' MUHAMMAD AFZAL ZULLAH, T.-Abdul Khaliq (aged 26) and Anwar (aged 29) were convicted and sentenced to death under section 302/34, P. P. C., on 5-6-1976 by learned Additional Sessions Judge, Rahimyar Khan for the murder of Ashiq Rasul, aged 40. Their Appeal No, 36 of 1976 and Murder Reference No, 12 of 1977 are being disposed of together.
2. Faiz Bakhsh (P. W. 10) who is an eye-witness and the first informant gave the main prosecution case at the trial. He had lodged F. I. R. Exh. P. A. At 7 p.m. On the day of occurrence, i,e,, 13-7-1974 at Police Station Tranda Muhammad Pannah which is at a distance of two miles from the place of occurrence. According to him, on The day of occurrence at about asar time, he and Ashiq Rasul deceased were offering asar prayer in the mosque of their Basil named Darkhana. The deceased was acting as Imam for this small congregation because the main congregational prayer had already taken place. They were citing atta-hiyat in the fourth rakat when both the appellants came armed with sotas, Abdul Khaliq gave sota blows on the head of the deceased who fell down. Anwar also inflicted blows with sota. The witness tried to intervene but was beaten by Abdul Khaliq with sota. After giving some more injuries to the deceased Abdul Khaliq declared that the deceased, had been punished for not giving the hand of a girl. On the alarm of the witness, Nazir Ahmed, Ghulam Ali (correctly mentioned in cross-examination but wrongly mentioned as Ghulam Rasul in examination-in-chief) and Abdul Hakim rushed to the spot and saw the occurrence ; while the appellants ran away with their weapons.
3. Faiz Bakhsh further deposed that the deceased had refused to marry Mst. Hanifan, his brother's daughter, to Abdul Hamid, sister's son of Abdul Khaliq appellant and that one week before the occurrence their quarrel on this issue was witnessed by Haji Fateh Muhammad (P. W. 7). This witness also gave various relationships. The deceased was his sister's husband, Nazir Ahmad (P. W.
11) is his real brother and Abdul Khaliq and Anwar appellants are from the same brotherhood. Some other relationships which are apparent from the evidence are ; Sister of Abdul Khaliq appellant is married to Abdul Ghafoor (P. W. 6) real brother of the deceased. Mst. Hanifan whose marriage became the bone of contention is the daughter of said Abdul Ghafoor and thus real niece (bhanji) of Abdul Khaliq. The deceased was also first paternal cousin of Abdul Khaliq. Ashiq Rasul deceased wanted to marry Mst. Hanifan to one Rashid who is his wife's brother as also real brother of Faiz Bakhsh and Nazir Ahmed P. Ws. The deceased was nephew of Fateh Muhammad (P. W. 7) while Abdul Khaliq appellant is his cousin's son. It appears, the accused and the deceased party are closely related to each other and that is why the police also arranged the recording of statements of prosecution witnesses before a Magistrate under section 164, Cr. P. C. The motive, as earlier stated, related to Hanifan's marriage. While the deceased claiming his right over her as his niece (brother's daughter) wanted her to be married in the family of his in-laws : Abdul Khaliq appellant, presumably, claiming equal right on her hand being also his niece (sister's daughter) wanted her to be married to his own nephew (sister's son). Anwar appellant who belonged to Abdul Khaliq's brotherhood supported him.
4. Abdul Ghafoor (P. W. 6) and Fateh Muhammad (P. W. 7) corroborated Faiz Bakhsh on motive.
Nazir Ahmad, his own brother, gave ocular account and supported the prosecution case. Two sotas were recovered, one (P. 3) (a small stick 2'-8" with 11" circumference) from Abdul Khalique and the other (P. 4) 4'-3" fitted on the one and with a sharp-pointed iron spike 5' long, from Anwar appellant. Allah Bakhsh (P. W. 9) and M. Afzal Abbasi, Investigating Officer (P. W. 12) proved the recovery of sota (P. 3) at the instance of Abdul Khaliq from a sugarcane crop. Sher Muhammad (P.
