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Criminal Appeal No. 304 of 1980 and Murder Reference No.11 of 1981, heard on 16th April, 1984.

(a) Penal Code (XLV of 1860)--

---S.302/34--Motive--Motive stated by wife of deceased--Notwithstanding lengthy cross examination, nothing brought out to show that either motive was not true or wife of deceased could not be relied upon in that respect--Defence also not touching question. of motive before High Court--Motive, held, clearly established in circumstances. [Motive]

(b) Penal Code (XLV of 1860)--

---S. 302/34--Ocular evidence--One out of two eye-witnesses not related to deceased while the other widow of deceased--Both witnesses having no enmity or animosity against any of accused to falsely involve them on so grave a capital charge as murder--Minor contradictions pointed out in their testimony, not found to be sufficient to dislodge their veracity--No serious effort made by defence to disprove their testimony--Witnesses, held, were present at spot and saw occurrence.

(c) Penal Code (XLV of 1860)--

---S.302/34--Recovery witness from public though related to deceased but no enmity or animosity against any of accused brought out in cross-examination--Evidence of recovery witness corroborated by Investigating Officer, a disinterested witness--Evidence of both recovery witnesses found to be clear and straightforward and having ring of truth--Recoveries, held, acted as strong incriminatory pieces of evidence against accused from whom such recoveries were effected. [Recovery].

(d) Penal Code (XLV of 1860)--

---S. 302/34--Medical evidence--Corroboration--Accused strangulating deceased with Safa and giving blunt weapon injuries--Medical evidence showing that deceased died of asphyxia and blunt weapon injuries on various parts of his body--Nature and number of injuries on deceased, also showed that deceased was strangulated and was injured by two or more assailants with blunt weapons--Medical evidence, held, clearly corroborated ocular evidence.

(e) Penal Code (XI-V of 1860)--

---S. 302/34---Motive stood established--Presence of both witnesses at place of occurrence believed-- Involvement of two accused standing firmly established by ocular evidence without' any question of doubt--Recoveries of weapons of offence from both accused also established--Recoveries acting as strong incriminating pieces of evidence against both accused-- Medical evidence corroborating ocular account--Motive, ocular account, recoveries and medical evidence, held, clearly brought home guilt to both accused beyond any shadow of doubt.

(f) Penal Code (XLV of 1860)--

---S. 302/34--Benefit of .doubt--Two out of four accused having been declared innocent during four different investigations--No recoveries effected from such accused--one of them, having no motive to commit said crime--Without prejudice to testimony of eye-witnesses regarding co-accused, out of abundant caution and for safe administration of justice, both accused given benefit of doubt and acquitted in circumstances.

(g) Penal Code (XLV of 1860)--

---Ss.302/34 & 304, Part 11--Nature of offence--Accused strangulating deceased and giving him blunt weapon injuries--None of blunt weapon injuries was found to be sufficient or likely to cause death in ordinary course of nature--Four blunt weapon injuries alongwith throttling were found to result in death--Only good beating to deceased appearing to be intended--One of accused putting Safa around neck of deceased and twisting it primarily to fall deceased--None of accused, held, intended to cause death or such bodily injury as they knew likely to cause death--Case not found to be covered by S. 300 P.P.C--Offence, held, fell-under S. 304, Part II, P.P.C--Convictions and sentences under 5.302/34, P.P.C altered to that under S. 304, Part II, P.P.C.

Q.M. Saleem for Appellants.

Ch. Faiyaz Ahmad A.G. for the State.

Date of hearing: 16th April, 1984.

-Saleem and Salahuddin sons of Jalal Din, Shamas alias Shama son of Rehmat and Muhammad Hussain son of Ibrahim were tried by an Additional Sessions Judge of Kasur under sections 302/34, P.P.C. for the murder of Mehram, deceased. The learned trial Judge, by his judgment, dated 20-2-1980, convicted. all the four accused under the said section and sentenced Saleem, accused, to death, subject to confirmation by this Court, and Salahuddin, Shama and Muhammad Hussain, accused, to life imprisonment and he also ordered all the four accused to pay a fine of Rs.5,000 each or, in default thereof, to undergo further rigorous imprisonment for six months each. Half of the fire, if recovered, was ordered to be paid to the legal heirs of Mehram, deceased. The joint appeal (Cr.A.304 of 1980) preferred by the four convicts and the reference (M.R.No.11 of 1981) submitted by the trial Judge for the confirmation of the death sentence awarded to Saleem convict, are both now before us for determination and will be disposed of by this judgment.

