' SH. MUHAMMAD ZUBAIR, J.--- Nazar Muhammad (25), Muhammad Nawaz (40) and Muhammad Amir (65) were tried by the learned Additional Sessions Judge, Khanewal, under section 302/34/307, P.P.C. For the murder of Muhammad Nawaz and for attempted murders of Khizar Hayat (P.W.11), Mst. Rajjan Mai (P.W.12) and Mst. Kaneez Mai (C.W.2). The learned trial Court vide his judgment dated 16-12-1987 convicted and sentenced them as under:-- ' Nazar Muhammad ' To suffer death plus fine of Rs,5,000 or in default one year's R.I. Under section 302/34, P.P.C.
' Five years' R.I. And fine of Rs,5,000 or in default one year's R.I. Under section 307/34, P.P.C. For causing injuries to Khizar Hayat (P.W.11).
' Five years' R.I. And fine of Rs,5,000 or in default one year's R.I. Under section 307/34, P.P.C. For causing injuries to Mst. Rajjan Mai (P.W.12).
' Muhammad Nawaz and Muhammad Amir ' Imprisonment for life and fine of Rs,5,000 each or in default one year's R.I. Under section 302/34, P.P.C. For causing death of Muhammad Nawaz deceased.
' Five years' R.I. And fine of Rs,5,000 or in default one year's R.I. Under section 307/34, P.P.C. For causing injuries to Khizar Hayat (P.W.11).
' Five years' R.I. And fine of Rs,5,000 or in default one year's R.I. Under section 307/34, P.P.C. For causing injuries to Mst. Rajjan Mai (P.W.12).
' Additionally Muhammad Nawaz was sentenced to six months' R.I. Under section 323, P.P.C. For causing simple injuries to Mst. Kaneez Mai (C.W.2).
' The sentences of imprisonment were ordered to run concurrently.
' The convicts have filed Criminal Appeal No,237 of 1987. The trial Court has referred the matter to this Court under section 374, Cr.P.C. For the confirmation of death sentence of Nazar Muhammad.
Both the matters shall be disposed of by this judgment.
3. Nazar Muhammad and Muhammad Nawaz appellants are real brothers whereas Muhammad Amir appellant is their father. Mst. Kaneez Mai (C.W.2) daughter of Noor Muhammad complainant was married to Muhammad Nawaz appellant. The sister of complainant was also married to Muhammad Amir appellant.
4. The occurrence took place on 8-6-1986 at Maghrib prayer time whereas the F.I.R. Was lodged on 9-6-1988 at 1-20 a.m. At Police Station Tulemba. It was stated by the complainant that his daughter Mst. Kaneez Mai was married to Muhammad Nawaz appellant about 6/7 years before the occurrence in exchange, but Muhammad Nawaz etc. Were not prepared to give the hands in exchange for marriage with the son of the complainant namely Khizar Hayat (P.W.11). On 8-6-1986 at evening time the complainant alongwith his sons Khizar Hayat (P.W.11) and Muhammad Nawaz deceased had gone to the house of the appellants for bringing Mst. Kaneez Mai to their house on Eid occasion. The appellants were present in their house. The complainant party requested Muhammad Amir appellant to send Mst. Kaneez Mai with them. Her husband Muhammad Nawaz appellant got enraged and refused to send Mst. Kaneez Mai. Hot words were exchanged between the parties, whereupon Muhammad Nawaz appellant started beating Mst. Kaneez Mai. When he was requested not to do so, the appellants got enraged. Apprehending danger at the hands of the appellants, the complainant and his sons left for their house. After some time, the appellants also came after them. The complainant party started running but they were apprehended at a distance of one acre from their house. It is alleged that Nazar Muhammad was armed wtih a Barcha whereas Muhammad Nawaz and Muhammad Amir were armed with Lathis. Nazar Muhammad appellant raised Lalkara. The outcries of the complainant party attracted Sher Muhammad and Haq Nawaz. Nazar Muhammad appellant inflicted a Barcha blow on the chest of Muhammad Nawaz, who fell down on the ground and thereafter Muhammad Nawaz appellant inflicted a Sota blow on his head. Thereafter, the appellants caused injuries with their respective weapons to Khizar Hayat (P.W.11). Mst. Rajjan Mai wife of the complainant was attracted to the spot. Muhammad Nawaz and Muhammad Amir appellants inflicted `Sota' blows on her person. On the request of the P.Ws. The appellants left the place of occurrence with their respective weapons. Muhammad Nawaz died there and then at the spot Khizar Hayat (P.W.11) was taken to Civil Hospital, Abdul Hakeem by his brother Haq Nawaz in injured condition.
