' ABDUL JABBAR KHAN, J.-Ahmad Bakhsh aged 30 years and his brother Qadir Bakhsh aged 34 years, both sons of Mazaran Khan, have been condemned to death under section 302/34, P. P. C.
For the murder of Shah Bakhsh ride judgment of the learned Sessions Judge, Dera Ghazi Khan dated 17-7,4974. Both these convicts have appealed against their conviction and sentence and there is also a Murder Reference before us under section 374, Cr. P. C. For the confirmation of their death sentence. We will dispose of both the appeal as well as the Murder Reference by a single judgment.
2. The occurrence took place at midnight time on 23/24-11-1972 at Wah Machhka, a place situated at a distance of five miles from Police Station Rojhan, District Dera Ghazi Khan. An F. I. R. Exh. P. A.
Was lodged by Thangvi P. W. i, the uncle of the deceased at 3 a.m. On 24th November 1972, in the course of the same night, which was recorded by Ibrahim Khalid S. I. P. W. 7 at Police Station Rojhan.
3. The motive as set up by the prosecution in this case is that there was dispute between the assailants and their victim over their turn of canal water.
4. Thangwi P. W. 5 has narrated the events which led to this unfortunate occurrence in the F. I. R. Exh.
P. A., in the following manner :- ' Thangwi P. W. 5 (complainant) who was cultivating some land in Mauza Mat Wah, was present at his house on the evening of fateful night. He was visited by Shah Bakhsh deceased, his nephew, who informed him that he had some water' dispute with Ahmad Bakhsh and Qadir Bakhsh appellants, and requested him to accompany him to Wah Machhka, where the appellants lived, in order to sort out some way to settle the matter. The complainant alongwith Waziran P. W. 5 went at Isha time to the house of Shah Bakhsh deceased and took their meals with him and also discussed the matter with Thara, the father of the deceased. They all went to the house of the appellants and talked to them and requested them to allow the deceased his turn of water. The appellants did not come to any settlement and remained adamant in their stand refused to allow the deceased his turn of water. In order to avoid trouble between the parties, the complainant alongwith Waziran P.
W. And the deceased, left the house of the appellants for Mat Wah, with the intention to resolve this matter at some other time with the help of some more members of their brotherhood. This party of three, after passing the house of the appellant, had hardly travelled some distance, when they found Ahmad Bakhsh appellant armed with a hatchet and Qadir Bakhsh appellant armed with a sow suddenly attacked the deceased with their respective weapons on his head. When the complainant Thangwi P. W. 5 and Waziran P. W. 6 tried to intervene, they were threatened with dire consequences and were told that the appellants wanted to settle the water dispute once for all by killing the deceased. The complainant as well as Waziran P. W. Kept away and the appellants continued giving blows on the deceased till then they were satisfied that be was no more alive and left for their houses. The deceased Shah Bakhsh succumbed to his injuries in no time. The complainant left Waziran P. W. To look after the dead body and himself went to inform Thara, the father of the deceased and after doing so, went to Police Station Rojhan and lodged his report Exh.
P. A.
5. P. W. 7 Ibrahim Khalid S. I., after recording the F. I. R., Exh. P. A., left for the place of occurrence, which he reached at 5-30 a.m., the same night. After inspecting the site, he prepared injury statement Exh. P. M. And inquest report Exh. P. N., in respect of the dead body of the deceased. He then sent the dead body for post-mortem examination under the escort of F. C. Aliah Bakhsh. On the next day on 25th November 1972,11e, arrested both the appellants from their houses. He removed shirt P. 1 and chaddar P. 2 which were blood-stained from the person of Ahmad Bakhsh appellant and took both these clothes into possession vide memo. Exh. P. C. This menu. Was witnessed by Waziran P. W. 6, Ishaq (not produced) and Ibrahim Khalid S. I. Himself. He also removed chaddar P. 3 worn by Qadir Bakhsh appellant which he 116und stained with blood and took the same into possession vide memo. Exh. P. D. This memo. Was witnessed by the same set of witnesses. On the same day both the appellants offered to lead to the recovery of weapons of offence. Accordingly, Qadir Bakhsh appellant while in custody led to the recovery of blood-stained sofa P. 4 from the Sahal, concealed under the wood. It was taken into possession vide memo. Exh. P.
