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Criminal Appeal No. 702 of 1985, decided on 15th December, 1986.

‑‑‑S. 302/307/149‑‑Occurrence stated to have been motivated on account of enticing away of sister of main accused by deceased, long ago‑‑Motive ocular account and medical testimony proving participation of all accused in crime‑‑Undue delay not existing in lodging First Information Report‑ ‑ Eye‑witnesses disinterested and natural and their account of occurrence having a ring of truth‑‑Medical testimony corroborating ocular account‑‑Probability that incident of enticing away of sister of main accused by deceased motivated all seven accused to murder deceased appearing to be far out of scope‑‑Excepting main accused all other accused joined in venture out of friendship with main accused to teach a lesson to deceased for violating honour of a woman in crude manner in which it was done in villages, little realising that their over enthusiasm would untimately land them to disastrous consequences‑‑ Conviction of all accused altered from under S. 302/149, P.P.C. to S. 326/325/323/145, P.P.C. and their Sentence of life imprisonment reduced except in case of main accused whose sentence of imprisonment for life maintained.

Aftab Farrukh with Amjad Ahad Sheikh for Appellants.

Sharif Butt for the State.

Malik Sher Bahadur for the Complainant.

Dates of hearing: 3rd and 6th December, 1986.

Gulzar Ahmad, Abdul Jabbar, Muhammad Afsar alias Qasid, Abdul Kareem, Abdus Sattar, Khan Muhammad, Muhammad Riaz and Allah Ditta were tried by the learned Sessions Judge of Sargodha under section 302/307/148/149; P.P.C. for the murder of Muhammad Younis, deceased attempt on the lives of Alamgir and Zulfiqar Ali P.Ws. and for rioting. The learned trial Judge, by his judgment, dated 27 10‑1985, acquitted Abdus Sattar, but convicted the remaining seven accused under sections 302/149. 307/149 and 148, P.P.C. He sentenced all the seven accused under section 302/149, P.P.C. to life imprisonment each and to pay a fine of Rs. 5,000 each or in default thereof to undergo further rigorous imprisonment for two years each. He sentenced the said seven accused under section 307/149, P.P.C. to seven years' rigorous imprisonment each and to pay a fine of Rs. 2,000 each or in default thereof to undergo further rigorous imprisonment for six months each. He also sentenced the said seven accused under section 148, P.P.C. to one year's rigorous imprisonment each. All the sentences were ordered to run concurrently, except the sentences awarded in lieu of non‑payment of fine, which were ordered to run consecutively. Two‑third of the fine if realized was ordered to be paid to the heirs of Muhammad Younis, deceased and the balance one‑third was ordered to be paid to Zulfiqar Ali and Almgir, injured P.Ws. All the seven accused were granted the benefit of section 382‑B, Cr.P.C. The joint appeal (Criminal Appeal No. 702 of 1985) preferred by Gulzar Ahmad and six others, convicts against their conviction and sentences and the private revision (Criminal Revision No. 50 of 1986) filed by Zulfiqar Ali, petitioner, for the enhancement of their sentences to death are both now before me for disposal.

2. The prosecution case in brief is that on 25‑8‑1984 Zulfiqar Ali complainant, alongwith his brother Muhammad Younis, deceased and Alamgir P.W. went to Kot Momin on bicycles at about noon time from village Hujjan to make purchases of household commodities. After making purchases at about 5‑30 p.m. they started back for their houses on bicycles. Muhammad Younis, deceased made Alamgir P.W. sit on his bicycle while he had placed the commodities which he had purchased on his bicycle. At about 6‑00 p.m, when they reached 7/8 acres ahead of Bridge Jharanwali on the bank of Hujjan Canal in the area of Kot Momin, Abdus Sattar, accused armed with a gun, Khan Muhammad accused, armed with a hatchet, Gulzar Afsar alias Qasid. Allah Ditta accused armed with Lathis. Abdul Jabbar and Abdul Karim, accused armed with hatchet and Muhammad Riaz, accused armed with a spear came there in front of them. Abdus Sattar accused, shouted a Lalkara that they should stop at once and at the same time fired with his gun at them, which shot missed. The complainant party stopped. Abdul Karim, accused, delivered a hatchet blow on the left leg of Muhammad Younis, deceased. Abdul Jabbar and Khan Muhammad, accused, gave one blow each with their hatchets to Alamgir P.W. on his right leg. Afsar, accused, delivered a Sota blow on the left arm of Zulfiqar, complainant. Muhammad Younis, deceased and Alamgtr P.W. fell down on the canal bank after receiving the injuries, while Zulfiqar, complainant jumped into the canal. Gulzar, Afsar, Allah Ditta and Muhammad Riaz, accused then delivered Sota blows to Muhammad Younis, deceased, and Alamgir P.W., hitting them on their legs and arms after they had fallen on the ground. On their alarm, Muhammad lqbal and Abdul Rashid P.Ws. who were coming behind them also witnessed the occurrence. Both the bicycles belonging to Muhammad Younis deceased, and Zulfiqar complainant had fallen on the ground. Abdus Sattar and Abdul Jabbar, accused picked up these cycles and sped away on those cycles, while the other accused went away on foot. The accused also took away forcibly some money belonging to Alamgir P.W the details of which Alamgir P.W. promised to give later. The injured were transported to Civil Hospital, Kot Momin at night time in an injured condition.

