' The appellants Muhammad Amjad and Mahmood have filed the present appeal against the judgment of Mr. Muhammad Aslam Shami, Additional Sessions Judge, Bahawalnagar, dated 15-12- 1986 whereby they were convicted and sentenced under section 302/148/149,' P.P.C. To undergo transportation for life. This judgment shall also dispose of. Criminal Revision No,16 of 1987 and Criminal Appeal No,21 of 1987.
2. The co-accused Mahmood, son of Ghulam Rasul, Sajjad, Ghulam Nabi and Mumtaz were acquitted vide impugned judgment.
3. Briefly, the prosecution case is that P.W.6 Mansoor Ahmad on 30-10-1980 at 3-15 p.m. Lodged F.I.R.
Exh.P.H. At Police Station Faqirwali, District Bahawalnagar under section 148/149/307, P.P.C. To the effect that he was a student of FA. Of Government Rizvia Islamia College, Haroonabad and his deceased father, Manzoor Ahmad was Clerk of Malik Ghulam Qasim, Advocate of Haroonabad. On 30-10-1980 at about 3-15 p.m. He as usual alongwith his deceased father and P.W.4 Abdur Razzaq were proceeding towards their Village Chak No,103/6-R on a motor-cycle and when reached at a distance of about two squares from the bridge of canal bank, suddenly Amjad son of Ghulam Rasul armed with Bugta, Mahmood, Sajjad, Ghulam Nabi and Mumtaz, acquitted co-accused armed with hatchet, Takwa, rifle and hatchet respectively while Mahmood appellant armed with hatchet came out from the clusters of trees and stopped the motor-cycle. Ghulam Nabi, accused pointed barrel of the gun towards the complainant P.W.4 and P.W.6 asked them to get aside and stated that they wanted to teach a lesson to the deceased. On the refusal of P.Ws., the accused forcibly got down the deceased from the motorcycle. P.Ws. 4 and 6 due to fear got aside. Mumtaz inflicted a Kulhari blow on the right foot of the deceased and a toe was cut. Amjad appellant inflicted Bugta blow on the right leg of the deceased and the leg was almost cut. Sajja accused tried to hit Takwa on the head of the deceased on which the deceased forwarded his right hand and the thumb was cut.
Mahmood appellant inflicted hatchet blow on the left leg of the deceased. Mahmood, accused also inflicted a hatchet blow on the right leg. Thereafter the accused started giving blows to the deceased. Ghulam Nabi, accused inflicted butt blows with his gun on the deceased. The accused were also raising noise that the deceased should be cut to pieces.
' The occurrence was also witnessed by Riasat Ali P.W. (given up) and Ejaz P.W.S. The accused after witnessing the P.Ws. Escaped and if the P.Ws. Would not have reached, they would have murdered the father of the complainant.
4. The motive behind was that the deceased had old enmity with Ghulam Rasul son of Muhammad Bakhsh, Yaqoob son of Ali Muhammad, Riaz Ahmad son of Muhammad Yaqoob and Ghulam Rasul etc. Who got bogus allotment of land in Fort Abbas and the deceased had moved applications to Deputy Martial Law Aministrator and other concerned departments. Ghulam Rasul, Muhammad Yaqoob son of All Muhammad and Riaz had hatched a conspiracy with the co-accused and consequently murderous assault was made by the accused after making mutual consultation to kill the father of the complainant.
' The motive was stated by complainant P.W.6 in F.I.R. Exh.P.H. And in a private complaint Exh.P.C.
That Ghulam Rasul, Yaqoob and Riaz, accused (not summoned) had bogus allotments of land against which the deceased had made applications before Martial Law Authorities and concerned departments due to which they had the motive to commit the murder.
5. The appellants were challaned whereas acquitted co-accused were placed in column No,2 of the challan. P.W.6, complainant filed a private complaint Exh.P.C. Against the appellants and acquitted co-accused as well as against Ghulam Rasool, Muhammad Yaqoob and Riaz Ahmad but the appellants alongwith the acquitted co-accused were only summoned to face trial.
' The complainant in complaint Exh.P.C. Had narrated the facts mentioned by him in F.I.R. Exh.P.H.
