RAJA AFRASIAB KHAN, J: --Hamand (60) son of Balia, Ghulam Farid (40) son of Noor Muhammad, Muhammad Yar (25) son of Hamand, Abdul Wahid (50) and Muhammad Zafar (35), were tried by the learned Additional Sessions Judge-II, Pakpattan Sharif for the murder of Mahmood Ali (46).
Learned Judge convicted Muhammad Yar under section 302/34, P.P.C. And sentenced him to death and a fine of Rs.10,000 (Ten thousand) or in default thereof, to undergo six months' R.I. It was observed that, in case, his death sentence is not confirmed and altered to imprisonment for life, by this Court, he shall pay a sum of Rs.10,000 (Ten thousand) as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default thereof, he shall suffer further R.I. For six months.
Ghulam Farid and Hamand were convicted under the aforementioned sections of P.P.C. And sentenced to imprisonment for life and a fine of Rs.5,000 (Five thousand) each or in default of payment of fine to suffer R.I. For six months. They were ordered to pay a sum of Rs.5,000 (Five thousand) each to the legal heirs of deceased Mahmood Ali as compensation or in default to undergo six months' R.I. Vide judgment dated 29-4-1991. The learned Judge, however, acquitted Muhammad Zafar and Abdul Waheed, because there was no evidence to connect them with the commission of the crime. The convict appellants have challenged their conviction and sentence by filing Criminal-Appeal No.182 of 1991 while Reference No.236 of 1991 has been sent by the learned Judge for confirmation of death sentence of Muhammad Yar. We shall decide these matters together by this judgment.
2. Briefly slated the facts are that Khan Muhammad (complainant) is a cultivator by profession. On 1G-8-1985, at about 8.00 a.m., his father Mahmood Ali went towards his field via Katcha Path which passes near the Bahak of Hamand accused. When Mahmood Ali reached the said Bahak, Muhammad Yar, Hamand and Ghulam Farid shouted at him that he would not be allowed to go alive. Hamand and Muhammad Yar were holding sticks while Ghulam Farid was armed with a hatchet. Hamand gave a sota blow which landed on the left flank of Mahmood Ali. Ghulam Farid gave a blow with wrong side of his hatchet which injured his left elbow. On receipt of injuries, Mahmood Ali fell down. Muhammad Yar, Hamand and Ghulam Farid gave him more blows with their weapons. On the alarm, Bashir son of Muhammad Yar and the complainant reached there and witnessed the occurrence. The accused, after committing the crime, fled away with their weapons. The victim was lying unconscious. The complainant along with Bashir Ahmed, Muhammad Iqbal and Muhammad Yasin lifted the injured and brought him in a trolley to civil hospital, Pakpattan Sharif. Mahmood Ali, however, died on account of the injuries after about 3/4 hours of the incident. The motive is that Allah Ditta, tenant of the deceased had lodged criminal case against Muhammad Yar, convict and the deceased used to help him in the litigation. The accused, therefore, had a grudge and as a result thereof, in execution of their common intention, they opened an attack and made a short work of Mahmood Ali.
3. Muhammad Rafique, Inspector/SHO Police Station Malka Hans (P.W.7) recorded the statement (Exh.P.B.) of Khan Muhammad. On the basis of the said statement, Muhammad Aslam A.S.I. (P.W.S) recorded the formal F.LR. (Exh.P.B./1). The Inspector went to the hospital where Mahmood Ali was lying dead. He prepared inquest report (Exh.P.L.) and injury statement (Exh.P.M.) of deceased. He went to the spot and recovered the blood-stained earth vide memo. Exh.P.C. The police officer took into possession the last-worn clothes of the deceased, namely, Qameez (P.1), Chaddar (P.2), Safa (P.3) vide recovery memo. Exh.P.A. He arrested the accused on 28-8-1985. Muhammad Yar while in police custody led to the recovery of a Sota (P.4) from his house which was found blood-stained. It was taken into possession vide memo. Exh.P.D. On 7-9-1985. On the same day, Hamand, accused while in police custody led to the recovery of Sota (P.5) from his residential Kotha which was taken into possession vide memo. Exh.P.E. Ghulam Farid accused also led to the recovery of hatchet (P6) from his residential Kotha on the same day which was taken into possession vide memo. Exh.P.F..
The Police Officer prepared the rough sketches of the places of recovery vide Exh.P.D./1,,P.E./1 and P.F./1. He recorded the statements of the witnesses under section 161, Cr.P.C. According to his investigation, all the accused were found guilty. The remaining investigation was completed by Farrukh Nisar Lashari Inspector/SHO (P.W.8). He arrested Muhammad Zafar and Abdul Wahid accused and submitted the challan before the Court.
