' SH. ABDUR RAZZAQ, J.---Mr. Fazal Hussain complainant (P.W. 12) has been employed as driver with Pakistan Oil Limited Company Khor. On 6-5-1995, he had gone to the town for bringing Ghulam Muhammad, Muhammad Feroze and Muhammad Ayub drivers of the said Company. While he was returning with the said drivers and had reached in front of Baithak of Haji Muhammad Ishaque at 5.45 a.m., he saw the accused Iftikhar Ahmad armed with hatchet, going towards the town from the Company side whereas Fazal Khan deceased was seen coming from the opposite direction.
Seeing Fazal Khan coming, the accused Iftikhar Ahmad ran towards him (Fazal Khan) and inflicted a hatchet blow on his head. Fazal Khan fell down and was give yet another blow by the accused which landed on the right side of his head. Fazal Khan was then removed to Civil Hospital, Pindigheby who on the way succumbed to the injuries The accused also caused injuries to Muhammad Nawaz who was also found on the spot and was going in search of labour The accused then ran towards a hill and me Fateh Muhammad near old Ice Factory and caused hatchet blow on his head. As a result of which he fell down and died on the spot He further stated that accused caused injuries to his own father Muhammad Miskeen maternal, uncle Mirza Khan, Sher Khan Ahmad Khan as well as to Muhammad Nawaz. He (accused) then proceeded toward Kassi and met one Sher Muhammad. He caused injuries to him and finally disappeared in the Kassi.
The occurrence is said to hay been witnessed by Imtiaz Hussain, Mali Amir Muhammad Khan as well as person accompanying the complainant in his vehicle The motive behind this occurrence was the about two months ago father of Iftikhar Ahmad had sold his newly-constructed Have with the connivance of his (accused) brother As a result of this, his wife became annoy with him (accused) and left for her parent' house. The accused felt annoyed over this a of his father and caused him injuries as well as to his maternal uncles and committed the intentional murder of Fateh Muhammad an Fazal Khan. Leaving the dead bodies of F. Khan and Fateh Muhammad as well as all the injured, complainant made for the police station for lodging report. Riaz Ahmad, S.I (P.W.17) met him near High School Chow and recorded complaint Exh.P.W.4/A on his statement.
2. After recording complete Exh.P.W.4/A Riaz Hussain, S.I. (P.W.17) sent the same to the police station through Noor Muhammad, Constable for formal registration of F.I.R. He then made for Civil Hospital, Pindigheb and prepared statement of injuries of Muhammad Nawaz, Mirza Khan, Muhammad Maskeen, Sher Khan, Mian Ahmad and Sher Muhammad Exh.P/A, Exh.P/B, Exh.P/C, Exh.P/D, Exh.P/E, Exh.P/F respectively. He then got all of them medically examined from the Medical Officer. Dead bodies of Fateh Muhammad and Fazal Khan were lying overthere. He moved an application for post-mortem examination of deceased Fateh Muhammad Exh.P/G and inquest report Exh.P/H. He also moved an application for post-mortem examination of Fazal Khan Exh.P/J, inquest report Exh.P/K and handed over the dead bodies to Muhammad Altaf Constable for post-mortem examination. He then made for the place of occurrence and secured bloodstained earth from the place of occurrence, of Fazal Khan, Muhammad Nawaz and Fateh Muhammad and made their sealed parcel vide memo. Exh.P.W.10/A, Exh.P.W.11/A and Exh.F.W.14/1 respectively. He prepared rough site plan of the place of occurrence Exh.P/S. Muhammad Altaf Constable produced last-worn clothes of Fazal Khan deceased Exh.P.3 and Exh.P.4 which he secured vide memo. Exh.P.W.7/A. He (Muhammad Altaf) also produced last-worn clothe r: of Fateh Muhammad deceased Exh.P.5 and Exh.P.6 which he secured vide Exh.P.W.7/B. He arrested the accused who was produced by Samundar Khan, Muhammad Riaz alongwith hatchet Exh P.7 which he secured vide memo.
