' ZAFAR PASHA CHAUDHRY, J.--- Murder Reference No,23 of 1993 has been taken up alongwith Criminal Appeal No,1089 of 1992 as they arise from the common judgment, dated 2-12-1992 passed by Syed Sakhi Hussain Bokhari, Additional Sessions Judge, Gujranwala. Both the appellants i,e, Muhammad Ashiq and Muhammad Anwar are father and son. They have been convicted under section 302/34, P.P.C. For the murder of Baray Khan and Muhammad Sadiq who were father and brother respectively of respondent No,1 and grandfather and uncle of appellant No,2, and sentenced to death as Qisas on two counts. They have been ordered to pay Rs,50,000 for each of the murder as compensation to the heirs of the deceased, in default thereof to undergo S.I. For six months each.
2. The prosecution case as revealed from F.I.R. Exh.P.J. Recorded on the statement of Gulzar Ahmed P.W.6 is that Baray Khan complainant's grandfather own 19 Acres of land out of which six Acres were uncultivated. Muhammad Ashiq appellant forcibly cultivated a major part of the same. About 14/15 days prior to the occurrence there was a dispute in between Muhammad Sadiq and Muhammad Ashiq i,e, father of the complainant and appellant No,1 wherein appellants gave beatings to him and his father. Muhammad Anwar appellant inflicted a hatchet blow from the blunt side. The appellants also extended threats that they will have to pay for the injuries cause by them. On the night of occurrence i,e, intervening 11/12-7-1991 when Muhammad Sadiq and Baray Khan were irrigating their paddy crop 'from the tubewell, the appellant Muhammad Ashiq armed with Bughda (chopper) and Muhammad Anwar armed with Chhura (large knife) alongwith Tufail, son-in-law of Muhammad Ashiq came to them. Muhammad Ashiq raised . Lalkara that Baray Khan and his generation should be finished. He inflicted a blow with his Bughda, as a result of which the main artery of his neck was cut. Muhammad Anwar appellant and Tufail his co-accused also caused injuries on the upper part of trunk of Baray Khan who succumbed to the injuries there at the spot. Thereafter, all the three accused persons started inflicting injuries to Muhammad Sadiq after chasing him for about six Acres. Muhammad Ashiq inflicted a Bughda blow cutting his main artery of the neck who fell down in the watercourse. Thereafter, Muhammad Anwar and Tufail caused injuries with their respective weapons on his body. He too succumbed to the injuries there at the spot. It was further alleged that about four years prior to the occurrence Muhammad Ashiq appellant had murdered his real brother Shabir on account of some dispute of land but he was not proceeded against due to intervention of the members of the family. The occurrence was also seen by Riasat and Muhammad Arif P.W.7.
3. The F.I.R. Exh.P.J. Was recorded by Ghulam Hussain S.-I./P.W.8. He reached the place of occurrence, prepared inquest report and injury statement as Exh.P.K. And Exh.P.L. Respectively of Muhammad Sadiq and also prepared the inquest report and injury statement Exh.P.M. And Exh.P.N.
Respectively of Baray Khan deceased. The dead bodies were despatched for post-mortem examination. He collected blood-stained earth and thereafter, took into possession the last-worn clothes of the deceased. He got scaled site plan prepared in duplicate with regard to both of the deceased i,e, Exh.P.A. And Exh.P.A./1 and Exh.P.E. And Exh.P.E./1. On completion of the investigation the appellants were sent up to face trial in the Court of Syed Sakhi Hussain Bokhari, Additional Sessions Judge, Gujranwala.
4. Dr. Muhammad Zubair P.W.3 conducted the post-mortem examination of Baray Khan aged about 65/70 years and noted the following injuries on his person:--
(1) Incised wound 17 c.m. x 7 c.m. x bone cut on third survical vertibrae, on both side of front of neck extending from the loboule of right ear to the left side of neck at about its middle part. Trachea and oesophagus were cut completely. Carotid artries and jugular vains on both sides of the neck were cut. Muscles nerves, and other soft tissues of the neck under the injury were cut.
(2) Incised wound 6 c.m. x 4 c.m. x bone deep on left side of back head 9 c.m. From left ear. On disection injury was simple.
(3) Incised wound 4 c.m. x 1 c.m. x muscle deep on front of right arm in its upper part.
(4) Incised wound 11 c.m. x 1 c.m. x bone deep on the back of right shoulder over scapular area.
(5) Incised wound 3 c.m. x 1-1/2 c.m. x bone deep on front of right chest 3 c.m. Away from mid line 7 c.m. Below and inwards of right nipple.
(6) Incised wound 3 c.m. x 2 c.m. x bone deep on front of left side of chest 7-1/2 c.m. Below left nipple.
(7) Incised wound 3-1/2 c.m. x 1/2 c.m. x muscle deep on front of right side of abdomen 7 c.m. Away from umbilicus.
