MIR HAZAR KHAN KHOSO, J.---Petitions Nos. 16 of 1995 (Allah Bakhsh etc. v. The State) and 17 of 1995 (Qadir Bakhsh etc. v. The State) are directed against the common judgment dated 20-2-1993 passed by a Division Bench of Lahore High Court, Multan Bench, Multan, in Criminal Appeal No.33 of 1989 and Murder Reference No.24 of 1989. We intend to dispose of them by this one Order.
2. In statement Exh.PD recorded on 20-11-1985 at 4.30 p.m. At Police out post Hajipur complainant Sher Muhammad (P.W.6) has stated that he owned agricultural land in Mauza Hajipur, which was being cultivated by his brother Mahar Bux, deceased. Two and half months back during night Gulab Lashari was injured and case was registered against Allah Bachaya son of the deceased. In spite of all efforts the deceased failed to satisfy Gulab Lashari regarding innocence of his son. To avoid retaliation deceased shifted to Qasimpur. Or. Fateful day deceased alongwith witness Sher Muhammad went to village Hajipur to shift his household articles. It was about Peshiwela the when they reached near land of Bashir Alimad all of sudden petitioners Allah Bakhsh, Qadir Bakhsh and Hazoor Bakhsh, armed with hatchets intercepted them and shouted that Mahar Bakhsh would not go alive. Allah Bakhsh gave hatchet blow on the left side of head of' Mahar Bakhsh, deceased. Qadir Bakhsh gave him blow on his shoulder. Deceased fell down. Hazoor Bakhsh gave him blow on his right arm. Then all of them together inflicted injuries on his body. On cries Ghous Bakhsh and Peer Bakhsh came there at the Vardat and on seeing them the petitioners ran away.
3. On statement of the complainant formal F.I.R. Was registered at Police Station Dajal on the same day at about 6.30 p.m.
4. Rafique Ahmad, S.I., went to the place of incident, prepared inquest and injuries reports of the dead body and despatched the same to hospital for post-mortem. On 18-11-1985 he arrested the three petitioners. They led to recovery of blood-stained hatchets individually. The blood, earth and weapon of offence were set; to expert for examination. The reports of the Chemical Examiner in respect of the same are in positive. However, after completion of the investigation the Investigating Officer challaned the three petitioners to face trial.
5. To prove unnatural death of deceased Mahar Bakhsh, prosecution .Examined Dr. Wahid Bakhsh, P.W.2. He stated that on 3-I1-1985 he held post--mortem on the dead body of the deceased. He found ten injuries on his body. He opined that his death occurred due to heamorrahage and shock due to the injury (an incised wound 8 cm x 2 cm cutting the bone underneath obliquely on the frontal region just left to the midline) which in ordinary course of nature was sufficient to cause death.
6. P.W.6 Sher Muhammad and P.W.7 Ghous Bakhsh has given eye-- account of the incident as follows:- Sher Muhammad "When we reached at the land of Bahsir Panjabi, all the three accused namely Allah Bakhsh, Qadir Bakhsh and Hazoor Bakhsh armed with hatchet came out from the crop of Jantar and Javar. It was about noon the. They raised the Lalkara to take the revenge of Gulab. They will not spare Mehar Bakhsh alive. Allah Bakhsh accused first of all gave a hatchet blow on Mehar Bakhsh deceased which hit him on the left side of the head. Then Qadir Bakhsh accused gave his hatchet blow on the left shoulder of the deceased Mehar Bakhsh fell down and Hazoor Bakhsh accused gave his hatchet blow at the right arm of Mehar Bakhsh deceased. Then all the accused gave their hatchets blow collectively to Mehar Bakhsh deceased. On our hue and cry Ghous Bakhsh and Peer Bakhsh P.
Ws. Reached at the spot. "
Ghous Bakhsh.