The motive for the occurrence was that 6/7 years back Muhammad Younis, deceased had abducted Mst. Nafeesan sister of Khan Muhammad, accused, because of his illicit liaison with her, but the brotherhood had affected a compromise and the girl had been restored but Khan Muhammad, accused, kept this disgrace in his mind and nursed a grudge against them. On account of this ill‑will Khan Muhammad and the other accused, who were co‑refugees from the same village in India had made a murderous assault on Muhammad Younis, deceased and his relatives.

3. On 26‑8‑1984, Dr. Mazhar Rashid P.W. 10 medically examined Muhammad Younis, deceased and found one sharp‑edged weapon injury and eight blunt weapon injuries on his right leg, right upper arm and forearm, right elbow and right wrist. All the injuries were kept under observation.

4. On the same day, the said Dr. Mazhar Rashid P.W. 10 medically examined Alamgir P.W. and found three sharp‑edged weapon injuries and seven blunt weapon injuries on his right leg, left leg, right thigh, left thigh and left upper arm. Two incised and three blunt weapon wounds on the right leg, one blunt weapon wound on the left leg and one blunt weapon wound on the left upper arm were declared to be grievous.

5. On the same day the same Doctor medically examined Zulfiqar complainant P.W. and found a contused swelling on the back of his left forearm.

6. After securing the medico‑legal reports, Zulfiqar, complainant P.W. 7 proceeded to Police Station Kot Momin, where he lodged the F.I.R. Exh.P.U. at 11‑15 a.m. The police officer then proceeded to the spot where he recovered the blood‑stained earth where the complainant and the deceased had been injured, vide memos. P.D. and P.E., respectively. He also recorded the dying declaration Exh.P.Z. of Muhammad Younis, deceased under section 161, Cr.P.C.

7. On 29‑8‑1984 all the eight accused were arrested by Zulfiqar Ali A.S.I. P.W.11.

8. On 31‑8‑1984 Muhammad Younis, deceased died in Civil Hospital, Sargodha.

9. On 1‑9‑1984 at 9‑00 a.m. Dr. Safdar Ali conducted the post‑mortem examination on the dead body of Muhammad Younis, deceased and found the same injuries on his person as Dr. Mazhar Rashid P.W. 10 had found earlier. The death was due to fracture, shock and haemorrhage as a result of the two injuries on the fibula of the right leg, one injury to the ulna on the right forearm and one injury to the metacarpal bone of the right hand, all of which were found to be grievous. All the injuries were found to be seven days old.

10. On 6‑9‑1984 Gulzar, accused, led to the recovery of a Sota P.2 Abdul Jabbar accused, led to the recovery of a hatchet P.3 and Muhammad Younis, deceased's cycle P.4. Afzal, accused, led to the recovery of a Sota P.5, Abdul Karim, accused led to the recovery of a hatchet P.6. Abdus Sattar, accused led to the recovery of the complainant's cycle P.7. Khan Muhammad, accused led to the recovery of a hatchet P.8. Muhammad Riaz, accused, led to the recovery of a spear P.9, Allah Ditta, accused led to the recovery of Sota P.10. All these articles were taken into possession by the police vide memos. P.F., P.G., P.H., P.J., P.K., P.L. P.M., P.N. and P.O. respectively in the presence of Shaukat Ali son of Jan Muhammad and Muhammad Yaqub son of Misri P.Ws.

11. At the trial, the prosecution produced Zulfiqar Ali P.W. 7 to prove the motive, the said witness and Alamgir P.W.8 in proof of the ocular account. Shaukat Ali P.W.6 and Zulfiqar Ali A.S.1. P.W. 11 in support of the recoveries and Dr. Safdar Ali P.W. 5 and Dr. Mazhar Rashid P.W.10 in corroboration of the medical testimony.