W. 8) deposed at the trial that when he joined the investigation, the Police had already recovered sota (P. 4) from Anwar appellant. He was declared hostile. Under cross-examination by the Public Prosecutor, he admitted to have supported the prosecution case with regard to this recovery before the committing Magistrate. He did not give any satisfactory explanation for the contradictory position taken by him. However, his statement before the committing Magistrate, which was not brought under cross-examination, was transferred to the Sessions record and was read as evidence. The Investigating Officer also deposed about this recovery of sota (P. 4) having been made at the instance of Anwar appellant from a mango orchard. Two recovery witnesses of P. 3 and P. 4, namely Abdul Aziz and Muhammad Iqbal were given up as won over ; while Ghulam Ali and Abdul Hakim eye-witnesses were given up as unnecessary. Another witness Ilahi Bakhsh, who would have deposed about the extra-judicial confession by Anwar appellant and his production before the Police was also given up as won over. The police took into possession cement scrapings from the floor of the mosque as also cuttings from two prayer mats (musalla and saif ). All these articles including the two sotas were found to have been stained with human blood.
5. The doctor (P. W. 1) who had examined Haji Ashiq Rasul, when he was still alive, at 8-10 p.m. On the day of occurrence, also performed the post-mortem examination at 7 p.m. On 14-7-1977 after the death of the injured, which took place at about 10 p.m. On 13-7-1974. He observed 13 injuries on his person. One on the canthus of' left eye is almost a linear, incised wound axis bone deep and another is a punctured wound in diameter, 1 deep on the left side of the root of the nose. There were four smallish contusions on the left side of the face near the eye and nose. Under another injury on the left eye, the eye-ball had a lactated wound and it had burst. The 8th injury on the face was noted as follows :- "The upper and lower lips were swollen and ecchymosed the mucous membrane of the lower lip was lacerated completely. In the lower jaw the left and right central incisor and the right lateral incisor were missing, the right canine was shaky. In the upper jaw the left central incisor was missing, rest all the teeth were shaky. The upper jaw was fractured."
' In addition to the above-noted eight injuries on the face within a circumference of about 3' to 4', the doctor observed other injuries ; one contused wound on the right side Of head ; a contusion on the left side of neck ; a contusion on the back of the right shoulder ; a contusion on the outer side of the right thigh ; and a contusion on the right side of the chest over the nipple. The internal damage as noted by the doctor was 'scalp injured', 'extensive clotted blood found thereunder', 'ethnocide bone and cribriform plate was factored', "nasal bone fractured, and upper jaw, criminal bone and the maxilla were fractured into pieces. Blood vessels were injured in the area of nose, mouth and left eye. The hard and soft palate was injured and hard palate was fractured. Pharynx was injured.
He also noted that the stomach did not contain any food and that the bladder had two ounces of urine. According to the doctor, the first nine injuries including that on the head were individually and collectively sufficient to cause death, in the ordinary course of nature. The first two injuries were caused with sharp-edged and sharp-pointed weapon, and all others with blunt weapon.
Time between injuries and death was about six hours and between death and postmortem examination, about nine hours. On subsequent query from the Police, the doctor opined that the first two injuries could be caused with stick (P. 4) which had been recovered at the instance of Anwar appellant. On a similar earlier query, the doctor had opined that Ashiq Rasul, when in injured condition, was not fit to make any statement. The doctor had also examined Faiz Bakhsh eye- witness, aged 50, and had observed the following injuries on his person :- "(1) A contused wound If' x scalp deep on the middle of the head.
(2) A contused wound 1r x lf x bone deep on the right temporal area, 2i" above the right ear.
(3) A contusion n. x r on the outer side of the left leg in the middle."
' Injuries Nos. 1 and 2 were kept under observation but subsequently declared simple. Injury No, 3 was declared simple. These injuries were caused with blunt weapon. Duration was six hours. It appears from the evidence that Faiz Bakhsh remained as an indoor patient for about four days. It is significant to note that the doctor was not cross-examined.