Exh.P.W.16/1 and prepared its parcel. He handed over the parcels containing bloodstained earth, hatchet and clothes of the deceased to Moharrir/H.C. On ',r-5-1995 he recorded the statements of Muhammad Maskeen, Mian Ahmad and Sher Muhammad injured. On 10-5-1995 Muhammad Nawaz injured died in hospital. He despatched the dead body to police station and prepared his inquest report Exh.PT. He handed over his dead body to Shafaullah Constable for postmortem examination who later on produced his last-worn clothes Exh.P.1 and Exh.P.2 which he secured vide memo. Exh.P.W.6/A. On 12-6-1995 he got the site plans Exh.P.W.9/A&B prepared from Sarfraz Patwari (P.W.9). After completing the investigation he got the accused challaned.
3. A charge under section 302/324, P.P.C. Was framed against the accused to which he pleaded not guilty and claimed trial.
4. In order to bring home guilt to the accused prosecution examined P.Ws. 1 and 2 Muhammad Ashraf and Naik Muhammad who deposed that on 6-5-1995 they had identified dead bodies of Fazal Khan and Fateh Muhammad respectively at the time of post-mortem examination.
Muhammad Asif P W.3 deposed that on 10-5-1995 he identified the dead body of Muhammad Nawaz deceased at the time of post-mortem examination. Musarat Hussain Shah, H.C. P.W.4 recorded formal F.I.R. Exh.P.W.4/B on the'basis of complaint Exh.P.W.4/A on 6-5-194ii On the same day he was given 3 parcels 'ecfntaining blood-stained earth and one parcel containing hatchet by Riaz Hussain S.I. For keeping the same in Malkhana. On 25-5-1995 he handed over the said parcels to Zamirul Hassan Constable (P.W.5) for onward transmission to the Office of Chemical Examiner, Lahore. Zamirul Hassan Constable P. W.5 reiterated the statement of Musarat Hussain Shah, H.C.
(P.W.4) regarding delivery of said parcels on 25-5-1995 and stated that he delivered the said parcels in the said office on 26-5-1995. Shafa Ullah Constable P.W. 6 deposed that on 10-5-1995 he was handed over dead body of Muhammad Nawaz for post-mortem examina-tion. After the post- mortem examination he was given last-worn clothes of deceased consisting of Shalwar P.1 and Shirt P.2 which he handed over to the Investigating Officer who secured the same vide memo.
Exh.P.W.6/A. Muhammad Altaf Constable P.W .7 deposed that on 6-5-1995 he was given dead bodies of Fazal Khan and Fateh Muhammad for post-mortem examination. After the post-mortem examination he was given last-worn clothes of Fazal Khan deceased consisting of Shalwar P.3 and shirt P.4. He handed over the said articles to the Investigating Officer who secured it vide memo.
Exh.P.W.7/A. He further deposed that he was also given last-worn clothes of Fateh Muhammad deceased consisting of Shalwar P.5 and shirt P.6 which he produced before the Investigating Officer who secured the same vide memo. Exh.P.W.7/B. P.W.8 Dr. Dost Muhammad, Medical Superintendent, Tehsil Headquarter Talagang deposed that on 6-5-1995 he medically examined Muhammad Nawaz son of Muhammad Aslam and found the following injuries on his person:-
(1) An incised wound on left side of the head 10 c.m. x 1-1/2 c.m. x brain matter is coming our from the wound, 5 c.m. Above left ear.
(2) An incised wound on right side of head 8-1/2 x 2 c.m. x brain matter coming out of wound, 10 c.m, above right ear. The injured was deeply comatosed, restless, pupils were mildly dilated, were re-acting to light and pulse was 90 per minute and B.P. Was 100/70 m.m.Hg. The duration of the injury was within one hour, caused by sharp-edged weapon.
' He stated that both the injuries were decal Shajjah-Damiha as per MLR Exh.P.W. That on the same day at 7-35 a.m. Examined Mirza Khan and found following injury on his person:---
(1) An incised wound on left bide head frontal region 10 x 1-1/2 c.m brain matter was coming out wound.
' He issued MLR Exh.P.W.8/B. The was declared Shajja Damigha.