12. At the trial all the accused denied all the accusations that were levelled against them, including the recoveries alleged to have been effected at their instance. They imputed their false involvement due to enmity.

13. The learned trial Judge, relying upon the motive, the ocular account, the recoveries and the medical testimony convicted and sentenced the seven accused, as stated in para. 1 above and acquitted Abdus Sattar.

14. I have heard the arguments of the learned counsel for the appellants, the complainant and the State and have perused the record. The evidence as regards motive is furnished by Zulfiqar Ali, complainant P.W. 7. According to his testimony, his brother Muhammad Younis, deceased, had abducted one Mst. Nafeesan, a sister of Khan Muhammad appellant, about 7/8 years before the occurrence, who was later on restored to the appellant with the intervention of the respectables of the Bradari. He also stated that Khan Muhammad, Gulzar Ahmad, Abdul Jabbar, Muhammad Afsar and Abdul Karim, appellants, and Abdus Sattar, acquitted accused, had migrated to Pakistan from District Karnal (India), that Muhammad Riaz, appellant was a friend of Khan Muhammad, appellant, both having business relationship, and that Allah Ditta, appellant was a servant of Khan Muhammad appellant, and they, therefore, belonged to one party and that Khan Muhammad, appellant, with the assistance of his companions, had avenged the abduction of his sister. In his cross-examination, he stated that said Mst. Nafeesan was married to Muhammad Akbar son of Din Muhammad and that she was unmarried when she was enticed away by Muhammad Younis, deceased. He also stated that no case was registered when Mst. Nafeesan was enticed away by his brother and that no untoward incident took place between the parties till the present occurrence. It is true that no untoward incident took place between the parties for some appreciable time, but human beings like vulcanoes, lie dormant for many years. Nothing has been brought out in the cross-examination to show that Mst. Nafeesan was never enticed away by Muhammad Younis, deceased. The story, therefore, stands established but the probability that it motivated all the appellants to murder Muhammad Younis, deceased appears to be far out of scope, that the probability that it induced all the appellants to join hands to give a good beating to the deceased, or as is the custom in the villages, to belabour the deceased by maiming his legs, appears to be within reasonable compass.