2. Briefly the prosecution case is that Saleem and Salahuddin, accused, are real brothers. Shama accused, is their cousin, while Muhammad Hussain, accused, is their friend. Rehmat, father of Shama, accused, was step-brother of Mehram, deceased. They were the sons of the same father Jhanda, but from different mothers. About a month before the occurrence, Rehmat wanted the hand of a daughter of Mehram, deceased, for his son Sattar but Mehram, deceased, refused. About three days prior to the occurrence, the Kattis (she calves)--Of Mehram deceased, damaged the crops of Rehmat and this led to an altercation between Rehmat and Mehram, deceased, and the former threatened that in future he would not return the Kattis, if they damaged his crops. At this time, Shama, Saleem and Salahuddin, accused, were present and they said that they were fed up with Mehram, deceased, and would deal with him within two to three days. On the day of occurrence, i.e. 3-8-1974, Mehram, deceased, accompanied by his wife Mat. Wallan P.W.10, went to see Haji Haleem in order to tell him about the dispute, but Hap Haleem was not available., as he had gone to Kasur. They waited for him for sometime and at 2 p.m. they left for their village. When they reached near old bridge of Dhingi, all the four accused emerged out of Tiba and caught hold of Mehram, deceased. Mst. Wallan P.W.10, being a lady, remained in a state of fear and could not help her husband. Saleem, accused put a Safa around the neck of Mehram, deceased, and felled him and sat over his chest, whereafter Muhammad Hussain, 'Shame and Salahuddin. accused, gave Dang blows to Mehram deceased, on his face etc. and he started bleeding from his mouth and nose. Wallan P.W.10 raised hue and cry, which attracted Abdul Hamid P.W.9 and Muhammad Ali and Kamal Din (won over P.Ws.), who also witnessed the occurrence. The accused issued threats to them also. Then the accused ran away towards their village, alongwith Safa and their weapons. The witnesses found that Mehram had expired.

3. Leaving the dead body of Mehram, deceased, in the custody of Abdul Hamid P.W.9 etc., Mst. Wallan P.W.10 left for the Police Station Chunian, where she lodged the F.I.R. Exh. P.F. at 3-35 p.m., which was recorded by Muhammad Zafar A.S.I. P.W.11.

4. Muhammad Zafar, A.S.I. P.W.11 then proceeded to the spot, where he collected blood-stained earth-vide memo. P.J. After preparing the necessary papers, he sent the dead body for post-mortem examination.

5. On 4-8-1974 at 1.30 p.m. Dr. Zafar Iqbal P.W.3 conducted the post-mortem examination on the dead body of Mehram, deceased. He found ten lacerated wounds two contused areas and a contusion on various parts of the face and head. lie also found a ligature mark on the front and right side of the neck crossing mid-line of neck. The neck below the ligature mark was swollen. The death was due to shock, haemorrhage and asphyxia. Four lacerated wounds on the forehead, left side of the face, mouth and chin were opined to collectively result in death alongwith the throttling. Probable time between injuries and death was held to be rapid and between death and post-mortem examination about 18 to 24 hours.

6. The same day i.e 4-8-1974 Saleem and Shama, accused, were arrested.

7. On 7-4-1974 Shama, accused, led to the recovery of a blood-stained Sota P.4 and Saleem, accused, led to the recovery of a Safa P.5, by which he had strangulated the, deceased, which were taken into possession, vide memos. P.D. and P.E. The said recoveries were witnessed by Shamir P.W.5, Zulfiqar Inspector P.W.12 and Ghulam Muhammad and Jafar (given up P.Ws. )

8. After 4 to 5 months of the occurrence, Salahuddin and Muhammad Hussain, accused, were arrested. The blood-stained earth recovered from the spot and the blood-stained Sota recovered at the instance of Shama, accused, were found to be stained with human blood by the Chemical Examiner and the Serologist. After completing the necessary investigation, the challan against all the accused was sent up.

