1. ' MUHAMMAD NAWAZ ABBASI, J.-Leave to appeal is sought in this jail petition preferred under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, against the judgment dated 22-5- 2001 passed by a learned Division Bench of Lahore High Court, Lahore, whereby Criminal Appeal No,75-J of 1996 filed by the petitioners was dismissed and Murder Reference" NO.192 of .1996 sent by the learned trial Judge was answered in the affirmative.
2. ' The petitioners namely, Saeed, Waheed and Khurshid were tried in a case under sections 302/324/148 and 149, P.P.C registered against them at Police Station urban area, Sargodha relating to the occurrence taken place on the same day in the area of Faridkot, Sargodha in which Muhammad Saghir and Muhammad Shabbir were murdered and Zulfiqar and Muhammad Bashir, the first informant, were injured. The learned trial Judge having found the petitioners guilty of the charge of committing the murder of Saghir convicted and sentenced them to death under section 302(b), P.P.0 and also required them to pay compensation of Rs,50,000 each to the legal heirs of the deceased and in default of payment of compensation, directed to undergo R.I. For six months each. The petitioners Waheed and Saeed having been found responsible for causing murder of Muhammad Shabir were convicted and sentenced to death under section 302(b), P.P.0 and were also directed to pay Rs,50,000 each as compensation to the legal heirs of the deceased. In default of payment of compensation they 'were directed to undergo R.I. For six months each. Khursheid petitioner was however, acquitted from the charge of murder of Mohammad Shabbir. The petitioners were further convicted and sentenced as. Under :---
(a) Under section 337-F(ii), P.P.C Saeed and Khursheid were directed to pay Rs,1,000 each as Daman for causing injuries to Zulfiqar and were also sentenced to two years' R.I. Each as Tazir.
(b) Under section 337-A (i), P.P.C. Waheed petitioner was directed to pay Rs,1,000 as Daman for causing injuries to. Zulfiqar and was also sentenced to R.I. For one year as Tazir
(c) Under section 337-A (ii), P.P.C. Hameed co-accused of the petitioners was sentenced to for five years as Tazir for causing injuries to Muhammad Bashir, the first informant and was directed to pay Rs,1,000 as Arsh to the injured. The convict was directed to remain lodged in jail till payment of amount of Arsh.
3. ' The sentences of imprisonment awarded to the petitioners were directed to run concurrently with benefit of section 382-B, Cr.P.C. The petitioners and their co-accused namely Hameed challenged their conviction and sentences through a composite Criminal Appeal No,75-J of 1996 in the Lahore High Court, Lahore and the learned Division Bench of the High Court, acquitted Hameed from the charge and while maintaining conviction and sentences of the present petitioners dismissed their appeal vide judgment dated 22-5-2001. The murder reference was disposed of accordingly.
4. ' The prosecution case in brief as narrated in the F.I.R. Lodged by Muhammad Bashir, the first informant, is that on 29-1-1995 at 6 p.m. He and his three sons namely Shabbir, Saghir and Zulfiqar and two others namely, Saleem and Nazir All were present in the courtyard of his house situated in Kotfarid when suddenly Waheed armed with dagger, Khurshid and Saeed armed with Churri, Rashid alias Haji armed with Danda and Hameed armed with hatchet, came there and while raising Lalkara and trespassing into the house, attacked at the complainant party. Muhammad Saghir was dragged by them outside the house and Muhammad Saeed and Waheed caused him blows with their respective weapons on his chest, right joint shoulder and left flank, whereas Khurshid caused him two blows with Churn on left side of his abdomen. Muhammad Saeed also inflicted a blow with Churri on his arm and Hameed accused being armed with hatchet, caused a blow to Muhammad Saghir on his forehead. Rashid caused him Danda blows and he fell on the ground and then Waheed inflicted a blow with Churri on the right side of his back. Muhammad Saeed and Waheed caused injuries to Shabbir on his chest with their respective weapons and Zulfiqar sustained injuries at the hands of Khurshid, Saeed and Waheed on different parts of the body whereas Hameed caused a blow with hatchet to Muhammad Bashir complainant on his head. On the hue and cry of the complainant and the P.Ws, Muhammad Saleem and Nazim All (P.Ws.) when reached at the spot, the accused decamped from the place of occurrence.