6. The Investigating Officer (P. W. 12) deposed that when Ashiq Rasul was brought to the police station, he was unconscious. Immediately after the recording of the F. I. R. And sending the injured to the hospital, he went to the spot reaching there at 10 p.m. (in examination-in-chief, but 9 p.m. In cross-examination) and recorded the statements of Fateh Muhammad, Ghulam Ali and Nazir Ahmad. He also deposed about the arrest of Abdul Khaliq on 14-7-1974 and recovery of sofa (P. 3) from him and the arrest of Anwar on 18-7.1974 as also the recovery from him of rota (P. 4). The ' Patwari (P. W. 2) prepared the site plan Exh. P.
0. Which shows that Basti Darkhana starts at about one acre from and ends near the mosque.
There is a madrissa at about half the distance and an orchard at about double the said distance from the mosque. The occurrence is shown to have taken place in the courtyard of the mosque.
7. Both the appellants pleaded total denial regarding motive, ocular account as also recoveries.
Abdul Khaliq explained that the police had failed to trace the real assailants, therefore, he was falsely implicated and that the witnesses are interested and under the influence of the police ; while Anwar appellant stated that he had been falsely implicated by the Police. He explained that Isa, a brother-in-law of Ashiq Rasul, got registered a case of dacoit against him and his father but they were acquitted ; and that his father injured Faiz Bakhsh P. W. Who had made a report to the Police but his father was not hauled up and thus, he was involved due to enmity. While Abdul Khaliq admitted before the committing Magistrate that Anwar is his caste-fellow, both of them denied any such connection at the trial. One witness, Syed Alta Hussain (D. W. 1) was produced by Anwar in his defence. He deposed that on the day of occurrence he was present at the bus stand when Faiz Bakhsh complainant and the deceased were brought there in injured condition. He was asked to accompany them to the police station. On his inquiry, he was told by Faiz Bakhsh that Abdul Khaliq alone had injured them and that Anwar was not named as 'an assailant. Under cross-examination, he admitted that despite having known that Anwar had been implicated in the case, he did not inform the Police about the afore noted earlier statement of Faiz Bakhsh made to him, that, Anwar was innocent. The Police proceedings show that this witness, namely, Atta Hussain did accompany the injured to the police station and further that he was also recovery witness regarding last worn clothes of the deceased. But was given up at the trial as won over.
8. The learned trial Judge believed the prosecution version regarding motive (though found that Anwar appellant had no direct motive). He also believed the ocular account and recoveries and thus, finding the appellants guilty, convicted and sentenced them under section 302/34, P. P. C. He, however, did not pass any order with regard to compensation under section 544-A, Cr. P. C. We, at the commencement of the hearing, issued notice in this behalf. Both the learned counsel appearing for the appellants accepted the same.
9. It needs to be noticed that the appeal was jointly filed by both the convicts through same counsel, namely, Mr. Muhammad Munir Khan and Mr. Rauf Ahmad Ghuri. During the hearing however, Sardar Muhammad Aslam appeared for Anwar while Mr. Munir Khan appeared for Abdul Khaliq. The former has been engaged at the expense of the State as Anwar had expressed such a desire from Jail. Before the trial Court however, Anwar was represented by Mr. Munir Khan while Abdul Khaliq was defended at the expense of the State. Anwar requested for personal hearing in the High Court which having been afforded, he made the following statement :- "I am very poor. I am innocent. The Chairman Ilahi Bakhsh Khan, who is present in Court, made a false statement before the Police that I had appeared before him and had confessed the guilt and that thereafter I had been produced by him before the Police. Notwithstanding the fact that the Chairman made a false statement before the Police, if he now makes a statement in this Court on the holy Qur'an that I have committed the murder of Maulvi Ashiq Rasul, I would accept the verdict of guilty.
