RAJA AFRASIAB KHAN, J.---During the night between 13th and 14th of September, 1990 at 4.00 a.m., a case under section 302/307/148/149, P.P.C. Was registered on the statement of Amir with police Station Bhalwal, District Sargodha against Ahmad, Muhammad Aslam, Muhammad Azam, Muhammad Akbar, Sher Muhammad, Shamsher, Muhammad Amir, Muhammad Anwar, Muhammad. Hussain, Mahmood alias Monda, Khizar Hayat, Dost Muhammad, Muhammad Yar, Maula Bakhsh and Zafar Iqbal for the murder of Mst. Shahzad Bibi and her son Ahmad Yar and making murderous assault on Muhammad Nazir, her mother son. On the fateful night, Amir P.W.
And his wife Mst. Shahzad Bibi were sleeping on the roof of southern Kotha of their Dera. Their sons Muhammad Nazir and Ahmad Yar were sleeping on the roof of nothern Kotha of the dera. His third son, Gulzar was sleeping near the cattle-shed. At about 2-30 a.m. Amir went to have a look at their cattle Thereafter he went to the roof of the cattleshed where he started smoking Huqqa. At about 3.00 a.m., when there was moon light, all of a sudden, he saw some persons climbing to the roof of their kotha through a ladder. Ahmad and Muhammad Aslam had kalashnikovs. Muhammad Azam, Muhammad Akbar, Sher Muhammad. Muhammad Amir, Muhammad Anwar, Muhammad Hussain, and Mahmood alias Monda were holding rifles. Shamsher was armed with gun. There were five other unknown accused who were armed with Rifles. They fired and committed the murder of Mst.
Shahzad Bibi and Ahmad Yar. They made a murderous assault on Muhammad Nazir P.W. The complainant also fired at the accused. Motive for the commission of the crime was that about 10 years prior to the occurrence, Amir and his son committed the murder of Muhammad Afzal and Mattak. In order to take revenge of the said murder, the accused while armed committed the aforesaid offences. Ahmad, Muhammad Azam, Muhammad Amir, Maula Bakhsh, Shamsher, Mahmood alias Monda, Muhammad Hussain, Muhammad Yar and Sher were found innocent. They were placed in column No,2 of the challan. Zafar Iqbal, absconder was also placed in column No,2.
On 17th of July, 1991, he was arrested and challaned alongwith his co-accused on the basis of supplementary challan. The prosecution produced Dr. Akhtar Mahmood P.W.1, Javed Hanif P.W.2, Shah Nawaz P.W.3, Ghulam Ahmad Shah P.W.4, Muhammad Hayat P.W.5, Muhammad Nazir P.W.6, Amir Hussain P.W.7, Muhammad Amir P.W.8, Mumtaz P.W.9, Muhammad Razzaq P.W. 10, Amir P.W.11, Muhammad Nazir P.W. 12, Amjad Hussain P.W.13, and Zia ullah Khan P.W. 14 to prove its case. Amjad Hussain appeared as Court witness. The accused made statements under section 342, Cr.P.C.
Denying the allegations levelled against them. Their plea was that they had been implicated in this case on account of enmity. Learned Special Court No,2, Suppression of Terrorist Activities, Sargodha vide its judgment, dated 22nd of October, 1991 convicted Ahmad, Muhammad Aslam, Muhammad Azam, Muhammad Akbar, Sher Muhammad, Shamsher, Muhammad Amir, Muhammad Anwar, Muhammad Hussain and Mahmood alias Monda, under section 302/ 307/148/149, P.P.C. On two counts. Ahmad, Muhammad Aslam, Muhammad Azam, Muhammad Akbar, Sher Muhammad Amir, Muhammad Anwar, Muhammad Hussain and Mahmood alias Monda were sentenced to 1 year R.I.
