' SH. MUHAMMAD ZUBAIR, J.--- Dildar Khan (35/36) and his brother Muhammad Afzal (28), were tried under section 302/34, P.P.C. For the murders of their paternal-uncles Muhammad Bashir and Muhammad Akram by the learned Judge, Punjab, Special Court for Speedy Trials No,IX, Gujranwala.
The learned Judge convicted them thereunder and vide judgment, dated 27-6-1988, sentenced them to suffer death on two counts plus fine of Rs,20,000 or in default to undergo further R.I. For two years. The fine, if recovered, was ordered to be paid to the legal heirs of the deceased. The convicts have appealed to this Court.
2. The occurrence took place on 20-7-1987 at Isha prayer time and F.I.R. Exh.P.C./1 was recorded by Liaqat Ali, A.S.I. (P.W.3) on 21-7-1987 at 2-00 a.m. At Police Station Sadar Sialkot, on the basis of statement Exh.P.C. Of Muhammad Akram, who was then injured, which was recorded by Zammurad Hussain A.S.I. (P.W.18) in Civil Hospital, Sialkot.
3. As per statement Exh.P.C. Of Muhammad Akram, it is alleged that on 20-7-1987 at about Isha prayer time, he was sitting outside his house. His brother Muhammad Bashir was preparing Gatava for the cattle in the manger lying in the courtyard of the house. All of a sudden the appellants armed with Chhuris entered the courtyard. Dildar appellant twice or thrice knocked down Muhammad Akram and thereafter attacked him with the Chhuri which landed on his left flank, it started bleeding whereupon Muhammad Akram fell down. Muhammad Afzal attacked Muhammad Bashir with Chhuri and caused injuries on his abdomen and his intestines came out.
On the hue and cry, Muhammad Ibrahim P.W.15 and Muhammad Bashir P.W.16, besides other persons gathered at the spot and saw-the occurrence. Seeing the witnesses the appellants decamped from the scene while raising Lalkara to the effect that they had taught a lesson to the deceased for not giving the land to them. Both the injured were transported to Civil Hospital, Sialkot by Nasrullah P.W.14 through a wagon, where Muhammad Bashir died on account of the injuries.
' On receipt of information Zammurad Hussain, A.S.I. P.W.18, reached Civil Hospital, Sialkot and after getting the requisite certificate from the doctor that Muhammad Akram was fit to make a statement, recorded his statement Exh.P.C. Which, as stated above, formed the basis of formal F.I.R.
Exh.P.C./1. In the hospital, Muhammad Akram also produced his medico-legal report to Zammurad Hussain, A.S.I.
4. Zammurad Hussain, A.S.I. (P.W.18) then prepared the inquest report Exh.P.O./1 and injury statement Exh.P.O. Of Muhammad Bashir deceased and sent the dead body for post-mortem examination under the escort of Sardar Khan and Masood Khan F.Cs. On the same day, Nasrullah, P.W. Produced the blood-stained clothes of Muhammad Akram, which were taken into possession vide memo. Exh.P.N. He recorded the statements of Nasrullah and Bushra P.Ws. In the hospital.
Thereafter, the A.S.I. Went to the spot and took into possession blood-stained earth from two places vide memo. Exh.P.E. And Exh.P.F. He also collected and took into possession two pairs of Chappals of the appellants. Sardar Khan, F.C. Produced the last-worn clothes of Muhammad Bashir deceased which Were taken into possession vide memo. Exh.P.D. On the night intervening 22nd and 23rd July, 1987, Zammurad Hussain, A.S.I. Received information regarding the death of Muhammad Akram in the hospital. He went to the hospital and prepared the inquest report Exh.P.RR. He also made application for post-mortem examination of Muhammad Akram deceased. The A.S.I. Then got prepared site plan Exh.P.B. And Exh.P.B./1 by Akhtar Naqqash, Draftsman (P.W.2). Thereafter the investigation was transferred to Muhammad Yaqub, A.S.I. (P.W.19). He arrested the appellants on 30-8-1987. On 6-9-1987, Dildar appellant got recovered, Chhuri P.5 (blood-stained) which was taken into possession vide memo. Exh.P.H. Similarly, on the same day, Muhammad Afzal got recovered Chhuri P.6 (blood-stained) which was taken into possession vide memo. Exh.P.J. After completing legal formalities, the challan was submitted in the Court.
