RAO NAEEM HASHIM KHAN, J.---Muhammad Shafi (27), Manzoor (17), Arif (18) and Nawab (22) were sent up for trial by Police Station Tulamba, District Khanewal, for offences under sections 302/307/ 326/325/34, P.P.C. Learned Sessions Judge, Khanewal vide judgment, dated 26-5-1991 convicted and sentenced Muhammad Shafi to death and life imprisonment to the remaining three accused persons namely, Manzoor, Nawab and Arif and also sentenced each of four accused to pay fine of Rs.5,000 each or in default of payment of fine to further undergo R.I. For a period of 6 months under section 302/34, P.P.C. All the four accused persons were also convicted to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.1,000 or in default of its payment to further undergo for a period of one month under section 307/34, P.P.C. For making murderous assault on Allah Bakhsh injured P.W. The amount of fine under section 302/34, P.P.C., if recovered would be paid to the heirs of Muhammad Bakhsh deceased as compensation under section 544-A, Cr.P.C. The amount of fine under section 307/34, P.P.C., if recovered would be paid to heirs of Muhammad Bakhsh deceased as compensation. All the convicts except Nawab have appealed, while State has sought confirmation of death sentence to Muhammad Shafi through Murder Reference No. 297 of 1991 which will be disposed of by this judgment.
2. The prosecution story in brief as narrated by Hamayon complainant P.W.9 is that he was a permanent resident of Mauza Jam Dangra and was employed in Chak No. 44/15.L with Peer Shujaat Hussain Qureshi. On the previous day before the occurrence (i.e. On 25-2-1989) he had arrived in Mauza Jam Dangra to see his brothers. On 26-2-1989 at 11-00 a.m. The bund of Ravi river was being repaired. He (complainant) was present there alongwith his brothers namely, Muhammad Bakhsh (deceased of this case) and Allah Bakhsh P.W.10. His nephew Makhan P.W. (not produced) son of Allah Bakhsh was cutting the grass from the wheat crop field of Allah Ditta Dangra. In the meanwhile, Muhammad Shafi accused armed with hatchet, Manzoor accused armed with Sota (both sons of Gahna and resident of Jan Dangra), Nawab accused armed with hatchet and Arif accused armed with Sota (both sons of Ghulam and residents of Chak No.761/G.B., P.S. Arotti, District Toba Tek Singh) arrived. They caught hold of his nephew Makhan and told him that his paternal uncle Muhammad Bakhsh had belaboured Manzoor accused on the previous day and that he would be taught a lesson of the said insult Muhammad Shafi accused gave a hatchet blow which fell on the right thumb of his nephew Makhan who raised the alarm. His brothers Muhammad Bakhsh (deceased) and Allah Bakhsh P.W.10 ran towards Makhan P.W. Muhammad Shafi accused gave a hatchet blow which fell on the right side of the head of Muhammad Bakhsh (deceased).
The Sota blow given by Arif accused fell on the left cheek of Muhammad Bakhsh. Sota blow given by Manzoor accused hit the right side of the head of Muhammad Bakhsh. Nawab accused gave hatchet blow which hit the shoulder of Muhammad Bakhsh deceased. Muhammad Bakhsh fell down. Arif accused gave a Sota blow on the left leg of Muhammad Bakhsh Manzoor accused gave a Sota blow on the back of Muhammad Bakhsh Muhammad Shafi accused gave the blow with the blunt side of the hatchet which fell on the right side of the head of Allah Bakhsh P.W.10 Manzoor accused gave a Sota blow on the head of allah Bakhsh Arif accused gave a Sota blow on the back of head of Allah Bakhsh P.W.10. Arif accused gave a sota blow on the back of head of Allah Bakhsh P.W.10. Thereafter Allah Bakhsh P.W.10 fell on the ground. Arif and Manzoor accused gave the Sota blows on the back of Allah Bakhsh P.W.10. Muhammad Shafi accused gave a blow with the blunt side of the hatchet on the upper part of leg of Allah Bakhsh P.W.10 Nawab accused gave a blow with blunt side of the batchet which fell on the left leg of Allah Bakhsh P. W.
10. Arif accused gave a Sota blow on the right leg of Allah Bakhsh P.W.10. Nawab accused gave a hatchet blow which fell on the right arm of Allah Bakhsh P.W. He (complainant P.W.9) Nusrat Khan P.W.11, Muhammad Bakhsh (not produced) son of Azam and many other persons of Mauza Jam Dangra intervened and rescued the injured who also saw the occurrence. All the accused made their escape good alongwith their respective weapons. He (complainant P.W.9) had brought Muhammad Bakhsh, Allah Bakhsh and Makhan in injured condition to Civil Hospital, Tulamba from where Muhammad Bakhsh had been removed to Nishtar Hospital, Multan, in view of his serious condition.
