' JAVID IQBAL, L-Gama son of Allah Ditta, aged 65/70 years, and his two nephews Liaquat, aged 22 years, and Riasat, aged 18 years, sons of Abdul Aziz, have been convicted under section 302/34, P. P.
C. For the murders of Gulzar, aged 26/30 years, and his brother Mukhtars aged 32 years, Gama was sentenced to death on two counts plus fine of Rs. 1,000 on each count or in default to undergo one year R. I. On each count, whereas Liaquat and Riasat were sentenced to imprisonment for life on two counts plus fine of Rs. 1,000 each on each count or in default to undergo one year R. I. Each on each count. Gama was also convicted under section 307, P. P. C. For murderous assault on Muhammad Hussain (P. W. 14), nephew of both the deceased and was sentenced to imprisonment for life plus fine of Rs. 1,000 or in default to undergo one year R. I. Liaquat and Riasat, however, were acquitted of the charge under section 307/34, P. P. C. The judgment has been passed against them by the Additional Sessions Judge, Jhang, on the 16th of December, 1974. The appeal of the convicts as well as reference for the confirmation of death sentence awarded to Gama are being taken up and disposed of together by this judgment.
2. The occurrence took place at 12-00 noon on the 2nd of August, 1972, in Chak No. 126/ J.B., at a distance of 8i Miles from Police Station Chiniot, District Jhang. Statement Exh. P. J., was made by Muhammad Tufail (P. W. 10), brother-in-law of the two deceased and father of injured Muhammad Hussain (P. W. 14), at Civil Hospital, Chiniot. On the same day at 3-15 p. m. And it was recorded by Muhammad Hussain. S. I. (P. W. 15). On the basis of the aforesaid statement formal F. T. R, (Exh. P.
J/1) was registered at 3-30 p. m. On the same day at the. Police Station by Ghulam Muhammad M.
H. C. (P. W. 4).
3. The background of the occurrence is that the wife of Shaukat, a brother of Liaquat and Riasat appellants, had illicit connections with Gulzar deceased. But it appears that the immediate cause of occurrence is as it has been described in the F. I. R. Which we shall refer to presently.
4. The prosecution has produced four eye-witnesses of the occurrence, namely, Muhammad Tufail (P. W. 10), brother-in-law of the two deceased and father of injured Muhammad Hussain (P. W. 14), Muhammad Yaqub (P. W. 12) and Muhammad Yusuf (P. W. 13), both unconnected and independent witnesses, and injured Muhammad Hussain (P. W. 14) nephew of the two deceased, another injured eye-witness cited in the F. I. R., namely, Muhammad Hussain son of Sultan was not produced.
5. Gama was arrested on the 3rd of August 1972, whereas Liaquat and Riasat appellants were arrested on the 7th of August 1972, by Muhammad Hussain S. I. (P. W. 15). At the instance of Gama appellant was recovered blood-stained chhuri P. 1 and taken into possession vide memo. Exh. P. J., dated the 4th of August, 1972. The attesting witnesses are Muhammad Yaqub (P. W. 12) Muhammad Yusuf (P. W. 13) and Muhammad Hussain S. I. (P. W. 15). No recoveries were effected from Liaquat and Riasat appellants. According to the report of the Serologist (Exh. P. S./1) chhuri P. 1 was found to be stained with human blood.
6. Liaquat and Riasat appellants in their statements before the trial Court denied having participated in the occurrence. They stated that they had been falsely implicated due to enmity.
Riasat appellant further stated that his left hand was amputated from the wrist. Gama appellant did not deny the occurrence but pleaded self-defence. He stated as follows:- "On the day of occurrence Gulzar and Mukhtar deceased along-with Muhammad Hussain P. W.
We're selling ice opposite to my shop. My sister-in-law Mst. Zanib went to purchase the ice and she reprimanded them for charging exhorbitant rate, on this they were annoyed and started grappling with Mst. Zanib Bibi and wanted to throw her away from their shop as they thought that she was spoiling their clientees. During the scuffle headwear and the loin sheet of Mst. Zanib were removed.
