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Criminal Appeal No. 367 of 1983, heard on 24th June, 1985.

---Ss. 302/149 a 307/149--Evidence--Presence of eye-witnesses very much established--Occurrence taking place during day light--Accused previously known to eye-witnesses--Weapon used in occurrence and location of injuries on person of one of eye-witnesses indicating that accused were close to him and he was in a position to identify them- Statements of eye-witnesses against accused not suffering from infirmities such as material contradictions, major discrepancies and dishonest improvements--Statement of eye-witnesses in consonance with probability and fitting in with other evidence and surrounding circumstances and confidence inspiring--Number of persons named as culprits by eye-witnesses quite' consistent with kind of crime committed and persons named as accused were such as were expected to join in attack---Number of injuries commensurate with number of accused named by witnesses- Participation of accused in commission of crime becoming sure by corroborating circumstances--Plea of self-defence and grave and sudden provocation taken by defence appearing to be false as same was suggested to witnesses only and was not specifically raised or owned by accused in their statements recorded under section 342, Criminal Procedure Code--Trial Court applying its conscious mind and giving sound reasons in support of its decision to convict accused--Sentence awarded to accused also legal and balanced one--Conviction and sentences maintained in circumstances.

Syed Ehsan Qadir Shah for Appellants.

Masood-ul-Hasan Sabri for the State.

Dates of hearing: 23rd and 24th June, 1985.

This Criminal Appeal No. 367/82 and the connected Criminal Revision No. 521/83 by Nasarullah Khan, for retrial and enhancement of the sentence of respondents therein, .arise from the judgment of learned Sessions Judge, Sargodha whereby he on 18-5-1983 while acquitting Muhammad Ameer son of Sarwar Khan and Mushtaq convicted Muhammad Sharif, Muhammad ldrees, Ghulam Abbas and Muhammad Amir son of Muhammad Sharif and Altaf Hussain appellants under various sections of P.P.C. and sentenced them as under:-

(f) Under section 148 , P . P . C . to one year's R . I . and a fine of Rs. 500 in default thereof six months' R.I. each;

(ii) Under section 302/149, P.P.C. to imprisonment for life and a fine of Rs.2,000 in default thereof one year's R.I.

(iii) Under section 307 / 149, P . P . C . to ten years' R.I. and a fine of Rs.1,000 in default thereof one year's R.I. each.

It was directed that the fine awarded under section 302/149, P.P.C. be paid to the legal heirs of the deceased and fine imposed under section 307/149, P.P.C. be paid to Iftikhar P.W. The sentences of the imprisonment were to run concurrently.

Ghulam Abbas appellant has died during the pendency of appeal. Since he was also awarded fine, therefore, the appeal does not abate to his extent under section 431, Cr. P. C . I propose to dispose of the appeal and the revision through single judgment.

3. The occurrence took place on 9-4-1981 at 3 p.m. on a path near the field of Ali Muhammad in the area of village Kotla Watni of Police Station Sahiwal. The distance between the place of occurrence and the Police Station is six miles. F.I.R. Exh. P.S. was lodged by Nasarullah P.W. 11 on the same day at 7-30 p.m. and was recorded by Gul Jahan S.I./S.H.O. P.W. 13. The F.I.R. was recorded under section 307, P.P.C. Since Zahoor Ahmad succumbed to the injuries in the Hospital on the same day, therefore, section 302, P.P.C. was added in the F.I.R.

4. The appellants namely Idrees, Ghulam Abbas and Muhammad Amir are sons of Muhammad Sharif appellant. Altaf Hussain appellant is the brother's son of Muhammad Sharif appellant. Nasarullah Khan complainant P.W. 11, Khan Muhammad P.W. 10, Iftikhar Hussain P.W. 12 and Zahoor Ahmad are first cousin inter se. Nasarullah P.W. 11 and Iftikhar Hussain P.W. 12 are also related with some of the accused.

5. The motive as alleged by the prosecution was a dispute over the possession of a residential plot between ldrees appellant and Iftikhar P.W. This has led to an exchange of firing between the parties about 5 or 6 months before the occurrence and counter-cases under section 307, P.P.C. were registered against the parties. The case lodged by Iftikhar Hussain was cancelled by the police whereupon Safdar Hussain brother of Iftikhar P.W. instituted a complaint. Whereas the case against Iftikhar Hussain and others was challaned in the Court. The complaint and challan cases were pending in the Court at the cline of the present occurrence. The immediate cause of the attack by the accused party was that about 3/4 days before the occurrence, Iftikhar Hussain was passing in the village street from near the house of Muhammad Sharif appellant. When Muhammad Sharif and ldrees appellants asked him not to pass from there. Whereupon Iftikhar Hussain told them that there was no other way for him except to pass through that street. On this there was altercation between them. Muhammad Khan P.W. intervened. Muhammad Sharif and ldrees threatened Iftikhar Hussain with dire consequences.

