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

---S. 302--Evidence, appreciation of --All prosecution witnesses closely related to each other but having no previous enmity with any of accused- Ocular testimony consistent and one of eye-witnesses, admittedly injured at the spot--Occurrence taking place in front of house of complainant party and both accused giving a Dang blow each on the head of deceased -Accused admitting occurrence though giving their own version of case yet defence version to given by them not supported by any evidence or circumstance on record--Conviction maintained, in circumstances.

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

--S. 302--Sentence, reduction in--Both accused causing one injury each to deceased--Prosecution also failed to prove motive against accused for the murder--Sentence of death reduced to imprisonment for life, in circumstances.

Kh. Sultan Ahmad for Appellants.

Sher Muhammad Lali for the State.

Ijaz Ahmad Chaudhary for the Complainant.

Date of hearing: 18th April, 1987.

QURBAN SADIQ IKRAM, J

.-- Briefly stated the facts of this case are given below:-

There was vacant site in front of the house of Karamat Ali deceased and Bashir Ahmad P.W. in village Said Nial, about 8 miles from Police Station Phlora, District Sialkot. The said site was used for casual sitting by them. Sain and Muhammad Yaqoob alias Kuk accused of the village used to play songs on their tape-recorder in front of the house of Haji Sardar Khan complainant and Karamat Ali deceased. They objected about a month before this occurrence but with no effect. On 25-6-1983, at about Dopeharwela, Sain and Yaqoob alias Kuk came to the vacant site with their tape-recorder and started playing indecent songs. Karamat Ali and Bashir Ahmad asked them not to play songs which resulted in exchange of hot words and quarrel between them. They were separated by Sardar Khan complainant, Fateh Ali and Shah Din P.Ws. The accused left the spot saying that they would take evenge of this insult.

On the same day at a bout 7-30 p.m., HajiAliSardar Khan complainant, Karamat Ali deceased, Bshir Ahmad, Fateh and Shah Din P.Ws. were sitting in the open site in front of their houses. Sain, Muhammad Din, Muhammad Yousaf, Yaqoob alias Kuk and Muhammad Rafiq armed with Dangs alongwith Muhammad Hussain, empty handed, came there shouting Lalkaras. Sain accused gave Dang blow on the head of Karamat Ali whereafter Muhammad Din gave another Dang blow on the head of Karamat Ali who fell down. Muhammad Rafiq gave stick blow on the left arm of Bashir Ahmad P.W. The occurrence was witnessed by Sardar Khan complainant, Fateh Ali and Shah Din P.Ws. who tried to rescue the two injured. However, they could not succeed on account of the threats of the accused who left the spot with their respective weapons.

The two injured were taken to Civil Hospital, Sialkot for examination and treatment. Thereafter, Haji Sardar Khan P.W. 7 went to police station and lodged the F.I.R. Exh.P.J. at 12-15 a.m. on 26-6-1983 (about mid-night after about five hours of occurrence) which was recorded by S.I. Saeed Ahmad Gondal P.W.10.

2. Dr. Arshad Ali P.W.1 on 25-6-1983, at 10-15 p.m. medically examined _Karamat Ali deceased aged about 25 years, when still alive and noted two blunt weapon injuries of about 3 to 4 hours duration on his person. Injury No. 1 was a contused swelling 2" x 1-1/2" on left parietal region'. Injury No. 2 was 'a contused swelling 1" x 1" on right side of occipital region'. These injuries were kept under observation. Karamat Ali was having 105 degrees fever. His blood pressure was 160/100. He was unconscious. His pupils were dilated and fix and did not react to light.

Karamat Ali died in hospital at 7-30 a.m. on 26-6-1983.

The same Medical Officer on 26-6-1983 at 5-3a p.m. performed post-mortem on the dead body of Karamat Ali. He noted the same two injuries on his person. On dissection, left parietal bone was found fractured under injury No.1 and right occipital bone was fractured under injury No. 2. This fracture extended to right parietal bone. There was dark clotted blood under these injuries. The pericardium and heart contained clotted blood in both chambers. Botli the injuries had been caused by blunt weapon. These were grievous and dangerous to life. The death occurred due to intra-cranial haemorrhage as alesult of injuries 1 and 2 which were sufficient in ordinary course of nature to cause death. Probable time between injuries and death was 10 to 12 hours whereas post-mortem was conducted after about 10 hours of death.