' He also examined Muh Maskin on the same day at 7-50 a.m. Found the following injury on the his per
(1) An incised wound on left side head 3 c.m. Away from mind frontal region 9 c.m. x 1 c.m bone deep.
' He issued MLR Exh.P.W.8/C. The is was declared as Shajjah Muddiaha.
' He also examined Mian Ahmad the same day and found the following is on his person:--
(1) An incised wound on back of slightly on right side to mid flu 1 c.m. x underneath bone fractious.
' He issued MLR Exh.P.W.8/D. The I was declared as Shujjah Munaqqilah.
' He also examined Sher Khan o same day and found the following injured his person:--
(1) An incised wound on back side head, right side 8 c.m. x 2 underneath bone was fractured, bleeding was coming out of would ' He issued MLR Exh.P.W.8/E. The was declared as Shajjah Munaqqilah.
' On the same day at 9-50 a.m. He fined Sher Muhammad and found the wing injuries on his person:- (1)' An incised wound on right hand 5 c.m. x 2 c.m. x bone deep on palmer aspect between thumb and index finger.
(2)' An incised wound on right index finger 2 c.m. x 2-1/2 c.m. x bone deep on terminal phalynx.
' Issued MLR Exh.g.W.8/F.
' On the same day he conducted post-em examination of Fateh Muhammad at 0 a.m. And found the following injuries s person:--
(1) An incised wound on the right side of the back of head 3 c.m. x 1-1/2 c.m.
(2) A lacerated wound on left side of the back of head 4 c.m. x 1-1/2 cm.
' This opinion death had occurred due to duries Nos.1 and 2. He stated that injuries grievous and dangerous to life and were dicient to cause death in the ordinary se of nature. The injuries were anti-term. Injury No,1 had been caused by edged weapon whereas injury No,2 was result of blunt weapon. The time between injury and dead was immediate and been death and post-mortem was 6 hours. Issued post-mortem examination report .P.W.8/G and its sketch Exh.P.W.8/H.
' On the same day at 11-30 a.m. He ducted the post-mortem examination of Khan and found the following injuries his person:--
(1) An incised wound on left side of head, 10 c.m. x 3 c.m. x underneath bone was fractured and brain matter was coming out of wound.
(2) An incised wound on left side of back of head, laterally 7 c.m. Behind left ear, 9-1/2 c.m, x 2 c.m. x underneath bone fractured and brain matter was coming out.
' In his opinion death occurred due to injuries Nos.1 and 2 which were grievous and dangerous to life and were sufficient to cause death in the ordinary course of nature. The injuries were anti-mortem and had been caused by sharp-edged weapon. The duration between death and injuries was within half an hour and between death and post-mortem examination was 6 hours. He issued postmortem examination report Exh.P.W.8/I and sketch of injuries Exh.P.W.8/J.
' On 10-5-1995 at 6-00 p.m. He conducted the post-mortem examination on the dead body of Muhammad Nawaz and found the following injuries on his person:-
(1) A stitched incised wound on left side of head 10 c.m. Long, 5 c.m, above left ear.
(2) A stitched incised wound on right side of head 8-1/2 c.m long, 10 c.m. Above right ear.
' In his opinion death had occurred due to injuries Nos.1 and 2 which were grievous and dangerous to life and were sufficient to cause death in the ordinary course of nature. The said injuries were anti-mortem and had been caused by sharp-edged weapon. The time between injuries and death was about 105 hours and between death and post-mortem examination was 3 hours and 15 minutes. He issued post-mortem examination report Exh.P.W.8/K and pictorial sketch of injuries Exh.P.W.8/L.
Muhammad Sarfraz Patwari P.W.9 deposed that on 12-6-1995 he visited the place of occurrence and prepared site plan Exh.P.W.9/A&B and handed over the same to the Investigating Officer. That drawings shown on the site plan in black ink are in his hand `Noor Muhammad P.W.10 deposed that on 6-5-1995 Investigating Officer secured blood-stained earth near the house of Haji Ishaque Khan pertaining to the murder of Fazal Khan and prepared memo. Exh .P.W .10/A.