6. As for the main occurrence, it has been stated that on the eventful day at about Peshiwela Iftikhar Hussain P.W. Nasarullah Khan P.W. and Zahoor Ahmad deceased left their village Kotla Watni for the house of father-in-law of Iftikhar Hussain in Kotla Mirbaz because the wife of Iftikhar Hussain was sick. When they reached on the Banna of wheat field of Ali Muhammad just outside the village Abadi and were on the path leading to Kotla Mirbaz, the appellants and the acquitted accused emerged from the wheat crop. Mushtaq acquitted accused and Amir Khan acquitted accused were armed with gun and Dang respectively whereas others were carrying hatchets. On the Lalkara raised by Sharif, Muhammad Idrees, Muhammad Amir, Muhammad Sharif himself and Muhammad Amir acquitted accused caused injuries to Iftikhar Hussain with their weapons. Thereafter, Mushtaq raised Lalkara to the effect that Zahoor Ahmed should also be not spared whereupon Muhammad Idrees, Muhammad Amir, Ghulam, Abbas, Altaf, Sharif appellants, Muhammad Amir acquitted accused gave injuries with their weapons to Zahoor Ahmed. Nasarullah Khan P.W. tried to come forward but Mushtaq while pointing his gun towards him, shouted that if he came ahead, he would be killed. The alarm raised by the complainant and others attracted Muhammad Aslam, Muhammad Feroze Khan and Muhammad Khan (all not produced) to the spot. The appellants and the acquitted accused then escaped taking weapons with them. Zahoor and Iftikhar were removed to civil dispensary Radan by Nasarullah Khan P.W. Iftikhar Hussain became unconscious in the dispensary. Thereafter, he was removed to General Hospital, Lahore. He regained senses after 19/20 days of the occurrence.

7. Dr. Muhammad Ramzan Khalid examined Zahoor Ahmad in his injured condition on 9-4-1981 at 5 p.m. He found ten injuries on his person caused by sharp-edged and blunt weapon. Zahoor was in shock and his condition was dangerous. On the same day, the doctor examined Iftikhar Hussain P.W. He found six injuries on his person caused by sharp-edged and blunt weapons. The patient was restless, vomitting, in shock and in serious condition with weak rapid pulse. Dr. Altaf Hussain P.W. 2 had X-rayed the skull of Iftikhar Hussain which revealed fracture of right parietal and temporal bone. Out of the six injuries found on his person, two were declared grievous.

Dr. Abdur Rehman P.W. 3 conducted post-mortem examination on the dead body of Zahoor on 10-4-1981 at 8 a.m. He found following injuries on his person:-

"(1) A stitched incised wound 8. c.m. on the right side of head 10 c.m. from the right ear;

(2) A stitched incised wound 6 c.m. on the left side of neck 4 c.m. above the inner end of left clavical. The side of the seventh cervical vertebra was cut;

(3) A stitched incised wound 8 c. m. on the left side of head, 10 c.m. from left ear. The underline temporal bone and parietal bones were cut. The meniges were cut. There was bleeding inside the brain and formation of a clot;

(4) Two incised wounds 13 c.m, and 2.5 c.m. on the right knee joint. The lateral condial of the feamur was cut; the wounds were stitched;

(5) Two stitched incised wounds 7 c.m. and 4 c.m. on the left knee joint. The cartileges were cut;

(6) A stitched incised wound 8 c.m. on the left upper arm;

(7) A stitched incised wound 9 c.m. on the right wrist. The radial bone was cut;

(8) Multiple contusion marks and abrasions in an area of 12 c.m. x 20 c.m. on the back of left shoulder and back of chest on left side;

(9) An incised wound 2 c.m. x 1/4 c.m. at the base of right thumb; and

(10) An incised wound 2 c.m. x 1/4 c.m. on the inner side of upper lip. The left upper inciser tooth was fractured."

In his opinion, the death was due to shock and haemorrhage and injuries to the vital organs i.e. brain caused by injury No. 3. Injuries Nos. 2, 4, 7 and 10 were grievous in nature individually and rest of the injuries were simple. Collectively all the injuries were dangerous to live. The injuries Nos. 8 and 10 were caused by blunt weapons and the rest of the injuries were caused by sharp-edged weapons. Injury No. 3 was also dangerous to life. The injuries were ante-mortem. The time between injuries and death was 2 to 5 hours and between death and post-mortem was about 12 to 16 hours.