15. The ocular account in this case is furnished by Zulfiqar Ali P.W.7 and Alamgir P.W.8, who happens to be the brother and maternal‑uncle, respectively of Muhammad Younis, deceased. Their account of the version stands reproduced in para. 2 above and need not be repeated. On behalf of the appellants the following submissions have been made with regard to the ocular testimony. First, that none of the appellants are related to each other and it is not possible to believe that they would have joined Khan Muhammad, appellant, in so ghastly a venture as murder, so as to permit Khan Muhammad, appellant to avenge some minor incident regarding his sister, which had taken place 7/8 years back. Second, that there are no gunshot, hatchet or spear injuries on the deceased and the injured witnesses. In this connection it is submitted that Sessions Court constituted a Medical Board to examine the three incised wounds on the person of Alamgir P.W. and found that they were not the result of sharp‑edged weapon. The evidence of Dr. Muhammad Nasrullah Khan C.W. 1, who was a member of the Medical Board that examined Alamgir P.W. 8 has been read in the said connection. Third, that the F.I.R. was recorded late after due deliberation. Fourth, that the allegation as regards the theft of money by the appellants from the person of Alamgir P.W. 8 was found to be false. Fifth, that all the recoveries have been disbelieved by the learned trial Judge. In the light of these submissions, it is urged that the ocular account is materially discrepant, if not untrue and cannot be safely relied upon. With regard to the first submission, the reason why Abdul Jabbar, Gulzar Ahmad, Abdul Karim, Muhammad Afsar, Allah Ditta and Muhammad Riaz, appellants, participated with Khan Muhammad, appellant can be spelt out from the testimony of Zulfiqar Ali P.W. 7. Five of the appellants are the co‑refugee friends of Khan Muhammad, appellant, one is his business associate and one is his servant. Since the venture was not to murder Muhammad Younis, deceased, but only to give him a good beating, which, on the face of the medical testimony, appears to be only on the legs and arms the participation of all the accused cannot be rejected. Zulfiqar Ali, P.W. 7 and Alamgir P.W. 8 have no enmity with any of the appellants. It is not possible to believe that they went out of their way to implicate as many as seven persons without any animosity against them. Nothing has been brought out in the evidence to show that any of the above two witnesses had any enmity or animosity with the appellants. The police also did not find any of the appellants innocent. As regards Abdus Sattar, acquitted accused lie was also found present, but empty‑handed. Taking all circumstances into consideration, the presence of all the appellants cannot be disbelieved. With regards to the second submission, it is true that no fire‑arm injury appears on the person of the deceased or the two injured eye‑witnesses However, one sharp‑edged weapon injury appears on the person of Muhammad Younis. deceased and three sharp‑edged weapon injuries appear on the person of Alamgir P.W.10. The testimony of Dr. Muhammad Nasrullah Khan C.W. I and the opinion Exh. C.W./A of the Standing Medical Board specially convened to re‑examine the said three incised wounds on the person of Alamgir P.W.8 do not unequivocally show that these three incised wounds could not have been caused with sharp‑edged weapon. The report Exh.C.W./A clearly mentions that it is difficult to comment categorically whether the kind of weapon used in sharp‑edged or blunt weapon, but then goes on to mention that it is not possible to have a cut on the bone underneath with the type of incised wounds Nos. 1 and 2 mentioned in the original medico‑legal report. This may be true for injury No. 2 but injury No. 1, which consists of two incised wounds on the front of the lower right leg, would obviously have shorter lengths. It must be remembered that Alamgir P.W. 8 is an old man of 60 years having spindly legs. The two incised wounds of the dimension given in injury No. 1, cannot be totally rejected as not being sharp‑edged weapon injuries. Significantly, the cut on the bone underneath injuries Nos. 1 and 2 is admitted by the Medical Board. This is one strong evidence of a sharp edged weapon being used. It is also not possible to believe that Dr. Mazhar Rashid P.W.10 went out of his way to falsely show injuries Nos. 1 and 2 as sharp‑edged, if they were blunt. He was not put any question to elicit the fact that he had dishonestly shown injuries Nos. 1 and 2 as incised, whey, they were actually blunt. The report of the Medical Board that examined Alamgir P.W. 8 thirty‑five days after his first medical examination cannot be accepted with any degree of certainty. With regard to the third submission, it is clear from the testimony of Zulfiqar Ali P.W. 7 that he took Muhammad Younis, deceased, and Alamgir P.W. 8 to the Civil Hospital, Kot Momin on the same night which they reached at 12‑30 (past mid‑night) but the Doctor was in his house and did not come out in spite of his demands, and that he medically examined all the three on the following day at about 9 a.m. This story has been believed by the learned trial Judge and I have no hesitation in accepting the same myself. In the circumstances, there appears to be no undue delay in the judgment of the F.I.R. With regard to the fourth submission, it is true that Zulfiqar Ali A.S.I. P.W. 11 admitted in cross‑examination that the allegations about the presence of a gun with the acquitted accused and about some of the appellants taking away money from the person of Alamgir P.W. 8 at the time of occurrence were found to be false, during the investigation, but this by itself does not destroy the main substance of their account, which appears to be natural and has a ring of truth. Taking all circumstances into consideration, it is apparent that both the eye‑witnesses are natural witnesses and that they did see the occurrence and that all the seven appellants participated in the occurrence with the blunt and sharp‑edged weapons.

16. The medical testimony in this case is furnished by Dr. Safdar Ali P.W. 5 and Dr. Mazhar Rashid P.W. 10. According to Dr. Safdar Ali P.W.5, Muhammad Younis, deceased, suffered four grievous and five simple blunt weapon injuries and one simple sharp‑edged weapon injury on his person. According to Dr. Mazhar Rashid P.W. 10. Alamgir P.W. suffered two grievous and one simple sharp‑edged weapon injuries and four grievous and two simple blunt weapon injuries on his person. The medical testimony, therefore, corroborates the ocular account as regards the number of assailants and the fact that they used blunt and sharp‑edged weapons.

17. I need not to go into the evidence as regards the recoveries for two reasons first that the eye‑witnesses are disinterested and, therefore, corroboration is not necessary and second, that the recoveries have been disbelieved by the trial Judge.

