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Criminal Appeal No. 669 and Murder Reference No. 192 of 1983, decided on 18th March, 1986.
----S. 302/34--Appreciation of evidence--Eye-witnesses having had no motive to falsely implicate accused in a murder case and their testimony not suffering from any infirmity--Eye-witnesses giving cogent explanation ,for their presence at 'spot and their testimony corroborated by medical evidence and recoveries of weapons of offence--Close relationship of eye-witnesses with deceased, held, not by itself sufficient to discard their testimony which was otherwise convincing and without any material discrepency--Ocular testimony believed in circumstances.
---S. 302/34--Recovery--Recovery witness a Lambardar of village and was not seriously cross-examined by accused--Evidence of recovery witness was quite in line with that of Investigating Officer--Recoveries believed in circumstances.
-----S. 302/34--Motive disbelieved--Immediate cause leading to occurrence not ascertainable--Possibility of a chance encounter of parties leading to occurrence not ruled out--Only one dangerous and fatal injury was found on person of deceased--Possibility of taking place of occurrence at spur of moment without any pre-arranged plan' not ruled out--Each accused, held, was liable for his own act in circumstances.
---S. 302/ 34--Occurrence taking place at spur of moment--Each accused could be held responsible for his own act--Conviction of accused who caused fatal injuries to deceased was converted from S.302/34, P.P.C. to S.302, P.P.C. and his sentence was reduced from death to life imprisonment--Conviction and sentence under S.302/34, P.P.C. of two other accused who cause simple injuries to deceased were set aside and they were convicted under S.323, P.P.C.
Shah Ahmad Khan Balooch for Appellants.
Altaf Muhammad Khan for A.-G., Punjab for the State.
Manzoor (45), Muhammad Tufail (35) and Sarwar (26) sons of Muhammad alongwith their brothers Anwar and Khan were tried for the murder of Jaimal (58) deceased. The learned Additional Sessions Judge, Faisalabad, vide his- order, dated 15-11-1983 convicted Manzoor, Muhammad Tufail and Sarwar appellants under section 302/34, P.P.C. and sentenced Manzoor appellant to death and fine of Rs.20,000 or in default to undergo rigorous imprisonment for three years. Muhammad Tufail and Sarwar appellants were sentenced to imprisonment for life and a fine of Rs.10,000 each or in default to undergo further R.I. for two years. Half of the fine, if recovered, was directed to be paid to the legal heirs of the deceased as compensation. Anwar and Khan co-accused were, however, given the benefit of doubt and acquitted.
The convicted accused, namely Manzoor, Muhammad Tufail and Sarwar have filed this appeal which is being disposed of alongwith the connected murder reference.
2. The prosecution case is that a year before the occurrence two bullocks belonging to Muhammad Tufail P.W.9 were stolen. He suspected Anwar and Khan accused (since acquitted). Jaimal deceased helped Muhammad Tufail P.W. and got a case registered against Khan and Anwar aforementioned. On 17-3-1981 at about Paishiwela Mansha.P.W.6accompanied by his father Jaimal deceased was going to Chak No 244/R.B. for offering Fatehkhawani. When they reached near Chak No 595/G.B. the appellants and the acquitted accused with Sotas emerged from a wheat crops. Anwar and Khan accused (since acquitted) raised a Lalkara that Jaimal deceased should not be spared whereupon Manzoor appellant gave a Sota blow on the back of the deceased who fell down. Manzoor appellant repeated the blows on the back of the deceased. Muhammad Tufail appellant gave Sota blows on his right arm and wrist. Sarwar appellant inflicted a Sota blow on his back and left knee. Manzoor, Muhammad Tufail and Sarwar appellants gave more Sota blows to the deceased. Mansha P. W. raised an alaram attracting Inayat Ali P.W.7 and Anwar (not examined). Anwar and Khan accused (since acquitted) threatened the P.Ws. that if anyone of them came near him he would meet the same fate. After a short while, the appellants and the acquitted accused left the spot with her Sota.
After the occurrence the P.Ws. carried the deceased (then alive) to the hospital, Tandlianwala, where he was got medically examined. After getting his medico‑legal certificate Mansha P.W. proceeded to Police Station Bahlak where he lodged the F.I.R. Exh.P.J.
After recording the F.I.R. S.I. Muhammad Raza P.W.12 left for Civil Hospital, Tandlianwala. The deceased was then alive but was not in a fit condition to make a statement. The S.I. then left for the spot but on his way learnt about the death of Jaimal deceased. Consequently, he returned to the hospital. He prepared his injury statement Exh.P.C. and the inquest report Exh.P.D.
On 20‑3‑1981 the S.I. arrested Manzoor, Muhammad Tufail and Sarwar appellants. Sarwar appellant while in custody led to the recovery of blood‑stained Sota P.4 through memo. Exh.P.L. Manzoor appellant led to the recovery of Sota P.5 through memo. Exh.P.M. Muhammad Tufail got recovered blood‑stained Sota P.6 through memo. Exh.P.N. Anwar and Khan accused (since acquitted) were arrested on 1‑4‑1983 by the same S.I. The Sotas recovered from Muhammad Tufail and Sarwar appellants were found to be stained with human blood by the Serologist, vide his report Exh . P.Q.
3. Dr. Ahmad Saeed P.W.1 medically examined Jaimal deceased (58) on 18‑3‑1981 at 12‑30 mid‑day and found the following injuries on his person:‑-
(1) A contusion 5 c. m. x 3 c. m. on the right side of the back of neck. There was swelling 8 c.m. x 8 c.m.
(2) A contusion with abrasion 6 c.m. x 4 c.m. on the left side of the chest on its back in the middle.