9. At the trial, the prosecution produced Mst. Wallan P.W.10 to prove the motive, the said lady and Abdul Hamid P.W.9 in proof of the ocular account, Shamir P.W.5 and Zulfiqar Inspector P.W.12 in support of the recoveries and Dr. Zafar Iqbal P.W.3 to corroborate the medical testimony.

10. All the accused denied the accusations that were levelled against them. Saleem and Shama accused denied the recoveries effected and their instance and imputed their false involvement to enmity. Salahuddin and Muhammad Hussain accused stated that they had been arrested on suspicion six months after the occurrence, though four police officers had declared them innocent during various investigations. Three witnesses were produced by Saleem, accused, in his defence.

11. The learned trial Judge, relying upon the motive, the ocular account, the recoveries and the medical testimony, convicted and sentenced all the four accused, as stated in para. 1 above.

12. We have heard the arguments of the learned counsel for the appellants and the State and have also perused the record. The evidence as regards motive is furnished by Mst. Wallan, complainant P.W.10. According to her testimony, Rehmat, father of Shama appellant, was a step brother of her husband Mehram, deceased. Both Rehmat and Mehram deceased were born of the same father Jhanda, but of different mothers. A month back the said Rehamt demanded the hand of her daughter for his son SBttLr which Mehram deceased refused. Three days prior to the occurrence, their Kattis (she calves) damaged the crops of Rehamt on which Rehmat and her husband exchanged hot words and the former threatened the latter that he would not return the Kattis (she claves) it they again damaged his crops. At that time Saleem, Shama and Salahuddin accused had also arrived and they informed Mehram deceased that they were sick of him and they would deal with him within two to three days. Notwithstanding a lengthy cross-examination conducted on Mat. Wallan P.W.10 nothing was brought out to show that either thel motive as set up was not true or that she could not be relied upon in respect thereof. Learned counsel for the appellants has also not touched the question of motive. The motive, therefore, stands clearly established in the case.

13. The ocular account in this case is furnished by Abdul Hamid P.W.9 and Mat. Wallan P.W.10. Abdul Hamid P.W.9 is not related to the deceased, though Mat. Wallan P.W.10 is the widow of the deceased. Both these witnesses have no enmity with any of the appellants or any animosity against any of them as to falsely involve any of them on so grave a capital charge as murder. The ocular account of these witnesses is narrated in para. 2 above and need not, therefore, be repeated. Some minor contradictions in their testimony have been pointed out, but they are not such as to dislodge their veracity. It appears that the said witnesses were present at the spot and saw the occurrence. No serious effort was made by the learned counsel for the appellants to dislodge their testimony, other than plead the innocence of Salahuddin and Muhammad Hussain, appellants, on the basis of investigation reports submitted by the police in that respect and to pray for lesser sentences for all the appellants. Taking all circumstances into consideration, we hold that Mst. Wallan P.W.10 and Abdul Hamid P.W.9 were present at the spot and did see the occurrence and that the involvement of Saleem and Shama, appellant, stands firmly established without any question B of doubt, though that of Salahuddin and Muhammad Hussain requires some investigation, in view of the consistent reports by the police in four different investigations that they were innocent.

14. The recovery of the blood-stained Sota P.4 at the instance of Shama, appellant, and the Safa P.5 at the instance of Saleem, appellant, with which he disabled the deceased, is proved by Shamir P.W.5 and Zulfiqar Inspector P.W.12. It is true that Shamir P.W.5 is the brother in-law of Mehram, deceased, but no enmity or animosity against any of the appellants has been brought out in cross-examination. In any case the evidence of Zulfiqar Inspector P.W.12, who is a disinterested witness, supports the statement of Shamir P.W.5. The evidence of Shamir P.W.5 and Zulfiqar Inspector P.W.12 is clear and straightforward and has the ring of truth. The recoveries, therefore, act as strong incriminatory pieces of evidence against Shama and Saleem, appellants.

