1. MUSHTAQ HUSSAIN, J.-Pehlwan, aged 30 years, (2) Khanun, aged 25 years, (3) Waryam, aged 23 years, all brothers, sons of Momanda and (4) Yousuf son of Mathela, aged 25 years, father's sister's son of the first three appellants, residents of Chak No. 106/JB, Police Station Chak Jhumra, District Lyallpur, have been convicted under section 302 read with 34, P. P. C. By Malik Muhammad Amir, Additional Sessions Judge, Lyallpur, by his order dated 22-4-71 for the murder of one Mithu on 31-8- 69 at sotewela on the night between 31-8-69 and 1-9-1969 in the area of Chak No. 110/JB at a distance of about 6 miles from P. S. Chak Jhumra, District Lyallpur where F. I. R. Exh. P. D. Was made on 1-9-1969 at 2-30 p.m. By Sukha (P. W. 9) an eye-witness and the brother of the deceased and was recorded by Malik A.I Muhammad A. S. I. (P. W. 12).
2. By the same order the learned Additional Sessions Judge acquitted Samanda aged 70 years, son of A.I, paternal uncle of appellants No. 1 to 3 of the same charge.
3. The convicts have filed an appeal against their conviction and sentence and their case is also before us under section 374 of the Code of Criminal Procedure for confirmation of the death sentence.
4. Eighteen years ago, Sher son of A.I Khichi of Chak No. 106/JB. a very near relation of the appellants was murdered by Sukha (P. W. 9). Sukha, complainant, Mithu, deceased, Ilyas and Mokha, who are real brothers and Bakha son of Gawalchi were challaned for it. Sukha (P. W. 9) and Mithu were convicted and sentenced to death by the Sessions Judge while the others were acquitted by him.
5. The two convicts were acquitted by the learned High Court. There was a reapproachment between the parties after the acquittal and the hand of Mst. Bibi daughter of Mithu and that of Mst. Zainab daughter of Rehman Khichi were given to the opposite party as a part of the compromise.
6. Two days before the occurrence, Mst. Bibi aforesaid and Mst. Jawai wife of Mathela Khichi quarrelled between themselves on the question of engagement. Mst. Jawai taunted Mat. Bibi whereupon Mil. Bibi retorted by asking her if she had forgotten the murder of Sheru. Back came the reply that it had not been forgotten and in any case would be remembered again now.
7. After this incident, a day before the murder, the appellants congregated at the abode of Mst. Jawai and entered into a conspiracy as a result of which the murder of Sheru was avenged by his real brother Samanda, his nephew Yusuf and Waryam etc. The prosecution story is that Sukha (P. W. 9), Mithu deceased and Mokha, all real brothers, cultivated the land of Mian Hamid Saeed in Chak No. 110/GB. They had a place for tethering cattle near their Behak in that square. On the fateful evening, Sukha (P. W. 9) slept at his dhari while his brother Mithu deceased alongwith the latter's wife Mst. Zohra, his daughter Mst. Sughran and his son Farid slept at the Behak to look after the cattle. At dhale sotewela, when the moon had arisen, Sukha (P. W. 9) heard the outcries of his nephew Farid, his sister-in-law Mst. Zohra, and his niece Mst. Sughran which attracted him to the Behak. On reaching there, he saw that Pehlwan alias Pehulu, Khanun and Waryam sons of Mamanda, Samanda son of All Khichi by case and residents of Chak No. 106 P. G. Presently residing at Bandwana, District Gujranwala, Yusuf son of Mathela Khichi resident of the same Chak were showering blows upon the deceased with a hatchet, spears and a dang. Waryam was armed with a hatchet, Samanda with a lathi and others were in possession of spears.
8. Out of fear, Sukha (P. W. 9) did not go near them and, witnessed the occurrence from a sugar-cane field nearby. The child Farid, Mst. Zohra and Mst. Sughran made entreaties to the accused to spare the life of Mithu but they did not let them come near. They killed Mithu and made good their escape.
9. Sukha (P. W. 9) reached the scene of occurrence and found his brother Mithu lying soaked in blood on a cot with injuries on his head, face and thighs. He found that he had breathed his last. He was told by Farid who is a young boy of 10/11 years of age that he had been sleeping with his father on the same cot. Immediately before the assault on Mithu deceased Waryam accused had caught hold of Farid by his arm and had pulled him down to the ground.
10. Sukha (P. W. 9) lodged the report at the police station as mentioned above.
11. Malik A.I Muhammad, A. S. I. (P. W. 12), having recorded the F. I. R. Proceeded to the spot for investigation. He prepared the injury statement and inquest report and sent the dead body to the mortuary at Chak Jhumra under escort. He got the site-plan prepared. He arrested the accused on 3-9-1969. On 9-9-69 as a result of interrogation, Waryam led him to the dhari of Mathela, father- in-law of Waryam, and got chhavi P.
1. Recovered from the ceiling of a cattle shed. The same was blood-stained and was, after the usual precautions, sent for examination.
12. The appellants and their co-accused denied all knowledge of the incident and claimed to be tried.
13. The prosecution examined 12 witnesses in support of its case while the defence examined none.
14. Dr. Muhammad Asghar appeared as P. W: 1 and testified to having performed the post-mortem examination on the dead bogy of Mithu at about 4 p.m. On 1-9-69. He found 12 incised wounds on the body of the deceased. Injury No. 9, an incised wound 5'x 1--' cutting trachea, main vessels of the neck on the front of neck root, which was grievous and dangerous to life, was in his opinion sufficient to cause death in the ordinary course of nature.