' Abdul Ghafoor, who is also sitting in Court is the brother of the deceased who was a pious man. I had no motive to commit the murder of such a person. Abdul Ghafoor himself is a good person.
' If the Chairman and Abdul Ghafoor both take oath on the holy Qur'an that I have committed the murder of Maulvi Ashiq Rasul, I would accept the verdict of guilty.
Q.-Do you want to say anything else ? 4.-No,"
' Both the learned counsel for the appellants requested that the t No persons named by Anwar appellant should be asked in the first instance whether they were ready to take the oath offered to them. Beyond this, they said, nothing should be asked from them, i,e,, they should not be asked to take the oath. Learned counsel for the State, however, opposed the suggestion. According to him, Ilahi Bakhsh was a given up (as won over) prosecution witness and Abdul Ghafoor had appeared at the trial. No such question was asked from them. After hearing both the learned counsel, we decided not to examine these persons in this Court nor to put them under the special oath. If they would have answered that they were ready to take the oath and/or they had in fact taken the oath, they being not the eyewitnesses could not be expected to give a final verdict on the guilt or innocence of the appellant. It could not give any advantage to him. On the contrary, if they had refused to take the oath or would have stated something against the appellant, it might prejudice his case. We, therefore, decided not to examine them. This aspect has not been pressed further.
10. The doctor was not cross-examined. His statement that the two injuries on the eye and the nose of the deceased which appeared to have been caused with sharp and/or sharp-pointed weapon were caused with spiked sota of Anwar, remained unchallenged. We have, with the assistance of the learned counsel, also carefully analysed the particulars of the injuries vis-a-vis the pointed end of, and, the iron spike itself. We also made a cut on the blotting paper with the cutting point of the spike. The doctor's opinion cannot be treated even as improbable, what to talk of impossible.
Moreover, there is other intrinsic evidence that sota (P. 4) was used in the occurrence. Particulars of injury No, 8 quoted in para. 5 above and the underlying damage caused to the palate, both soft and hard, as also the injuries to the other organs in the mouth And underneath the nose and eye are sufficient proof of the fact that the weapon causing surface injuries had an attachment like that with P. 4 ; which would have caused the internal damage. We do agree that such a sota need not necessarily be kept as a weapon. It is a stick of moderate dimensions with sharp-pointed spike like protruding iron, which can also be used for defence against snakes and sometimes might be used as an animal propelling stick. It can be used by the Zamindars in rainy season to avoid slippery fall as also for walking during the night. It can give a firm support to the body of the person holding it, in case of apprehended fall. The weight and manufacture is heavy and crude but similar (and on the same pattern) to more sophisticated support-sticks available in market. We are of the view that the injuries in. This case were caused with two sticks, one ordinary and the other, like P.
4. Both (P. 3 and P. 4) were found to have been stained with human blood both were sitting in atta- hiyat after 4th rakat.. It was not at all improbable that the assailants of the Imam would not have been immediately noticed by the muqtadi. This is not all. The witness intervened. It is not at all unnatural that when intervening and receiving blows, he would further identify the assailants. There was no suggestion made to him that the assailants had muffled their faces ; nor the selected time and place are such that the assailants in any way tried to conceal their identity. If the assailant wanted to do away with Ashiq Rasut deceased in a surreptitious and concealed manner, they could have selected other more appropriate occasion with a little bit of pre-planning. Not enough time was taken for the injured to be removed to the hospital and no more time was, taken than necessary in lodging the F. I. R. And thus contacting the Police. There was not enough time to think of and, so to say, 'discover' the culprits. In these circumstances, it is not possible nor there is any material in this behalf to visualize that either the culprits remained unidentified or that Faiz Bakhsh had no opportunity to identify them. And that being so, the next inference is most logical that the injured witness as stated by him, did identify the culprits and saw the entire assault. There is no suggestion, not even during the arguments in the High Court, that some other person was likely assailant and that Faiz Bakhsh had motive of saving any other person and substituting Abdul Khaliq and or Anwar for him. The place of occurrence is inhabited locality. Faiz Bakhsh himself belongs to the same brotherhood of Darkhans who own the Basti and to which the appellants themselves belong. Thus substitution is not a likely circumstance to be probed any further. If substitution is not possible, then the mere fact that Faiz Bakhsh had, at some time, some interest against Anwar appellant and for that matter against Abdul Khaliq appellant, would not show that he would involve them by not mentioning the real assailants at all. Such involvement might be visualised when, in addition to the real culprits, some innocent persons are suspected to have been involved on account of inimical interest. In this case, as shown above on objective considerations, there were two assailants. There is no question of any one having been falsely implicated in addition, to the real culprits. The oblique suggestion that Anwar appellant having been pictured black in the suggestions made during cross-examination on Faiz Bakhsh, might have been falsely substituted by him, also has not appealed to us. The above discussion shows that it was not a case of substitution at all. The other argument raised on behalf of Anwar that Atta Hussain Shah D. W.