3. On 26-2-1989 before sending the letter Exh.P.B. To the S.H.O., P.S. Tulamba Dr. War ul Haq, Senior Medical Officer, Civil Hospital, Tulamba District Khanewal P.W.3 medically examined Muhammad Bakhsh son of Shameer, Allah Bakhsh son of Shameer, Makhan son of Allah Bakhsh. On the same day Iftikhar Ahmad, ASI P.W.12 enquired from Dr. Zafar ul Haq, P.W.3 through application Exh. P.F.
Whether Muhammad Bakhsh was fit to make his statement who gave his report Exh. P.F./1 that Muhammad Bakhsh was not fit to give his statement. On 28-2-1989 Iftikhar Ahmad, ASI P.W.12 inquired from Dr. Zafar ul Haq, P.W.3 through application Exh.P.G. And application Exh.P.H. Whether Allah Bakhsh injured, P.W.10 and Makhan injured P.W. (not produced respectively were fit to make statement and Dr. War ul Haq, P.W.3 issued the respective reports Exh.P.G/1 and Exh.P.H./1 to the effect that both the injured P.Ws were fit to make their statements. Allah Bakhsh P.W. 10 was discharged from Civil Hospital Tulamba on 26-4-1989 while Makhan injured P. W. (not produced) was discharged on 2-3-1989.
4. The occurrence took place on 26-2-1989 at 11-00 a.m. On the bank of river in the area of Mauza Jam Dangra, four miles from police station Tulamba District Khanewal. On receipt of information about the occurrence from the Medical Officer, Talumba. Iftikhar Ahmad, ASI P.W.12, went to the Hospital and recorded the statements of Hamayon complainant, on the basis of which Muhammad Yameen, Moharrir, A.S.-I. P.W.5 prepared formal F.I.R. Exh.PJ/1.
5. Iftikhar Ahmad, A.S. -I. P.W.12 after recording statement of Hamayon P.W.9 Exh. PJ went to the place of occurrence and prepared rough site plan Exh.PY of the place of occurrence. On 26-2-1989 he took into possession blood--stained earth vide memo Exh.PR from the place where Muhammad Bakhsh was injured and sealed the same into a parcel. The memo Exh.PR was attested by Nusrat Khan P.W.11 and Muhammad Bakhsh son of Azam (not produced). He recorded the statements of P.Ws. Muhammad Bakhsh deceased while in injured condition was transferred to Nishtar Hospital, Multan who died on 2-3-1989. Iftikhar Ahmad, ASI reached Nishtar Hospital, Multan and took into possession dead body of Muhammad Bakhsh. He prepared injury statement Exh.PM and inquest report Exh.PN. Under the escort of Manzoor Hussain constable No.356, P.W. (not produced) having gone mad in view of reports Exh.PW2/2, Exh.PW2/3 and Ex.PW.2/4 on summons Exh.PW2/1 handed over to Hassan Muhammad constable P.W.2. The dead body was sent for autopsy. The post- mortem examination on the dead body was conducted. Hamayon complainant P.W.9 produced shirt P.1, Dhoti P.2 and turban P. 3, all stained with blood worn by Allah Bakhsh P.W. 10, which he had brought from Civil Hospital Tulamba before Iftikhar Ahmad A.S.I. P.W. 12, who took the same into possession vide memo Exh.PO, thumb marked by Hamayon P.W.
9. Hamayon P.W. 9 had also brought the last worn clothes by Muhammad Bakhsh deceased from Nishtar Hospital Multan. Shirt P. 4, Bunyan P. 5, KT Chaddar P. 6 and Saafa P. 7 all stained with blood which were taken into possession by Iftikhar Ahmad A.S.I. P.W. 10 vide memo Exh. P.Q. On 3-3-1989. Nusrat Khan P.W.9 also signed both aforesaid memos Exh. P.O. And P.Q. A sealed parcel containing blood-stained earth was handed over by Iftikhar Ahmad P.W. 12 to Muhammad Yameen, Moharrir A.S.I. P.W. 5 on the same day. After the post-mortem examination Manzoor Hussain Constable No.356 P.W. (not produced being gone mad) produced Dhoti P 8 before Iftikhar Ahmad A.S.I. P.W. 12 which was taken into possession vide memo Exh. P.S. Attested by Nusrat Khan P.W. 11 and Muhammad Bakhsh P.W.