And also stated that he was told about the' conspiracy hetched by Ghulam Rasul, Muhammad Yaqoob and Riaz Ahmad by Ahmad Bakhsh, Muhammad Afzal and Abdul Hamid P.Ws. The complainant alleged that the local police in connivance with the accused party instead of submitting challan also against the acquitted co-accused, Ghulam Rasul, Muhammad Yaqoob and Riaz Ahmad had challaned Muhammad Afzal and Tabrez who were not summoned. Charges under sections 148/149 and 302, P.P.C. Were framed against the accused to which they denied and claimed trial.
6. The learned trial Court had proceeded with the complaint Exh.P.C. And prosecution to substantiate its case produced twelve P.Ws. In support thereof, recorded the statements of two C.Ws. And impugned judgment was made.
' P.W.4 Abdur Razzaq, P.W.5, Ejaz Ahmad and P.W.6 Mansoor Ahmad are the eye-witnesses who furnished the ocular account. P.W.6, Mansoor Ahmad, complainant son of the deceased had narrated the facts mentioned by him in F.I.R. Exh.P.H. As well as the private complaint Exh.P.C. P.W.6 had stated that on the fateful day, he alongwith his deceased father and Abdur Razzaq P.W.4 was going to his village when suddenly appellant Amjad armed with a Bugta and appellant Mahmood armed with a hatchet alongwith the acquitted co-accused came out of the clusters of trees and forcibly got down the deceased from the motor-cycle and caused injuries on his different parts of the body. P.W.4, Abdur Razzaq had stated that on the relevant day at about 3-15 p.m. He alongwith the deceased and P.W.6 Mansoor complainant were going on motor-cycle to the Chak and when reached two squares away from canal bridge, the appellants Muhammad Amjad armed with Bugta and Mahmood armed with a hatchet alongwith the acquitted co-accused armed with different weapons suddenly appeared, stopped the motor-cycle and asked the deceased to get down from the motor-cycle. Ghulam Nabi, acquitted co-accused had got him down. Mumtaz accused gave him a hatchet blow, on which thumb of his right foot was cut. Amjad appellant cut the right leg of the deceased with his Bugta. Sajjad accused had cut the right arm. Mahmood son of Ghulam Rasool and Mahmood son of Nawab, accused gave hatchet blows to the deceased.
Ghulam Nabi accused injured the deceased with the butt of his gun. All the accused were raising Lalkaras that each joint of the deceased should be separated and he should be taught a lesson of enmity and in the meanwhile Riasat Ali P.W. (given up) and Ejaz P.W.5 reached and the accused escaped.
' P.W.5, Ejaz had stated that on the fateful day at about 3-15 p.m. While working in his fields, he heard voices and ran towards the place of occurrence and witnessed all the accused inflicting injuries on the person of the deceased. Riasat Ali P.W. (given up) reached there and the accused on seeing the P.W. Ran away. Appellant Amjad was armed with Bugta, Sajjad accused was armed with Takwa whereas Mumtaz, Mahmood son of Ghulam Rasul and Mahmood son of Nawab accused were armed with hatchet and Ghulam Nabi accused was armed with gun.
7. P.W.3 Dr. Manzoor-ul-Haq on 30-10-1980 at 5-05 p.m. Medically examined Manzoor Ahmad, deceased in injured condition and had found the following injuries:--
(1) One incised wound all around right wrist-joint 16 c.m. And hand was only attached with still piece of skin over palmer surface.
(2) One incised wound 4 c.m. x 1-1/2 c.m. x bone deep on back of right forearm 4 c.m. Above injury No,1.
(3) One incised wound 4-1/4 c.m. x 1/3 c.m. x skin deep on back of right forearm 1/2 c.m. Above injury No,2.
(4) One incised wound 7 c.m. x 4 c.m. x bone deep on outer aspect of left ankle joint. Left fabula bone was cut through and through.
(5) One incised wound 6 c.m. x 3 c.m. x all around right big toe which was chopped off at first inter phalangeal joint.
(6) One incised wound 1-1/2 c.m. x 1/2 c.m. Skin deep on back of first phalynx of right second toe.
(7) One incised wound 1-1/2 c.m. x 1/8 c.m. x skin deep on back of first phalynx of right third toe.
(8) One incised wound 5 c.m. x 2-1/2 c.m. x muscle deep on dorsem of right foot 3 c.m. x below ankle joint.
(9) One incised wound 10 c.m. x 4 c.m. x joint deep on front and outer aspect of right ankle joint.
Joint was opened up and lower end of fabula bone was cut through and through.
(10) One incised wound 4-1/2 c.m. x 1 c.m. On inner aspect of right leg 1 c.m. Above ankle joint. Right tibia bone was cut through and through blood vessels of the leg were cut.
