' BASHIR A. MUJAHID, J.---Muhammad Akbar Jalal-ud-Din son of Muhammad Yaqub, Muhammad Aslam son of Sher Khan, Ghulam Rasool son of Sher Khan, Muhammad Ashraf son of Sher Khan, Muhammad Nawaz son of Saif Ali, Mumtaz Ahmad son of Ghulam Qadir, Waris Khan son of Karam Ali and Muhammad Nawaz son of Eidhi Khan, have challenged judgment dated 14-3-1995 passed, by learned Addiional Sessions Judge, Jhelum, whereby they were convicted under sections 302/148/149, P.P.C. In case F.I.R. No, 51 dated 20-9-1991, registered with Police Station Lilla, for commission of murder of Fateh Khan and Muhammad Shafi and sentenced as under:
1. Muhammad Akbar Jalal-ud-Din son of Muhammad Yaqub and Ghulam Rasool son of Sher Khan to death and a fine of Rs, 25,000 each, in default thereof to further undergo two years' R.I.
2. Waris Khan, Mumtaz Ahmad, Muhammad Nawaz son of Eidhi Khan, Muhammad Aslam, Muhammad Ashraf and Muhammad Nawaz son of Saif Ali to imprisonment for life and fine of Rs, 25,000 each, in default of payment of fine, to suffer two years' R.I., for murder of Fateh Khan.
3. Waris Khan, Mumtaz Ahmad, Muhammad Nawaz son of Eihdi Khan, Muhammad Akbar Jalal-ud- Din, Muhammad Ashraf, Ghulam Rasool and Muhammad Nawaz son of Saif Ali to imprisonment for life for murder of Shafi Muhammad. They were further ordered to pay Rs, 25,000 each, in default thereof to two years' for murder of Muhammad Shafi.
3(a) Muhammad Aslam was sentenced to death.
4. Under sections 148/149, P.P.C. All the appellants sentenced to two years' R.I. Each.
' The amount of fine was to be paid to the legal heirs of the deceased Fateh Khan and Shafi Muhammad, deceased as compensation under section 544-A, Cr.P.C.
' All the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended in favour of the appellants.
' The brief facts of the case as narrated in F.I.R. Exh.P.0 recorded at Police Station Lilla, District Jhelum at the instance of Nosherwan, P.W. 13 with Sana Ullah, A.S.I. P.W. 16 on 20-9-1991 at 9-00 a.m., are that on the same day at 8-30 a.m. He along with his brother Fateh Muhammad Khan (deceased), Muhammad Hayat son of Fateh Khan, Muhammad Siddiq son of Fateh Muhammad went to cultivate, with tractor, the land of Chan Pir Shah which was obtained by his brother Fateh Khan on lease. Muhammad Shafi was driver of the said tractor. Muhammad Shafi started ploughing the fields, the complainant along with others were standing nearby, Muhammad Shafi had only taken two rounds, when from the eastern side, Muhammad Akbar Jalal-ud-Din son of Yaqub, armed with hatchet, Abbas alias Bhutto son of Muhammad Akbar Jalal-ud-Din armed with gun .12 bore, Muhammad Ashraf son of Sher Khan, Muhammad Aslam son of Sher Khan armed with gun .12 bore, Muhammad Nawaz son of Saif Ali armed with hatchet, Ghulam Rasool son of Sher Khan armed with gun .12 bore, Muhammad Afsar son of Ghulam Rasool armed with hatchet, Saif Ali son of Fateh Ali armed with hatchet, Waris son of Karam Ali armed with hatchet, Muhammad Mumtaz son of Ghulam Qadir armed with hatchet, Manzoor son of Faiz Bakhsh alias Mian armed with gun .12 bore, Ali Muhammad son of Faiz Bakhsh armed with hatchet, Muhammad Nawaz son of Eidhi Khan armed with rifle 7mm and Muhammad Ramzan son of Eidhi Khan armed with gun .12 bore emerged from behind the Banna and after raising Lalkara, they attacked Fateh Khan. Ghulam Rasool fired from his gun at Fateh Khan hitting on his chest, second fire was made by Muhammad Ashraf son of Sher Khan at Fateh Khan which also hit at chest; third fire was caused by Abbas son of Muhammad Akbar Jalal-ud-Din hitting at back of Fateh Khan, Muhammad Ramzan son of Eidhi also fired at Fateh Khan hitting on his right shoulder, who after receiving the injuries fell on the ground.
Muhammad Nawaz son of Eidhi fired at Muhammad Shafi from his 7MM rifle hitting on his left arm.
Muhammad Aslam son of Sher Khan made second fire from his .12 bore gun at Muhammad Shafi hitting his left side of chest, who alightened from the tractor and tried to run away to save his life and had covered 10/12 paces when he fell on the ground and succumbed to the injuries.