15. The statement of this witnesses proves that Mithu deceased met with a violent death at the hands of assailants who used sharp-edged cutting weapons. It further proves that the assailants did not use any spear or laths upon his body and that the fatal injury must have been caused by a weapon' having a blade more than 5' in length. A comparison of the F. I. R. And the post-mortem report would thus show that those who were said to have been armed with spears and dangs. i.e. Pehlwan, Khanun. Yusuf and Samanda did not cause any injury to the deceased and that the statement to the contrary in that F. I. R., is a cobweb of lies.
16. Another point which may be taken note of at this stage is that Exh. P. I the weapon, which was recovered at the instance of Waryam in the presence of Sukha (P. W. 9), A.I Muhammad, A. S. I. (P.
17. W. 12) and one Farid who was ultimately given up, which has been found to be stained with human blood by the Serologist was described as a chhavi by the Sub-Inspector in memo. Exh. P. A. The F. I.
18. R. And the ocular testimony does not credit any of the appellants with a chhavi. Waryam in any case, according to these sources, is said to have been armed with a kulhari. Any person who has had anything to do with the trial of murder cases in' this 'province knows too well that a kulhari and chhavi are two different instruments and one cannot be mistaken for the other. The blade of an ordinary chhavi is much bigger than that of ale ordinary kulhari while the cutting edge of the kulhari is straight and that of a chhavi is shaped like a crescent. A kulhari is normally used for cutting bushes or trees and sometimes even meat but a chhavi is meant only for the purpose of committing murders or injuring opponents. The sketch of Exh. PI available on the record leaves the viewer in no doubt that it was a hatchet.
19. The hatchet was recovered six days after the arrest of Waryam and nine days after the occurrence had taken place. It is really strange that nobody had cared to wash it and that it had been kept intact in the chappar with the blood upon it for the Investigating Officer to recover and produce as the only corroborating factor in the case.
20. The attesting witnesses of the recovery memo are, Sukha, complainant, Malik A.I Muhammad, A. S. I., (P. W. 12) and one Fared who was given up. In a chain of cases treat have come up before us for sometime, we have found that a pattern has been set wherein recoveries are attested by one of the eye-witnesses, the Investigating Officer and a third person: who is never produced in Court. It does leave a lurking, suspicion in one's mind as to whether such a person did ever exist and if he did, was he present when the recovery was made. Normally a disinterested person would be preferred over an interested person for production in Court to prove the recovery of the weapon of offence.
21. Enmity between the parties is admitted. Apart from that which has been referred to above in the narrative about the motive, the statement of A.I Muhammad (P. W. 12) clears doubts if any when he states during the course of examination-in-chief that:- "Before the present occurrence, there were proceedings between the families of the complainant as well as that of the accused under section 107/151, Cr. P. C. Even on 2nd September 1969, I instituted security proceedings against both the parties."
22. We are left with the ocular testimony which consists of Sukha (P. W. 9) who is a brother of the deceased, Farid aged 10, the son of the deceased and Mst, Zohra (P. W. 11) widow of the deceased.
23. Mst. Sughran the daughter of the deceased who was supposed to have been present at the occurrence throughout was given up as unnecessary.
24. Sukha (P. W. 9) is the author of the F. I. R. We have already seen that he tried indiscriminately to throw the not as wide as possible. He implicated no less than five persons out of whom one has already been acquitted by the learned Additional Sessions Judge and it can hardly be forgotten that he had been ascribed a specific part by Sukha to the effect that he gave a dang blow to the deceased. No injury by a Bang blow was found on the body of the deceased and the veracity of the statement of this witness can, there--fore, hardly be upheld. He is a highly interested person otherwise and belongs to a faction opposed to the appellants. His testimony cannot be accepted without material corroboration. That there is no corroboration, available hardly needs gainsaying.
25. The dhari of Sukha P. W. Is at a distance of 3 squares from the place of occurrence. Although the witness said before the trial Court that he was not sleeping at his own dhari but that of Daulu at a distance of 1 kills from the place of occurrence, in the F. I. R. Sukha has himself stated that he was sleeping at his own dhari. To say that a person could be attracted by the hue and cry from a distance of three squares, that is more than half a mile, and be able to run and reach the place of occurrence and witness the whole incident from the beginning to the end, is, to say the least, preposterous.
26. Farid (P. W. 10) is aged 10 years. His statement shows that he is an intelligent child, but it also shows that he has no compunction in perjuring himself. He made a statement before the trial Court which was different in material particulars from that which he made before the police and the committing Magistrate. He was confronted a large number of times with his previous statements and was found to have told lies. He went to the extent of saying that the accused were giving cutting as well as thrusting blows; an assertion totally belied by the medical evidence. He attributed chhavi blows to Waryam while Sukha (P. W. 9) saw him wielding a hatchet. The statement of this child cannot be accepted, not only for the reason that a child of his age can be made to cram up statements, but also for the reason that his previous statement differs from his statement before the Court in the material respects as has been shown at page 33 of the printed Paper Book. Mst. Zohra is the widow of the deceased. She has further improved the prosecution case by saying that "Waryam accused was armed with a chhavi kulhari". A kulhari could have been chhavi or kulhari but not both: She introduced exhortation by Samanda in her statement which had found no place in the F. I. R. She also asserted that Samanda and Waryam accused gave blows with their ballame to the deceased. We have already seen that no ballam injury exists on his body.
27. This woman had no business to be sleeping at the bahak. It is strange that she says that they always use to sleep at tire behak. This is not usual in the village of Punjab. It is difficult to believe the testimony of this witness at all.