8. Muhammad Amir, Ghulam Abbas, Altaf and Idrees appellants were arrested on 11-4-1981 but Gul Jahan S.H.O. At the time of their arrest, Muhammad Amir, Idrees Altaf and Ghulam Abbas appellants produced blood-stained Lathi P. 1, hatchets P. 2 to P. 4 which were taken into possession vide memoranda P.L., P.M., P.N. and P.O. respectively attested by Khan Muhammad P.W. 10 and Fateh Muhammad (not pro duced). Muhammad Sharif appellant was arrested on 19-4-1981. He produced blood-stained hatchet P. 6 which was taken into possession vide Memo. P.R. attested by the same witnesses. The Serologist Report Exh. P.A.A. shows that the aforesaid weapons. were stained with human blood. It may be noted here that these recoveries have not been relied on by the learned trial Court.

To prove its case, the prosecution examined 13 witnesses, The three doctors namely Muhammad Ramzan, Khalid, Muhammad Altaf Hussain and Muhammad Abirur Rehman had medically examined the deceased and Iftikhar Hussain .P,W . taken X-ray of the skull of Iftikhar Hussain and conducted post-mortem examination on the dead body of Zahoor. Nasarullah P.W. 11 and Iftikhar P.W. 12 have given the ocular account of the occurrence. They claim to 'have seen the appellants and the acquitted co-accused opening murderous assault upon Iftikhar and Zahoor and thereby causing the death of Zahoor and injuries to Iftikhar Hussain P.W. Khan Muhammad P.W. 10 and Gul Jahan P.W. 13 have deposed about the recoveries of the weapons of offence from the appellants. The rest of the evidence is more or less of formal nature.

10. When examined under section 342, Cr. P.C. the appellants denied all the incriminating circumstances. They raised the plea of false implication. It may be noted that in the cross-examination, it was suggested that at the time of occurrence Amir and Abbas appellants were planting sugarcane in Killa No. 7, Square No. 21 and that ldrees appellant was bringing water for them from the village Abadi and that their sister Mst. Shamim was standing in front of the door of her house when Zahoor deceased, Iftikhar, Muhammad Khan P.Ws. and Muhammad Nawaz came in front of her house. They while pointing towards Mst. Shamim exclaimed that Muhammad Nawaz was his (Idrees accused) brother-in-law and he was passing in front of his house in spite of warnings. It was further suggested that ldrees appellant was entreating them, when Muhammad Amir and Abbas appellant came there from the sugarcane field with Tokas with which they had been working. It was also suggested that at that time Zahoor deceased was armed with a pistol and Iftikhar and Muhammad Khan were carrying Lathis and that they shouted that Mst. Shamim should be lifted and that when Amir and Abbas came near, they were attacked at by Zahoor, Iftikhar and Muhammad Khan. It was also suggested that the shot fired from the pistol of Zahoor had missed and that the deceased and Iftikhar Hussain P.W. were injured by Amir and Abbas in their self-defence. The appellants did not produce any witness in defence.

1L. The learned counsel for the appellants contended that the prosecution has failed to prove its case beyond reasonable doubt inasmuch as the F.I.R. was lodged after preliminary investigation; that the two ,eye-witnesses are closely related to the deceased; that although there are inhabitated houses near the place of occurrence yet tip independent witness has been produced by the prosecution; that the presence of Nasarullah complainant on the spot at the time of occurrence is highly doubtful; that Iftikhar Hussain P.W. is not trustworthy although he was present at the spot; that his statement was recorded after about a month of the occurrence; that the statement was in fact tutored to him; that the investigation was conducted dishonestly and that there is a reasonable possibility of the suggestions of grave and sudden provocation and self-defence given to Nasarullah and Iftikhar Hussain P.Ws. in the cross-examination being true. Converseley the learned counsel for the State assisted by the learned counsel for the petitioner in the connected revision have not only supported the judgment of the trial Court but also requested for the re-trial of Muhammad Amir and Mushtaq acquitted accused and for the enhancement of the sentence of the appellant.