' Nawab Khan P.W.11 deposed about securing of blood-stained earth from the place of occurrence pertaining to the death of Muhammad Nawaz which was secured vide memo. Exh. P.W. 11/A.
' Fazal Hussain complainant P.W.12 corroborated his version appearing in complaint Exh.P.W.4/A. He further stated that Fazal Khan, Fateh Muhammad and Muhammad Nawaz were friends of father of accused Iftikhar Ahmad.
' Ghulam Muhammad P.W.13 is an eye-witness of the occurrence culminating into death of Fazal Khan and Muhammad Nawaz deceased and corroborated the statement of Fazal Hussain (P.W.12).
' Imtiaz Hussain P.W.14 is another eye-witness of this occurrence relating to the murder of Fateh Muhammad deceased. He also deposed that police secured blood-stained earth from the place of murder of Fateh Muhammad and made a sealed parcel of same vide memo. Exh.P.W.14/1 which bears his signatures, Mozam Khan P.W.15 is also another eye witness pertaining to the murder of Fateh Muhammad deceased and of securing bloodstained earth vide memo. Exh.P.W.14/1.
' Sumandar Khan P.W.16 is an eyewitness of occurrence resulting into death of Fazal Khan and Muhammad Nawaz deceased and of causing injuries to Sher Khan. He further deposed that accused was caught on the spot and was produced before the police alongwith hatchet P.7, which was secured vide memo. Exh.P.W.16/1.
' Riaz Hussain, S.I. P.W.17 is the Investigating Officer whose evidence has already been discussed above. Thereafter the learned P.P. Produced reports of Chemical Examiner Exh.PV, Exh.PW, Exh.PX, and Exh.PY and reports of Serologist Exh.PV/1, Exh. PW/1, Exh.PX/1 and Exh PY/1 and closed the case for prosecution vide statement, dated 8-5-1997.
5. When examined under section 342, Cr.P.C. The accused iftikhar Ahmad denied the prosecution version and stated that he has been implicted in this case falsely. While reply question No,12, as to why this case had been registered against him and why P.Ws. Have deposed against him, he stated as follows:-- "I am Bhatti by caste whereas all the deceased and the P.Ws. Are Awan by caste and belongs to same Baradari and have involved me in this case falsely. They have also deposed against me because of brotherhood with the deceased."
' He stated that he would produce evidence in his defence and would also record his statement under section 340(2), Cr.P.C.. Consequently he examined D.W.1 Muhammad Iqbal, Warden District Jail, Attock who deposed that accused was admitted in. District Jail. Attock on 7-5-1995. He produced a photo copy of Robkar, dated 7-5-1995 Exh.DF. He also produced register from District Jail, Attock and also produced an extract of entry appearing at Serial No,1583, dated 7- 5-1995 Exh.D/H. Law 1-layat Warden, Central Jail, awalpindi D.W.2 also brought Register 0.1 of Central Jail Rawalpindi and produced copy of Entry No,6337 Exh.D/G. Dr. Muhammad Ali Shah D.W.3 deposed that on -5-1995 he was posted temporarily as medical Officer, District Jail, Attock. He reposed about entry appearing at Serial 0.162 of 1995, dated 25-7-1995 to be of his hands. He referred to register M.O. General Exh.D/G while deposing in the Court Muhammad Maskeen D.W.4 is father of the accused Iftikhar Ahmad. He deposed that he has got three sons including Iftikhar Ahmad used who is youngest of all, that his elder in Ghulam Mustafa became mad in the year 993 and he got him treated from Brig. Fazal aq. He further deposed that the accused ikhar Ahmad went mad in 1995 and he got him treated from the same Brig. Fazal Haq. He went, to say that a day prior to the occurrence at evening time Mirza Khan and her Khan stayed in his house as they came to see the accused who was not feeling well. He deposed that on the next day while wife of accused went to provide breakfast to Iftikhar Ahmad, he broke the utensils, took out a matched and launched attack upon his father--law Mirza Khan. He also gave hatchet lows to him (D.W.4) as well as to his maternal uncle Sher Khan and then left his house. He stated that whatever was done by the accused/appellant was the outcome of madness. Thereafter, the accused closed his evidence vide his statement, dated 1-7-1997.
