He further submitted that dang P. 2 was recovered from Sajwara appellant on the 21st of March, 1971, whereas according to the prosecution it was delivered in the office of the Chemical Examiner on the 6th of April 1971. It was argued that after such a long time ft was highly unlikely that on its scrapings human blood could have been found. On the above grounds it was argued by learned counsel that it would not be safe to rely on his recovery. The arguments of learned counsel have force. It is clear from the record that gun P. 3 and crime empties picked up from the spot in this case remained together with the police from the 23rd of March, 1971, to the 29th of March, 1971. The recovery witnesses produced in this case besides the Investigating Officer were closely related to the deceased. In the circumstances the possibility that gun P. 3 was tampered with could not be ruled out. It would, therefore, not be safe to rely on this recovery.
Similarly, the recovery of human blood-stained dang P. 2 from Sajwara appellant is also doubtful on the grounds suggested by learned counsel. In addition, it is indicated by the medical evidence that dang P. 2 could have not been blood stained. According to the prosecution version Mst. Jannat and Khan Muhammad P. Ws. Had been hit with dang P. 2 which was carried by Sajwara appellant.
The location of the injuries on the above said P. Ws. Indicates that they were contused wounds out of which blood might have not flown. Thus, the recovery evidence in this case is not of much help. It was next argued by learned counsel that all the eye witnesses in this case were highly interested and hostile towards the appellants and that, therefore, their un-corroborated statements should not be relied upon. It was then submitted that these eye witnesses had not been believed by the trial Court in respect of the participation of the three acquitted co-accused in spite of the fact that five out of six eye witnesses had been injured in the course of occurrence. It was argued that if they were disbelieved in respect of the participation of three acquitted co-accused, they should also be disbelieved respecting the participation of the appellants in the commission of crime. It may be pointed out at the outset that the reasons given by the learned trial Judge for acquitting the three co-accused in this case (para 17 of the judgment at page log/ 109 of the paper book), were not sound and were belied by the record. It is stated in the judgment that according to the eye witnesses A.I Muhammad and Allah Ditta P. Ws. Were given injuries with hatchet carried by Piroo alias Piri but no sharp-edged weapon injury was found on the person of these P. Ws. It is further stated that A.I Muhammad and Allah Ditta P. Ws. Had improved their statements by saying that the hatchet was used from its blunt side. We have gone through the record. A.I Muhammad and Allah Ditta P. Ws. Had stated in their statements before the police that the hatchet had been used from its blunt side. There was, therefore, no question for their having made improvement in their statements subsequen--tly. In respect of Ghazi and Fazil alias Fazi acquitted co-accused the reasoning of the trial Judge is not supported by the record. Anyway, the State has not filed any appeal against their acquittal nor any criminal revision had been filed by the complainant side against the acquitted co---accused. We have carefully gone through the statements of the eye- witnesses and we have no reason to disbelieve their testimony, firstly, because they were natural witnesses and secondly, for having sustained injuries during the course of occurrence, their presence on the spot cannot be doubted. Besides, that their version had been consistent throughout respecting the occurrence except minor discrepancies which were not material. It is indeed correct that in the F. I. R. As well as before the Committing Magistrate the eye, witnesses had consistently stated that the deceased was fired at by Lakhu appellant and two acquitted co- accused who had carried fire arms. But before the trial Court although they stated that the three of them had fired shots at the deceased, it was the shot of Lakhu appellant which hit the deceased and that he had fired at him twice. In other words the particularisa--petition of Lakhu appellant had been made specifically at the trial stage although. He had been consistently mentioned as one of those who had fired at the deceased and caused his death. Mst. Jannat P. W. Had clearly stated throughout that she was given a Bang blow on the hand by Sajwara appellant. Her statement is supported by the medical evidence. Similarly B Khan Muhammad P. W. Had consistently stated that Sajwara appellant had given him dang blow on his shoulder. His statement is also supported by the medical evidence. A.I, Muhammad P. W. Had stated that Muhammad Yar alias Mammoon appellant gave him dang-blow on his back and Piroo alias Piri acquitted co- accused gave him blow with the reverse side of the hatchet on his head. His statement was also consistent with the medical evidence. Allah Ditta P. W. Had stated that he received a blunt side hatchet blow on his head from Piroo alias Piri acquitted co-accused and the statement is supported by the medical evidence. Ghulam P. W. Stated throughout that Ghazi acquitted co- accused had fired at him but the shot missed Thereafter, Muhammad Yar alias Mammoon appellant gave him a dang blow on the hand. This statement is supported by the medical evidence. Learned counsel has attempted to argue that since the witnesses were interested and hostile, even though they were injured, their uncorroborated statements should not be relied upon.
He has cited some authorities in support of his argument. But we are convinced in our mind that those witnesses were the natural witnesses, they had sustained injuries in the course of occurrence, and the version given by each of them was consistent. Consequently, we have no reason to doubt their testimony which we consider trustworthy and reliable. Learned counsel then tried to argue that if reliance was placed on the ocular testimony in this case, then at least Lakhu appellant should be awarded lesser penalty on the ground that there was no intention to murder the deceased and further that in the F.I. R. As well, as earlier statements of the eye-witnesses he was not alone specifically mentioned as having fired at the deceased which led to his death. Reliance was placed on Muhammad Khan v. The State (1975 P Cr. L J 153) in which it was held that if it was not clear as to who caused fatal injury to the deceased and there was possibility of injury being caused by some other co-accused, then sentence of death be altered to life imprisonment. We have carefully considered this aspect of the case but we are not persuaded by the argument of learned counsel. Lakhu appellant and his companions had come at the dead of night armed with deadly weapons like guns, revolver etc. With the intention to forcibly abduct Mst. Naziran, who was not even staying there. They opened fire which awakened the inmates of the house who came out from their respective Kothas in the late hours of the night. There was no problem of identification of the appellant because it was a moonlit night, the night of occurrence being the 18th of Lunar month, and the moon rise time being 10-13 p.m. According to the eye witnesses Lakhu appellant-.Among others had fired at the deceased which hit him and led to his death. Further he had the motive to do so because the deceased was one of those persons who had got Mst. Naziran restored from him besides being the brother of husband of Mst. Naziran. In the cited ruling other extenuating circumstances were also considered for awarding lesser penalty. The facts of that case are, therefore, distinguishable. In our considered view, in the circumstances of the present case, Lakhu appellant does not deserve any leniency. In the light of the above discussion we are convinced in our mind that the prosecution has succeeded in establishing its case against the appellants. Their convictions as well as sentences were well deserved and are accordingly maintained. This appeal is dismissed.
10. The death sentence awarded to Lakhu appellant is hereby confirmed.