Dr. Muhammad Younas Chughtai P.W.5 on 25-6-1983, at 10- 55 p.m. medically examined Bashir Ahmad P.W. and found 'a contused swelling 8" x 4" on the posterior aspect of left elbow and upper part of forearm with restricted movements'. The injury had been caused by blunt weapon and was of 3 to 4 hours duration, It was kept under observation. This injury was declared grievous in nature.

3. The Investigating Officer S.I. Saeed Ahmad Gondal P.W.10 undertook investigation after registration of the case. No blood was found at the place of occurrence.

The accused were arrested on 1-7-1983.

On 9-7-1983, Muhammad Din accused led to the recovery of Sota 1, vide memo. Exh.P.D., Sain accused led to the recovery of Dang P.4 vid memo. Exh.P.E. and Muhammad Raf iq accused led to the recovery of Sota P.6 vide memo. Exh.P.F. These recoveries memos. were prepared by S.I. Saeed Ahmad Gondal P.W.10 and attested by Muhammad Iqbal P.W.4 and Muhammad Hussain P.W., not examined. These weapons were not stained with blood.

The accused were challaned after completion of investigation.

4. The eye-witness account in this case was furnished by Haji Sardar Khan P.W.7, Bashir Ahmad P.W.8 and Shah Din P.W.9. Another eye witness Fateh Ali, named in the F.I.R., was given up as unnecessary. The recovery of crime weapons was witnessed by Muhamrrad Iqbal P.W.4. The medical evidence was furnished by Dr.Arshad Ali P.W.1 and Dr. Muhammad Younas Chughtai P.W.5 as given in detail above. The case was investigated by S.I. Saeed Ahmad Gondal P.W.10. The evidence of rest of the witnesses was of formal nature.

Sain and Mohammad Rafiq accused in their statement; after close of prosecution evidence denied the charge and pleaded innocence. They, however, stated that in fact Karamat Ali deceased made indecent overtures towards Sain accused to commit sodomy on account of which they acted in their right of private defence. The other accused denied their presence at the spot at the time of occurrence. No evidence was led in defence.

The learned Additional Sessions Judge, Sialkot came to the conclusion that the prosecution has failed to prove motive against the accused. He did not accept the defence version. He placed reliance on the evidence of the eye-witnesses and recoveries of crime weapons from the accused and vide judgment, dated 30-5- 1985, sentenced Sain 15 and Muhammad Din 65 to death plus fine of Rs.10,000 or in default two years' R.I. each under section 302/34, P.P.C. for murder of Karamat Ali. Mohammad Rafiq accused 45 was sentenced to six years' R.I. and fine of Rs.2,000 or in default one year's R.I. under section 325, P.P.C. for causing grievous hurt to Bashir Ahmad P.W.

Mohammad Yaqoob 17, Mohammad Hussain 75 and Mohammad Yousaf 22, co-accused of the appellants, were acquitted by the same judgment. Hence this appeal.

Sain and Mohammad Din accused having been sentenced to death, the proceedings are also before us for confirmation of sentence. This judgment will decide both the matters together.

5. We have carefully examined the record and heard the learned counsel appearing for the parties at some length. It is contended on behalf of the appellants that the prosecution has failed to prove motive against the accused; secondly, that the recoveries of crime weapons could not furnish corroborating evidence because of absence of any blood; thirdly, that the eye-witnesses were interested and as such, no reliance should be placed on their testimony; and finally, that in the facts and circumstances of this case, sentence of death to the appellants was uncalled for. The learned counsel for the State and complainant controverted the above contentions.

6. The motive in this case was that Sain and Yaqoob alias Kuk used to play indecent songs on their tape-recorder in front of the houses of the complainant party who objected about a month earlier to the present occurrence. The accused did not stop playing songs. On the day of occurrence, at about Dopeharwela, the parties quarrelled for that reason. In our view, prosecution has failed to prove motive against the accused. The investigating Officer did not examine any womenfolk to verify the, correctness of the statement of complainant on motive. The statement of any of the neighbours of the complainant party in support of the motive was also not recorded. The Investigating Officer did not record any evidence to show that the accused in fact owned/possessed any tape recorder.

