' ABDUL HAFEEZ CHEEMA, J.--- Manzoor Ahmad (45/50) son of Niamat, Sarfraz Ahmad alias Nannah (21/22) and Zafar Hussain (24/25), both brothers and sons of Muhammad Ashraf, all Rajputs by caste and residents of Chak No,76/JB, Police Station Theekriwala, District Faisalabad and temporarily residents of village Peeruwala, Tehsil and District Kasur, appellants, were tried by the learned Additional Sessions Judge, Kasur under section 302/34, P.P.C. In case F.I.R. No,322/88 of Police Station Sadar Kasur, for intentionally causing the murder of Bashir Ahmad deceased at 6-30 p.m. On 30-9-1988 in the area of village Peeruwala, Police Station Sadar Kasur. On conviction each of them was awarded death sentence and ordered to pay a fine of Rs,15,000 and in the event of non-payment of fine to undergo R.I. For two years. The fine, if recovered, was ordered to be paid to the legal heirs of the deceased vide order, dated 25-5-1991.
2. The convicts have appealed against their conviction whereas the learned Additional Sessions Judge has made a reference under section 374, Cr.P.C. For confirmation of the death sentence awarded to them.
3. The account of occurrence as revealed by the F.I.R. Lodged by Faqir Muhammad (P.W.4), the real brother of Bashir deceased, briefly, is that he alongwith Bashir lives in the village and closer to their house a piece of land belonging to Raja Akram Fauji is under the cultivation of Manzoor, appellant where he had sown vegetables etc. At about 5-30 p.m. On the fateful day his brother's mare strayed into the brinjal field of Manzoor appellant. Bashir deceased, on noticing the mare having gone to the field, went to retrieve her where Manzoor started abusing him. Bashir, however, tried to explain to him that it was not intentional but the animal itself had strayed into his field and be sought him not to use abusive language. Manzoor, however, persisted which led Bashir deceased to pay him in the same coins, Bashir, however, brought the mare back to his house. At about 6-30 p.m. Bashir deceased and Faqir Muhammad (P.W.4) were returning home after delivering milk to Shall Malang (P.W.12) in the garden of Nawab Arain and had arrived near the land of Zahoor Arain when Manzoor and Zafar appellants with hatchets and Sarfraz with a Sota appeared there. They challenged Bashir that he shall not be spared for letting the mare to go in their field and so also for the abuses given to Manzoor. Manzoor rained three successive hatchet blows on the head of Bashir which felled him down and on the fallen Bashir, Zafar inflicted hatchet blow, whereas Sarfraz pounded him with Sota. The cries raised by them, however, attracted Amanat son of Muhammad Hussain (given up P.W.) and Muhammad Sarwar (P.W.5) to the spot who clearly saw the occurrence. The appellants however, decamped when they saw the villagers approaching.
Severely injured Bashir was escorted to the hospital on a tractor trolley where he was formally admitted and was medically examined by Dr. Muhammad Arshad (P.W.10).
4. The complainant was on way to the police station with the medico-legal report of Bashir but came across Amanat Ali, S.I. (P.W.9) at about 9-00 p.m. At Truck Stand who recorded the initial report (Exh.P.E.) and despatched it to the police station for formal registration of a case.
5. Amanat Ali, S.I. (P.W.9) after recording the statement of Faqir Muhammad (P.W.4) sent it to the police station for registration of a formal case through Muhammad Jahangir, F.C. (P.W.6) and proceeded to Civil Hospital for recording the statement of Bashir injured. He moved application (Exh.P.H.) seeking leave of the doctor to record his statement but was informed vide (Exh.P.H./1) that he was not in a position to make statement. He proceeded to the spot, took into possession Garvi (P.1) pair of shoes (P.2/1-2) vide memo. (Exh.PA.) and prepared rough site plan (Exh.PJ.). He examined P.Ws. And inquired from public at large about the occurrence. Bashir had died by then and he revisited the hospital, prepared his inquest report and despatched the dead body to the mortuary through Jahangir, F.C. (P.W.10) on 1-10-1988 for autopsy. After accomplishing all the formalities he effected recoveries of the crime weapons. Hatchet P3, Dang P.4 at the instance of Manzoor Ahmad and Sarfraz appellants on 28-10-1988 respectively and hatchet P.5 at the instance of Zafar Hussain appellant on 6-11-1988 which were taken into possession vide memos. Exhs.P.B., P.C. And P.D. Attested by Sohrab Khan (P.W.3) and Muhammad Umar (given up as unnecessary).
He then challaned the appellants.