Was informed by Faiz Bakhsh about one assailant, namely, Abdul Khaliq and not about Anwar appellant is also without any force. The witness would have us believe that it was on the way to the police station that Faiz Bakhsh told him about one assailant-this would be assumed to have been told by Faiz Bakhsh against alt natural circumstances discussed above. Soon after arrival at the police= station, the matter was reported to the police. In the F. I. R., the names of both the appellants are mentioned with details of the part attributed to them. The defence witness would further have us believe that it was during the journey to the police station, when he was also accompanying the complainant that the second accused would have been introduced. But he does not talk of any such plan or conspiracy to falsely implicate Anwar during this short journey period. He did not come forward to save Anwar during the investigation. His version appears to be an afterthought and is preposterous. It thus has rightly been rejected by the learned trial Judge.
16. In addition to Faiz Bakhsh P. W., his brother Nazir Ahmad (P. W. 11) has also supported the prosecution case. Although it looks strange that out of the remaining three witnesses, only Nazir would have been produced by the prosecution and others given up as unnecessary ; yet the fact remains that he did depose about his presence near the mosque and his having seen a part of the occurrence after rushing to the spot on alarm of his brother. He belongs to the same Basti. The time and place of occurrence is not so unusual as to defy the explanation of his being present. It would have been better if, instead of giving up the other two witnesses as unnecessary, against whom there is nothing on this record to show that they were related to or interested against any of the parties, they would have been examined in place of Nazir ; who could be given up as unnecessary.
Explanation was not sought either from the Sub-Inspector or any other witness in this behalf. They were not given up as won-over. It can also be noted as a fact that none of them has been produced in defence by the appellants. If they had any other version, a possibility could not be excluded that the defence might have produced them. However, no presumption can be raised against the defence in so far as this aspect is concerned. But out of various explanations visualised one appears to be more plausible, namely, that the parties belong to almost the same family and brotherhood. Outsiders would not have liked to meddle in their affairs and thus, they might have been hesitant. It is presumably for the same reason that the prosecution witnesses were sought to be bound down through their statements under section 164, Cr. P. C. But all this would not show that Faiz Bakhsh and for that matter even Nazir P. W. Made false statements or wanted to falsely implicate any of the accused. In addition to the above discussed factors, it cannot be ignored that the two eye-witnesses are closely related to one of the appellants, namely, Abdul Khaliq and the other belongs to their brotherhood. The circumstances of the family and the Basti, as they emerge from the evidence, do not appear to be such that it would have been easy for these witnesses to falsely implicate persons from their own brotherhood.
17. We have analysed and discussed the evidence and main stay of the prosecution case, namely, the ocular account given by two witnesses who are related to the deceased. In view of the peculiar nature of the case and C circumstances attending the motive, the place of occurrence and actual attack as also the medical evidence and the fact that one of the eye-witnesses is injured, we feel satisfied that on this evidence the prosecution has established the guilt of both the appellants.