' The motive for the commission of offence as narrated by the first informant was that the appellants in order to avoid Watta marriage, murdered his son and caused injuries to Khizar Hayat.
5. Noor Muhammad complainant leaving the dead body of his son under the care of Sher Muhammad and Haq Nawaz left for the police station to lodge the F.I.R. Muhammad Ashraf, A.S.I.
(P.W.13) recorded the F.I.R. On the statement of Noor Muhammad (P.W.9). Thereafter, he proceeded to the spot. He prepared the injury statement Exh.P.B. And inquest report Exh.P.C. Of Muhammad Nawaz. He sent the dead body of Muhammad Nawaz to the mortuary for post-mortem examination through Gulzar Ahmed, Constable (P.W.4). He collected the blood-stained earth from the spot and sealed it into a parcel vide memo. Exh.P.J. After the post-mortem examination, Gulzar Ahmad, Constable produced the last worn clothes of the deceased consisting of shirt P.1, Chaddar P.2 (blood-stained), two iron rings P.2/1-2 and a pair of Chappal P.4/1-2 which were taken into possession vide memo. Exh.P.H. The A.S.I. Then recorded the statement of the P.Ws. He got examined medically Khizar Hayat (P.W.11), Mst. Rajjan Mai (P.W.12) and Mst. Kaneez Mai (C.W.2).
6. The appellants were arrested on 11-6-1986. On 14-6-1986, Nazar Muhammad appellant led to the recovery of Barcha P.5, which was taken into possession vide memo. Exh.P.K. Muhammad Amir appellant got recovered Sota P.6 and Muhammad Nawaz Lathi P.7 which were taken into possession vide memo. Exh.P.L. And Exh.P.M., respectively.
7. It may be mentioned here that as per reports of the Chemical Examiner and the Serologist vide Exh.P.S. And Exh.P.T. Respectively, no blood was found on the Barcha which was recovered at the instance of Nazar Muhammad appellant.
' The Police Officer after completing all the formalities, submitted the challan.
8. Dr. Abdul Ghaffar (P.W.2) conducted the post-mortem examination on the dead body of Muhammad Nawaz deceased and found the following injuries on the dead body:--
(1) An incised wound oblique in direction (penetrating injury) 2" x 2" deep chest, on the front and upper part of the right chest 1" below the right clavical going obliquely downward and medially, into the chest.
(2) A contused wound 1-1/2" x 1/4" x scalp deep on the left side of the head 4" above the left ear.
' In the opinion of the doctor, death was due to shock and haemorrhage caused by injury No,1 which was sufficient to caused death in the ordinary course of nature. This injury was caused by sharp-edged weapon whereas injury No,2 was caused by blunt weapon.
9. On 8-6-1986, Dr. Muhammad Rafi (P.W.2) examined Khizar Hayat (P.W.11) and found as many as 13 injuries on his person. Out of these injuries, four were by sharp-edged weapon, whereas the remaining were caused by blunt weapon.
10. The same doctor on the same day examined Mst. Rajjan Mai (P.W.12) wife of Noor Muhammad complainant and found two swellings, a lacerated wound, a bruise and a transverse bruise. All the injuries were simple and caused by the blunt weapon.
11. The same doctor on the same day examined Mst. Kaneez Mai and found five injuries on her person caused by blunt weapon and simple in nature.
12. On 12-6-1986, Dr. Zafar-ul-Haq (C.W.1) examined Muhammad Nawaz appellant and found the following injuries on his person:--
(1) A contused wound 1-1/2" x 1/4" x 1/3" over right fronto-parietal area on head.
(2) A contused wound 3/4" x 1/3" x 1/3" over right parietal area on head injury No,1.
(3) Multiple abrasions with scab in area 2" x 1-1/2" over back of left elbow.
(4) Multiple abrasions with scab in area 7" x 1-1/2" over back inner side upper middle lower part left fore-arm.
(5) An abrasion with scab and swelling 2" x 1-1/2" over back of right shoulder.