18. The upshot of the above discussion is that the motive, the ocular account and the medical testimony prove the participation of all the, appellants in the crime in instance. The deceased and the two injured' witnesses suffered thirteen injuries on their legs; and seven on their arms. As already held above the motive of the appellants was in accordance with the custom in the villages, to maim and break the legs of Muhammad Younis, deceased, and most likely that of his brother Zulfiqar Ali P.W. 7, who however, escaped, leaving Alamgir P.W. 8 to face the wrath. The appellants do not appear to be liable under sections 302/149 and 307/149, P.P.C. but are liable under section 326/149, P.P.C. for causing grievous injuries by sharp‑edged weapon to Alamgir P.W., under section 325/149, P.P.C. (on two counts) for causing grievous injuries to Muhammad Younis, deceased, and Alamgir P.W. 8 under section 324/149, P.P.C. for causing simple injuries by sharp‑edged weapon to Muhammad Younis, deceased, under section 323/149. P.P.C. (on three counts) for causing simple injuries by blunt weapon to Muhammad Younis, deceased, Zulfiqar Ali P.W. 7 and Alamgir P.W. 8 and under section 148, P.P.C. for rioting. The conviction and sentences of all the appellants under sections 302/149 and 337/149, P.P.C. are set aside. All the seven appellants are convicted under section 326/149, P.P.C. Khan Muhammad appellant, being the prime motivator and engineer of the scheme, is liable for the maximum punishment. The remaining six appellants, out of friendship, joined in the venture to teach the deceased a lesson for violating the honour of woman, in the crude manner in which it is done in the villages, little realising that their over enthusiasm would ultimately land them in disastrous consequences. They are, therefore, entitled to a rightly lesser punishment. Taking all circumstances into consideration, Khan Muhammad appellant is sentenced under section 326/149, P.P.C. to imprisonment for life and to pay a fine of Rupees five thousand (Rs. 5,000) or in default of payment of fine to undergo further rigorous imprisonment for two years. He shall also pay Rupees five thousand (Rs. 5,000) as compensation under section 544‑A, Cr.P.C. or in default thereof to undergo further rigorous imprisonment for one year. Gulzar Ahmad, Abdul Jabbar, Muhammad Afsar alias Qasid, Abdul Karim, Muhammad Riaz and Allah Ditta, appellants, are sentenced under section 326/149, P.P.C. to five years rigorous imprisonment each and to pay a fine of Rupees two thousand (Rs. 2,000) each or in default of payment of fine to undergo one year's rigorous imprisonment each. The said appellant shall also pay Rupees one thousand (Rs. 1,000) each as compensation under section 544‑A, Cr.P.C. or in default thereof to undergo further six months' rigorous imprisonment each. All the seven appellants are convicted under section 325/149, P.P.C. on two counts. Khan Muhammad appellant, is sentenced under section 325/149, P.P.C. to seven years' rigorous imprisonment on each count and to pay a fine of Rupees four thousand (Rs. 4,000) on each count or in default thereof to undergo further rigorous imprisonment for two years. He shall also pay Rupees four thousand (Rs.4.000) as compensation under section 544‑A, Cr.P.C. on each count or in default thereof undergo further rigorous imprisonment for one year. Gulzar Ahmad, Abdul Jabbar, Muhammad Afsar alias Qasid, Abdul Karim, Muhammad Riaz and Allah Ditta appellants are sentenced under section 325/ 149, P.P.C. to three years' rigorous imprisonment on each count and to pay a fine of Rupees one thousand (Rs.1,000) on each count or in default thereof to undergo further rigorous imprisonment for six months. They shall also pay Rupees one thousand (Rs. 1,000) each as compensation under section 544‑A, Cr.P.C. on each count or in default thereof to undergo further rigorous imprisonment for six months. All the seven appellants are convicted under section 324/149, P.P.C. and sentenced to two years' rigorous imprisonment each and to pay a fine of Rupees five hundred (Rs. 500) each or in default thereof to undergo further rigorous imprisonment for six months each. They shall also pay Rupees five hundred (Rs. 500) each as compensation under section 544‑A, Cr.P.C. or in default thereof to undergo further rigorous imprisonment for three months. All the seven appellants are convicted under section 323/149, P.P.C. on three counts and sentenced to one year's rigorous imprisonment each on each count and to pay a fine of Rupees two hundred (Rs. 200) each on each count or in default thereof to undergo further rigorous imprisonment for one month. They shall also pay two hundred (Rs. 200) each on each count as compensation under section 544‑A, Cr.P.C. or in default thereof to undergo further rigorous imprisonment for one month. The sentences awarded to the seven appellants under section 148, P.P.C. by the learned trial Judge shall stand. The sentences awarded to all the appellants shall run concurrently. Out of the fine and compensation, if realized, fifty per cent. shall be paid to the legal hers of Muhammad Younis, deceased, twenty per cent. shall be paid to Alamgir P.W. 8, five per cent. shall be paid to Zulfiqar Ali P.W. 7 and the balance twenty‑five per cent. shall stand forfeited to the State. All the seven appellants shall also be entitled to the benefit of section 382‑B, Cr.P.C.

19. For the foregoing reasons, this appeal is partly accepted in terms of alteration of conviction and reduction in the sentences, as stated above.

20. There being no merit in the private revision (Criminal Revision No. 50 of 1986) filed by Zulfiqar Ali, petitioner, the same is dismissed in limine.

M.Y.H./G‑21/L Appeal partly accepted.

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