Each and fine of Rs,1,000 each under section 148, P.P.C., in default, they were ordered to suffer two months R.I. Each. They were sentenced to 5 years R.I. Each and fine of Rs,10,000 each under section 307/149, P.P.C. In default of payment of fine, each of them shall suffer 1 year R.I. Muhammad Aslam, Sher Muhammad, Ahmad, Muhammad Azam and Muhammad Akbar were sentenced to death plus fine of Rs,50,000 each under section 302/149 P.P.C., for the murder of Mst. Shahzad Bibi, Shamsher, Amir, Muhammad Anwar, Muhammad Hussain and Mahmood alias Monda were sentenced to imprisonment for life each and fine of Rs,50,000 each under section 302/149 for the murder of Mst. Shahzad Bibi. In default of payment of fine the aforementioned 10 accused would suffered 2 yearsR.I. Each. Ahmad, Muhammad Aslam, Muhammad Azam, Muhammad Akbar and Sher Muhammad were sentenced to death and fine of Rs,50,000 each under section 302/149, P.P.C.
For the murder of Ahmad Yar, or in default to suffer 2 yearsR.I. Each. Shamsher, Muhammad Amir, Muhammad Anwar, Muhammad Hussain and Mahmood alias Monda were sentenced to imprisonment for life and fine of Rs,50,000 each under section 302/149, P.P.C. For the murder of Ahmad Yar, or in default thereof to suffer 2 years R.I. Khizer Hayat, Dost Muhammad alias Dosa, Zafar Iqbal, Muhammad Yar and Maula Bakhsh were acquitted as benefit of doubt was given to them. It was ordered that fine of Rs,2,00,000 would be equally distributed amongst the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. A. Sum of Rs,10,000 was ordered to be paid to Muhammad Nazir P.W. As compensation. Benefit of section 382-B, Cr.P.C. Was extended to them. On appeal and reference, the High Court vide its judgment dated 8th of May, 1993, acquitted Muhammad Amir, Muhammad Anwar, Muhammad Hussain and Mahmood by giving them the benefit of doubt. The appeal of Ahmad, Muhammad Aslam, Muhammad Azam, Muhammad Akbar, Sher Muhammad, and Shamsher was dismissed. On 27-3-1994, leave to appeal was granted by this Court by observing:-- "It was a night occurrence having taken place at 2.30 a.m. The eyewitnesses claim to have witnessed it from a distance of 92 feet. After hearing the learned counsel for the parties we grant leave in both the petitions to consider whether the principles, governing appraisal of evidence as laid down by this Court, were correctly followed by the Courts below.
Bailable warrants in the sum of Rs,25.000 with two sureties in the like amount to the satisfaction of A.C. Sargodha be issued against the respondents in Criminal Petition No,63 of 1993."
2. Learned counsel for the appellants submitted that at the night of occurrence, the complainant, Amir was standing at a distance of 92 feet and as such, he could not see the assailants. The night was also dark inasmuch as it was 24th of the lunar month. Learned counsel states that injuries on the person of Nazir P.W. Are such which have incapacitated him to talk with the complainant at the time of occurrence as has been claimed by the prosecution. According to the learned counsel, the accused had enmity with Amir P.W. And that being so, there was no occasion for them to commit the murder of Mst. Shahzad Bibi by giving her such a large number of injuries. The motive to commit the offences was based upon the murders of Afzal and Manak which had taken place 10 years ago. It was not strong enough to hold that the accused were rightly held guilty of murder charge. He has explained that during the last 10 years no untoward incident took place between the accused and the complainant. He argues that there may be some other motive for some unknown accused to commit the murder of Mst. Shahzad Bibi. There are also other enemies of the complainant party in the village. He has informed us that there are serious differences between Amir P.W. And his sons over their domestic matters. Medical evidence is not in line with the ocular account because semi-digested food was found in the stomach of Mst. Shehzad Bibi. Learned counsel has relied upon Noora v. Gulzar (PLD 1958 (W.P.) Lahore 395), Ibrahim v. The State (1968 PCr.LJ 1784), Ibrahim v. The State (1969 SCMR 773), Khalil Ahmad v. The State (1976 SCMR 161), Shahzado v. The State (PLD 1977 SC 413), Allah Rakhio v. The State (1977 SCMR 347), Amanullah v. The State (PLD 1978 Karachi 792), Jalal v. Nazir Ahmad (1980 SCMR 320), Ali Sher v. The State (PLD 1980 SC 317), Ghulam Hussain v. The State (1984 PCr.LJ 1807), Fozail Merchant v. The State (PLD 1994 SC 842) and Muhammad Arshad v. The State (PLD 1995 SC 475).