However, on account of the formality or otherwise, if any other corroboration is needed, that is available in the recoveries of weapons of offence at the instance of the appellants which were found to have been stained with human blood, and the motive directed linking Abdul Khaliq and connecting Anwar with Abdul Khaliq. The fact that Anwar was not available four arrest four days after the occurrence cannot, however, be noted as technical corroboration as the circumstance was not put to him. The medical evidence is not such as to give any benefit to the appellants regarding lesser offence. They have rightly been convicted under section 302/34, P. P. C. We uphold the conviction.
18. The question of sentence has also engaged our serious attention. The appellants belong to the same Basti. No doubt the motive is such that a hot-headed person could have carried out the threat of killing the main actor in the would-be marriage episode of a young girl of the family who was equally related to both sides. But it could be either a planned murder and/or on happening of an immediate cause. In this case, if Abdul Khaliq and Anwar wanted to do away with Ashiq Rasul in a pre-planned murder in accordance with the threat given a week prior to the occurrence and deposed to by Fateh Muhammad P. W. The time was enough to plan the attack in such a manner as to save themselves and the marriage. An open attack without any immediate cause would (it could be very well visualised by them), not have saved the marriage and additionally would be harmful to the culprits. It is not denied that the locality is such where if the culprits wanted to plan an un-witnessed murder, it could easily be done during the night and even during day time in and around fields with growing crops. The deceased was a religious teacher at a place, 60 miles away.
Some other opportunity could also be thought of. All these suppositions, we do agree, would not necessarily mean that an open attack would, in similar circumstances, be impossible. But in the circumstances of this case, there are more important additional factors. The family, as it appears from the evidence, is religious minded. Attack was launched in the mosque which, in addition to it being crime, would have incurred the displeasure of not only the Basti but also other Muslims. There is yet another circumstance. Although the seat of vital injuries selected was such that death would have occurred, but it is significant to note that effort was made to break he 'teeth', 'jaws' and `mouth', obliterate the 'nose' and knock out the *eye' of the deceased with deliberate effort at selecting these targets if causing of the death alone would have been the purpose, heart, liver, abdomen would have been better targets. There must have been something in addition to the dormant motive which immediately before the occurrence impelled the culprits to launch this peculiar assault ; one, in the mosque ; two, during the time that the deceased and his companion who were unarmed were in the act of their prayers ; three, the attack was launched immediately on the reaching of the culprits in the mosque-a few moments pause to the victims so as to let them complete the atta-hiyat was also not thought condonable ; and four, attempt was made to deface the deceased in such a manner as to knock out his 'eye' and shut up his 'mouth'. -Many possibilities about what might have taken place prior to the victims coming to the mosque have been, and can be visualised. But the fact remains that the prosecution has not put forward any one, as a tangible circumstance to be noted when determining the question of sentence. One out of the possibilities is such that it was not necessary that Faiz Bakhsh and/or other witnesses might have known it. If the deceased, when alone, before his coming to the mosque, had a hot altercation with the appellants and/or would have taunted or dared them, such an attack could not have been excluded as a high probability. Faiz Bakhsh in that case would not be in a position to say anything in this behalf, as he would not be knowing. The deceased did not make any statement before his death so as to give any such information and the culprits would not come out with the truth under fear of conviction because their plea otherwise remained of total denial. Be that as it may, the factors noted above show that there was a reasonable possibility of some additional cause for attack, the proximity of which can only be imagined but details cannot clearly be visualised. It remained shrouded in mystery. The appellants can be given due benefit on this account. Mr. Munir Khan has rightly relied on Rustam v. The State (1). We, therefore, while maintaining the conviction under section 302/34, P. P. C. In the circumstances of this case, decline to confirm the sentences of death ; and reduce the same to imprisonment for life for each of the appellants and a fine of Rs, 5,000 each. In default of payment of fine, in addition, each appellant shall suffer three years' R. I. This fine shall also be treated as award of compensation under section 544-A, Cr. P. C. When recovered, the entire amount shall be paid as compensation in accordance with the said provision.
(1) PLD 1971 Lah. 410