I rushed to her rescue from my shop. Gulzar, Mukhtar deceased and Muhammad Hussain P. W. Left her and surrendered me. Gulzar and Mukhtar deceased started giving me blows with chhuri Exh. P. 1 now in Court and a big ice breaking sua; I warded all these blows on my left hand and snatched the chhuri from Gulzar deceased, but Muhammad Hussain P. W. And Mukhtar deceased still threatened me with sua and lathi and as a matter of fact Muhammad Hussain P. W. Gave a violent blow on my head. In the meantime Muhammad Hussain son of Sultan had come to my rescue and had been injured by Gulzar and Mukhtar deceased; realising my precarious position that I would be murdered 1 gave churry blows to Gulzar, Mukhtar and Muhammad Hussain P. W. In self-defence and in defence of the person of Mst. Zanib Nobody tried to snatch the clued from me from the public. I had been given the blows by the two deceased and Muhammad Hussain P. W. With churri and sua. I myself appeared at the Police Station and produced the churri there Haji Allah Ditta is a Lambardar of our village Yousaf P. W. Is married to his niece while Yaqub P. W. Is his nephew. They run a cloth merchant shop at Chiniot and carry great influence with the police, and are also big Zamindars of the village while we are menials and are landless. Yaqub and Yousaf alongwith Haji Allah Ditta had been pressurizing us for a shop in the village Chowk for opening a sugar depot and a fertilizer agency, and we refused. They have got the entire story distorted through their influence with the police. They were present at the time of recording of F. I. R. And were also witnesses of the faked recovery of churri."
' Thus, according to him churri P. 1 belonged to Gulzar deceased and not to him and further that he was given injuries by the two deceased as well as Muhammad Hussain P. W.
7. In the F. I. R. The occurrence is reported to have taken place in the following manner: On the fateful day Muhammad Hussain (P. W. 14) was selling ice under the chappri of one Ahmad butcher and Muhammad Tufail (P. W. 10) was sitting nearby. In the front shop, Liaquat and Riazat appellants were sitting selling vegetables etc. In the meantime, Mst. Zanib Bibi motter of Liaquat and Riasat appellants came there and a quarrel ensued between her and Muhammad Tufuail P. W. On this Riasat and Liaquat appellants started grappling with the son of Muhammad Tufail P. W. i.e. Muhammad Hussain P. W. On seeing this Gama appellant got up from his shop and came to the spot with chhuri in his hand. He suddenly gave chhuri blows to Muhammad Hussain P. W. Which fell on his left hand and right flank. Gulzar deceased advanced in order to separate them. But Riasat and Liaquat appellants got hold of him and Gama appellant gave two chhuri blows in the belly of Gulzar. At this stage Mukhtar deceased also arrived on the spot and attempted to intervene. He was also got hold of by Riasat and Liaquat appellants and Gaman appellant gave him two chhuri blows in the right flank. Then Muhammad Hussain son of Sultan (not produced) advanced to rescue them but he was also injured by Gama appellant who gave him a chhuri blow on the right side of his belly. In the meantime, Muhammad Yaqub and Yousaf Ali (P. Ws. 12 and 13) rushed to the scene of crime and saw the occurrence. They did not go near out of fear. In the scuffle Muhammad Hussain P. W. Gave a lathi blow on the head of Gama appellant. Many people had assembled on the spot who tried to snatch chhuri from the hand of Gama appellant and in the course of this struggle Gama appellant received an incised injury on his left hand. Thereafter, Gama appellant left the scene of crime alongwith the chhuri and returned to his shop. Muhammad Hussain P. W., Gulzar and Mukhtar became unconscious due to injuries. They were removed to the Civil Hospital, Chiniot and the doctor after examining them sent them to Lyallpur for treatment. Muhammad Tufail P. W. Was going to lodge the report but the investigating officer arrived at the hospital and recorded his statement.