6. After going through the evidence produced by the prosecution as well as defence the trial Court vide judgment, dated 2-10-1997 convicted the accused Iftikhar Ahmad for committing the murder of Muhammad Nawaz, Fateh Muhammad and Fazal Khan under section 302(b), P.P.C. On three counts and sentenced him to death on three counts and ordered that he shall be hanged till death.
He further ordered him to pay Rs,50.000 as fine or in default thereof to undergo RI; for two years on each count. The amount of fine if realised was ordered to be paid to the legal heirs of each deceased. It was further ordered that sentences shall be executed subject to the confirmation by the High Court.
7. The accused having felt aggrieved of the judgment, dated 22-10-1997 filed Criminal Appeal No,162 of 1991. Besides this Criminal Appeal, a Murder Reference No,242-T of 1997 has also been received.
8. As both the Murder Reference No,242-T of 1997 and Criminal Appeal No,162-T of 1997 arise out of the same judgment, so both are being disposed of by this judgment.
9. Arguments have been heard and record perused with the assistance of learned counsel for the parties.
10. It is submitted by the learned counsel for the accused/appellant that according to the prosecution version appellant caused fatal injuries to Fazal Khan and Fateh Muhammad resulting into their death on 6-5-1995, that he is also alleged to have caused injuries to Mirza Khan, Muhammad Maskeen, Mian Ahmad, Sher Khan, Sher Muhammad and Muhammad Nawaz, that out of abovementioned injured Muhammad Nawaz the injuries on 10-5-1995, that out of the injured persons, Muhammad Maskeen is father of the appellant, Sher Khan is his maternal uncle and Mirza Khan is his father-in-law, that Fazal Khan, Fateh Muhammad and Muhammad Nawaz deceased are stated to be friends of his father. He argued that no sane person would venture to cause injuries to his own father, maternal uncle and father-in-law and would cause death of friends of his father. He canvassed that the act of the appellant cannot be held to be an act of a man of ordinary prudence, that his said contention stands corroborated even from the statements of D.W.1 Muhammad Iqbal, Warden, District Jail, Attack, Liaqat Hayat (D.W.2) Warden, Central Jail, Rawalpindi, Dr. Muhammad Ali Shah (D.W.3) and Muhammad Maskeen (D.W.4), that in spite of said evidence the trial Court proceeded to conduct the trial and passed the impugned judgment. He thus submitted that ' as the very trial is not warranted by law, so appeal be accepted and the appellant be acquitted.
11. Conversely the impugned judgment has been supported by the learned Assistant Advocate- General, He contended that the question of lunacy or imbalance of the mind of appellant was never seriously agitated during the trial, as such the trial Court proceeded with the trial and finalized the same in accordance with law. He further contended that it has come on record through the statement of Muhammad Miskeen, father of the appellant, that appellant had been under the treatment of Brig. Fazal Haq. However, he neither produced any record regarding the treatment received at the hands of Brig. Fazal Haq nor examined the said doctor to prove his contention, that the trial Court has conducted the trial in accordance with law and passed the impugned judgment strictly in accordance with law, that there is no force in this appeal and the same be dismissed.
12. The point which has been urged and agitated by the learned counsel for the appellant is that trial has not been conducted in accordance with law. Hts contention is that accused/appellant was not mentally fit so the trial Court could not hold the trial, that it was the duty of the trial Court to refer the accused/appellant to some concerned Medical Officer and after obtaining a report that he (accused) was mentally fit, to conduct his trial. The contention is not devoid of any force.