(8) Incised wound 10-1/2 c.m. x 3 c.m. x bone cut on right iliac area and iliac bone transverse in direction.
(9) Incised wound 4 c.m. x 1 c.m. x muscle deep on back of neck.
(10) Incised wound 2-1/2 c.m. x 1/2 c.m. x bone deep on back of left shoulder.
(11) Incised wound two in number each about 2 c.m. x 1 c.m. On front of left shoulder.
(12) Incised wound 2-1/2 c.m. x 1 c.m. x muscle deep on front of left arm upper part.
(13> Incised wound 3 c.m. x 1/2 c.m. x bone deep on outer side of left forearm at lower 1/3rd.
The injury No,1 was found to be fatal and sufficient to cause death in ordinary course of nature. He also conducted the post-mortem examination of Muhammad Saddique and described the following injuries on his person:-
(1) Incised wound 16 c.m. x 7 c.m. x second survical vertibrae cut completely on left side of the neck extending from upper part of neck from front to the lower part of back of neck. Trachea was cut completely. Carotid arteries and jugulars on left side of neck were completely cut. Soft tissues of the neck on left side muscles and nerves were also cut completely with severe trauma. Second survical vertibrae is completely cut with severe damage to the spinal cord as a result of injury by sharp-edged weapon.
(2) Incised wound 7 c.m. x 2 c.m. x D.N.P. On front of right side of the abdomen near mid line at the level umbilicus. Small intestines lying out side of the wound on the abdomen. On disection there was injury to the soft tissues of abdominal walls, paritonium was cut, small intestine and large intestine were injured under the injury with small intra abdominal bleeding on right side.
(3) Incised wound 4 c.m. x 1-1/2 c.m. x D.N.P. On front of left chest lower x most part. On disection chest wall was cut with a cut on the rib. Plurae was cut. Lower part of heart i,e, left ventrical was cut and purforated. Percardial space was full of fluid and clotted blood.
(4) Incised wound 3 c.m. x 1/2 c.m. x bone deep on front of left chest 4 c.m. Above and out of left nipple. On disaction this injury was simple.
(5) Incised wound 5 c.m. x 1-1/2 c.m. x muscle deep on the palm of left hand over hypothenar eminance. On disaction, injury was simple.
(6) Incised wound 10 x 1/2 c.m. x muscle deep on inner side of right upper lip.
(7) Incised wound 4-1/2 c.m. x 1/2 c.m x muscle deep on front of left shoulder. On dissection this injury was simple.
' Injuries Nos.1 and 3 were declared to be fatal and sufficient to cause death in ordinary course of nature.
5. Both the appellants were arrested on 17-7-1991. On 25-7-1991 Muhammad Anwar appellant while in custody led to the recovery of Chhura P.3 which was secured into parcel vide memo. Exh.P.H. And on the same day Muhammad Ashiq appellant led to the recovery of Bughda P.4 which too was secured into possession vide memo. Exh.P.I. Both the recovery articles were blood-stained.
6. The prosecution in order to prove its case examined nine witnesses. Gulzar Ahmed P.W.6 complainant furnished the eye-witness account of the occurrence and reiterated the statement already made by him in the F.I.R. Exh.P.J, He also identified the dead bodies of the deceased persons at the time of their autopsy, He was cross-examined at length but nothing damaging to the prosecution case could be elicited from him. P.W.7 Muhammad Arif was examined as another eye-witness. He supported Gulzar Ahmed on all the material points and, thus, lent corroboration to the prosecution version. He too was cross-examined at length but nothing substantial could be brought on record to discredit the prosecution version. On conclusion of the prosecution evidence, Reports of the Chemical Examiner and that of Serologist were tendered in evidence as Exh PQ, Exh .
P.R . , Exh.P.S. And Exh .P. T . Respectively , and with that the prosecution case was closed.
7. Muhammad Ashiq appellant was examined under section 342, Cr.P.C. He denied the allegations levelled against him and stated that he has been implicated due to enmity. As the deceased had enmity against a number of persons, therefore, some unknown assailants committed their murder during the night. He declined to produce any evidence in defence or to appear himself as his own witness under section 340(2), Cr.P.C. Similarly, Muhammad Anwar appellant denied the allegations levelled against him and adopted the statement made by his co-accused i,e, his father Muhammad Ashiq appellant. He too did not adduce any defence nor opted to appear as his own witness.
8. On conclusion of the trial Muhammad Ashiq and Muhammad Anwar appellants were convicted and sentenced as detailed above, however, their co-accused Tufail who had also been sent up to face trial was acquitted by extending him the benefit of doubt.