(11) One redish blue contusion mark 18 c.m. x 5 c.m. On back of both sides of chest and right shoulder blade.
(12) Reddish blue contusion mark 7 c.m. x 4 c.m. On outer aspect and top of right shoulder-joint.
(13) One abrasion mark 8 c.m. x 1/3 c.m. x superficial skin deep on outer aspect of right shoulder- joint 1 c.m. Below of tip of shoulder.
(14) One abrasion mark 3 c.m. x 1/4 c.m. x superficial skin deep on outer aspect of right upper arm 1 c.m. Below injury No,13.
(15) One abrasion mark 7 c.m. x 1/2 c.m. x superficial skin deep on outer aspect of front of right upper arm 3 c.m. Below injury No,14.
(16) One abrasion mark 10 c.m. x 1 c.m. x superficial skin deep on front and outer aspect of right upper arm crossing injury No,15.
(17) One reddish blue contusion mark 6 c.m. x 2 c.m. On outer aspect of right upper arm adjoining injury No,16.
(18) One abrasion mark 6 c.m. x 1/2 c.m. x superficial skin deep on outer aspect or right upper arm 3 c.m. Below injury No,17.
(19) One abrasion mark 5 c.m. x 1 c.m. Left leg 5 c.m. Below knee-joint c.m. x superficial skin deep on inner aspect of pulse was fabula.
' In the opinion of the doctor injuries Nos.1, 4, 5, 9 and 10 were grievous and dangerous to life whereas injuries Nos.2, 3, 6, 7, 8, 11 to 19 were simple. Injuries Nos.1 to 10 were caused by sharp-edged weapon and injuries Nos.11 to 19 were inflicted by sharp-edged weapon within six hours. Exh.PA. Was the true carbon copy of the report.
' On 31-10-1980 at 8-00 a.m. The same doctor conducted autopsy on the dead body of the deceased who had expired on 30-10-1980 at 5-20 p.m. And had observed the injuries mentioned supra and had opined that the cause of death was severe haemorrhage and shock due to injuries Nos.1, 4, 5, 9 and 10 which were sufficient to cause death in the ordinary course of nature. The time that elapsed between injuries and death was within six hours and between death and post- mortem was within 24 hours.
8. The appellants were arrested by C.W.2, Nazir Ahmad, S.H.O. On 8-11-1980. Mahmood appellant on 9-11-1980 had led to the recovery of bloodstained hatchet P.5 which was secured by C.W.2 vide memo. Exh.P.G. Attested by P.W.11, Ghazanfar and Muhammad Siddiq P.W. (given up). On the same day, appellant Muhammad Amjad led to the recovery of Bugta, P.6 bloodstained, which was secured by C.W.2 vide memo. Exh.P.E. Attested by P.W.11 and Muhammad Siddiq P.W. (given up). The S.H.O. Had prepared sealed parcels of P.5 and P.6.
9. The appellants when examined under section 342, Cr.P.C. Denied the prosecution evidence and recovery of incriminating articles against them and also stated that the case property has been planted on them. They neither produced evidence in defence nor made statements on oath as envisaged under section 340(2), Cr.P.C.
10. I have heard learned counsel for the parties and perused the record.
11. The complainant P.W.6, Mansoor Ahmad, son of the deceased had moved written complaint on the basis of which F.I.R. Exh.P.H. Was recorded by C.W.2, Nazir Ahmad, S.H.O. Surprisingly, the written complaint submitted by P.W.6 is not available on the record. P.W.6 in F.I.R. Exh.P.H. Had given the names of the accused, the weapons carried by them, the witnesses and the role played by each of the accused as well as the manner in which the occurrence took place. The occurrence was alleged to have taken place at 3-15 p.m. On 30-10-1980 at a distance of four kilometres from Police Station Faqirwali whereas F.I.R. Exh.P.H. Was recorded at the police station at 3-45 p.m. On the same day i,e. On 30-10-1980. F.I.R. Exh.P.H. Was lodged with promptitude. P.W.6 complainant in his statement before the trial Court as well as in F.I.R. And in complaint Exh.P.C. Had stated about enmity between the deceased and the accused party.
12. The acquitted co-accused were found innocent by the police and were placed in column No,2 of the challan whereas the persons who were alleged to have hatched conspiracy were not challaned. P.W.6, complainant was dissatisfied with the report of the investigating officer submitted under section 173, Cr.P.C., filed a private complaint Exh.P.C. The appellants alongwith the acquitted co-accused were summoned to face trial in the private complaint. Ghulam Rasul, Muhammad Yaqoob and Riaz who were alleged to have hatched conspiracy were not summoned by the trial Court.