15. The medical testimony furnished by Dr. Zafar lqbal P.W.3 clearly shows that the deceased died of asphyxia and blunt weapon injuries on various parts of his head and face. The deceased suffered no less than 12 blunt weapon injuries. The number and nature of injuries on the deceased clearly show that the deceased was strangulated with some long piece of cloth, such as Safa P.5, and was injured by two or more assailants with blunt weapons, such as the Sota P.4, recovered[ at the instance of Shama, appellant. The medical testimony, therefore, clearly corroborates the ocular account.

16. The upshot of the above discussion is that the motive, the ocular account, the recoveries and the medical testimony clearly bring 1 home the guilt to Saleem and Shama, appellants, beyond any shadow of doubt. However, without prejudice to the testimony of Abdul Hamid P.W.9 and Mst. Wallan P.W.10, we would, out of abundant caution and for the safe dispensation of justice, give the benefit of doubt to Salahuddin and Muhammad Hussain, appellants, as they have not only been found innocent by the police in four different investigations, but no recoveries have been effected at their instance. Even otherwise, I Muhammad Hussain, appellant, had no motive to commit the crime in instance. The convictions and sentences of Salahuddin and Muhammad Hussain, appellants, are. Therefore, liable to be set aside.

17. The only question that remains is that relating to the offence committed by Saleem and Shama, appellants. As admitted by Mst. Wallan P.W.10 in her cross-examination, all the four appellants had three Dangs of bamboo and one: Sota of Keeker Dangs of Bamboo are not heavy instruments, as the Dangs of other trees. All the blunt weapons injuries on the head and face of the deceased were not held by Dr. Zaffar lqbal P.W.3 to be individually or collectively sufficient to cause death in the ordinary course of nature. In fact none of the blunt weapon injuries was held to be sufficient or likely to cause death in the ordinary course of nature. Rather, four blunt weapon injuries were collectively held to result in death alongwith throttling. It appears that Shama and Saleem, appellants, wanted to give a good beating to Mehram, deceased, and that in that process, Saleem, appellant, at their initial stage or during the course of beating, put his Safa around the neck of Mehram, deceased, and twisted it, primarily to fall the deceased... and then sat over him to facilitate Shama, appellant, to inflict injuries on him with his Sota. It seems that none of the appellants acted with the intention of causing death or with the intention of causing such bodily injury as they knew to be likely to cause the death of Mehram; deceased. None of the blunt weapon injuries or the asphyxia was individually or collectively held by Dr. Zafar Iqbal P. W.3 to be imminently dangerous as to, in all probability, cause death or was held to be sufficient or likely to cause death in the ordinary course of nature. In these circumstances, we consider that the case is not covered by Section 300, P.P.C. and that, at best, the appellants have committed culpable homicide within the meaning of section 299, P.P.C. The offence, therefore, falls under section 304-I I , P . P . C . The conviction and sentences of Saleem and Shama, appellants, under sections 302/34, P.P.C. are set aside. They are convicted under section 304-11, P.P.C. and sentenced to ten years, rigorous imprisonment each and to pay al fine of rupees Fifteen thousand (Rs.15,000) each. The fines, if I recovered, shall be paid to the legal heirs of Mehram deceased, ass compensation under section 544-A, Cr.P.C. In view of section 382-B, Cr.P.C., the periods of detention undergone by Saleem and Shama, appellants, as under-trial prisoners, shall be treated as that undergone by them as convicts.

18. For the foregoing reasons, the appeal of Salahuddin and Muhammad Hussain, appellants, is accepted. Their conviction and sentences are set aside. They shall be released forthwith, if not required in any other case. The fines, if any recovered from them, shall be refunded to them. The appeal of Saleem and Shama, appellants is partly accepted, in terms of alteration of conviction and reduction in sentences, as stated above.

S.A. Appeal partly accepted.

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