8. Dr. Tajammal Hussain (P. W. 2) medically examined Mukhtar deceased while he was still alive in the Civil Hospital, Chiniot, on the 2nd of August 1972, at 2-15 p. m. And found on his person two incised wounds in the abdomen region. Both the injuries were grievous and had been caused by sharp-edged weapon. He sent the patient to Lyallpur District Headquarters Hospital for Expert treatment as his condition was serious.
' On the same day at 2-00 p, m. He medically examined Gulzar deceased while he was still alive and found on his parson two incised wounds in the abdomen region. Both the injuries were grievous and had been caused by sharp edged weapon. Since the condition of the patient was serious, he was referred to Lyallpur District Headquarters Hospital, for proper medical aid.
' On the same day at about 2-00 p. m. He medically examined Muhammad Hussain (P. W. 14) and found on his person three incised wounds on the left ring finger, left index finger, and on the right abdomen. The injuries had been caused by sharp-edged weapon. This patient was also sent to the Lyallpur District Headquarters Hospital, for further treatment.
' On the same day he medically examined Muhammad Husain son of Sultan and found on his person one incised wound on his right flank. The injury had been caused by sharp-edged weapon and was kept under observation. It was subsequently declared simple.
' On the same day at 2-45 p. m. He medically examined Gama appellant and found on his person a contused wound on the top of head, and multiple superficial cuts on the palmer aspect of left hand. The first injury was caused by blunt weapon whereas the second injury had been caused by sharp-edged weapon. The injuries were simple.
' This medical officer informed the police about the arrival of the injured vide ruqa (Exh. P. F.) and it was in response to his ruqa that the police officer had come to the hospital.
' Dr. Bashir Hussain (P. W. 1) conducted post-mortem examination on the dead body of Gulzar deceased on the 3rd of August 1972, and noted the same injuries on his person. In his opinion, death was caused due to shock and haemorrhage as a result of these injuries which were sufficient to cause death in the ordinary course of nature.
' On the same day he conducted the post-mortem examination on the dead body of Mukhtar deceased and noted the same injuries on his person. Death had been caused in his opinion due to shock and haemorrhage as a result of these injuries which were sufficient to cause death in the ordinary course of nature.
9. We have heard learned counsel for both the sides and carefully perused the record. The main argument of learned counsel for the appellants is that Liaquat and Riasat appellants had only grappled with Muhammad Hussain P. W. Without having caused any injury to that witness. It is submitted that it was for this reason that they had been acquitted of the charge under section 307/34, P. P. C. By the trial Court. It is further submitted that they did not inflict any injury to the two deceased. It is argued by learned counsel that the version of the prosecution to the effect that Liaquat and Riasat appellants had got hold of the two deceased while they advanced separately and interveaed and that it was in this process that Gama appellant inflicted two chhuri injuries each to both the deceased, was not convincing when it was the prosecution's own version that they were grappling with Muhammad Hussain P. W.
' The case of Gama appellant is entirely different. May be that he also . The reasoning of learned counsel is that the mother of Liaquat and Riasat appellants had been insulted by the complainant party i. e. Father of Muhammad Hussain P. W. And it was for this reason that they came to grapple with Muhammad Hussain P. W. Who must have sided with his father. They could have possibly neither intended to murder the two deceased in this case nor were stated to have caused any injury to them. Thus according to learned counsel the case of Riasat and Liaquat appellants was distinguishable.
' It was next submitted that Gama appellant had given his own version of the occurrence. It was the sister-in-law (Bhabi) of Gama appellant who had been insulted by the complainant party and it was in order to rescue her that he participated in the occurrence; but he acted in self-defence. It was further submitted that the defence version should be accepted as the correct version for the eye-witnesses in this case were not reliable being interested and hostile towards the appellants.
Muhammad Tufail and Muhammad Hussain P. Ws. Were closely related to the two deceased.
