M. JAVED BUTTAR, J.---The appellants Muhammad Aslam (24), Shehzad (24) and Muhammad Ramzan alias Jani (28) were tried alongwith acquitted co-accused Muhammad Saleem alias Teeso and Muhammad Sadiq alias Billa (father of Muhammad Ramzan appellant) under sections 148/302/149, P.P.C. For the murder of Muhammad -Ashfaq alias Pappu (26) by the Sessions Judge, Sahiwal. Learned trial Court vide its judgment, dated 5-12-1991 while acquitting Muhammad Saleem alias Teeso Sadiq alias Billa, convicted the appellants under section 302/34, P:P.C. And sentenced all of them to death with a fine of Rs.20,000 each and in case of default in the payment of fine, to suffer', two years R.I. Each. It was also directed that in case the amount of fine is realised, the same shall be paid to the legal heirs of the deceased as compensation.
2. The appellants have filed Criminal Appeal No.271 of 1992 challenging the legality of their conviction and sentence. Learned trial Court has sought confirmation of death sentence awarded to the appellants through Murder Reference No.50 of ` 1992. Both these matters are being disposed of through this judgment.
3. A case F.I.R. No.333 of 1989 (Exh.P.G) registered on 5-10-1989 at 8-30 p.m. On the statement of P.- W..7 Manzur Ahmad, father of the deceased, which was recorded by Muhammad Saleem, Inspector/S.H.O. P.W.10.
4. The prosecution case as narrated in the F.I.R. Is that on 5-10-1989 at 8-00 p.m., Ashfaq alias Pappu (deceased) was present near Venus Cinema and the complainant had gone there to purchase bread/Roti. M/s. Iqbal son of Ghulam Muhammad P.W.8 and Abdul Hameed son of Khushi Muhammad (given up as unnecessary) were also present there and in the meanwhile the appellants while armed with Chhurris accompanied by acquitted co-accused Muhammad Saleem alias Teeso who was also armed with Chhurri and Muhammad Sadiq alias Billa who was empty handed came there, Muhammad Sadiq raised a Lalkara that Ashfaq alias Pappu be done to death, whereupon Muhammad Ramzan appellant, son of Muhammad Sadiq, gave a Chhurri blow which landed on the right thigh of the deceased, second blow was inflicted by Muhammad Saleem alias Teeso which also landed on the right thigh of the deceased, Muhammad Aslaln appellant gave a Chhurri blow hitting above right knee of the deceased, the appellant Shehzad, then caused an injury with his Chhuuri on the right iliac, thereafter appellant Muhammad Ramzan gave a second blow with his Chhurri on the abdomen of the deceased, then the acquitted co-accused Muhammad Saleem gave a second blow on the left iliac of the deceased and another blow on his left thigh, Shahzad appellant is also alleged to have given a second blow on the left thigh of the deceased. On receiving these injuries, the deceased fell down. On the hue and cry of the witnesses, the accused ran away. It is also alleged that the motive of the occurrence is that prior to this occurrence; the complainant's eldest son Muhammad Boota was injured by the appellant Muhammad Ramzan alias Jani and others and the case under section 307, P.P.C. Is under trial and the accused party was pressurising the complainant to enter into a compromise with them in the said case and as the complainant did not agree, the accused had killed his son out of revenge. It is also narrated that after having left the P.Ws. On the spot, the complainant had come to the police station for information.
5. Muhammad Saleem Khan, Inspector/S.H.O. (P.W.10) Police Station 'A' Division, Okara after recording the F.I.R. (Exh.P.G.), went to the spot, collected blood-stained earth (Exh.P.H.), went to Civil Hospital, Okara where the dead body was lying, prepared injury statement (Exh.P.,J.), inquest report (Exh.P.K.), despatched the dead body for autopsy under the escort of Manzur Ahmad Constable P.W.2 who on the following day i.e. 6-10-1989 produced before him the last worn blood-stained clothes of the deceased i.e. Shalwar P.1 and shirt P.2 which were taken into possession vide memo.
Exh.P.B. S.H.O. Also recorded the statements of the P.Ws. He arrested the appellants on 14-10-1989.
On 15-10-1989, he arrested the acquitted co-accused Saleem alias Teeso. On 18-10-1989, the appellants Muhammad Ramzan alias Jani, Muhammad Aslam and Shehzad while in police custody, one after the other, led to the recoveries of blood-stained Chhurris P.3, P.4 and P.5 from their respective residential houses which were taken into possession by the S.H.O. Vide memos.