5. ' The motive set up by the prosecution was that two months prior to the occurrence a dispute arose between Muhammad' Shabbir and Khurshid on payment of Rs,400, the price of the tape recorder which was sold by Muhammad Shabbir to Muhammad Khurshied. The tape recorder had gone out of order and Khurshid refused to make payment whereupon a quarrel had taken place between Muhammad Shabbir and Muhammad Khurshid in which Khurshid was slapped by Shabbir. The accused with a view to take revenge of insult of Khurshid, attacked on the complainant party and committed murder of Saghir and Shabbir, the two real brothers. Muhammad Saghir succumbed to the injuries at the spot whereas Shabbir was admitted in the hospital in injured condition but he could not survive. Muhammad Khan Inspector, having prepared inquest report and the inquiry statement of Saghir deceased in the hospital recorded statement of Zulfiqar and on the inquiry from the concerned doctor about the condition of Shabbir, the Inspector was told that the injured was not fit to make the statement. The Inspector then proceeded to the place of occurrence and during 'spot inspection secured blood-stained earth in a sealed parcel from two places and prepared rough site plan and also took into possession the last worn clothes of Saghir deceased produced before him by a constable. The accused namely Saeed, Waheed, Khurshid, Rashid and Hameed were arrested on 30-1-1995 and during investigation, Saeed and Waheed led to the recovery of dagger (P.16) and Churri (P.17) respectively and Khurshid accused got recovered blood-stained Churri (P.18). The Inspector also recovered hatchet (P.19) from Hameed and blood- stained Danda from Rashid used by them as weapons of offence in the occurrence. The investigating officer got prepared site plan of the place of occurrence and made his notes on it with red ink. Shabbir expired in hospital on 9-2-1995 and the Investigating Officer having prepared his injury statement and inquest report in the hospital, dispatched his dead body for post-mortem examination.
6. ' The doctor who medically examined Shabbir deceased in injured condition, found following injuries on his. Person:--- "(1) Incised stab wound 3 c.m. x 1-1/2 c.m. Not probed on left side of chest 10 c.m. From mid-line xiphoid bone corresponding out was present on the shirt.
(2) Incised wound 3 c.m. x 1-1/2 c.m. Not probed 10 c.m. Below injury No,1 corresponding cut was present on the shirt."
7. ' The same doctor conducted post-mortem on the dead body of Saghir and found following injuries on his person:- "(1) Contused wound 3-1/2 c.m. x 1-1/2 c.m. x bone deep on left front forehead.
(2) Stab wound 3-1/2 c.m. x 1-1/2 c.m. On right side of xiphoid going deep in abdominal cavity.
8. During dissection it was found that the injury had penetrated into abdominal cavity and had cut medial lobe of liver with wound of 3 c.m. x 8 c.m. It also cut 10th and 11th ribs.
(3) Stab wound 3-1/2 c.m. Into 2 c.m. On left mid-line of chest 9 c.m.-postero lateral to left nipple, on dissection it was found that it had gone 9 c.m. Deep into the muscles of the chest.
(4) Incised wound 3-1/2 x 1-1/2 c.m. Chest cavity deep on the right side to its lateral part 10 c.m.
9. Postero interior to right nipple. It has passed through internal coastal space of 8th and 9th rib injuring right lower lobe of the lung and then passed into liver cutting its right lobe at its end up to 4 c.m.
(5) Incised wound 4 x 1-1/2 c.m. On the right flan in the abdomen going backward and done ward through muscles up to 6 c.m. With wound of exit 2-1/2 x 1-1/2 c.m. On the back of right flan.
(6) Incised wound 4 x 2 c.m. Abdominal cavity deep 2 c.m. Right to apendiacular area 18 inches smallintestine was bulging out of it. On dissection it was found it had cut abdominal wall and penetrated into abdominal cavity."
10. ' Dr. Khizar Mahmood Qazi, medically examined Zulfiqar and Bashir injured P. Ws on the day of occurrence and traced following injuries on their persons: ' Zulfiqar "(1) Incised wound 3 c.m. x 1 & 1/2 c.m. Not probed on left chest back 5 c.m. From mid-line on left side corresponding cut on Bunyan and shirt was present.
(2) Incised wound 3 c.m. x 1-1/2 c.m. At back on right side 3 c.m. From mid-line (not probed)
11. (corresponding cut on Bunyan and shirt was present).
12. ' Bashir ' A lacerated wound 3 c.m. x 1-1/2 c.m. Into bone deep with swelling on the back of the head in the area of 4 x 4 c.m. It was 4-1/2 c.m. From the right ear."
13. ' Dr. Muhammad Afzal Chaudhry conducted post-mortem on the dead body of Shabbir and traced following injuries on his person: "(1) A stitch operation wound 21 c.m. (left para median).