4. The reports of the Chemical Examiner and the Serologist (Exhs.P.N. And P.O.) were positive inasmuch as it was opined by the experts that the earth and Sotas were stained with human blood.
5. Dr. Muhammad Nasir Dilshad, M.O. B. V. Hospital, Bahawalpur (P.W.6) medically examined Mahmood Ali on 16-8-1985 and found the following injuries on his person:-- (1)A lacerated wound 3 x 1 c.m. x muscle deep on the outer side of back of upper part of left elbow joint.
(2)A lacerated wound 3-1/4 c.m. x 1-1/4 c.m. x muscle deep 1 c.m. Above injury No.1.
(3)A lacerated wound 2 x 2 c.m. On the medial side of middle of left fore-- arm.
(4)A contused swelling all around the circumference of upper part of left forearm 20 c.m. x 8 c.m.
(5)A lacerated wound 3 c.m. x 1/2 c.m. x muscle deep on the lateral side of 5th toe (little toe) of left foot.
(6)An abrasion 3 c.m. x 3/4 c.m. On the outer side of back of left elbow joint of left arm.
(7)A swelling all around the circumference of upper part of right fore-- arm 21 c.m. x 6 c.m.
(8)A contusion mark 8 x 4 c.m. Around the back of left ear on the skull.
(9)A contusion mark on the outer side of left abdominal (lank covering the renal area and measuring 12 x 10 c.m.
(10) A contusion mark 30 c.m. x 3-3/4 c.m. On the back of left chest obliquely coming above from left side downwards middle of chest (back bone).
(11) A contusion mark 18 x 4 c.m. On the back of right chest in the lower part in an oblique fashion.
(12) A contusion mark 20 x 7 c.m. On the outer side of left chest oblique and going downwards towards back 'of left chest.
(13) A contusion mark 18 c.m. x 14 c.m. Starting from the outer side of left shoulder and coming downwards on the outer side of left upper arm and front and back side of upper arm.
(14) A contusion mark 5 x 1 c.m. On the front of left thigh in the middle.
(15) A contusion mark 12 x 6 c.m. On the back of left thigh in the middle part in an oblique fashion.
(16) A swelling 8 x 8 c.m. On the back of left palm.
(17) A lacerated wound 4 x 1-1/2 c.m. x bone deep on the front of left lower leg 5 c.m. Above left ankle joint. Both the bones Tibia and Fibula having this injury site were fractured.
(18) A swelling 8 x 5 c.m. On the lower part of medial side of left forearm 6 c.m. Above left wrist joint.
The ulna bona was fractured here at this point on palpation.
The doctor kept injuries Nos. l, 2, 4, 5, 7 to 13 and 16 under observation. Injuries Nos.3, 6, 14 and 15 were declared simple while injuries Nos.17 and 18 were declared grievous. Probable duration of the injuries was within 8 hours. After the death of Mahmood Ali the same Doctor conducted the post- mortem examination on the dead body on the same day. He noted all the aforementioned injuries in his examination. The Doctor opined that death occurred due to haemorrhage as a result of shock due to injury No.8, which was sufficient to cause death in the ordinary course of nature. He found that injuries Nos.1, 17 and 18 were grievous while the remaining were simple. All the injuries were caused by blunt weapon. The injuries were found to be ante---mortem.
6. Khan Muhammad P.W.2 and Bashir P.W.3 are the eye-witnesses Muhammad Yar denied the allegations levelled against him in hip; statement under section 342, Cr.P.C. He claimed to be innocent. According to him, on the day of occurrence, early in the morning, Allah Ditla, a tenant of Mahmood Ali deceased was passing from his land near his Bahak. He asked Allah Ditta not to pass through his land. However, he refused to oblige him. Thereupon, he (accused) hurled abuses on him. Allah Ditta made a complaint to Mahmood Ali, his landlord, about the incident. After some time, Mahmood Ali, armed with a sota, reached-the spot where he was all alone. The deceased gave him filthy abuses whereupon the appellant asked him to behave being an elderly man.
However, he opened an attack upon the appellant with his weapon. The appellant continued to state that in order to save his life, he caused injuries to Mahmood Ali with a Sota which was lying near him. He himself claimed to have inflicted injuries to Mahmood Ali. About Hamand and Ghulam Farid, he stated that they were not present at the spot and that they had been implicated falsely because they were related to him. He further deposed that he remained in the police custody and during that period his injuries were healed for lapse of sufficient time and that he was not got medically examined for mala fide reasons. Ghulam arid and Hamand denied the allegations levelled against them and took the plea that they were not present at the spot and had been implicated on account of enmity. However, no evidence was produced by the accused in their defence.