E. And made into a sealed parcel. This was witnessed by Waziran P. W. 6 and Ishaq (not produced) besides the Investigating Officer Ibrahim Khalid P. W. 7 himself. Ahmad Bakhsh appellant also led to the recovery of hatchet P. 5 which was stained with blood from a grain bin (Khalhoti) lying in his residential mahal. It was taken into possession vide memo. Exh. P. P. And was attested by the same set of witnesses. Ali these articles were sent to the Chemical Examiner and serologist for examination and report. The Chemical Examiner vide his report Exh. P. K. Found them stained with blood, while the Serologist vide his report Exh. P. J. Declared that the origin of the blood on these articles was human.
6. Dr. Captain Hafeez Ahmad P. W. 1, performed post-mortem examination on 24th November 1972, on the dead body of the deceased and found the following injuries on his person :-
(1) An incised wound 4' x x x on the right side of neck. The wound was transverse. The anterior end was 3/4" below the angle of right mandible. The neck vessels, muscles and vertiberal column cut.
(2) An incised wound 4' x 1" x x on the back of neck, 1/2" below posterior end of injury No,
1. The neck muscles were cut. The depth was obliquely downward.
(3) A lacerated wound 3' x x bone deep on the back of head, 2' above injury No,
2. The wound was transverse and the depth was obliquely downward.
(4) A lacerated wound 5' x 1/2" bone deep 1/2' above and parallel to injury No,
3. The blood which was dark red was oozing out of the cracked skull.
(5) An incised wound 3" x x bone out on the back of right hand. The wound was vertical. The upper end was over the middle of wrist-joint. Second metacarpal bone was cut.
' According to the doctor the stomach was full of semi-digested food. The bladder was empty and healthy. Ali the injuries were ante-mortem. Injury Nos. 1, 2 and 5 had been inflicted by sharp-edged weapon while injury Nos. 3 and 4 were caused by blunt weapon. Injury No, 2 was simple. Injury No, 1 was sufficient to cause death in the ordinary course of nature. The cause of death was due to shock and haemorrhage. The probable time between injuries and death was about half an hour, while the time between the death and the post-mortem was about 8 to 14 hours. In his examination-in-chief the doctor observed that rigor mortis was present oil limbs and there were few greenish streaks at both iliac fossae due to decomposition process.
7. Both the appellants while appearing before the Committing Magistrate and the trial Court, denied the factum of dispute-factum of recovery of weapons of offence, their participation in the crime and stated that they have been involved due to enmity with the P. Ws. They have produced no defence to substantiate their assertion.
8. The case of the prosecution against the appellants rests on the following categories of evidence :
(1) the evidence of motive ;
(ii) the ocular evidence ; the evidence of recovery of human blood-stained clothes from the persons of both the appellants- recovery of human blood-stained rota and hatchet from Qadir Bakhsh and Ahmad Bakhsh appellants, respectively, and
(iv) the medical evidence.
9. We have heard the learned counsel for the appellants as well as the learned counsel for the State and have perused the record of the ease carefully with their assistance.
' The learned counsel for the appellants has assailed the evidence of motive, testimony of eye- witnesses and the evidence of the recovery for the reasons that narration of these events by itself does not inspire confidence. He has further submitted that the prosecution has failed to prove that the appellants had any motive to kill the deceased, as they had no grievance against him and if at all there was any motive to take revenge. It was on the side of the deceased, who was being denied his right of turn of water. He has further submitted that one of the eye-witnesses namely Waziran P.