6. The appellants pleaded not guilty to the charge and prosecution was called upon to adduce its evidence.
7. In support of its case the prosecution examined as many as 13 P.Ws. Muhammad Asghar (P.W.1) identified the dead body at the time of autopsy, Boota (P.W.2) is witness of the seizure of Garvi (P.1) and pair of shoes (P.2/1-2) vide memo. (Exh.PA.) Sohrab Khan (P.W.3) witnessed the recovery of hatchet (P.3) from Manzoor and Takwa (P.5) from Zafar vide memoranda (Exhs.P.B.,and. P.D.) attested by him. Faqir Muhammad complainant (P.W.4) and Muhammad Sarwar (P.W.S) provided the ocular account of the occurrence. Muhammad Jahangir, F.C. (P.W.6) carried the statement (Exh.P.E.) to the police station for registration of formal F.I.R. And also delivered the last worn clothes of the deceased to Moharrar after the postmortem examination. Muhammad Ibrahim (P.W.7) prepared site plans (Exhs.P.G. And P.G./1) on the direction of the police. Muhammad Siddiq, H.C.
(P.W.8) was the Moharrar at Police Station Sadar Kasur and had recorded the formal F.I.R.
(Exh.P.E./1). Amanat Ali, S.I. (P.W.9), as referred to above, had recorded the initial report (Exh.P.E.) and' had investigated this case. Dr. Muhammad Arshad (P.W.10) initially medically examined Bashir deceased when he was alive, whereas Dr. Nawab Din Chaudhary (P.W.11) conducted the post- mortem examination. Shafi Muhammad son of Mahnga alias Malang Ansari by caste resident of the village deposed as (P.W.12). Sultan Ahmad Khan (P.W.13) was S.H.O., Police Station Saddar Kasur and had also partly investigated the case and had caused the challan to be submitted.
8. On 1-10-1988 at 10-00 a.m. Dr. Nawab Din Chaudhary (P.W.11) conducted the autopsy on the dead body of Bashir Ahmad deceased and found following injuries on it:--
(1) Stitched incised wound 8 x 1/4 c.m. x bone deep on front of head 6 c.m. Above root of nose.
(2) Stitched incised wound 5 c.m. Above eyebrow and 2 c.m. Left to injury No,1.
(3) Stitched incised wound 3/4 x 1/2 c.m. x bone deep on right side of head at right parietal region 6 c.m. Above right ear.
(4) Abrasion 1 c.m. x 1/2 c.m. With swelling 4 c.m. x 3 c.m. Around on left temporal region in front of left ear.
(5) Stitched incised wound 2 c.m. x 1/2 c.m. On back and upper part of right fore-arm.
(6) Incised wound 2-1/2 c.m. x 1/2 c.m. On back of right fore-arm near right hand which was stitched.
(7) Incised wound 3 c.m. x 1/2 c.m. x muscle deep between left little finger and ring finger.
(8) Stitched incised wound on back of left hand in area 1 c.m. x 1/2 c.m. x bone deep.
(9) Stitched incised wound 1 c.m. x 1/2 c.m. x skin deep on back and outer surface of left hand.
(10) Abrasion 1 c.m. x 1/2 c.m. On dorsum and inner surface of left forearm at middle.
(11) Stitched incised wound 1 c.m. x 1/2 c.m. x muscle deep at front of right thigh at middle.
(12) Contusion mark 11 c.m. x 3 c.m. On outer and front of left chest at lower part and middle part with swelling around.
(13) Contusion mark 13 c.m. x 4 c.m. With swelling around on the back and upper part of left chest near left scapular region.
(14) Contusion mark with swelling 5 c.m. x 5 c.m. On back of left hip with swelling around.
' Third and fourth ribs of left chest at back were fractured under injury No,13. Pleura was punctured also. 6th, 7th, 8th, 9th ribs were fractured under injury No,12. Pleura was also punctured underneath.
Left pleural cavity was full of blood. Both chambers of heart were empty. Peritoneal cavity was full of blood. Spleen was ruptured under injury No,12. Stomach was full of semi-digested food. Small intestines contained chyme and large intestines contained fecese. Bladder was empty. All other organs were found healthy.
9. In the opinion of the doctor death was due to shock as a result of haemorrhage caused by abovementioned injuries. All injuries were ante-mortem in nature. Injuries Nos. 1, 2, 3, 5, 6, 7, 8, 9 were caused by sharp-edged weapon while the rest were caused by blunt weapon. Injuries Nos.12 and 13 were fatal in nature and sufficient individually in ordinary course of nature to cause death.