(3) A contusion with' abrasion 7 c.m. x 4 c.m. on the back of left chest on its lower part.
(4) A contusion 12 c.m. x 7 c.m. on the upper part of the right buttock.
(5) A contusion 7 c. m. x 5 c. m. on the left buttock.
(6) A contused wound 2.5 c.m. x 1 c.m. x bone deep on the back of left elbow on its upper part.
(7) A contused wound 2 c.m. x 1.5 c.m. x bone deep on the outer side of right upper arm.
(8) A contused wound 2 c. m. x 1 c. m. on the back of right elbow on its outer part.
(9) An abrasion 2.5 c. m. x 1.5 c. m. on the back of right forearm.
(10) A contusion with swelling 6 c.m. x 3 c.m. on the back of right wrist.
(11) A contusion 9 c. m. x 3.5 c. m. on the lower part of right buttock.
(12) A contusion 8 c. m. x 5 c.m. on the left knee on its front side.
(13) A contused wound 2 c.m. x J c.m. x bone deep on the front side of the left shin.
(14) An abrasion 11 c.m. 3 c.m. on the front inner side of right shin.
All the injuries were caused with blunt weapons within the duration of 12 to 24 hours. He died on the same day at 9‑30 p.m. His post‑mortem examination was performed on the following morning and exactly the same injuries were found on the dead body as mentioned in the medico‑legal certificate Exh. P.A.
Both the lungs were found congested. 4th cervical vertabra was broken under injury No. 1. Death was due to shock and injury No.1. All the injuries were ante‑mortem and had been caused with blunt weapon. Injury No.1 was fatal. It was grievous and dangerous to life.
4. The appellants pleaded not guilty to charge and denied the prosecution allegations. They did not lead any evidence in defence.
5. The prosecution case rests on the evidence of Mansha P.W.6 and Inayat Ali P.W.7 who furnished the ocular account. Hadayat Ali P.W.11 and Muhammad Raza S.I. P.W.12 were examined to prove the recoveries of Sotas from the appellants. Muhammad Tufail P.W.9 was produced to prove the motive.
6. Relying on the ocular testimony and the recoveries the trial Court convicted and sentenced the appellants as described above. The motive as set up by the prosecution was, however, considered to be quite weak.
7. Assailing the judgment, learned counsel for the appellants argued that the eye‑witnesses are interested, chance witnesses and there is absolutely no independent corroboration of their testimony and they were disbelieved qua Anwar and Khan accused (since acquitted). The motive is also said to be not proved. No doubt Mansha P.W.6 is son of the deceased while Inayat Ali P.W.7 is 'his nephew but this fact alone would not suffice to discard their testimony which is otherwise convincing and without any material discrepancies. They had no motive to falsely implicate the appellants in a case of the present nature. They were cross‑examined at length but no infirmity could be brought out in their evidence. They have advanced cogent explanation for their presence at the spot. According to them they were going to offer Fatehkhawani for one Salabat, a cousin of Jaimal deceased. The appellants have not able to show that they had fabricated a lame excuse for their presence at the spot. They stand corroborated by the medical evidence in all respects. The recoveries of blood‑stained Sotas at the instance of Muhammad Tufail and Sarwar appellants lend further corroboration to, their testimony. Hayat Ali P.W.11 who deposed about the recoveries is Lambardar of his village and was not seriously cross‑examined by the appellants. His evidence is quite in line with that of Muhammad Raza, S.I. and there is hardly any ground to disbelieve him.
8. The motive was rightly considered weak by the trial Court. According to the prosecution the theft of bullocks of Muhammad Tufail P.W. took place about a year before the occurrence and if that was so the accused should have borne a grudge against Muhammad Tufail P.W. more than Jaimal deceased because it was he who had suspected them for the theft of his cattle. The fact that no untoward incident took place during the interval of one year costs a doubt on the genuineness of the motive set up by the prosecution. Thus the immediate cause leading to the occurrence is not ascertainable. In all probability, it appears that the parties had a chance encounter leading to the occurrence. Only one dangerous and fatal injury was found on the person of the deceased. The rest were contusions and abrasions. The contention of the learned defence counsel that the prosecution had tried to swell the number of the accused is borne out by the fact that five real brothers have been roped in the case. Anwar and Khan accused to whom no injury was attributed were assigned the role of Lalkara. They were found innocent during the police investigation and no recovery, whatsoever was effected from them.
The circumstances discussed above show that there was no prior meeting of minds to form a pre‑arranged plan to do away with the deceased and the occurrence took place at the spur of moment. Accordingly, each accused would be liable for whether injury he had caused and not for the injuries caused by others. The fatal injuries to the deceased is attributed to Manzoor appellant only while simple injuries are attributed to Muhammad Tufail and Sarwar appellants. Consequently, we alter the conviction of Manzoor appellant from section 302/34, P.P.C. to one under section 302, P.P. C. and sentence him to imprisonment for life and a fine of Rs.10,000 (Ten thousand) or in default to undergo further R.I. for one year. The conviction and sentences of Muhammad E Tufail and Sarwar appellants under section 302/34, P.P.C. are set aside and they are convicted under section 323, P.P.C. for causing simple hurt to the deceased and are sentenced to one year's R.I. and a fine of Rs.1,000 (One thousand) each or in default to undergo three months' R.I. The entire fine, if recovered, shall be paid to the legal heirs of Jaimal deceased as compensation.
Since Muhammad Tufail and Sarwar appellants have already undergone the period of imprisonment they shall be released forthwith on payment of fine if not required in any other case.
9. The appeal is disposed of in the above terms.
10. The death sentence of Manzoor appellant is NOT confirmed.
H.A.K Appeal partly accepted.
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