"At about Peshiwela, I heard alarm of Sher Muhammad P.W. And of Mehar Bakhsh deceased. I saw Allah Bakhsh, Qadir Bakhsh and Hazoor Bakhsh all armed with hatchets emerged out Jantar crop and raised lalkara that they would take the revenge of Gulab. Allah Bakhsh accused gave a hatchet blow to Mehar Bakhsh deceased which landed on the left side of his head. Then Qadir Bakhsh accused gave a hatchet blow to Mehar Bakhsh which hit him on his left shoulder. Mehar Bakhsh deceased then fell down and we also reached at a distance of about 10 Karams, Hazoor Bakhsh accused also gave a hatchet blow to Mehar Bakhsh deceased on his right arm in lying condition. We asked the accused persons that they should not murder Mehar Bakhsh deceased but the accused persons threatened us with dire consequences. All the accused also gave caused more injuries to Mehar Bakhsh deceased while he was lying. "
Besides, the above said to witnesses also acted as attesting witnesses of recoveries made at the Plantation of the petitioners and blood-stained earth recovered from the Vardat by witness Rafique Ahmad, A.S.I. Police.
7. On evidence of:
(i) Motive (P.W.6 Sher Muhammad);
(ii) Medical (P.W.2 Dr. Wahid Bakhsh); (i.e) Ocular (P.W.6 Sher Muhammad and P.W.7 Ghous Bakhsh); and
(iv) Recoveries (P.W.6 Sher Muhammad, P.W.7 Ghous Bakhsh and P.W.8 Rafique Ahmad), - The learned Additional Sessions Judge, Rajanpur, on 23-1-1989 convicted the petitioners for offence under section 302/34, P.P.C. And awarded them sentence of death and to pay fine of Rs.10,000 and in default to suffer R.I. For one year.
8. On the petitioners; appeal and the reference of the trial Court the High Court of Lahore, Multan Bench, on 20-2-1993 dismissed their appeal, confirmed death sentence of Allah Bakhsh and altered death sentences of Qadir Bakhsh and Hazoor Bakhsh to life imprisonment with benefit of section 382-B, Cr.P.C. On the ground that fatal injury which caused death of deceased was inflicted by Allah Bakhsh only.
9. Three petitioners through Superintendent Jail have filed petitions before this Court for grant of leave against their conviction and sentences.
10. Sh. Khizar Hayat, Advocate Supreme Court, for the petitioners, contended:- .
(i) The place of incident is doubtful.
(ii) It was unwitnessed murder. After preliminary investigation the eye-- witnesses were introduced.
(i.e) The presence of P.Ws. Sher Muhammad and Ghous Bakhsh at the spot is doubtful. Both of them are chance witnesses. Besides Sher Muhammad is interested witness whereas Ghous Bakhsh is a stock witness. Their evidence requires independent strong corroboration which lacks as the recoveries have been disbelieved by the High Court. Motive and medical evidence are not sufficient corroboration to maintain sentences of death and imprisonment for life.
(iv) Medical evidence belies the ocular version.
(v) Qadir Bakhsh had also given fatal injury on the person of deceased he has been awarded life imprisonment, consistency requires that death sentence of petitioner Allah Bakhsh should have also been altered to imprisonment for life.
Reliance was placed on the case reported in 1992 SCM R 196.
11. The learned counsel for the petitioners while supporting his first contention submitted that according to statement of the complainant the petitioners had emerged out of Jantar crop. P.W.5 Ahmad Khan, Patwari, who inspected the site on 21-11-1985 has stated that land around the site was vacant. In such situation the learned counsel urged that murder of deceased had neither taken at the place nor eye-witnesses were present there. In either way, its benefit has to be extended in favour of the petitioners. The contention has no force. Firstly, the Patwari was produced to prove the sketch; he had prepared. He was not called to bring Khasra Girdawari with himself. He has done it on his own accord. It seems he has intentionally brought the record to give concessions in favour of the petitioners. Blood-stained earth was picked from the place of incident. The same has been certified by the Chemical Examiner to contain human blood. Besides, ocular evidence of Sher Muhammad and Ghous Bakhsh, witness Rafique Ahmad, Investigating Officer, has deposed that he found the dead body lying there, he picked blood-stained earth, prepared inquest and injury reports of the deceased and handed over the dead body of deceased to Constable, Noor Muhammad, P.W.9. He has confirmed his statement. There can be no other place than the one set up by prosecution where the deceased met his unnatural death.