Even otherwise it seems improbable that the accused, in the month of Ramazan would play indecent songs in the village. If they had done so, other residents of the village also must have felt offended and protested with the accused. The Investigating Officer did not record the statement of any other villager in support of the motive alleged by the complainant. The learned trial Judge, therefore, rightly came to the conclusion that the prosecution has failed to prove motive against the accused.

7. The recoveries of crime weapons P.4 to P.6 were witnessed by Mohammad Iqbal P.W. He was cousin of Karamat Ali deceased. He, however, had no motive to falsely involve the accused in this case. It is correct that these weapons were not stained with pay blood but this fact alone would not mean that the recoveries were false or concocted by the Investigating Officer. The recoveries of these weapons fully corroborate the eye-witnesses of this case. It was argued by the learned counsel that the Sotas and Dangs were commonly found in houses of villagers and as such, it could not be said that these weapons were used by the accused at the time of occurrence. This argument in fact lends support to the prosecution evidence. It is common knowledge that such like weapons are kept by villagers in their houses for more than one reason. The Investigating Officer did not find any blood at the spot during inspection of the place of occurrence. The Medical Officer did not note blood oozing out of the injuries on the person of Karamat deceased or Bashir Ahmad P.W. It was, therefore, natural that the crime weapons were not stained with any blood. The absence of blood does not mean that these weapons were not used by the accused at the time of occurrence. In our view, the recoveries of crime weapons P.4 to P.6 fully corroborates the ocular account of this case.

8. Mohammad Din, Mohammad Rafiq and Mohammad Hussain accused are real brothers inter se. Yousaf and Yaqoob accused are brothers and sons of Mohammad Din accused. Sain accused is nephew of Mohammad Din accused.

It is, therefore, apparent that all the accused were closely inter related.

Karamat Ali deceased and Bashir Ahmad P.W. were real brothers and nephews of Haji Sardar Khan P.W.7. Shah Din P.W.9 was a cousin of Karamat Ali. Similarly, Fateh Din given up P.W. was also a cousin of the decease4. All the witnesses are, therefore, closely related to each other but had no previous enmity with any of the accused of this case. The eye-witnesses could not be disbelieved simply on account of their relationship with the deceased. Bashir Ahmad P.W. was injured during the occurrence. His presence at the time of occurrence can, therefore, not be doubted. Sain and Mohammad Rafiq accused admitted the occurrence though they gave their own version of the case. The time of occurrence is also not disputed. The three eye-witnesses made consistant statements to support the prosecution case. After perusing their statements, we do not find anything to exclude their evidence from consideration against the accused. The defence version set up by Sain and Mohammad Rafiq accused is not supported by any evidence or circumstance appearing on record of this case. It is correct that they put forth their version in cross-examination of the eye-witnesses but it just remains a suggestion which was not borne out from any evidence. The learned counsel for the appellants in fact did not have much to say against the three eye-witnesses, one of whom was admittedly injured at the spot at the time of occurrence. The three eye witnesses, as stated above, had no enmity to falsely involve the accused in the instant case. The occurrence took place in front of the house of the complainant party. They were, therefore, natural witnesses. However, the immediate cause of occurrence is not proved on record. We have already held that the prosecution has failed to prove motive against the accused. Sain and Mohammad Din accused gave one injury each on the head of Karamat Ali deceased. It is, therefore, clear that they both intended to murder Karamat Ali. Mohammad Rafiq gave one injury and fractured the arm of Bashir Ahmad P.W.

9. In view of the above discussion, we maintain the conviction of Sain and Mohammad Din accused under section 302/34, P.P.C. As they both caused one injury each to the deceased and because the prosecution has failed to prove motive against them, we reduce their sentence from death to imprisonment for life. The sentence of fine anal imprisonment in default thereof is maintained. The sentence of death of both the appellants is _NOT CONFIRMED,

The conviction of Mohammad Rafiq appellant under section 325, P.P.C. is maintained. However, his sentence of imprisonment is reduced to two years' R.I. The sentence of fine and imprisonment in default is maintained. He is on bail. He will surrender to undergo unexpired imprisonment according to law. The appellants will be given benefit of section 382-B, Cr.P.C.

8. Subject to above modification, this appeal fails and is accordingly dismissed.

S.A.D./S-50/L Order accordingly.

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