' It is pertinent to mention here that complainant P.W.6 had made applications to the police and successive investigations were made by the police i,e. By C.W.1, C.W.2 and also by a panel of police officers under the supervision of C.W.1 and they were of the unanimous view that only appellants were the real culprits whereas the acquitted co-accused and the persons who were alleged to have hatched the conspiracy were not the accused and moreover they had also found two persons namely Muhammad Afzal and Tabrez as an accused who had committed the murder of the deceased alongwith the appellants.
13. The complainant P.W.6 had not levelled any allegation against Muhammad Afzal and Tabrez and moreover they were not summoned by the trial Court to face trial. It has been vehemently argued by learned counsel for the appellants that the appellants have been involved falsely due to enmity, prosecution had failed to establish its case beyond doubt against the appellants and the P.Ws. Had been partly believed i,e. P.Ws.4, 5 and 6 and the occurrence could not take place in the said manner. No doubt, it has been established on record that both the parties i,e. The complainant and the appellants had enmity, the motive behind the occurrence as stated by P.W.6, complainant Mansoor Ahmad son of the deceased and P.W.4, Abdur Razzaq was that the deceased had moved applications against the accused as the accused party had obtained allotment of land through fraud. The deceased had moved Deputy Martial Law Administrator and concerned departments.
Moreover some criminal cases had been registered against the accused party and the relations of the complainant party were P.Ws. In the said cases. No doubt, the motive is a double-edged weapon. P.Ws.4 and 6 have stated about the motive which had been proved on record by the statements of the P.Ws. And the appellants also admitted in their statements under section 342, Cr.P.C. i,e. The appellants Muhammad Amjad and Mahmood son of Nawab had stated in their replies that P.Ws. Have deposed against them due to enmity. It was urged before me on behalf of the defence that it was not natural that the son i,e. P.W.6 complainant Mansoor Ahmad would not interfere during the occurrence when his real father, the deceased was at the mercy of the appellants and was being given injuries. P.W.6 was a FA. Student on the day of occurrence and while going to his Chak alongwith his deceased father and P.W.4 on a motor-cycle, they were surprised by the accused party who had animus against the deceased, got the deceased alighted from the motor-cycle forcibly and caused the injuries and one of the acquitted co-accused was stated to be armed with gun and was pointing the barrel of the gun towards P.Ws.4 and 6 and had directed them not to interfere. P.W.6 must have been frightened by the sudden assault of the accused party and was also a student of FA. And poor fellow stood aside and witnessed the occurrence and how he could interfere to save his deceased father when they have been ambushed and waylaid by the appellants armed with deadly weapons? The deceased was brutally murdered and was given as many as 19 injuries.
' P.W.4 had stated that he was coming alongwith the deceased and P.W.6 on a motor-cycle and had witnessed the occurrence. During cross-examination he had stated that his cousin Saeed was murdered and a case F.I.R. No,126 was registered at Police Station Haroonabad on 20-5-1972 and Riaz, acquitted co-accused was one of the accused in the said case and a cross-case vide F.I.R.
No,129 was registered on 22-5-1972 at the same police station in which father of P.W.4 alongwith others was named as accused. P.W.4 had given probable explanation of his presence at the spot i,e. He was going alongwith the deceased and P.W.6 on the motor-cycle to their Chak as all of them belong to the same Chak and P.W.4 was employed in WAPDA and the occurrence took place on Thursday at about 3-15 p.m. And naturally the next day was a closed day. P.W.5, Ejaz had witnessed the appellants causing injuries on the person of the deceased. He was present on the fateful day at the relevant time in his field and was working when he heard noise and reached the place of occurrence.
14. Learned counsel for the appellants had tried to exploit the words uttered by P.W.5 during cross- examination i,e. He reached the spot after crossing the canal and as stated by P.W.5, his clothes had not become wet. P.W.5 had stated that the depth of the canal was about three feet during the days of occurrence. P.W.8 Patwari had stated during the cross-examination that down the service road, there were ditches and Thatans of about seven feet height and there were trees in between ditches and the service road. P.W.8 had not shown the places in the site plan where the accused were standing at the time of occurrence as well as the place where the motor-cycle was present.