12. It may be observed that undisputedly witness Sher Muhammad lived at Qasimpur which is at a distance of 22/23 miles from the Vardat. According to the prosecution complaint was made at the outpost at 4-30 p.m. And F.I.R. Was recorded at 6.30 p.m. The learned counsel for the petitioners contended that there is manipulation in the the of death of deceased. In column No.3 of the inquest report the 1.0. Has shown that deceased met his death at 6.00 p.m. While relying the above said entry the learned counsel emphasised that the 1.0. Had manipulated the entries against the petitioners in collusion with complainant party. It may not be out of place to mention that Rafique Ahmad, 1.0. Has explained that by the above said entry he meant that he reached at the spot at 6.00 p.m. It may be noted that when F.I.R. Was recorded at 6-30 p.m. How it can be imagined that the deceased met his death at 6.30 p.m. Particularly when distance between police station and the Vardat is about 27 k.Ms. The explanation advanced by the 1.0. Is indeed plausible. Even otherwise no benefit can be gained by the petitioners from such entry. If the entry would have been earlier than 4.30 p.m. Certainly benefit could have been gained by the petitioners. Turning to the second ground of the petitioners' counsel it maybe observed that when the complainant had his residence at about 22/23 k.Ms. From the Vardat, if he would have not been with the deceased how the police could have arrived within short period of about to hours. The prompt recording of complaint negates possibility of manipulation by police or the complainant. The to Courts have accepted presence of the- complainant at the the of incident with deceased. Regarding Ghous Bakhsh, learned counsel submitted that he had no land there. According to him Patwari did not show any place where he had his land. Ghous Bakhsh has explained that he was only tenant on the land and was not owner of the land. He was present at the spot when police came there. His statement was recorded by the 1.0. Even he attested Memos. In such situation his presence has been established by prosecution. He is independent witness. He has no animosity with the petitioners. Learned counsel urged that he was stock witness thus his evidence is interested. We are not impressed by his such contention. He has no motive to falsely implicate the petitioners. Even otherwise evidence of the complainant is also confidence-inspiring. No metarial was brought on the record to discard it. No defect is shown for its throwing away. Besides he had no reason to falsely implicate the petitioners. Evidence of these witnesses is severally and collectively sufficient to connect the petitioners with the murder of the deceased. Through mouth of the complainant, the motive is also proved.
Now it was the turn of the petitioners to avenge injuries of Gulab.
13. Reverting to inconsistency between the ocular version and medical evidence, the learned counsel tried to convince us that the deceased might have received the injury while he was lying on the earth. He pointed out that the injury on the head of the deceased was oblique. It seems that the learned counsel has motivated this contention on mere presumptions and conjectures. We do not find any substance in the contention and same is repelled.
14. Lastly the learned counsel submitted that on same evidence to petitioners, have been awarded imprisonment for life and petitioner Allah Bakhsh was condemned to death penalty. The learned' counsel particularly pointed out that death of the deceased was caused by injury said to have been inflicted by Qadir Bakhsh and Allah Bakhsh. Qadir Bakhsh has been awarded imprisonment for life. There is substance in contention of the learned counsel so far this last argument is concerned. We would like to scrutinize the prosecution evidence whether fatal injury is attributed to Allah Bakhsh alone or against Qadir Bakhsh to and death penalty of petitioner Allah Bakhsh be also converted to imprisonment for life. On point of sentence of petitioner Allah Bakhsh, leave is granted.
We do not see or note any fault with the concurrent findings of the facts against the petitioners Qadir Bakhsh and Hazoor Bakhsh. Accordingly leave to appeal in Criminal Petition No. 17 of 1995 is refused and the petition is dismissed. Leave to appeal in Criminal Petition No. 16 of 1995 is only granted.