Exhs.P.D., P.E. And P.F. Respectively. The recoveries were also witnessed by Muhammad Saleem Khan, Inspector P.W.10 and Muhammad .Boota P.W.4, the son of the complainant, while the other .Attesting witness Javed was given up as unnecessary. On 9-12-1989; he got prepared the site plan Exh.P.C. And its copies Exhs.P.C,/1 and P.C./2 from Abaid Ullah, Draftsman (P.W.3). On 18-10-1-989, he handed over the sealed parcels of blood-stained earth and of Chhurri to P.W.6 Rana Akhtar A.I, Moharrir A.S.-I. Who handed over one sealed parcel of the case to Ehsan ul Haq, Constable (P.W.5) on 20-10-1989 for its onward transmission to the Office of Chemical Examiner. The investigation was transferred to Ghazanfar A.I, S.I. (P.W.9) who recorded the statements of Muhammad Akhtar, Moharrir A.S.-I. And Ehsan ul Haq, Constable on 26-2-1990. He completed the investigation and submitted the challan in Court.
6. Dr. Nasarullah Baig, M.O.,.D.H.Q., Hospital, Okara (P.W.1) conducted the post-mortem examination on the dead body of Muhammad Ashfaq alias Pappu on 6-10-1989 at 10-00 a.m. And found the following:-- "(1) An incised wound 6 x 1 /2 c. m. Bone deep on the right side of the head 13 c. m. Above from right ear.
(2) An' incised wound 5 x 1/2 c.m. Bone deep on the left side of the head 13-1/2 c. m. From left ear.
(3) An abrasion 1 x 1/4 c.m. At the top of the right shoulder.
(4) An abrasion 1-1/2 x 1/2 c.m. At-the front and top of the left shoulder.
(5) An incised wound 2 x 1 c.m. Muscle deep at the left of the abdomen 7 c.m. From umbilicus
(6) An incised wound 1.3 x 1/2 c.m. Muscle deep at the left of the inguinal region 5 c.m. From left anterior superior iliac spine.
(7) An incised wound 1 x 1/2 c.m. Skin deep at the outer side of the upper part of left forearm.
(8) An abrasion 1-1/2 z 1/2 c.m. At the outer side of the middle left forearm.
(9) An incised wound 1 x 1/2 c.m. Skin deep at the outer lower 1/3rd of the left forearm.
(10) An incised wound 3-1/2 x 1/2 c.m. Muscle deep at the outer side of the left thigh.
(11) An incised wound 2-1/2 x 1 c.m. Muscle deep at the outer and upper part of left thigh. .
(12) An incised wound 2-1/2 x 1 c.m. Muscle deep at the back and upper part of the left thigh.
(13) An incised wound 1.3 x 1/2 c.m. Muscle deep at the upper part of left thigh 3 cm. From injury No. 12.
(14) An incised wound 1/2 x 1/2 c.m. Muscle deep at the inner fide of the upper part of the left thigh.
(15) An incised wound 1/2 x 0.3 c.m. Skin deep on the front and outer part of the left knee joint:
(16) An incised wound 3-1/2 x. 0.2 c.m. Skin deep at the outer and upper part of right thigh.
(17) An incised wound 11 x 4 c.m. Muscle deep and upper part of wound 4 x 2 c.m. Bone deep at the outer and middle part of the right thigh.
(18) An incised wound 3 x 3/4 c.m. Muscle deep at the outer and above from 6 c.m. Of the left knee- joint."
The doctor found all other organs healthy, stomach containing 8 ounces of semi-digested food and bladder containing 6 ounces of urine. In his opinion, death was caused by shock and haemorrhage due to injuries Nos. l, 2, 5, 6, 10, 11, 12, 13, 14, 17 and 18 which were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem. He also opined that injuries 1, 2, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 were caused by sharp-edged weapon while the rest were caused by blunt weapon and .The time between injuries and death was almost immediate and that between death and post-mortem was within fourteen hours.
7. The charge was framed by the trial Court against all the accused including the appellants under sections 148/302/149, P.P.C., -to which they pleaded not guilty and claimed to be tried.
8. The prosecution in order to prove its case produced 10 witnesses, gave up Abdul Hameed, Javed, Jaffer and Muhammad Anwar P.Ws. As being unnecessary, tendered in evidence Reports of Chemical Examiner (Exh.P.L.) and that of Serologist (Exh.P.M.) and closed its case.