12. I have considered the arguments advanced by the learned counsel for the parties with care. 1 have not, been able to persuade myself to agree with the learned counsel for the appellants. I find that in the occurrence, Zahoor Ahmad lost his life and Iftikhar Hussain was seriously injured. There were 16 injuries on their persons caused by sharp-edged and blunt weapons. Nasarullah Khan P.W. 11 and Iftikhar Hussain P.W. 12 claim to have seen the appellants and Muhammad Amir acquitted co-accused causing injuries to Zahoor Ahmed deceased. Iftikhar Hussain states that he was injured by Muhammad Sharif, Muhammad Idrees, Muhammad Amir appellants and Muhammad Amir acquitted accused. The first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. I find Nasarullah Khan has given plausible cause of his presence on the spot at the time of occurrence and by the fact of injuries on his person the presence of Iftikhar Hussain is very much established. His presence has not been challenged by the learned counsel for the appellants. It was a daylight occurrence. The weapon used in the occurrence and the location of the injuries on the person of Iftikhar Hussain P.W. also indicate that the appellants were close to him, he was in a position cu identify them. The appellants were previously known to Nasarullah Khan and Iftikhar Hussain, therefore, there is no reason to doubt that Nasarullah Khan and Iftikhar Hussain P.Ws. in fact saw the occurrence and identified the offenders. The further question arises as to whether they can be relied upon for sustaining the conviction of the appellants. The, greater engine invented for the discovery of the truth occur not elicit anything advantageously to the defence. The statement of these tyro witnesses do not suffer from infirmities such as material contradictions, major, discrepancies and dishonest improvements. There statement are in consonance with the probability and fit in with the other evidence and surrounding circumstances and are confidence inspiring. The number of the persons named by them does not exceed that which appears from circumstances not open to doubt to be the true number of the culprits. Number of persons named as culprits l- the- two eye-witnesses is quite consistent with the kind of crime committed and the person:: named as accused are such as were expected to join in attack. The number of the injuries and the number of the accused named by them do commensurate. It was suggested to Nasarullah Khan P.W. 11 as to whether it was correct that about three days before the present occurrence the accused persons had told Iftikhar Hussain P.W. and others that they should not pass from the path on which the occurrence took place because the said path belongs to their and there has arisen enmity between the accused party and the complainant party. The occurrence having admittedly taken place on the same path, the accused/ appellant are the persons expected to have joined attack on Iftikhar Hussain and Zahoor Ahmad. For all these reasons I am of the view that their words can safely be made the basis of conviction and I may not look for more circumstances to corroborate their testimony. The above stated circumstance do point to the inference that the appellants did; participate in the attack regulating in the death of Zahoor-Ahmad and) injuries to Iftikhar Hussain. It appears that Zaffar Hayat P.W. 7 has; inadvertently stated that the Sub-Inspector recorded the statement of Nasarullah Khan P.W. in Radhan Dispensary and got his signatures thereon because the suggestions given by the learned counsel for the appellants to Nasrullah Khan P.W. 11 and Gul Jahan S.I. P.W, 13 were to the effect that the F.I.R. was recorded on the spot after preliminary investigation. Admittedly the statement of Iftikhar Hussain was recorded after about a month of the occurrence. This delay has reasonably been explained. Iftikhar Hussain remained unconscious for about 19/20 days and thereafter his statement was recorded on the day when the Police approached him for recording his statement. In cross-examination he has clearly stated that although his statement was recorded after about 8 days of his regaining senses but none of his relatives met as during those 8 days and 'that he had not inquired from any one as, to against whom the case had been registered. I do not see any reason to disbelieve him in this respect.

13. This brings me to the, plea of self-defence and grave and sudden provocation raised by the learned counsel before me. He argued that in the circumstances of the case, there was a reasonable possibility that Mst. Sheeman, the sister of Ameer and Abbas appellants was standing in front of the door; that Zahoor deceased, Iftikhar P. W. and Muhammad Khan P.W. and one Muhammad Nawaz Muslim Sheikh passed nearby and in a taunting way had shouted to ldrees appellant who was present nearby that Nawaz Muslim Sheikh was his brother-in-law and he was passing in front of her house and that Zahoor, Iftikhar and Muhammad Khan had declared there that Mst. Sheeman should be lifted; that Zahoor Ahmad was armed with pistol and Iftikhar and Khan Muhammad were carrying Lathis at that time; that they opened attack on Ameer and Abbas and that Iftikhar and Zahoor Ahmad received' injuries in self-defence, No doubt this plea was suggested to the witnesses but surprisingly it was not specifically raised or owned by the appellants in their statements recorded under section 342, Cr. P. C . The appellants did not care to produce Mst. Sheemar in evidence who was fully available to them. Muhammad ldrees appellant did not state so; in his statement recorded under section 342, Cr.P.C. The aforesaid plea even otherwise appears to be false. Had the occurrence taken place in the manner as suggested in the cross-examination and argued before me, then the accused persons or anyone of them should have received some injuries. The absence of injuries on their persons ands on the other hand the deceased and Iftikhar Hussain receiving as many as 15 injuries, exclude the possibility of any re-action on prosecution) case. The learned, trial Court has applied its conscious mind and given sound reasons in support of its decision. The trial Court has rightly distinguished the case of Muhammad Amir and Mushtaq accused and l) given them the benefit of doubt. For all these reasons, I am convinced that the trial Court has rightly convicted the appellants. The sentence awarded to them is a legal as well as balanced one. The learned trial Court has given reasons for not awarding capital punishments to the appellants and I do not see any reasons to disagree with it.

14. The upshot of the above discussion is that the appeal as well a the connected revision are dismissed.

M . Y . H .

Appeal dismissed.

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