3. Sh. Zamir Hussain, learned counsel for the complainant party, has argued that the accused and the complainant parties are the residents of the same village. They, therefore, know each other very well. He stated that there was sufficient light available to enable the P.Ws. To recognize the assailants. He states that Nazir P.W. Is an injured witness and he has supported the prosecution case by giving full detail of the prosecution story. The learned counsel continues to submit that at such an odd time of the night, presence of Amir P.W. At his residence cannot be doubted. The witnesses are natural and trustworthy. There are no earthly reasons for the said witnesses to falsely implicate the appellants in this case of double murder.
4. The State counsel submitted that in the background, the accused had come to commit the murder of Amir P.W. And as such, they might have taken Mst. Shahzad Bibi as Amir.
5. We have heard the learned counsel for the parties at considerable length and have read the evidence available on record with their assistance. We do not find any substance in the arguments of the learned counsel for the appellants. The presence of Amir and Nazir P.Ws. In their house at the dead of night cannot be doubted. Nazir P.W. As stated above, was injured. His evidence is, therefore, of considerable importance. He stated that he identified the accused because they had come very close to his cot. He got up and sat on his cot at the arrival of the accused. Aslam accused stood near the cot of Ahmad Yar deceased. Shera was found standing near the cost of Muhammad Nazir P.W:, Akbar, Azam and Ahmad were present near the cot of Mst. Shahzad Bibi. Amir P.W. Raised an alarm whereupon Aslam fired at Ahmad Yar. Sher accused fired at Muhammad Nazir while Ahmad, Azam and Akbar fired at Mst. Shahzad Bibi. The witness stated that his left arm and chin were injured. The evidence of Muhammad Nazir P.W. Has been supported by Amir P.W. The medical evidence corroborates the ocular account given by Muhammad Nazir and Amir P.Ws. In our view, testimony of Nazir and Amir P.Ws. Is sufficient to convict the accused. The contention that the accused cannot be identified in the dark night, is devoid of force. Muhammad Nazir P.W. Clarified in his evidence that they saw and recognized the accused because they had come quite close to him and his mother. The accused are the residents of the same village and as such, there can be no difficulty for the P.Ws. To identify the accused at the time of occurrence. There was also some light available as unanimously stated by the P.Ws. Likewise, there is no substance in the argument of the learned counsel that in view of the medical evidence that some undigested food has been found in the stomach of Mst. Shahzad Bibi, it shall falsify the statement of Amir P.W. According to the learned counsel, the occurrence had taken place between 10,00/11.00 p.m. And not at the time as claimed by the prosecution. This argument is also without force as the digestion of food shall depend upon the nature of the diet which has been eaten by the deceased. Testimony of the doctor that he has found some semi-digested food in the stomach of the deceased shall not contradict the time of death having been given in the F.I.R. It is mere opinion of the doctor which cannot damage the prosecution version. We have not been persuaded to disbelieve the witnesses on the ground alone.
Reference may be made to the case of Ghulam Hussain, (supra) wherein the following observation has been made:-- "Now we proceed to deal with the contentions raised by Raja Muhammad Anwar, Advocate, for the appellants. We do not think that there is any conflict between the medical evidence and the ocular account of witnesses. The mere fact that the doctor in his examination-in-chief has stated that the stomach contained semi-digested food would not ipso facto mean that the time of the occurrence given by the first informant was not correct. It is mere opinion of the doctor. It does not lead us to disbelieve the eye-witnesses who have deposed on oath. Similarly, we do not agree that the witnesses were not present at the spot. Their evidence inspires confidence and the same cannot be ruled out."