W. 6 has been disbelieved by the learned trial Court, as being inimical and it would be highly unsafe to maintain the conviction and sentence of the appellants, on the sole testimony of Thangwi P. W. 5, who was a close relation of the deceased, as well as a joint owner with him in water rights. He had laid lot of stress on the observation of the doctor relating to the process of decomposition which he had observed while conducting the postmortem examination and has argued that in fact the death had taken place two or three days earlier than the time shown by the P. Ws. And the Investigating Officer. According to the learned counsel for the appellants, this process of decomposition observed by the doctor in the dead body was feta to tr e prosecution case which would take the time of murder one or two days earlier from the time as given by the prosecution in this case. The counsel has also challenged the recovery of blood-stained clothes and blood-stained weapons of offence, as nothing but a fabrication on the part of the Investigating Officer in collusion with the P. Ws. In this case.
10. We have given our anxious thoughts to all the points raised by the learned counsel on behalf of the appellants and find that his criticism of evidence regarding motive part is absolutely unfounded. Evidence on Ibis point has been furnished by Thangwi P. W. 5 and Waziran P. W. 6 and both of them have corroborated each other on all material points, with minor discrepancies, which in no way affect the merit or their deposition. The learned trial Court has ruled out of consideration the evidence of Warizan P. W. 6 for the reason that he was not on visiting terms with the appellants due to previous enmity and thus it was not reasonably probable that he would act as 'imitator in the dispute between the appellants and the deceased. May it be so, let this would not exclude the testimony of Thangwi P. W. 5 out of consideration. This witness has given comprehensive details of the dispute between the deceased and the appellants whereas the defence has failed to controvert it in any manner. It was open for the appellants to lead some evidence in defence by producing some official of the Canal DepartMent or some documents to show that Thangwi P. W. 5 was saying something which was against the record. It was also for the defence to produce other co-sharer of the water from the concerned Revenue Department to show that no such dispute existed between the parties, as so denied by the appellants. Failure of the defence to bring forth any such thing on the record, against the positive assertion of Thangwi P. W. 5 who was himself a shareholder in the canal water, makes us believe that the prosecution has proved that the appellants were annoyed by the attitude of the deceased who was persisting in his demand of his turn of water, and was forcing the issue by asking persons of their brotherhood to bring home some sense to the appellants who were adamant in denying WS legitimate rights.
' As far as the ocular evidence is concerned, we are conscious that it is only Thangwi P. W. e who provides us with the facts of the case, as evidence of Waziran P. W. 6 has been ruled out of consideration by the learned trial Court. But this by itself does not make the case of the prosecution either weak or unreliable, as many a time their Lordships of the Supreme Court have maintained conviction on the evidence of solitary witness, when they found it trustworthy and worthy of credence. In the instant case although Thangwi P. W. a is related to the deceased, there is nothing on the record to show that he is either inimical towards the appellants or has got any motive to falsely implicate them in a serious crime of murder. Being a relation and shareholder in the water, it was quite natural for the deceased Shah Bakhsh, to approach him for assistance to speak to the appellants to restore to him his turn of water, probably so, when Thangwi P. W. Had good and amiable relation with them. His statement is fully supported by the medical evidence according to which the deceased was found to have suffered injuries by sharp-edged weapon, as well as by blunt weapon, the offence attributed by this witness to the appellants. The recovery of bloodstained hatchet and sota from these appellants lends further strength to this ocular testimony. We do not find any force in the contention of the appellants counsel that recovery of weapons of offence and blood-stained clothes which fully connect the appellants with the commission of this crime, was fabricated piece of evidence. He has failed to point out any serious flaw in those documents or has brought out anything from the cross-examination of Thangwi P. W.
5, Waziran P. W. 6 and Ibrahim Khalid S. I. P. W. 7, to show that Ibrahim Khalid S. L, P. W. Was in hand and glove with these witnesses to put up a sham case against these appellants. The evidence of Waziran P. W. Was not relied upon by the trial Court as far as it related to the actual occurrence ; but the same has been considered reliable regarding the recoveries from the appellants for the reasons that it was fully corroborated by an independent witness like the Investigating Officer, who had no reason to falsely implicate the accused or to fabricate evidence against them. Their Lordships of the Supreme Court have relied on the sole evidence of the Investigating Officer in the matter of recoveries from the accused, despite the fact that other witnesses who attested the recovery memos. Did not support the prosecution case. Reliance is placed on Muhammad Ahmad alias Mahanda v. State (I).