P.W.8 had admitted as correct that a person standing on ground level of the other side of the canal could not see the person standing on the corner of the service road on the other side. P.W.5 had stated that he reached the place of occurrence after hearing noise and had witnessed the occurrence while being present in his fields. It was urged on behalf of the defence that the evidence of P.Ws. Could not be relied upon i,e. One part of it was believed and the other part was not believed by the trial Court.
No doubt, the parties had previous enmity and the complainant had tried to involve as many number of persons as he could but it is the duty of the Court to sift the grain from the chaff. The successive investigations of the case were made on the application of the complainant and C.Ws.1 and 2 alongwith other police officers had come to the conclusion that the appellants alongwith the abovesaid Afzal and Tabrez were the real culprits. In the peculiar conditions of our society, the people usually involve as many number of persons as they think, falsely alongwith the real culprits.
15. It was lastly and vehemently urged on behalf of the defence that in a case where enmity is admitted and proved on record between the parties, the Court has to be at guard to convict the accused and without independent corroboration, no accused should be convicted and sentenced.
My attention was drawn to the fact that no report of Chemical Examiner and Serologist was placed on record.
' In the instant case, the appellants Muhammad Amjad and Mahmood son of Nawab had led to the recovery of blood-stained Bugta P.6 and bloodstained hatchet P.5 which were secured by C.W.2 vide memos. Exhs.P.F. And P.E., respectively attested by P.W.11 Ghazanfar Ali. C.W.2, Nazir Ahmad, S.H.O. Had prepared the sealed parcels P.5 and P.6. C.W.2 who had secured the same at the instance of the appellants, prepared the sealed parcels and deposited with P.W.9, Manzoor Ahmad H.C. On 30-10-1988 who kept the same in Malkhana till 16-1-1981 when he delivered the same to P.W.1, Abdus Sattar H.C. Who was posted on 16-1-1981 as Moharrir H.C. Faqirwali who kept three sealed parcels till 24-1-1981 and handed over the same to Nazir Ahmad P.W.2.
' It is pertinent to mention here that P.W.6 complainant feeling aggrieved had filed private complaint Exh.P.C. And the report of Chemical Examiner and that of Serologist were retained with the challan case and were not exhibited in the present case. Appellant, Mahmood in police custody had led to the recovery of blood-stained hatchet which he had concealed underneath the bushes, took out the same with his own hands and produced before C.W.2 who secured the same vide memo. Exh.P.G. Appellant Muhammad Amjad had led to the recovery of blood-stained Bugta P.6 which he had concealed in the hole of Sheesham tree and had produced the same before C.W.2 who secured it vide memo. Exh.P.E. No doubt, the reports of the Chemical Examiner and Serologist were not produced and exhibited but in the peculiar circumstances of the case, I hold that the factum of recovery of weapons of offence at the instance of the appellants has been proved on record.
16. Mr. A.R. Tayyub, Advocate for the appellants assisted by Mr. Muhammad Zaffarullah, Advocate had argued the case on behalf of the appellants yesterday but as the appeal was adjourned for today and Mr. A.R. Tayyub, Advocate had prayed for permission for dispensing with his presence as he was busy in a murder trial today before the learned Sessions Judge, Rahimyar Khan. Mr. Muhammad Zaffarullah, Advocate is present with appellants Mahmood and Muhammad Amjad.
' It is surprising that the learned Additional Sessions Judge had convicted and sentenced the appellants for transportation for life under section 302/148/149, P.P.C. Whereas the sentence provided under section 302, P.P.C. Was death or imprisonment for life and was also liable to fine but instead of imprisonment for life, the appellants were sentenced to transportation for life and also not burdened with any fine. The appellants are present with their learned counsel who have been given verbal notice of the imposition of fine which has been accepted by them.
17. Pursuant to the above discussion, I am of the considered view that the appellants were rightly convicted and sentenced by the trial Court and no exception can be taken to their sentence and conviction but the same is altered from transportation for life to imprisonment for life each and a fine of Rs,25,000 (Rupees twenty-five thousand) each, and in default of payment of fine further one year's R.I. Each. The fine, if realized, fifty per cent. Of it shall be paid to the legal heirs of the deceased. The appellants are present on bail who shall be taken into custody and sent to jail to undergo the sentence awarded to them.
' The appellants shall also be given the benefit of section 382-B, Cr.P.C.
18. The connected Criminal Appeal No,21 of 1987/BWP and Criminal Revision No,16 of 1987/BWP are dismissed.