9. The complainant Manzoor Ahmad P.W.7 while reiterating the prosecution story as narrated by him in the F.I.R. (Exh.P.G.) also stated that after the deceased fell on the ground, all the accused persons gave him multiple Chhurri blows which landed on different parts of his body; admitted in the cross-examination that many cases were registered against him and his sons including the deceased in Okara District, some of those were hurt cases, there was litigation between him, his sons and the under trial accused persons and criminal cases were registered against the accused persons for causing injuries to his son. He went on to state that "there was long-standing enmity between us and the accused persons". He also admitted in the cross-examination that on the raising of alarm of the P.Ws. Many shopkeepes were attracted to the spot but nobody came near and nobody was prepared to make the statement against the accused and he did not name them as witnesses. He denied the suggestion that one Naeem son of Muhammad Rafiq had also sustained injuries during the occurrence and the deceased was injured by said
10. P.W.8 Muhammad Iqbal corroborating the statement of the complainant on all material particulars, admitted in the cross-examination that the deceased was his first cousin as he was the son of his maternal-uncle and denied any knowledge of Naeem having also sustained injuries during this occurrence.
11. The Investigating Officer Muhammad Saleem Khan P.W.10 conducted the investigation, details of which have beets narrated above. He admitted in cross-examination that Muhammad Saleem alias Teeso had pleaded his innocence at the time of his arrest on 15-10-1989 and that 29 persons appeared during the investigation in support of the plea of alibi taken by Muhammad Saleem alias Teeso, that on 21-10-1989, 14 persons appeared in defence of Muhammad Sadiq and all of them stated that Sadiq had not participated in the fight. , He also admitted in cross-examination that he recorded the statement of one Muhammad Naeem son of Muhammad Rafiq on 23-10-1989 who had produced before hilt his medico-legal report and denied the suggestion that Muhammad Naeem was not cited as a P.W. Because he did not support the prosecution version. He further admitted that in consequence of his investigation, he had found Muhammad Sadiq and Muhammad Saleem alias Teeso accused as innocent.
12. P.W.2, Manzur Ahmad Constable, P.W.3 Abaid Ullah, Draftsman, P. W.5 Ehsan ul Haq, Constable and P. W.6 Rana Akhtar A.I supported the formal aspect of the prosecution case. P.W.4 Muhammad Boota, brother of the deceased, deposed in regard to the recoveries of Chhurris and denied the suggestion that the recoveries were fake.
13. The statements of the appellants and the acquitted co-accused were recorded under section 342, Cr.P.C. They denied the prosecution allegations, pleaded false implication due to enmity with the P.Ws. They also alleged that one Muhammad Naeem son of Muhammad Rafiq got injured in the occurrence at the hands of the deceased and he caused injuries to Ashfaq deceased. It is further alleged that the said Muhammad Naeem got himself medically examined and produced his medico-legal report before the police. The appellant Muhammad Ramzan alias Jani also stated that the deceased had large number of enemies because he was bully desperado and many criminal cases were registered against the deceased, prior to the occurrence. Muhammad Saleem alias Teeso and Muhammad Sadiq accused alleged that they had been declared innocent during the investigation conducted by four different agencies. All the accused did not appear in their defence under section 340(2), Cr.P.C. Muhammad Ramzan, appellant, however, in his defence, tendered a copy of bail order Exh.D.C., affidavit of Muhammad Boota Exh.D.D: and photocopy of report of case F.I.R. No.297, dated 5-12-1988 Exh.D.E.
14. Learned trial Court has pronounced the abovementioned verdict, legality whereof has beer- assailed by the learned counsel for the appellants.
15. It is contended by Mr. Asif Mahmud Chughtai, Advocate, learned counsel for the appellants Muhammad Aslam and Shehzad that the appellant Muhammad Aslam and Shehzad are not involved in the motive case under section 30.7, P.P.C.; the eye-witnesses being closely related to each other and the deceased are highly interested requiring independent corroboration which is lacking; ocular account is belied as two of the accused were found innocent by the police and have also been acquitted by the trial Court and the same is also not supported by the medical evidence qua the number of injuries which in fact is much more than what was stated in the F.I.R.; the prosecution witnesses made dishonest improvements in regard to the number of injuries; the motive is not proved as the complainant did not press the motive occurrence in the examination- in-chief; recoveries of Chhurris are doubtful and it is not explained as to why they were sent to the Office of Serologist after a long delay of 1.4 days. Learned counsel also argued that the motive occurrence in which the complainant's son was injured took place 1-1/2 years prior to the present occurrence and immediate cause leading to the present occurrence has remained shrouded in mystery.