Muhammad Yaqub and Muhammad Yusuf P. Ws. Were not only chance witnesses but were hostile.
It is submitted that again Muhammad Yaqub and Muhammad Yusuf P. Ws., the hostile witnesses were the attesting witnesses of the recovery of human blood-stained chhuri P. I trom Gama appellant. Thus according to learned counsel not only the recovery evidence was doubtful, but the ocular testimony was interested and tainted. In the circumstances, it is submitted that the version of the occurrence given by Gama appellant should be believed.
' We have carefully examined the arguments of learned counsel. We agree with him to the extent that Liaquat and Riasat appellants might have not caused any injuries to the two deceased in this case as well as Muhammad Hussain P. W. It is evident from the case of the prosecution that a quarrel ensued between the mother of Liaquat and Riasat appellants and Muhammad Tafail P. W. i.e. Father of Muhammad Hussain P. W. It is further probable that Muhammad Hussain P. W. Sided with his father. It was for this reason that Liaquat and Riasat appellants rushed from their shop and grappled with Muhammad Hussain P. W. It is indeed difficult to accept the prosecution version that when Gama appellant had come into the picture along with his chhuri, and when Gulzar and after him Mukhtar had attempted to intervene, Liaquat and Riasat appellants in both the cases got hold of the two deceased so that Gama appellant could inflict two chhuri blows to each of them in the abdomen. However, the possibility cannot be excluded that Liaquat and Riasat appellants were present at the scene of crime and had grappled with Muhammad Hussain P. W. Without causing any injury to any member of the complainant party because they could not bear that their mother' should be insulted. In that view of the matter, in our considered opinion, their case is distinguishable. Their presence at the scene of crime and participation in the sense as we have discussed above, could not possibly implicate them in the murder of the two deceased in this case.
Hence their conviction and sentence under section 302/34, P. P. C. Were not proper. They should have been given the benefit of doubt which we hereby given to them. The result is that their conviction and sentence are set aside and they are acquitted. Their appeal is accepted. They (Liaquat and Riasat appellants) shall be released from jail forthwith if not wanted in any other case could not bear his brother's wife being insulted. However, he came to the spot with a chhuri and freely used the same. He first caused serious injuries to Muhammad Hussain P. W. And then gave two chhuri blows each to Gulzar and Mukhtar deceased which resulted in their death. Thereafter, he even caused injuries to Muhammad Hussain son of Sultan (not produced). It is stated in the F. I.
R. That he was given a blow with blunt weapon on the head by Muhammad Hussain P. W. And he received incised injuries while the chhuri was being snatched from him. We have carefully examined his version of the occurrence but in our considered opinion it was not convincing at all and was MI rightly rejected. The case of the prosecution as against him is supported by ocular testimony of two independent witnesses i. e. Muhammad Yaqub and Muhammad Yusuf P. Ws. And further we have no reason why the testimony of Muhammad Tufail and Muhammad Hussain P. Ws.
Should be disbelieved even if they are closely related to the two deceased particularly when it is corroborated by the recovery of blood-stained chhuri P. 1 from Gama appellant as well as the medical evidence. Whatever be the background of enmity between the parties, we are convinced in our mind that the immediate cause of occurrence was the quarrel between Mst. Zanib Bihi and Muhammad Tufail P. W. Even if one were to say that Gama appellant had come to her rescue, there was no reason why he should give two chhuri blows each to two persons who were not directly involved in the quarrel and who only wanted to separate the parties. In the occurrence Gama appellant had caused the death of two persons, namely, Gulzar and Mukhtar and serious injuries to Muhammad Hussain P. W. He deserves no sympathy B in this case. In our considered view therefore, the prosecution has succeeded in establishing its case beyond reasonable doubt as against Gama appellant. His convictions as well as sentences, therefore, were quite proper and well deserved and are accordingly maintained. His appeal is dismissed.
10. The death sentence awarded on two counts to Gama appellant is hereby confirmed.