5. Dr. Arif Mahmood (P.W.11) conducted the post-mortem examination on the dead body of Muhammad Bashir on 21-7-1987 and found 12 incised wounds mostly on the chest and a contused swelling on the outer aspect of left forearm. Injuries Nos.1, 4 and 9 (reproduced below), were grievous and dangerous to life and the rest were simple.
(1) An incised wound about 8 c.m. x 3 c.m. In the epigastrium intestine and stow ach were lying outside the wound.
(2) An incised wound, 3 c.m. x 1.5 c.m., on anterior axillary line in the lower part of left side of chest.
(3) An incised wound 3 c.m. x 1 c.m. On lateral aspect of chest in midaxillary line (left side of chest).
' The doctor opined that the above mentioned injuries were sufficient to cause death in the ordinary course of nature due to shock and haemorrhage. All the injuries were ante-mortem caused by sharp-edged weapon except injury No,13, which was caused by blunt edged weapon.
' The same doctor on 22-7-1987, conducted post-mortem examination on the dead body of Muhammad Akram, (who was earlier examined by Dr. Mian Muhammad Azhar, and whose medico-legal report Exh.P.M. Was proved by Dr. Arif Mahmood as P.W.13), and found a stitched wound, 6 c.m. In length in the anterior axillary line in the left side of chest, about 6" inferolateral to left nipple. On dissection the injury was found to be an incised wound, which had cut skin muscles, upper and lower ribs (two ribs). It had penetrated lower part of left lung (lower lobe), diaphram and peritonium and injured spleen. There was big performation in the stomach; hence the injury was declared grievous and dangerous to life, and was sufficient to cause death by haemorrhage and shock.
6. Muhammad Afzal appellant in his statement under section 342, Cr.P.C. Denied the prosecution allegation and stated that statement Exh.P.C. Of Muhammad Akram is a forged one. He made a detailed statement explaining the case against him, which is reproduced in extenso. It reads:-- "My father died before 1965. Then my mother contracted second marriage with my paternal-uncle Muhammad Akram deceased and he divorced her in the year 1971. The property inherited by my father and two deceased uncles is still a joint property. We have been given only 7 Kanals of land from the inherited property. Muhammad Akram deceased and another brought a suit for possession through preemption, as we were minors, we did not join as co-plaintiffs in that suit but we contributed towards the pre-emption money as agreed between our uncles and ourselves. We used to ask for our share of land but it was always refused to us. Then we asked for the return for our money, which we had already contributed. Even on the day of occurrence I alongwith my brother Dildar Khan co-accused were pressing for the return of our monetary contribution and at that time Bashir deceased while addressing me said, 'You (myself) go and ask your mother as to who my father actually was'. On these remarks I was provoked as my uncle Bashir had accused my mother of immorality and I was provoked to the extent that I caused Bashir deceased the injuries with a Chhuri which I picked from his house. My other uncle Akram deceased tried to intervene and he also received an injury with the same Chhuri. My brother Dildar Khan accused, although, present there, but did not cause any injury to Muhammad Akram deceased. I threw the Chhuri at the spot and myself surrendered before the police. The arrest of two brothers was not shown by the police for a considerable long time. The story against us is false and fabricated one. The real and true facts have been suppressed by the prosecution. The land dispute between us and the deceased is existing since the year 1965 when our father died. If the deceased Bashir had not accused my mother of immorality, the occurrence would not have taken place. All the recoveries are fake and planted."
' Dildar Khan appellant in his statement under section 342, Cr.P.C. Endorsed the statement made by his brother and deposed that he did not cause any injury to the deceased. Both the appellants made statements under section 340(2), Cr.P.C., wherein they pleaded innocence and stated that the prosecution evidence against them was false. No evidence was produced in defence.
7. The prosecution in order to prove its case examined as many as 19 witnesses, out of whom Mst.
Bushra Bibi (P.W.15) widow of Muhammad Akram deceased, Muhammad Ibrahim (P.W.16) and Bashir Ahmad (P.W.17) gave the ocular account of the occurrence. Zammurad Hussain, A.S.I.
(P.W.18) and Muhammad Yaqub, A.S.I. (P.W.19) investigated the case. Dr. Arif Mahmood (P.W.11) conducted post-mortem examination on the dead bodies of the two deceased and also proved the medico-legal report of Muhammad Akram Exh.P.M. While appearing as P.W.13, as Dr. Muhammad Azhar who examined Muhammad Akram was reported to be unable to travel and there was no likelihood of his attending the duties in the near future.