(6) An abrasion with scab 1/2" x 1/3" over back of right elbow. All the injuries were simple and caused by blunt weapon.
13. Muhammad Amir appellant suffered a contused wound, and abrasion and a bruise reddish white on his person. The injuries were caused by the blunt weapon and were simple in nature.
14. The appellants when examined denied the prosecution allegations. Nazar Muhammad appellant made the following statement from the dock:-- "Mst. Kaneez Mai was married with my co-accused Muhammad Nawaz in exchange of Mst. Irshad Mai my sister. The marriage of Mst. Kaneez Mai had taken place with co-accused Muhammad Nawaz. There was only engagement of my sister with Khizar Hayat son of complainant. My father co-accused Muhammad Amir had refused to marry Mst. Irshad Mai with P.W. Khizar Hayat in exchange of Mst. Kaneez Mai due to which the complainant and his sons were extending threats to us and were insisting us to marry Mst. Irshad Mai with Khizar Hayat. Because of that Mst. Kaneez had left our house and had started living with her parents since a period of 5/6 months of occurrence. On the day of occurrence I had been working in our garden and then I had joined my co-accused. I had been budding the plants in the garden. When I was present with my co-accused in our land at about Maghrib time complainant Noor Muhammad alongwith Khizar Hayat and deceased Muhammad Nawaz entered our house and forcibly brought out my sister Mst. Irshad Mai. They had started taking my sister Mst. Irshad Mai towards the Pakka road forcibly. On the cries of my sister and mother my both co-accused went towards the spot and they tried to save my sister Mst. Irshad from the complainant and his sons. The complainant and his sons were armed with Sotas. Deceased Muhammad Nawaz was having dagger and pistol. The complainant and his sons injured my mother Mst. Rajjan and they also caused injuries to both my co-accused. In the meanwhile I reached the spot. I also tried to save my co-accused and my sister. Muhammad Nawaz deceased had brought out his pistol by that time and was going to fire at my sister Mst.
Irshad Mai. In order to save my sister and the co-accused and the mother I gave one injury to deceased Muhammad Nawaz with knife. P.Ws. Mst. Rajjan Mai, Hay Nawaz and Sher Muhammad were not there."
15. They produced Bashir Ahmad (P.W.1) and Dr. M. Tahir Kamal Sahu (D.W.2) in their defence.
16. The trial Court placing explicit reliance on the ocular account furnished by Noor Muhammad (P.W.9), Khizar Hayat injured (P.W.11) and Mst. Rajjan injured (P.W.12) and the evidence of motive coupled with the evidence of the recovery of appellants, corroborated by the medical evidence, concluded that the prosecution has proved its case against the appellants beyond any shadow of doubt and convicted and sentenced them as indicated above.
17. The learned counsel for the appellants has raised the following contentions:--
(a) That all the three eye-witnesses are the close relations of the deceased. Noor Muhammad complainant is the father, Khizar Hayat (P.W.11) is the brother and Mst. Rajjan Mai (P.W.12) is the mother of the deceased and as such they have motive to falsely implicate the appellants due to the family dispute over the Watta marriage of Mst. Kaneez Mai (C.W.2) and Mst. Irshad Mai the sister of the appellant Nazar Muhammad.
(b) That testimony of these inimical and interested witnesses cannot be acted upon unless it stands corroborated in material respects but no corroborative evidence is available on record.
According to the prosecution version, murder of Muhammad Nawaz was committed in the open field, where numerous independent witnesses were available, but none except these highly interested and hostile witnesses were produced to prove the charge against the appellants.
(c) That the defence plea taken by the appellants, was not given proper and due consideration by the trial Court, though it gets support from the direct and circumstantial evidence brought on the record.
18. The learned State counsel and the learned counsel for the complainant adopted those reasons which prevailed with the trial Court while passing the impugned judgment.
19. We have gone through the record carefully and have examined the respective submissions of the parties.
20. Admittedly all the eye-witnesses are the close relations of the deceased, but their presence cannot be denied at the spot, as they bore the stamp of injuries on their persons, which established their presence at the scene of occurrence beyond any reasonable doubt. Even the defence has not denied their presence at the spot, because, according to the defence plea, Noor Muhammad (P.W.9) and Khizar Hayat (P.W.11) opened attack upon the appellants due to the dispute over the Watta marriage of Mst. Kaneez Mai and Mst. Irshad Mai. There is no background of enmity between the parties, as the complainant had lodged the F.I.R. Promptly giving all the details of the occurrence, hence his presence at the scene of incident cannot be disputed. We see no justification to discard the straightforward, truthful and confidence inspiring evidence furnished by the abovementioned eye-witnesses.