11. While dealing with the contention of the defence, that according to the observation of P. W. 1, Dr. Captain Hafeez Ahmed, the body of Shah Bakhsh deceased was in process of decomposition which will lead to the {{FOOT NOTE}}
(I) PLD 1970 8 C n {{FOOT NOTE}} conclusion that death had occurred much earlier than stated by Thangwi P. W. a or as found by the Investigating Officer during his visit to the spot. It is sufficient to say that this contention stands nullified by the finding of the same witness when he states that time between injuries and death was of duration of a to 14 hours. If this is worked out and hands of the clock are taken back, the time of death as given in the F. I. R. Exh. P. A. Fully synchronizes with the time given by the doctor. The students of medical jurisprudence fully know that process of decomposition can be accelerated for various reasons. It may so occur due to excessive heat in the summer season or may start earlier due to bite of poisonous insects and reptiles. One cannot exclude the reasonable probability of latter event, in the instant case, as the occurrence took place in an open field near a water distributor in a district like Dere Ghazi Khan, a terrain quite infamous for such-like insects. If the defence wanted to take advantage of this observation, particularly with the existence of other finding of the same witness regarding time elapsing between injuries and death, it was the most important duty of the defence to get these two contradictory statements clarified. While going through the record we find that the F. I. R. Was lodged promptly and the Investigating Officer reached the spot without any delay and found the deceased murdered, as stated by Thangwi P. W.
5, then there is nothing left for us to accept the statement of the doctor which relates to fixation of time between injuries caused to the deceased and his death, and ignore his observation regarding the process of decomposition of the body of the deceased in view of our earlier discussion on both these matters. In the light of our above discussion we are in full accord with the learned trial Court that Shah Bakhsh deceased was murdered by both these appellants, with their respective weapons as stated by Thangwi P. W. 5 and proved by the recovery of blood-stained clothes and weapons of offence which fully point out to them as actual killers.
12. The only point which needs consideration in this case is whether the occurrence took place in the manner as staled in the F. I. R. By Thangwi P. W. 5 or in the way he narrated it before the learned trial Court. Tins point assumes importance while assessing the quantum of sentence, as awarded to them in the shape of death penalty by the learned trial Court. This witness told the S. I. In his F. I. R.
That he alongwith Waziran P. W. Went to the home of Shah Bakhsh deceased in the first instance and then all the three went to the house of the appellants to sort out the dispute regarding turn of canal water. This very witness has told the trial Court that the appellants were summoned by them at the place of occurrence near the watercourse and that nobody had gone to their houses, as stated in the F. I. R. These two versions if studied in their true perspective, give rise to an inference that both the defence as well as the prosecution has not taken the Court into confidence, as to how the actual attack took place. The defence by simple denial has foreclosed all avenues to this approach, while the prosecution has tried to make out a case of premeditated murder. If there would have been only version as given in the F. I. R. Then of course it would have been a case of cold-blooded murder, but if the appellants are called at dead of night from their home by those with whom some sort of dispute had arisen in the earlier part of the day, then it would be quite probable and natural, that they should go armed. We do not know what actually happened between them before it led to this attack on the person of the deceased. May be some altercation took place between the parties or the appellants felt incensed on the presence of their avowed enemy Waziran P. W. 6 and it ultimately led to exchange of threats which culminated into this most unfortunate happening. In view of these queer circumstances of this case, we feel our bounden duty in the larger interest of safe administration of criminal justice, to act with abundant caution and to avoid awarding maximum penalty provided under the law against the appellants. We therefore, modify their sentence of death with those of imprisonment of life and with this modification dismiss their appeal as being without any force.
' The Murder Reference for the confirmation of their sentence of death is hereby rejected.