Muhammad Akbar Jalal-ud-Din caused hatchet blow on Fateh Khan who had fallen on the ground hitting near' .His right ear. Second hatchet blow was caused by Muhammad Nawaz son of Saif Ali on neck of Fateh Khan. Third hatchet blow was caused by Saif Ali hitting right side of his head; fourth hatchet blow was caused by Waris hitting on back side of neck; fifth hatchet blow from wrong side was caused by Ali Muhammad son of Faiz Bakhsh; another hatchet blow by Mumtaz son of Ghulam , Qadir hitting on his left palm. Thereafter, Muhammad Afzal son of Ghulam Rasool caused hatchet blow hitting on back of head of Fateh Khan. Muhammad Akbar Jalal-ud-Din again caused hatchet blow on forehead of Fateh Khan. The occurrence was witnessed by Muhammad Hayat and Muhammad Siddiq, P.W. 14, who saved themselves by hiding themselves behind a boundary wall of Bunna. Fateh Khan succumbed to the injuries at the spot. His dead body was dragged by the accused for about 17/18 paces. The accused thereafter went towards the south side.
' The motive for the occurrence was that about 8/9 months ago Fateh Khan had fired at Muhammad Afsar, wherein Muhammad Afsar was injured and to take revenge of the said case, present occurrence was committed by the accused wherein Fateh Khan and Muhammad Shafi were murdered. The occurrence was committed with connivance of Muhammad Akram and Haji Sardar Khan sons of Ahmad Khan.
' Sam Ullah Khan, A.S.I., P.W. 16 after recording, the F.I.R. Arrived at the place of occurrence and took the dead bodies of Fateh Khan and Shafi Muhammad into possession prepared the injury statement Exh.P.B of Fateh Khan and inquest report Exh.P.B/1, and injury statement of Muhammad Shafi vide memo. Exh.P.W. And inquest report Exh.P.W./1, and despatched the dead bodies for post- mortem examination through Muhammad Asghar and Muhammad Latif, Constables. He also recorded the statement of Muhammad Hayat and Muhammad Siddiq under section 161, Cr.P.C. He collected the blood-stained earth from the place of occurrence wherefrom Fateh Khan was murdered through memo. Exh.P.D and from the place where Shafi Muhammad was murdered through Exh.P.F. He also took into possession 5 empties of .12 bore gun P.2/1-5 and 4 empties of 7MM rifle P.1/1-4 from the place of occurrence through Exh.P.E. Thereafter, investigation was taken over by Muhammad Yaqoob, Inspector/ S.H.O. P.W. 18, who on 2-10-1991 arrested Muhammad Aslam, Ibn-I- Abbas, Jalal-ud-Din Akbar, Ali Muhammad and Manzoor Hussain. On 4-10-1991, Muhammad Aslam while in police custody led to the recovery of gun P.5 which was taken into possession vide memo.
Exh.P.J. On the same day, Jalal-udDin Akbar while in police custody led to the recovery of blood- stained hatchet P.6 which was taken into possession vide memo. Exh.P.K. Thereafter, investigation was entrusted to Muhammad Walayat, S.I. P.W.19, who completed the investigation and submitted challan.
' The charge was framed, the accused denied the charge and claimed trial.
' During the trial, the prosecution examined as many as 19 witnesses to prove the guilt of the accused.
' Medical evidence was furnished by Dr. Muhammad Shafiq Khokhar P.W. 1 who on 20-9-1991 at 2-30 p.m. Conducted the post-mortem examination on the dead body of Fateh Khan and found the following injuries on his person:
1. An incised wound below right ear horizontal in direction, 6 c.m. Long and 1 c.m. Wide at the centre.
It was bone deep anteriorly and muscle deep posteriorly.
2. An incised wound on right side of occipital region of the skull behind right ear. It was 12 c.m. Long and 3 c.m. Wide at the centre. The bone was out and brain was damaged, extensively.
3. An incised wound on back of neck at its junction with skull. It was horizontal in direction and was 10 x 2 c.m.. It was bone deep.
4. An incised wound on back of neck at its lower limit, horizontal, 5 c.m. Long and 1 'c.m. Wide at the centre. It was bone deep.
5. An oval punctured wound with inverted margins in second inter costal space on left side of sternal border. It was 1 c.m. In diameter and, on probing communicated with thoracic cavity. It was wound of entry.
6. A punctured wound with everted margins on the back immediately below. Left scapula. It was 1- 1/2 c.m. In diameter it communicated with injury No,
5. It was wound of exit.
7. An oval punctured wound in front of neck on right side of mid line, with inverted margins. On probing, it communicated with injury No, 8, as described below. It was 1 c.m. In diameter and was wound of entry.