7. Learned Judge believed the ocular account. Recovery and motive and convicted and sentenced the appellants as already mentioned above.
8. It is contended by the learned counsel that this was a case of two versions and that the version of the accused was more plausible than that of the prosecution. Learned counsel argues that it was established that Khan Muhammad and Bashir P.Ws. Were not present during the occurrence, Learned counsel contends that there is delay in lodging the F.I.R. And that no sufficient explanation has been given for such a fatal delay. Learned State counsel has supported the impugned judgment of conviction and sentence. He submits that presence of all the appellants/accused was established during the occurrence inasmuch as the injuries on the deceased are commensurate with the number of accused.
9. We have heard the learned counsel for the parties at considerable length and have also read the whole record with their assistance. There is no substance in the argument of the learned counsel for the appellants to the extent of Muhammad Yar convict. Khan Muhammad (P.W.2) has given full detail of the incident in his testimony. According to him, on the day of occurrence his father Mahmood Ali left for his land through a Pagdandi of the village. Mien Mahmood Ali reached near the Bahak of Hamand, Muhammad Yar, Ghulam Farid and Hamand, were lying in wait there while armed with sticks and hatchet. They came out and shouted that Mahmood Ali would not go alive. Mahmood Ali tried to run away. Muhammad Yar gave a stick blow which landed on the left side of his neck near ear. Another blow was inflicted by Hamand which injured the left flank of the victim. Ghulam Farid caused a blow with the wrong side of his hatchet on his elbow. The victim, Mahmood Ali, fell down. The accused gave him more injuries with their weapons while he was lying on the ground. This testimony of Khan Muhammad was corroborated by Bashir P.W.3 through and through. The eye-witness account is also in line A with the medical evidence. It is, undoubtedly, a case of merciless beating having been given with deadly weapons to the victim. As many as 18 injuries were found on the deceased including the grievous injuries. It appears that on receipt of stick blow by Muhammad Yar on head, the victim fell down. The head injury was declared grievous by the doctor. The death also took place on account of said injury. The head is one of the most vigil part, of the body. On receipt of this injury, we believe that the victim fell down. The facts and circumstances of this case are such that we are further persuaded to believe that it was Muhammad Yar alone who caused the remaining injuries as well' The motive would also lend support to the prosecution story to the extent of Muhammad Yar. It was Muhammad Yar who was the accused in the criminal case which was initiated by Allah Ditta, a tenant of deceased. It is also Proved that Mahmood Ali deceased was extending open support to Allah Ditta This being so- Muhammad Yar had a direct motive to attack and finish Mahmood All on the day of occurrence.
Muhammad Yar had also made a clean breast of the murder of Mahmood Ali before the Court disclosing that it was he who was responsible for the killing and that the remaining accused were not even present at the time of occurrence. We are, therefore, left with no choice but to believe the trustworthy evidence of Khan Muhammad and Bashir Ahmad to the extent of Muhammad Yar coupled with his confessional statement made by him under section 342, CrY.C. The prosecution evidence inspires confidence and is worth reliance. We, accordingly believe it. The result is that the conviction and sentence of Muhammad Yar, appellant is upheld. He does not deserve any leniency because the incident of murder which stands proved against him was, undoubtedly gruesome and brutal. The appeal to the extent of Muhammad Yar is hereby dismissed. The Murder Reference is, accordingly answered in the positive.
11. The case of Hamand and Ghulam Farid, however, stands. On a different footing. Hamand is father of Muhammad Yar. It is in evidence that he is fairly an old man. There was also no motive against him. The Sota recovered from him was also not found to be stained with blood. The possibility of his false implication in the case cannot be ruled out because he was the head of the family. It is common in our society that in such like cases, the net is thrown wide enough to involve as many people as possible of the family of the opposite-party to incapacitate them from pursuing the case of the real accused Similarly, the prosecution has also failed to prove its case against Ghulam Farid inasmuch as he was allegedly armed with a hatchet. According' to the evidence of Doctor, no injury with a sharp-edged weapon was found on the person of the deceased. The hatchet although was recovered but it was not found stained with blood. In these circumstances, we are of the opinion that the prosecution has failed to prove beyond reasonable doubt the participation of Hamand and Ghulam Farid in the occurrence. Accordingly, by giving them the benefit of doubt, we proceed to acquit them. They shall be released forthwith provided they are not required in any other case. The appeal to their extent is allowed,.