Iftikhar Ahmad A.S.I P.W. 12 arrested all the four accused, Muhammad Shafi, Manzoor, Nawab, and Arif. On 6-3-1989 he obtained physical remand of each of the accused on 7-3-1989. All the accused persons led to the recovery of respective weapons on 11-3-1989 from the house of Shafi and Manzoor accused. While in police custody Muhammad Shafi accused led to the recovery of blood-stained hatchet P. 9 from the residential Kotha of his house situated in Mauza Jam Dangra which was taken into possession and made into a sealed parcel vide memo Exh. P.T. The site plan of this place of recovery was prepared vide Exh. P.T. 1.. While in police custody Nawab accused led to the recovery of blood-stained hatchet P. 10 from the residential Kotha of Manzoor accused which was taken into possession and made it into a sealed parcel vide memo Exh. P.U. And site plan of this place of recovery was also prepared vide Exh. P.U.
1. While in police custody accused Arif led to the recovery of sota P. 11 from the cattle-shed of Gahna (father of Manzoor accused) which was taken into possession vide memo Exh. P.V. And site plan Exh. P.V. 1 of this place of recovery was prepared. While in police custody Manzoor accused led to the recovery of Sota P.12 from the cattle shed of his house which was taken into possession vide memo Exh P.X. And site plan P.X./1 of this place of recovery was prepared. The said memos of the recovery Exh. P.J., Exh. P.U., Exh. P.V. And Exh.
P.X. All attested by Nusrat Khan P. W. 11 and Allah Bakhsh P. W. (Not produced). Iftikhar Ahmad A. S. I.
Also prepared a joint site plan Exh. P.Z. Of place of recovery of weapons of offence P. 9 to P.
12. He handed over the sealed parcels each containing hatchet as well as P. 11 and P. 12 (each containing sota) to Muhammad Yameen Moharrir A.S.I. On the same day i.e. 11-3-1989. Iftikhar Ahmad A.S.I.
P.W.12 got prepared site plans Exh. P.K., P.K./l, P.K./2 from Ghulam Shabbir Patwari P.W.6. The ocular account was furnished by Hamayon P.W. 9, Allah Bakhsh P.W. 10 and Nusrat Khan P.W.
11. Iftikhar Ahmad A.S.-I. P.W. 12 had investigated the case. Dr. Riaz-ud-Din, Senior Medical Officer, Civil Hospital. Multan (since expired) has conducted the post-mortem examination on the dead body of Muhammad Bakhsh.
5-A. At the conclusion of the prosecution evidence the appellants and Nawab accused were examined without oath. They refuted the prosecution allegations and pleaded innocence. However, they neither appeared in their defence on oath nor produced any defence evidence.
6, It is submitted by the learned counsel for the appellants that motive is not proved and it is shrouded in mystery; that the occurrence took place on the spur of the moment, there is no preplanning or pre-meditation; that appellants are attributed single blow each and there is no repetition; that this is not a case of capital punishment and has requested for lenient view in favour of the appellants. The contentions raised are opposed by the learned State counsel.
7. We have heard the learned counsel for the parties at length and gone through the file. The prosecution in order to establish its case has mainly relied upon ocular account furnished by Hamayon P.W. 9 and Allah Bakhsh P.W. 10 and Nusrat Khan P.W.
11. All of them had given a detailed account of the occurrence, ascribing specific role to each of the appellant. Hamayon P.W. 9 and Nusrat P. W. 11, each of them stated that appellants and Nawab accused inflicted injuries to Muhammad Bakhsh deceased in their presence. Allah Bakhsh P.W. 10 was injured in this occurrence and his presence cannot be denied. They were put to the test of lengthy cross-examination but nothing could be brought on the record to suggest that they were not present at the spot and had not witnessed the occurrence. A convincing explanation with regard to their presence was given by each of them. The manner in which the evidence was given by them inspires confidence. There is no cogent reason for not believing them. Therefore, it is held that the witnesses were present at the spot and can safely be relied upon. The prosecution has proved its case beyond any shadow of doubt against the appellants as well as against Nawab. They are guilty of offence under sections, 302/34, 307/34 P.P.C. We are left with no alternative except to dismiss both the appeals. As motive is shrouded in mystery therefore, by taking lenient view death sentence to Muhammad Shafi is altered to life imprisonment. The death sentence is not confirmed. Benefit of section, 382-B Cr.P.C. Is also given to the appellants as well as to Nawab accused who has not appealed against his conviction. All sentences shall run concurrently.