8. An irregular punctured wound on back of right side of neck, above the shoulder, with everted margins it was wound of exit of injury No, 7.
9. An irregular shaped lacerated wound in front of chest on right side, 8 c.m. Above right nipple. On probing it did not communicated with chest-cavity and, on dissection, there was no sub cutaneous achymbosis or bleeding.
10. An incised wound on left hand, between index and middle fingers, through and through in depth and cutting the hand between two metacarpel bones, 6 c.m. Proximally.
11. An irregular contused wound in front of upper part of right upper arm. It was muscle deep and about 1-1/2 c.m. In diameter.
12. An irregular bruise in front of fore head about 2 x 3 c.m.
' In his opinion, the cause of death was injuries Nos. 2 and 5 and injuries No,1, 2, 4 and 10 were sharp- edged while injuries Nos.6, 7 and 8 were caused by fire-arm and injuries Nos.9, 11 and 12 were due to some blunt object and can be the result of fall on hard irregular surface.
' On the same day, at 4-30 p.m., he also conducted post-mortem examination on the dead body of Shafi Muhammad son of 'Sher Khan and found the following injuries on his person:
1. An oval wound with inverted margins on left side of chest, 2 c.m. Below left nipple: It was 1 c.m. In diameter. On probing, it communicated with chest-cavity and its tract ran from left to right and slightly downwards. On opening the chest, the tract passed through right ventricle of heart, through diaphragm and through whole of the liver uptil right paracolic gutter from where a lead-piece was recovered.
2. An oval wound with inverted margins on back of left for arm 8 c.m. Below tip of the elbow. It was 3/4 c.m. In diameter and, on probing, communicated with injury No,
3. It was wound of entry.
3. An oval wound with everted margins, on antero medical aspect of left for arm. It was 1 c.m. In diameter, 6 c.m. Below elbow joint. It was exit wound.
' In his opinion, death was caused by injury No,1 ' The ocular account was furnished by Muhammad Nosherwarn, P.W. 13, who was complainant of case. He supported 'the version of. The F.I.R. And narrated the prosecution story as an eye-witness of the occurrence. He also narrated the motive for the occurrence. Muhammad Siddiq, P.W. 14 was also an eye-witness of the occurrence. He corroborated the prosecution story as narrated. By Nosherwan, P.W. 13 as an eyewitness. Muhammad Ashraf, P.W. 7 had attested the recovery memos.
Of the articles taken into possession from the spot regarding blood-stained earth and the empties alongwith Sana Ullah, A.S.I. P.W.
16. He also attested the recovery memos. Of gun P.5 got recovered by Muhammad Aslam and P.10 by Ghulam Rasool and rifle 7MM got recovered by Muhammad Nawaz son of Eidhi Khan. The remaining witnesses are of formal nature.
' The prosecution evidence was closed by tendering in evidence reports of Chemical Examiner.
Exhs. P.X, P.X/1, P.X 2 and P.X 3 and that of Serologist Exh.P.Y, P.Y/1, P.Y/2 and P.Y/3.
' The statements of the accused were recorded under section 342, Cr.P.C. Towards the end of the trial. They denied the allegations and claimed their innocence and false involvement. Mian Akhtar Ali, was examined as D.W.
1.
' The trial culminated into convictions of the appellants as mentioned above, while their co- accused were acquitted of the charge. They have challenged their conviction and sentence through Criminal Appeal No, 62 of 1995 while the trial Court has sent up Murder Reference No,88 of 1995. Both the matters are being decided by the single judgment.
' During the pendency of, the appeal Ghulam Rasool son of Sher Khan lid died, therefore his appeal has abated and the same is not pressed, and appellants convict Nos.6, 7 and 8 namely Mumtaz, Waris Khan and Muhammad Nawaz son of Eidhi Khan have been released after serving out their entire sentence and they despite notices issued to them, have not appeared, therefore, their names disposed of as having become infructuous. Muhammad Ashraf son of Sher Khan and Muhammad Nawaz son of Saif Ali have also been released from jail after serving out their sentence.
' Learned counsel for the appellants has argued that it was an unwitnessed occurrence.
Nowsherwan complainant P.W. 13 is real brother of Fateh Khan deceased. Motive was equally against him. Had he been present at the spot the accused would not have spared him. Their conduct was unnatural. Muhammad Saddique P.W. 14 is also a party man of the complainant and he was not the natural witness of the occurrence as no plausible reason has been furnished by him to be present at the spot at the relevant time. They are interested witnesses and- their evidence has not been corroborated by any other independent source. The motive was to Afsar accused who is proclaimed offender; he and his sister were injured by Fateh Khan deceased. There was no direct motive to Muhammad Jalal-ud-Din to launch attack on the deceased, Medical evidence belies the ocular 'account. Recoveries of weapons of offence have got no evidentiary value as the hatchet allegedly recovered were despatched to the Chemical Examiner with inordinate delay. The word was inserted in the memo. Subsequently. The appellants have been convicted by relying the same evidence on which the co-accused were acquitted. Muhammad Akbar Jalal-ud-Din appellant has litigation with Ghulam Rasool and others and '" they are opposed to each other's, therefore, there is no reason for them to join their opponents against the complainant party. The case against the appellants is doubtful and they are entitled for acquittal by extending them benefit of doubt.