8. The learned trial Judge believing the prosecution evidence convicted and sentenced the appellants as indicated above.
9. The learned counsel for the appellants vehemently contended that all the three eye-witnesses, except Mst. Bushra Bibi (P.W.15) whose presence is not confirmed by the dying declaration, are chance witnesses of the occurrence and they have failed to furnish any reasonable and plausible explanation for their presence at the spot. The ocular version given in this case is being negated by the medical evidence. The motive, though alleged, was not proved, which adversely reflects upon the prosecution case as a whole. The alleged statement Exh.P.C. Of Muhammad Akram deceased, which has been treated as a dying declaration, is not a dying declaration in the eye of law, because when this statement was made, the declarant was not in the imminent danger of his life.
The learned trial Judge has erred in law by placing reliance on the recovery of weapons of offence at the instance of the appellants, which was witnessed by highly interested witnesses and so is the case with regard to the recovery of pair of Chappals of both the appellants allegedly left by them at the spot. Thus, the prosecution has failed to prove its case against the appellants beyond reasonable doubt.
10. The learned counsel for the State has supported the impugned judgment.
11. We have carefully gone through the evidence with the able assistance of the learned counsel for the parties and have critically examined their respective submissions. We find that in the present case, there is no background of enmity, the parties are related inter se and the dispute, as alleged in the dying declaration/F.I.R. Is regarding the division and inheritance of ancestral property. The statement Exh.P.C. Was promptly made by Muhammad Akram in which he categorically named Muhammad Ibrahim and Bashir Ahmad as eye-witnesses of the occurrence. The learned defence counsel in spite of lengthy and searching cross-examination could not bring anything on the record, which could give any support to the defence version that the aforesaid eye-witnesses were not present at the scene. On the contrary, they have furnished this explanation that they were on their way to the mosque for offering their Isha prayer when they saw the occurrence as the mosque was situated near the spot; hence their presence is proved and in the absence of any recorded enmity, we find no justification to discard their straightforward and confidence inspiring evidence, because the ocular version given by these two eye-witnesses gets support from the dying declaration of Muhammad Akram deceased, when he was fully conscious after receipt of injury in the transaction, in which he named the appellants as his assailants and that of his brother Muhammad Bashir deceased. As the injury received by Muhammad Akram resulted into his death, so the statement Exh.P.C. Of Muhammad Akram fulfils all the requirements of the dying declaration.
The testimony of these two eyewitnesses is further fortified by the recovery of pair of Chappals P.3/1-2 of Dildar appellant and that of pair of Chappals P.4/1-2 of Muhammad Afzal appellant. The prosecution case gets further corroboration by the recovery of Chhuri P.5 and Chhuri P.6 at the instance of Dildar and Muhammad Afzal appellants, respectively, from their house, which as per report Exh.P.U. Of the Serologist, were found stained with human blood.
Even if for the sake of abundant caution, the evidence of Mst. Bushra Bibi (P.W.15) widow of Muhammad Akram deceased may not be taken into consideration for the reason that her name is not mentioned in the statement Exh.P.C. Of Muhammad Akram, though she being the inmate of the house is a natural witness, still the prosecution case stood proved beyond any reasonable doubt against the appellants from the evidence discussed above, so this appeal has no merits.
12. We have given our anxious consideration to this aspect of the case whether the sentence imposed upon the appellants by the trial Court needs consideration or not. We find that the motive, though alleged in the F.I.R., stood not proved, because, there is no elaboration of motive for the crime, except that there was some dispute regarding the property, which subsisted since the year 1965. The parties are related inter se. Both the deceased were the real paternal-uncles of the appellants. It appears that there was bickering between the parties regarding the said property.
The possibility cannot be ruled out that something immediately preceded the occurrence, which has been concealed by the prosecution; hence the sentence of death is not called for; so while dismissing the appeal on merits and maintaining the conviction of the appellants under section 302/34, P.P.C. On two counts, we alter the sentence from death to imprisonment for life under each count. Both the sentences shall run concurrently. The sentence of fine, as imposed by the trial Court, is maintained with all consequences. The appellants shall be given the benefit of section 382-B, Cr.P.C. With these observations, this appeal is disposed of accordingly.
Sentence reduced. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.