16. Ch. Asghar A.I, Advocate, learned counsel for the appellant Muhammad Ramzan alias Jani, without challenging the conviction, has submitted that the case of Muhammad Ramzan appellant is not that of capital punishment as allegedly he accompanied his father Muhammad Sadiq accused and on his exhortation/Lalkara, he is alleged to have inflicted injuries to the deceased while being under the influence of his father. Learned counsel has further submitted that the trial Court while acquitting Muhammad Sadiq, father of appellant Muhammad Ramzan, has not given any finding that Muhammad Sadiq was not present at the spot and he has been acquitted because the prosecution case to his extent was not satisfactorily proved and he was given the benefit of doubt. In support of the argument of lesser punishment, learned counsel has placed reliance on Mukhtar Hussain and another v. The State (1985 SCM R 479), Ziaullah v. The State (1993 SCM R 155), Amjad alias Gogi v. State (1992 PCr.LJ 290) and Liaqat Shah and others v. The State (1985 SCM R 1415).
17. Learned counsel for the State while opposing the appeal has supported the impugned conviction and sentences.
18. After having gone through the record and after having heard the arguments of the learned counsel for the parties, we are of the view that there is no discrepancy between the ocular account and the medical evidence as the omission to give the details of each and every injury while the deceased was being inflicted such a large number of injuries is inconsequential. The presence of eye-witnesses at the spot cannot be doubted as they are residents of the same area and have fully explained their presence at the time and venue of the occurrence. The recoveries have been proved and the reports of Chemical Examiner and of Serologist are also positive. No castle can be built on the belated despatch of sealed parcels to the Office of Chemical Examiner and Serologist as the Investigating Officer was not cross-examined as to why the same were not sent earlier to the concerned offices. It may be so due to some genuine reasons or some unavoidable circumstances. Likewise, in the presence of long-standing enmity between the parties, which is also admitted by the appellants as they themselves have stated that they have been involved due to enmity, the motive stands proved. On a careful consideration of the facts and the evidence, we find that the prompt lodging of the F.I.R. Rules out any possibility of substitution or the prosecution story being an afterthought. The complainant is the real father of the deceased and he had no consideration to falsely implicate the appellants in such a heinous offence leaving out the actual culprits in an occurrence which took place at a very busy place. We, therefore, hold that the ocular account is unanimous, straightforward and is in consonance with medical evidence as well as the recoveries and is worthy of reliance.
19. However, we are also of the opinion that the case as against the appellant Muhammad Ramzan alias Jani is not that of capital punishment because the possibility cannot be ruled out that he acted under the influence of his father Muhammad Sadiq who exhorted him to attack. In this regard, we are guided by the age-old principle laid down by the superior Courts that the extreme penalty of death is not called for when the accused acted under 13 the influence of any of his immediate elders i.e. Brother, father or grand--father. In Mukhtar Hussain and another v. The State (supra), although the co-accused being father of the accused (like in present case) was acquitted, it was held by the Honourable Supreme Court that the extreme penalty of death was not called for as the possibility that accused acted under the influence of his father could not be ruled out.
Similarly, in Ziaullah v. The State (supra), the sentence of death awarded to the accused was altered to one for imprisonment for life because presumably the accused had acted under the influence of his grandfather. In Amjad alias Gogi v: State (supra), a judgment delivered by a Division Bench of this Court, the sentence of death was altered to imprisonment for life because the father and elder brother were also with the accused at the time of occurrence and it was held that the possibility of accused having acted under the influence of his elders could not be ruled out.
20. Resultantly, maintaining the appellants' conviction under sections 302/34, P.P.C. For the murder of Muhammad Ashfaq alias Papoo deceased, the appeal to the extent of Muhammad Aslam and Shehzad appellants is dismissed as the extenuating circumstances in their case are lacking. The death sentence awarded to each of them is confirmed. However, as the capital punishment is not warranted in the case of Muhammad Ramzan alias Jani appellant, the appeal to his extent is partly allowed and his death sentence is converted to imprisonment for life and is not confirmed. The sentence of fine as recorded by the trial Court against all the three appellants is maintained with all consequences. Muhammad Ramzan alias Jani appellant shall also be entitled to the benefit within the contemplation of section 382-B, Cr.P.C. The Murder Reference vis-a-vis Muhammad Aslam and Shehzad appellants is answered in the affirmative and to the extent of Muhammad Ramzan alias Jani appellant, it is answered in the negative.