It may he seen that time which may be required for digestion of food may vary in certain circumstances. (See Ibrahim's case, supra). In this behalf, it is useful to refer to Tailor's Principles and Practice of Medical Jurisprudence, Volume-I, page 239 which reads as follows:-- "The state of digestion of the contents of the stomach is often used as a means of fixing the hour of death. Most elaborate tables have been prepared of the time taken by the stomach to digest certain articles of diet, of which the following maybe taken as an example:- Article Time for digestion Hours: Minutes Rice 1 0 Apples, cooked1 30 Venison 1 30 Sago 1 45 Bread 2 0 Milk 2 0 Cabbage 2 0 Oysters, raw 2 3 Eggs, raw 2 3 Potatos, roast 2 30 Parsnips, cooked2 30 Turkey 2 30 Goose 2 30 Custard.
Baked2 45 Mutton 3 0 Eggs, soft boiled3 0 Beef 3 0 Carrots, boild 3 15 Potatos 3 30 Turnips 3 30 Butter and cheese3 30 Oysters.
Stewed3 30 Eggs. Hard boiled3 30 Pork. Boild 3 30 Fowls 4 0 Wild fowl 4 30 Beef, salt 5 30 Porik, roast 5 30 Veal, 5 30 The table must not be taken as of mathematical certainty, but represents fair averages. The rate of digestion varies in different persons and according to the state of the gastric mucosa. Digestion takes longer in cases of coma and insensibility. Death does not at once cause the process of digestion to cease. The stomach can even digest itself after death. Therefore, evidence from this source must be treated with great reserve."
There was no evidence having been brought on record to show the nature of food which was taken by the deceased before they were done to death. The above opinion of the expert about time within which the food having been eaten by the deceased shall be digested, must be based on some evidence which is missing in this case. From the above candid opinion of the expert, it cannot be said that the assessm ent of the doctor about the time within which the food taken by the deceased is to be digested is tentative, in nature and is not final like mathematical certainty. The time of occurrence as mentioned in the F.I.R. Was, therefore, rightly stated by the complainant.
6. It is in the evidence that Nazir P.W. Got up at the arrival of the accused near his cot. He was in a position to easily see the accused. His claim to have seen the accused from a close distance appeared to be true. The argument that he was critically wounded and as such, could not identify the accused, would stand nullified in view of evidence that he had already seen the accused before they has fired. The prosecution evidence is confidence inspiring. The occurrence has taken place inside the house of the complainant. The P.Ws. Already knew the accused and as such they had no difficulty in seeing and recognising them. There was a very strong motive for the accused to commit the murder because earlier Afzal and Manak belonging to the accused party, were done to death by the complainant party. This is in the evidence that Gulzar P.W. Had come out of Jail two years prior to the presence occurrence. We believe that the accused had motive to commit the offences to take revenge of the earlier murder of Afzal and Manak. The parties had a deep-rooted enmity which would not evaporate by lapse of time. It was not the case of the appellants that they had entered into a compromise with the complainant to end the blood feud. It was very much fresh and alive. They were awaiting for appropriate time to finish the complainant party to settle their score with them. Medical evidence has been found to be in line with the ocular account. The number of injuries on the person of Mst. Shahzad Bibi and Muhammad Nazir P.Ws. Do commensurate with the number of the accused. The F.I.R. Was promptly lodged which fact would eliminate the possibility that the appellants had falsely been implicated in the case. The prompt judgment of the F.I.R shall also corroborate the prosecution story. There is, thus, overwhelming trustworthy and reliable evidence available on record against the appellants to justify their conviction. There are no mitigating circumstances having been found by us for awarding lesser punishment to the appellants. They acted cruelly and ruthlessly and as such, are not entitled to claim any leniency. The Courts are bound to administer justice firmly and boldly by according to the evidence and law in the matters relating to acquittal or conviction of the accused. The accused have rightly been convicted and suitably sentenced to meet the end of justice. There is no substance in this appeal which is hereby dismissed.