21. This is a case of two versions, one version is given by the prosecution, whereas other version has been put forth by the defence. Salutary principle of law for the decision of the case of two versions is that both the versions are put in juxtaposition, and then, the Court is to find, which version is correct and nearer to the truth, keeping in view the evidence brought on the record.
' According to the defence version, on the day of occurrence, the complainant party was forcibly taking away Mst. Irshad Mai from her house. The appellants, who were working in the nearby field, tried to intervene and rescue her. The complainant party attacked and caused injuries to Muhammad Nawaz and Muhammad Amir appellants, besides Mst. Rajjan Mai wife of Muhammad Amir appellant. At that time Muhammad Nawaz deceased was armed with a dagger and a pistol and the complainant and his son Khizar Hayat (P.W.11) were armed with Sotas. The complainant and his sons injured Mst. Rajjan wife of Amir appellant and also caused injuries to the abovementioned appellants. When Muhammad Nawaz deceased was going to fire at Mst. Irshad Mai, sister of Nazar Muhammad appellant, then he, in order to save his sister and in the right of his self-defence caused a solitary injury to Muhammad Nawaz deceased with the knife which unfortunately proved fatal.
22. A close scrutiny of the defence evidence would expose its hollowness and falsehood, because Mst. Irshad Mai, who was being taken away forcibly by the complainant party, was not produced before the Court, to substantiate the defence plea. According to the defence version, only one knife blow was given by Nazar Muhammad appellant to Muhammad Nawaz deceased, but this plea of the appellants stands contradicted from their own statements Exhs.E.J., P.V. And P.W. Made by them in the Court of the Magistrate Section 30, Khanewal, where they filed a criminal complaint under section 307/364/452/34, P.P.C. Against the complainant party. The injuries found on the person of Muhammad Nawaz appellant have been properly explained by Mst. Kaneez Mai (C.W.2), who stated that she caused injuries to him with a spoon at the time when Muhammad Nawaz gave her beating in her house. The doctor opined that injuries Nos.3 to 6 on the person of Muhammad Nawaz could be self-suffered. The injuries sustained by Muhammad Amir appellant were found simple and insignificant. Hence the injuries on the persons of these two appellants do not advance the case of the defence any further.
23. The plea of Nazar Muhammad appellant that he was budding the plants when the occurrence took place is belied by the fact that the occurrence took place at Maghrib time, which is normally not the time for budding the plants. In all probability, the appellants, must be in their house at the time of occurrence as deposed by the prosecution witnesses.
24. The injury statement of Mst. Rajjan wife of Muhammad Amir appellant is inadmissible evidence without her examination before the trial Court. It appears that the defence has made a crude attempt to fabricate false defence, but they have miserably failed in their attempt. As discussed earlier, no corroborative evidence is forthcoming in support of the defence version and, therefore, the trial Court rightly disbelieved the defence evidence being devoid of force.
25. The prosecution has fully proved its case against the appellants from the mouth of independent prosecution witnesses and we see no reason to disbelieve their evidence.
26. In the end the learned defence counsel has strenuously urged that the sentence of death imposed upon Nazar Muhammad needs reconsideration, in view of the evidence that preceding the occurrence there was an altercation between the parties, which led to the murder of the deceased.
' We have given our anxious consideration to this aspect of the case. We think in the circumstances of the case, it would be appropriate to reduce the sentence of death imposed upon Nazar Muhammad appellant to imprisonment for life.
27. The upshot of the above discussion is that while maintaining the conviction of Nazar Muhammad appellant under section 302/34, P.P.C. We decline to confirm his death sentence and reduce the same to imprisonment for life. The sentence of the fine is maintained. His conviction under section 307/34, P.P.C. On two counts and the sentences imposed by the trial Court are maintained, with the direction that the substantive sentences shall run concurrently. The convictions and sentences of Muhammad Amir and Muhammad Nawaz appellants arc also maintained. With the modification in the sentence of Nazar Muhammad the appeal is dismissed.
Sentence reduced.