However, the record reveals that before framing charge on 26-5-1996, the accused/appellant was put certain questions to assess his mental condition and it was after the satisfaction of the trial Court that appellant was mentally. Fit, that charge was framed against him and trial ensued. There is no doubt that if it is brought to the notice of the Court that an accused is a lunatic then procedure as contemplated under section 464, Cr.P.C. Is to be adopted. However, it is specifically laid down in section 464, Cr.P.C. That when a Magistrate holding an enquiry or a trial has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, the Magistrate shall enquire into the fact of said unsoundness, and shall cause such person to be examined by the Civil Surgeon of the District or such other Medical Officer as the Provincial Government directs and thereupon shall examine such Surgeon or other official as a witness, and shall reduce the examination to writing. It further lays down that pending such examination and enquiry the Magistrate may deal with the accused in accordance with the provisions of section 466, Cr.P.C.. It also lays down if such Magistrate is of the opinion that the accused is of unsound mind and consequently incapable of making his defence, he shall record a finding to that effect, and shall postpone further proceedings in the case. Now it is to be seen the ingredients of section 464, Cr.P.C. Were present warranting the examination of accused/appellant from the Civil Surgeon of the District or such other Medical Officer. A perusal of record shows that at the very inception of the trial the accused/appellant was put certain questions by the trial Court and it was after the satisfaction of the Court that accused/appellant was intelligent enough to understand the same, that trial initiated. It is also fact that during the trial which started on 26-5-1996 and till 24-3-1997 no application was moved before the trial Court for getting the accused/appellant medically examined on the ground of his mental illness. It was after the conclusion of prosecution evidence that on 24-3-1997 an application , was moved for getting the accused/appellant medically examined, and Superintendent, District Jail, Attock was directed to get him medically examined from the Medical Superintendent, D.H.Q. Hospital, Attock. Accordingly a Medical Board was constituted and accused/appellant was examined by the said Board who found him medically fit.
It was observed by the Medical Board that as regard to his mental condition he seemed to be depressed. The trial Court however, observed that accused/appellant was mentally alright and further observed that application in question had been moved just to avoid trial and to prolong the proceedings. It is thus clear that trial Court was satisfied and had reason to believe that accused/appellant was mentally fit and as such proceeded with the trial. This finding of the trial Court further stands corroborated from the fact that no cogent evidence to prove that accused/ appellant was mentally deranged has been brought on record though it has been specifically deposed by Muhammad Miskeen (D.W.4) that accused/appellant had been under treatment of Brig. Fazal Haq. If actually the accused/appellant had been under the treatment of Brig. Fazal .Haq, what prevented him (D.W.4) to produce him or summon him in defence. This silence on the part of father of accused also lends support to the prosecution stand that accused/appellant was mentally fit and did not suffer from any mental illness, either at the time of trial or even prior to that.
If the accused/appellant wanted to get the benefit of his lunacy at the time of alleged occurrence onus was on him to prove the said factum. He has failed to bring on record any evidence to support his said contention. Accordingly it is held that the trial of the accused/appellant has been conducted in accordance with lawn. It is further held that accused/appellant was not suffering from any mental disease either at the time of alleged occurrence or even during the trial.
13. The prosecution has examined Fazal Hussain complainant (P.W.12) as well as other eye- witnesses namely Ghulam Muhammad (P.W.13), Imtiaz Hussain (P.W.14), Moazzam Khan (P.W.15) and Samundar Khan (P.W.16), who have been subjected to lengthy cross-examination. All of them have corroborated the prosecution version regarding the commission of murder of deceased Fazal Khan, Fateh Muhammad and Muhammad Nawaz and of causing injuries to other P.Ws. Their version further stands corroborated from evidence of recovery of hatchet P.7 belonging to the accused as well as from medical evidence. Thus it is proved beyond any doubt that accused committed the intentional murder of Fazal Khan, Fateh Muhammad and Muhammad Nawaz and caused injuries to P.Ws. The accused/appellant has been convicted under section 302(b), P.P.C.
And sentenced to death and fine of Rs,50,000 on three counts. According to section 302(b), P.P.C.
No fine can be imposed as such the fine imposed is converted to compensation as contemplated under section 544-A, Cr.P.C.. It is ordered that if the fine is realised the same shall be paid to the legal heirs of each deceased. Accordingly appeal fails and .Is hereby dismissed.
14. Murder Reference No,242-T of 1997 is answered in affirmative.