Probable time between injuries and death was within three hours and between death and post- mortem within 14 hours approximately.
10. Earlier on 30-9-1988 at 8-45 p.m. Dr. Muhammad Arshad, P.W.10, the then Medical Officer, D.H.Q., Hospital, Kasur medically examined Muhammad Bashir deceased, while alive and noted the same injuries vide medico-legal report Exh.P.L.
11. The appellants were examined under section 342, Cr.P.C. Manzoor appellant denied that he took part in the occurrence. He in fact took no specific defence plea. When asked as to why this case had been made against him, his reply was that before this occurrence Faqir Muhammad had committed theft in his house and he tried to lodge a report against him at Police Station Sadar Kasur. On account of the indifference of the local police they could not succeed in initiating criminal proceedings against him. He, however, tried to get the stolen articles back from Faqir Muhammad with the assistance of the local residents which annoyed Faqir Muhammad. This was a blind murder and the complainant had falsely implicated them due to enmity. P.Ws. Were related to the complainant, he being an outsider in the village had no relations there. Sarfraz and Zafar are the two real brothers whose sister is married to Manzoor, almost toed the line of defence adopted by him.
12. We have heard the parties learned counsel and have also gone through the record.
13. Learned counsel for the appellants has made the following submissions:--
(i) that the prosecution story was intrinsically false and failed to inspire confidence;
(ii) that the ocular evidence consisted of the testimony of interested witnesses and therefore, it was not safe to place any reliance on it;
(iii) that the eye-witnesses were not present at the time and place of occurrence and had not seen the incident;
(iv) that the ocular evidence was not worthy of any credence because it stood contradicted by the medical evidence;
(v) that motive against the appellants had not been proved; and
(vi) that the recoveries effected in the case were of no consequence.
' In view of the infirmities pointed out above learned counsel maintained that the conviction of the appellants based on such an evidence, could not be sustained.
14. Learned counsel for the State and that of the complainant have opposed the appeal and defended the impugned judgment.
15. Highlighting his contention that the eye-witnesses were not present at the relevant time and place learned counsel for the appellants posed a question as to why Faqir Muhammad P.W. Had accompanied Bashir Ahmad deceased to the garden of Shafi Muhammad Malang. He maintained that milk could be delivered to the said Malang by Bashir Ahmad deceased alone. This question has been properly answered by the prosecution that since an altercation had taken place between the parties an hour before and the complainant was apprehensive of danger at the hands of his enemies, therefore, Bashir deceased took his brother Faqir Muhammad P.W. Along. Shafi Malang who appeared as P.W.12 is Ansari by caste and not related to either of the parties. He was unmarried and had taken the garden on lease. It was on account of his ailment, as stated by him, that he requested Bashir deceased to deliver him milk at his garden. So, all this explains why two had gone to the Dera of Shafi Muhammad Malang. It is in evidence of Shafi Muhammad Malang that when after delivering the milk to him both Faqir Muhammad and the deceased returned to the village, he heard the cries: "Save me", "Save me" over the land of Zahoor. Thus, the story put forward by Faqir Muhammad P.W. Gets strong independent support from his testimony and not only shows that the version of the prosecution is believable and confidence inspiring but also proves the presence of Faqir Muhammad at the relevant time and place. As regards the other eyewitness i,e, Sarwar P.W.5, he is not related to the complainant but happens to be from the Biradari of the complainant. That, of course, will not make him an interested witness. His agricultural land is near the place of occurrence. As stated by him he was going to have a round of his fields when he heard the alarm and was attracted to the place of occurrence. His presence at the relevant time and place, therefore, is not improbable. We are thus convinced that both the eye-witnesses had seen the occurrence. Testimony of Faqir Muhammad P.W. Could not be discarded merely because he was related to the deceased. Even otherwise the decline in moral courage and avoidance by the people to come ahead as witnesses to tell the truth is visible and the Courts can legitimately take notice of this development. So, taking into account the existing moral fabric of society the statement of Faqir Muhammad, real brother of the deceased who is natural witness, cannot be deprived of the credence it deserved. Sarwar P.W. Who is not related to the deceased has rendered unflinching support to the story. Both of them had no previous enmity with the appellants and therefore, they had no motive to falsely implicate them in a murder case. The objections raised by the learned counsel with regard to the credibility and genuineness of the eye-witnesses seem to have no merit and, therefore, are repelled.