' Conversely the appeal has been opposed by the learned counsel for the complainant and by the State. They have supported the impugned judgment.
' We have had the arguments of learned counsel of the respective parties and perused the record.
The alleged occurrence took place at 8-30 a.m. And F.I.R. Was lodged at the police station at 9 a.m.
Which is at two k.m. From the place of occurrence. The appellants are nominated accused with specific role in promptly recorded F.I.R. It was a daylight occurrence. The accused are known to .The P.Ws. And there was no possibility for their mistaken identity. Nousherwan P.W.13 is complainant of the case has given the minute details in the F.I.R. And attributed specific injuries having been caused by the appellants to both the deceased. Mere relationship of Nowsherwan P.W.13 with the deceased Fateh Khan is no ground to discard his testimony. Even if he runs a Truck Stand in Town is no reason to believe that he had not accompanied his brother. His non-interference in the occurrence is also natural as everyone wants to save his own life in preference to protect the others particularly when they had no arms. Muhammad Siddique P.W. 14 is entirely independent and impartial witness. He has sufficiently explained his presence at the spot by stating that he had to borrow tractor for his own land after the work was finished in the field where the occurrence took place. They stood to the test of lengthy cross-examination but no' material discrepancy has been brought on record to disbelieve them or discard their testimony. The ocular account furnished by Nausherwan P.W. 13 - and Muhammad Siddique P.W. 14 has been fully corroborated by medical evidence. Injury No, 1 which was fire-arm injury on Muhammad Shafi, proved fatal, has been specifically attributed to Muhammad Aslam. It is correct that recovery of weapon of offence is not much material as the empties taken into possession did not tally with the gun recovered from Muhammad Aslam appellant but the recovery of weapon of offence is only a corroborative piece of evidence and is of no consequence if the case is otherwise proved against the accused by direct evidence and other incriminating evidence. In case of Muhammad Shafi the fatal injury has been attributed to Muhammad Aslam. Fire-arm injury caused by him on Fateh Khan has also been supported by medical evidence. We do not see any contradiction in ocular account and medical evidence. Therefore, the case against Muhammad Aslam appellant is proved by the prosecution beyond any shadow of doubt and C we did not find any mitigating circumstances to reduce the normal penalty of death.
' Resultantly the appeal to his extent is dismissed. Death sentence' awarded to Muhammad Aslam appellant is confirmed.
As far as case of Muhammad Akbar Jalal-ud-Din is concerned, he has been attributed two hatchet blows on Fateh Khan deceased which were injuries Nos.1 and 2 and the remaining injuries caused by sharp-edged weapons have been attributed to other accused. His active participation in occurrence and causing fatal blow has been established by prosecution. The ocular account has been corroborated by medical D evidence. Therefore, his conviction under section 302(b), P.P.C. Is maintained. However, as far as sentence is concerned. The manner in which detail of injuries has been given by P.Ws. And attributed to each accused is not normally possible as miscroscopic picture. As many as 7 persons have been attributed the similar role. The distance wherefrom the P.Ws. Witnesses the occurrence is 57 karms. Fatch Khan deceased was being injured by seven accused. Then it was not possible to say with certainty as how and by whom each injury was caused. Muhammad Akbar Jalal-ud-Din accused is old man of more than 75 years of age and similar role has also been attributed to other co-accused who were sentenced to life imprisonment. Therefore, for safe administration of justice we are of considered view that lenient view should be taken in his case. While maintaining his conviction, his sentence is reduced to life imprisonment which will meet the ends of justice. Benefit of section 382-B, Cr.P.C. Is also extended to him. The sentence on both counts will run concurrently. However, sentence of fine on each count is maintained.
' As far as case of Muhammad Ashraf son of Sher Khan and Muhammad Nawaz son of Saif Ali is concerned, they have also been attributed specific role having caused fire-arm injuries and hatchet' blow respectively to Fateh Khan deceased and Muhammad Shafi. The injuries attributed to them have also been corroborated by medical evidence and recovery of weapons. The prosecution has successfully proved its case against them also. Therefore, their appeal stands dismissed.
' Murder Reference to the extent of Muhammad Akbar Jalal-ud-Din an:) Ghulam Rasool is answered in the negati've while against Muhammad Aslam is answered in affirmative.