9. The learned counsel who appeared on behalf of the appellants on State expense tried to argue that it was a night occurrence and the witnesses cited by the prosecution and examined during the trial could possibly be not present at that time. According to him the occurrence appear to be an unwitnessed one. As regards the sentences he could not point out any circumstance extenuating the gravity of offence committed by Muhammad Ashiq, however, with regard to Muhammad Anwar he stated that he was a young boy aged about twenty years and may be of teen age definitely acted under the influence of his father. Further submits that fatal blows have been attributed to Muhammad Ashiq appellant and the blows which have been attributed to Muhammad Anwar and his co-accused Tufail jointly do mitigate the gravity of his offence and, therefore, he should not have been awarded the capital punishment and deserves to be awarded the lesser penalty.
10. We have gone through the record and have given anxious consideration to the arguments raised before us. Both the deceased persons i,e, Baray Khan and Muhammad Sadiq are father and son. Baray Khan is father of Muhammad Ashiq appellant and Sadiq is his real brother. Since Muhammad Anwar appellant is son of Muhammad Ashiq appellant, the deceased persons as such are his grandfather and uncle respectively. Gulzar Ahmed P.W.6 complainant is the real nephew of Muhammad Ashiq and first cousin of Muhammad Anwar. The presence of the complainant alongwith witnesses cannot be treated as improper at night because it is a matter of common knowledge that paddy crop has to be irrigated to the extent that water must keep on standing in the crop. The occurrence took place in the month of July and during that month the peasants commonly irrigate their lands at night as well. Admittedly, both the deceased were present and were irrigating the fields. If the deceased persons could be present at the time of occurrence, the presence of Gulzar Ahmed and Muhammad Arif P.Ws. At the place of occurrence is quite natural and absolutely probable. The fact that the occurrence was not a blind murder is negated by the fact that the incident was reported in the morning at 6-15 a.m. Police stations without any loss of time. Muhammad Arif P.W.7 is brother of wife of Muhammad Sadiq as such is brother-in-law and, therefore, maternal-uncle of Gulzar Ahmed complainant P.W.6. His relationship with the deceased or the complainant does not in any manner discredit his testimony; rather his presence at the place of occurrence becomes more probable being close relations of the deceased. Both the witnesses are close relations of the accused appellants, therefore, there is no possibility of their having falsely implicating the appellants. As observed above the witnesses were present at the place of occurrence and had, witnessed the occurrence, therefore, there is no possibility of exonerating the real culprits and to falsely implicate their own close relations. Their statements are fully supported by the medical evidence. The main artery (aorta) of the deceased was cut which could possibly be done with a heavy cutting weapon, as stated by the witnesses that the injuries were caused by Bughda, a heavy cutting chopper. The evidence of the witnesses inspires confidence for the reason that Baray Khan received thirteen injuries and Muhammad Sadiq received seven injuries but no attempt was made to falsely implicate others than the real culprits.
Had the complainant or the witnesses intended to falsely implicate someone else they could have implicated other persons as accused as well due to large number of injuries. The P.Ws. Have, therefore, made truthful statements and their testimony cannot be doubted. The prosecution, therefore, has established they guilt of the appellants beyond any doubt.
11. As regards the sentences of death on two counts as imposed by the learned Additional Sessions Judge as Qisas is absolutely proper and justified. Muhammad Ashiq appellant committed the murder of his father and brother and does not deserve any leniency in any manner. The sentence of death on two counts awarded to him' by the learned trial Court is, therefore; upheld and confirmed. The amount of Rs,50,000 as compensation to be paid by him on each count for two murders is also upheld and maintained.
12. The case of Muhammad Anwar appellant with regard to imposition of sentence is, however, distinguishable. Although he participated in the commission of the crime alongwith his father and his conviction for murder of grandfather and uncle cannot be interfered with but considering that he being a young boy must have acted under the influence of his father and the fact that both of the fatal blows to both of the deceased have been attributed to Muhammad Ashiq and the fact that co-accused Muhammad Tufail who had been assigned similar role to that of Muhammad Anwar has been acquitted, may be by extending the benefit of doubt, there are circumstances available to extenuate the gravity of his offence. It has been laid down by the Honourable Supreme Court in the famous case of Noor Muhammad v. The State 1988 SCM R 1640 that any person acting under the influence of his elder or superior the same can be treated as a mitigating circumstance in his favour.
13. By taking stock of these facts and circumstances with regard to Muhammad Anwar appellant we hold him guilty under section 302(b), P.P.C. And sentence him to imprisonment for life on two counts i,e, for the murder of Baray Khan and Muhammad Sadiq. He will, however, pay a compensation of Rs,50,000 on each count to the legal heirs of the two deceased as already ordered by the learned trial Court. Both the sentences will run concurrently and he will also be extended the benefit provided under section 382-B, Cr.P.C.
14. As such the appeal to the extent of Muhammad Ashiq appellant is dismissed in. Toto. But appeal to the extent of Muhammad Anwar appellant is dismissed qua his conviction, however, his sentence of death is converted to that of imprisonment for life on two counts as observed above while maintaining the rest of his sentences.
Sentence of death of Muhammad Ashiq on two counts is confirmed. Whereas, sentence of death of Muhammad Anwar is not confirmed.