(2) Stitched 3 c.m. Wound on left lower chest in mid clavical line.
(3) Stitched 1 c.m. Wound on left upper abdomen 10 c.m., below injury NO.1.
(4) 2x.1-1/2 cm. Wound present 12 c.m. Left side of umblicous
(5) 2 x c.m. Wound present two c.m. Below and parallel of injury No,4 line.
(6) 2 x 3 c.m. Chest tube bone in 8 internal costal space in mid axillary
(7) Healed wound."
14. ' The prosecution in addition to the police officials and the formal witnesses who remained associated with investigation, examined Muhammad Bashir and Zulfiqar as eye-witnesses of the occurrence. Dr. Khizar (P. W . -7), Dr. Muhammad Afzal (P.W.-8) and Dr. Muhammad Saeed, (P.W.-12) who medically examined the witnesses and conducted post-mortem examination Oh tiv dead bodies of deceased and Muhammad Khan, Inspector (P.W.-9), who conducted investigation of the case and submitted challan.
15. ' The accused in their statement under section 342, Cr.P.C. While denying the charge pleaded that the deceased and injured witnesses sustained injuries at the hands of inhabitants of the area in an open fight taken place in the Mohalla and they were falsely involved in the case due to enmity with Manzoor Hussain Lilla, an ex-Police Officer.
16. ' Learned counsel for petitioners has contended that the eyewitnesses namely Bashir (P.W.-5) and Zulfiqar (P.W.-6) were real father and brother of Saghir and Shabbir deceased and therefore, they being interested witnesses could not be relied upon without independent corroboration. It was next contended by the learned counsel that the fateful occurrence took place at 6 p.m. On 21-5-1995 when it was complete dark therefore, the assailants were not identifiable and further it was not possible for the witnesses to give minute detail of injuries. The learned counsel concluded that since motive was shrouded in mystery and moreover, it was difficult to fix the individual responsibility of each accused, therefore, it would be sufficient mitigating circumstance for lesser penalty.
17. ' We have heard the learned counsel for the petitioners at length and perused the record with their assistance.
18. ' The occurrence was the result of a quarrel taken place between Shabbir deceased and Khurshid petitioner in connection with the payment of price of tape recorder and except the quarrel in question, there was no enmity between them therefore, it is not acceptable that the petitioners would be substituted for unknown culprits for such a petty dispute. The parties being resident of same Mohallah were known to each other and petitioners while armed with deadly weapons attacked at the deceased and the witnesses when they were present in the courtyard of their house at 6 p.m., therefore, there was no possibility of misidentification as the complainant and his companions would not be sitting in the courtyard in dark. The report of the occurrence was lodged within one hour of the occurrence at the police station urban area, Sargodha, which was situated at a distance of 1-1/2 kilometres from the place of occurrence, therefore, there would be no question of deliberation and consultation. Close relationship of the injured witnesses namely, Muhammad Bashir and Zulfiqar with the deceased would not be a ground to discard their testimony. They were natural witnesses of the occurrence and had no motive either to make false deposition against the petitioners or substitute them for the real culprits. It is in the medical evidence that the deceased and eye-witnesses were caused injuries with sharp-edged weapon and the blood stained weapons of offence recovered at the instance of the petitioners were found to have been stained with human blood by the expert in the Forensic Science Laboratory which would provide sufficient corroboration to the ocular account. The motive part of prosecution story was proved by Muhammad Bashir (P.W.-5) who claimed to have witnessed the quarrel between Khurshid deceased and his son Shabbir 2/3 days prior to the occurrence and thus the motive would also be supportive evidence in proof of the guilty of petitioners.
19. ' We having gone through the evidence of the injured and natural witnesses, have found them truthful, confidence-inspiring and trustworthy. The evidence of eye-witnesses was not suffering from any material defect or contained any describable contradiction and discrepancy to create a slight doubt regarding the guilt of the petitioners. We find that motive in the present case was not shrouded in mystery as contended by the learned counsel and in any case, the weakness and insufficiency of motive or absence of motive in such-like cases, cannot be considered as a mitigating circumstance for lesser penalty.
20. ' For the foregoing reasons, we find, that appraisal of evidence made by the High Court was not in conflict to the principles laid down by this Court and there was no flaw in the finding regarding guilt of the petitioners for interference of this Court. We therefore, while maintaining the conviction and sentences awarded to the petitioners, dismiss this petition. Leave is refused.