16. Learned counsel for the appellants has further contended that the occurrence had taken place during the night and, therefore, possibility of mistake identity could not be ruled out. The occurrence is stated to have taken place at 6-30 p.m. On 30-9-1988. According to the calendar (URDU TEXT) issued by the High Court sun had set at 5-52 p.m. On that day. Therefore, at 6-30 p.m.
It was not totally dark and visibility had not been reduced to zero. In our opinion there was sufficient light available to the eye-witnesses to see and identify the appellants who were previously known to them. Therefore, there was no possibility of any mistaken identity.
17. Learned counsel for the appellants has also maintained that since the P.Ws. (Faqir Muhammad, P.W.4, Muhammad Sarwar, P.W.S and Amanat not examined) had not intervened to rescue the deceased, their presence would be rendered highly doubtful. The contention is devoid of force. All the three appellants were armed with lethal weapons whereas the P.Ws. And the deceased were empty-handed. Their non-intervention, to our mind, was not unnatural. Due to fear or cowardice they did not pick up the courage to intervene.
18. As for the medical evidence, injuries Nos.12 and 13 shown in the postmortem examination report (Exh.P.M.) have been declared fatal. These injuries which had been caused with blunt weapon have been attributed to Zafar Hussain appellant who was armed with a hatchet. Learned counsel for the appellants has submitted that this conflict between ocular and medical evidence was indicative of the fact that the eye-witnesses had not seen the occurrence. The contradiction is there but we do not think it is enough to discredit the eye-witnesses. It was well nigh impossible for a witness to count the blows in such a situation and then correctly tell the locations on which they fell.
Additionally, hatchet is a strange weapon, it is both sharp-edged and blunt weapon and therefore, in the melee it was very difficult to say as to the hatchet blow had been given with a sharp-end or the blunt. We consequently hold that the ocular evidence could not be rejected on this ground alone.
19. Adverting to the next contention of the learned counsel for the appellants with regard to motive, it is pointed out that it is in evidence that the house of the complainant is quite close to the field of Manzoor appellant. The story of mare having strayed to his field has been clearly stated by Faqir Muhammad, P.W. Who saw the mare having gone to the field of Manzoor appellant and narrated this fact with all possible clarity. It is noteworthy that no suggestion to contradict and challenge the motive has been put to Faqir Muhammad, P.W. In his cross-examination. This virtually stands conceded by the defence.
20. This brings us to the next contention of the learned counsel for the appellants that the recovery of weapons from the appellants was of no consequence and did not connect them with the crime.
The contention is not devoid of force and carries weight because the recovered weapons were not blood-stained. We have no hesitation to hold that the recoveries in the present case were of no consequence.
21. As regards defence plea, the theft story narrated by Manzoor appellant in his statement under section 342, Cr.P.C. Is visibly different to and inconsistent with the suggestions put to the P.Ws. In their statements the appellants have attributed commission of theft to Faqir Muhammad complainant, whereas in the suggestions it has been indicated that there was an attempt of theft.
The defence plea, therefore, obviously is quite hollow and leads one nowhere. Common intention of the appellants is clear from the fact that they had all gone to the spot armed with deadly weapons and had inflicted repeated blows on the body of the deceased.
22. After going through the ocular evidence and evidence about the motive we are of the view that the testimony of eye-witnesses was free from major discrepancies or contradictions. They are consistent on all material points and their evidence inspires confidence. We have no reason to disbelieve them. It is, therefore, proved to our satisfaction that Muhammad Bashir deceased was done to death by Manzur Ahmad, Zafar Hussain and Sarfraz Ahmad alias Nanna appellants in furtherance of their common intention. They were rightly convicted under section 302/34, P.P.C.
23. As regard sentence, it is not clear from the evidence on record as to who caused the fatal injuries. In such a situation as recorded by A.R. Gibb in his Shorter Encyclopaedia of Islam the great jurists of Islam are of the view:-- "Several persons muy be put to death for the killing of one person according to Abu Hanifa, Malik and Alshafii if they had done the deed together - provided the part taken by each was such that if he had acted alone death would have resulted likewise."
(Page 262, 1974 Edition)
' The number and locale of injuries, however, make it clear that the accused had intended to cause the death of the victim of this case. So, therefore, as a matter of abundant caution we feel that on account of the uncertainty as to who caused the fatal injuries, the appellants deserve imposition of lesser penalty. As such we do not confirm the death sentence. Instead we award imprisonment for life to all the three appellants maintaining the conviction and sentence of fine. They, however, shall be entitled to benefit of section 382-B, Cr.P.C. This, we think, would meet the ends of justice. The appeal is, therefore, partly accepted and the .
' Death not confirmed.
Sentence reduced.